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Parsing the Arguments: Second Lawsuit and Reply Brief Filed Today on Berkshire Museum’s Art Sales

In the continuing saga of Berkshire Museum’s planned art sales through Sotheby’s, a second lawsuit and motion for an injunction (following close upon these) have today been filed by a new set of complainants in a different court.

Both legal challenges, to my mind, fail a crucial test—the need to argue convincingly that the sales would violate explicitly stated donor intent.

The museum this afternoon issued this press release regarding its reply to the first lawsuit, filed today. The press release essentially reiterates the museum’s previous justifications for its sales—that the board undertook “an exhaustive, diligent and inclusive process to address urgent and serious financial challenges threatening the future of the museum by developing a new vision for the museum and funding to support that plan” and that “there are no restrictions on the works offered for sale.” The museum’s brief also argues that only the Attorney General, not the plaintiffs in the lawsuits, has legal standing to challenge the sales.

The complaint filed today in Massachusetts Superior Court Department of the Trial Court in Boston was drafted by art-law expert Nicholas O’Donnell of Sullivan & Worcester, the Boston law firm. He represents James and Kristen Hatt, who are members of the museum, and Elizabeth Weinberg, who canceled her membership in response to the deaccession plans.

Nicholas O’Donnell, lawyer hired by opponents to Berkshire Museum sales

O’Donnell’s complaint is supplemented by expert affidavits from Dan Monroe, director of the Peabody Essex Museum, Salem, MA (who has previously weighed in on this controversy here), and Stephen Sheppard, economics professor at Williams College (who has previously found fault with the museum’s financial analysis).

Dan Monroe, director, Peabody Essex Museum, in his office
Photo by Lee Rosenbaum

The other lawsuit, filed Oct. 20 in Pittsfield by Foley Hoag, the Boston law firm, holds a major trump card: The complainants include members of the family of Norman Rockwell, two of whose paintings, donated by the artist himself, are the star lots of Sotheby’s planned series of Berkshire Museum sales.

Norman Rockwell, “Shuffleton’s Barbershop,” 1950
Presale estimate: $20-30 million

But neither lawsuit includes what I regard as a crucial element for a successful legal (as distinguished from ethical) case: As I’ve previously stated, I believe that “the litigants would have to argue, with convincing evidence [emphasis added], that the sales would violate explicit donor intent.” To qualify as “convincing evidence,” the no-sale stipulation ought to be in writing.

The closest we get to that isn’t good enough, in my opinion (and probably in the court’s): Attached as an exhibit to the filing by the Rockwells and others is a Sept. 23, 1958 letter to Norman Rockwell from Stuart Henry, then director of the Berkshire Museum, which thanks the artist for donating “Shuffleton’s Barber Shop.” He states that the museum is “delighted to have it for our permanent collection” [emphasis added]:

As the author of a Nov. 2, 2005 NY Times op-ed piece—For Sale: Our Permanent Collection—and of a lengthy May 1990 ARTnews article—“How Permanent is the Permanent Collection?” (no link)—I am well aware that when it comes to a museum’s “permanent collection,” what’s here today may be gone tomorrow. Even the staunchest defenders of museum ethics believe that there are legitimate reasons for disposing of “permanent collection” works, as enunciated by the Association of Art Museum Directors in its Policy on Deaccessioning. A thank-you note to a donor for giving a work to the permanent collection doesn’t constitute a promise that it will remain there forever.

Both lawsuits also argue that the planned sale would violate the 1871 state statute that established the Berkshire Athenaeum, forerunner to the Berkshire Museum. That statute, the litigants say, required that the Athenaeum’s objects be displayed in the state. I’m guessing that reasonable lawyers will disagree on how ironclad those provisions were in the 19th century, let alone in 2017.

I’m also guessing that the 21 works withdrawn from the planned Sotheby’s sales may have been the ones acquired by the Athenaeum. According to the brief filed today by sale opponents, “the Athenaeum’s property is explicitly restricted as follows: No part of such real and personal property, or such gifts, devises or bequests, shall ever be removed [emphasis added] from the town of Pittsfield.”

Does that mean nothing can be loaned to other museums’ exhibitions, even within the state? This stipulation is stringent to the point of absurdity. In any event, the museum’s brief argues that the statute doesn’t restrict its right to sell property.

On Tuesday, I asked the both the museum and Sotheby’s to explain what criteria were used for selecting the 19 works that are still destined for the Sotheby’s auctions. As yet, I’ve received no reply.

One of O’Donnell’s chief arguments (in the words of his blog post on the lawsuit) is that “the Berkshire Museum’s planned sale of the most important works of visual art in its collection was announced without any meaningful opportunity for its members or the community to participate in the decision or voice their concerns.” While I’m a big proponent of giving the museum’s constituents advance notice of possible deaccessions, that’s not common practice. I don’t think the argument will wash.

In the end, I believe it will all come down to donor intent. The only way to pin that down would be to peruse the documents conveying to the museum each of the artworks targeted for sale. The person with the best shot of prying those loose from the registrar’s files is the Attorney General, who is still reviewing the situation. As reported Tuesday in the Berkshire Eagle, the AG’s office has been seeking guidance from experts on the issue of donor intent.

Don’t get me wrong: I think that a museum’s using artworks as trading chips to reduce deficits, fund capital projects and increase the endowment is deplorable. But I think that the only way to force this issue, so that such proceeds are used only to enhance the collection (in accordance with established professional guidelines), is through the power of strong public opinion, an intervention by the Attorney General or, better yet, new laws or regulations such as what was enacted in 2011 in New York.

The court hearings for both lawsuits—one in Pittsfield, one in Boston—are scheduled for Wednesday. Unless one is postponed, this should be an interesting logistical challenge for the museum’s and auction house’s lawyers.

On a personal note: I’ll be traveling, not blogging, over the next few days. I may manage a few relevant tweets (which you will see in my blog’s righthand column) or an update to this post, if needed.

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