SJC ruling clears Berkshire Museum to sell artworks

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PITTSFIELD — The Berkshire Museum can sell works of art and raise up to $55 million to keep its doors open and to pursue a new approach to use of its collection, a justice with the state's top court ruled Thursday morning. 

Justice David A. Lowy of the Supreme Judicial Court of Suffolk County approved the petition submitted in February by the museum and backed by Attorney General Maura Healey.

Auctions now can proceed without any of the independent oversight sought by one group of sale opponents. A separate statement from Lowy spells out precise terms for the sales. 

"Based on the Attorney General's investigation into the sale and her assent to the requested relief, the Museum has satisfied its burden of establishing that it has become impossible or impracticable to administer the Museum strictly in accordance with its charitable purpose," Lowy wrote, "thus entitling the Museum to relief."

Lowy's decision arrived a day before the museum faced a deadline to supply promotional materials for a May auction at Sotheby's in New York City.

The timing allows a first group of works to move to sale, to the disappointment of members of the Save the Art-Save the Museum group, as well as two groups of Berkshire County residents who sued to halt the sales. 

The chairwoman of the museum's trustees applauded the decision. 

"This is great news for the people of Berkshire County and everyone who visits the Berkshire Museum," Elizabeth McGraw said in a statement. 

She went on to recognize divisions in the community over the museum's push to sell art, and called for healing.

"We recognize this decision may not please those who have opposed the museum's plans," McGraw said. "Still, we hope people will be able to move forward in a constructive way to help us secure and strengthen the future of this museum, at a time when our community needs it more than ever."

In a statement, Sotheby's said it looks forward to handling the art sales "to ensure a bright future for the people of Pittsfield and western Massachusetts."

Carol Bosco Baumann, a museum spokeswoman, said the list of works to be sold in May will be made public "in the near future."

An opponent of the sales, Lynn Villency Cohen, said she regretted that Lowy did not decide to appoint a financial monitor, and instead, left supervision to Healey's office.

"At the very least, given the Berkshire Museum's glaring indifference to the groundswell of community opposition ... Justice Lowy should have appointed an independent special master to ensure that sales proceeds are handled responsibly," she said. 

"This independent overseer may have served as a small deterrent to museums contemplating sales to erase deficits and bulk up endowments," Cohen said.

The decision caps five months of litigation watched nationally by museums and the art world.

While sale opponents were heard by the court, they did not have legal standing, leaving them no route to appeal to the full SJC.

The road to the justice's ruling wound through two lower courts, months of probing by the attorney general and street protests in Pittsfield, Cambridge and New York. Disagreement about the sales divided museum supporters. National museum organizations called the plan unethical, as did the executive director of the Massachusetts Cultural Council. 

Wider issue

In the wake of the decision, some sale opponents are shifting to the broader question of museum deaccession, as the process of removing works is known.

Carol Diehl, a member of Save the Art-Save the Museum, said members of the group were caught off guard. The weeks Lowy took to consider the petition led some to think that he was looking for alternatives. 

Going forward, members of the group plan to focus on an effort to create a new state law — "We call it 'the Rockwell law,'" she said — to address how items from charitable collections can be sold.

"We're thinking about the implications this has for communities other than our own," Diehl said. "These treasures are all at risk."

The effort to find ways to protect cultural assets from sale is getting an assist from the Massachusetts Cultural Council, whose leader spoke out early against the Berkshire Museum plans. 

In a statement Thursday, Anita Walker said the Berkshire Museum's plan runs counter to accepted museum standards. 

"They in no way represent the professionalism and stewardship practiced by museums across Massachusetts," she said of the Pittsfield institution's leaders. "In this we take heart."

Looking ahead, Walker said her group is taking steps to safeguard "the public stake" in collections.

"We are working with our colleagues in the museum community to develop strategies to protect our cultural heritage in Massachusetts and to support our museums who prioritize the public interest," she said.

The coming sales of up to 40 Berkshire Museum pieces, Walker said, represent "a significant loss of cultural heritage to the people of Berkshire County and to the entire Commonwealth."

Another opponent of the sales, the Association of Art Museum Directors, said Thursday that if the museum goes ahead with auctions, it faces censure by the group. 

In a statement, the association said that while Lowy's ruling addresses legal issues, it doesn't speak to ethical standards held by its members. 

"The sale of works from a museum's collections to fund non-collection-related expenses," the association said, "is a violation of the public trust — and is not a path to financial sustainability. Yet this is exactly the misguided approach being pursued by the leadership of the Berkshire Museum."



Michael B. Keating of the Boston firm Foley Hoag represented the first plaintiffs to challenge the sale, including three sons of artist Norman Rockwell. 

In a statement, Keating said the concern his clients have about the Pittsfield museum's art sales isn't isolated. Instead, it is shared by people across the country, he said.

"We believe that our clients raised important questions concerning the museum's decision to sell the art, which are not only important to the citizens of Berkshire County but also to the art world in general," he said. 

Keating noted that Lowy's decision, while it grants the museum sole say on which works to sell, encourages it to work to preserve the public's access. 

"We hope the museum adheres to that suggestion," Keating said. 

Nicholas O'Donnell, the Boston attorney representing three Lenox residents who fought the sale, said his clients are grateful to have had a chance to present their views to Lowy. It was the judge's discretion to accept the friend of court briefs; the museum and Healey's office sought to restrict "non-party" access to the proceeding.

"There is no question," Lowy writes in his decision, "that the Amici care deeply about the Museum and the future of art and culture in the Berkshires."

O'Donnell took aim Thursday at Healey's office, returning to questions he raised in his brief about its handling of the case. 

"The decision makes it more clear than ever that the Office of the Attorney General's abrupt and unexplained about-face ... played an overwhelming role in the outcome," O'Donnell said. 

He noted that the Feb. 9 agreement between the museum and Healey's office came three weeks after attorneys for the state "forcefully and accurately" criticized how museum trustees handled the institution's finances.

"It is a sad day both for the people of Massachusetts and the true custodians, working tirelessly to preserve and protect our local and national heritage," O'Donnell said.

His clients went to the Massachusetts Appeals Court to challenge a lower court's finding that they did not have legal standing in the case. 

O'Donnell said he is reviewing options on that appeal, which remains pending. 

Another "amici" brief, filed by art expert Martin Gammon of San Francisco, also challenged the attorney general's decision to support the sales. 

That backing, Gammon said Thursday, gave Lowy scant wiggle room.

"When the attorney general thoroughly capitulated to the financial assumptions of the museum's board ... [Justice] Lowy apparently felt he had little recourse but to defer to her judgment in that respect," Gammon, who operates Pergamon Art Group and appears on "Antiques Roadshow," said in a statement to The Eagle. 

In his brief, Gammon argued that the museum showed poor curatorial judgment in selecting the 40 works it plans to sell. He urged the SJC to direct the museum to hold on to its American art and draw proceeds instead from non-Western pieces.

Emily Snyder, a spokeswoman for Healey's office, said the decision provides a needed financial bulwark for the museum.

That's good news for Pittsfield and Berkshire County, she said, and for the general public, in part because the agreement will keep "Shuffleton's Barbershop" on public view. 

Lowy's decision, she noted, underscores the attorney general's leading role in protecting the work of nonprofits and public charities. 

"It is critical that charities are transparent and accountable to the public — and ultimately, to the courts," Snyder said. 

Lowy returns repeatedly, in his decision, to the attorney general's role.

"The Museum's charitable purpose of aiding in the study of art, natural science and cultural history must be protected. The Attorney General is that protector," Lowy writes. "She is the attorney for the people, including those who now oppose the sale."

Nonetheless, sale opponents aren't disbanding yet.

Leslie Ferrin, a leader of Save the Art, said members plan to meet to consider the ruling. In a statement, the group questioned the court's decision to allow the museum to use $50 million in art proceeds without restriction. 

"We regret the judge's disregard of the public trust in which the museum held its collections," the group said. "The impending sale will not only diminish Pittsfield as a city claiming to be of cultural import to Berkshire County, but will reverberate destructively for years through collections similarly held in trust throughout the state and country."

O'Donnell, the attorney representing the Lenox residents, said cases involving museums are so rare that individual rulings can be influential. In this one, he believes Healey's support for the sale will reverberate. 

"It undermines the force of any future objection by the Attorney General's Office to a proposed deaccession," he said. 

Financial plea

After years of behind-the-scenes planning, the museum announced last July that it planned to sell two paintings by Norman Rockwell and 38 other works in a drive to raise more than $60 million. 

Without an infusion of money, leaders said, the 115-year-old institution risked closing due to recurring deficits. 

In early February, after months of legal skirmishing with Healey's staff lawyers, the museum won that office's backing to sell art.

On Feb. 9, the museum petitioned the SJC for permission to allow it to sell up to $55 million worth of works from its collection, under certain conditions.

Lowy's decision follows the conditions set forth in that petition. It does not endorse a call from attorney Keating for the court to appoint a special master to provide additional supervision of how auction proceeds are used.

Though the move was backed by Healey's nonprofits and public charities division, that state agency and the museum continued to disagree about whether any of the works legally were restricted from sale. 

By going to the high court, the museum stood to clear away any such barriers under a process known as "cy pres."

Under the agreement reached with Healey's office, the museum won its support to sell up to $55 million, nearly $30 million more than an internal consultant had once said was needed to stabilize its finances. 

In a March hearing before Lowy, Assistant Attorney General Courtney Aladro said her office determined late in its inquiry that the museum needed $55 million. 

As concessions, the museum agreed to apply $5 million of the allowed proceeds to care of its collection and pursuit of its New Vision. It also agreed to sell works in several distinct lots and provide reports on the status of sales. 

It also agreed to sell Rockwell's masterwork, "Shuffleton's Barbershop," to an unnamed museum through a private transaction handled by Sotheby's. Terms of that sale call for the painting to be displayed at the Norman Rockwell Museum in Stockbridge for at least 18 months. 

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.

Supreme Court Judgement: Trustees of Berkshire Museum vs. Massachusetts Attorney General Maura Healey by The Berkshire Eagle on Scribd

SJC : Berkshire Museum Memorandum of Decision by The Berkshire Eagle on Scribd


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