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Berkshire Museum in Court: Pointed Questions, No Resolution (plus, a push for a deaccession law)

While the Berkshire Eagle‘s Larry Parnass rushes off to file his story on the just concluded court hearing on the Berkshire Museum’s art-sale plans, let’s interpret what we’ve learned from Larry’s live tweets on how the Massachusetts Supreme Judicial Court proceedings went.

Photo of those assembled today in Justice Lowy’s courtroom
Image from Larry Parnass’ live tweet

No decision or course of action was proffered today by Justice David Lowy, who could allow the art sales to proceed, with or without certain restrictions, or could refer the case to the full court for more expansive consideration. Further delay would likely cause the sales to miss the Apr. 6 catalogue deadline for inclusion in a Sotheby’s May auctions (as explained in court by the Berkshire Museum’s attorney).

In his final tweet, Parnass noted that “[Justice David] Lowy asked several pointed questions showing he has read deeply in briefs.”

“Reading the briefs deeply” and “asking pointed questions” of lawyers for the various parties is part of a judge’s job description. At the prolonged cy près hearings (some of which I attended) for the Barnes Foundation (which successfully sought court permission to violate its founder’s wishes by moving to Philadelphia from Merion), Judge Stanley Ott‘s probing questions and skeptical comments made me feel confident that he would nix the move. My jaw dropped when he allowed it.

Maybe if I were a lawyer (or had more experience in legal coverage) I would have better understood that judges like to play devil’s advocate to test the testimony. What the Barnes and Berkshire cases have in common is what Judge Ott most decried (even while allowing the move)—the attorney general’s sitting “as second chair to counsel for the Foundation, cheering on its witnesses and undermining the [Barnes] students’ attempts to establish their issues. The course of action chosen by the Office of the Attorney General prevented the court from seeing a balanced, objective presentation of the situation, and constituted an abdication of that office’s responsibility.”

The only lawyer in court today who was likely to provide an alternative perspective was Nicholas O’Donnell, whose clients are James and Kristen Hatt, who are members of the museum, and Elizabeth Weinberg, who canceled her membership in response to the deaccession plans. But they may be too peripheral to the case for their (and their lawyer’s) opinions to be accorded much legal weight.

As I noted yesterday, the best antidotes for deaccession delirium are laws and regulations. What I didn’t mention is that the Mass Cultural Council, the state government’s arts agency, is seeking just that. In September, the MCC issued a statement decrying the Berkshire Museum’s planned sales and offering its help in finding “alternatives to stabilize its finances and generate community support for its new vision.”

Now, according to Greg Liakos, its communications director, it is “beginning to explore potential legislative and/or policy responses to the Berkshire Museum.” In response to my recent query, Greg said this:

We believe that collecting museums that receive public support, in the form of government grants, tax-exempt status and tax-deductible donations, are caretakers and stewards of public property and must always act in the interest of the public.  The boards of directors of these institutions must exercise prudent fiduciary responsibility, act within the laws of the Commonwealth, and adhere to the highest standards of their profession.

People who generously provide valuable works of art and culture to museum collections and essential financial resources should be confident that their gifts will be used as intended. Furthermore, it is the board’s fiduciary responsibility to assure the fiscal solvency of the organization but not at the expense of its mission. We believe that genuine transparency coupled with rigorous integrity will serve the organization and the public far better than wholesale deaccessioning.

Those would be the operating principles for any approach to legislation and/policy (i.e., changes to our grant guidelines). Our hope is to bring together a focus group of leaders from our museums [emphasis added] through whom we can discuss these principles, whether they are broadly shared and, if so, what would be the best approach to putting them into practice here in Massachusetts. Then, of course, we will have to discuss these with our supporters in the Mass Legislature.

The first such focus group is scheduled to meet next Tuesday. “We hope that conversation will provide us with some direction on whether to craft legislation, and what the approach would entail,” Liakos said.

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