Huge step and opportunity. Justice Lowy has scheduled a hearing on Tuesday March 20 for counsel and parties! High noon. This is not to the full court; first stop is before the Single Justice. Justice Lowy has allowed 10 minutes each for oral argument.
How did the Berkshire Museum brouhaha wind up in the highest court under SJO (Single Justice) review by Justice David A Lowy?
The Berkshire Museum in Pittsfield, Massachusetts, deemed it necessary to alter an original historic building and sell off its priceless core art collection in order to build a dream and survive. This controvertial move garnered attention and divided opinion. The Trustees of the Museum explained that they hired a consultancy firm which confirmed this new direction (“New Vision”), via extensive public outreach* no less, so what gives? (*22 focus groups involving over 200 people is hardly extensive.) Opponents cried, “Foul!”, and pointed out questionable and perhaps shady fodder, i.e. would museum members and the Berkshire community have voted YES had they been told that the best works from the permanent collection must be sold off to make it happen? Also, the art was consigned to Sotheby’s June 13, 2017, but the Trustees altered the museum’s Charter after the consignment date and only then informed the “public”. Timing is everything. There was even an infamous email with a ‘loose lips sink ships’ subject line. We know these details because of dogged reporting by the The Berkshire Eagle, notably Larry Parnass, and a wide network. The story is urgent and compelling, the art world equivalent of a Spotlight-All the President’s Men-Pentagon Papers type investigation.
The first auctions were slated for November 2017. Shuffleton’s Barbershop by Norman Rockwell was to have been the Berkshire Museum star lot. Its presale estimate alone was 20 to 30 million. By the Fall of 2017, the museum was hit with multiple lawsuits, sued by the Massachusetts Office of the Attorney General, Norman Rockwell descendants, and various plaintiffs. Eventually, all were folded into #TeamAGO vs. the Berkshire Museum. On November 8th, the Lower Court ruled in favor of the Museum, clearing the legal right of way to auction. The Attorney General Office appealed to the State’s supreme judicial court to block the sale for more time to evaluate and investigate the case. Attorneys for the Museum fought that request vigorously, but were denied. On November 10, 2017, the AGO procured an injunction from Judge Trainor of the Massachusetts Appeals Court, scuttling any scheduled auction prior to December 11, 2017. Allowances for extensions to build the case were granted. On February 5th, the AGO switched teams and filed jointly with its former adversary, the Berkshire Museum, petitioning the court to apply cy pres and maintaining its opinion that indeed all the art is restricted:
“As detailed elsewhere (e.g., in its filings in the litigation referenced above) the AGO believes that all of the works of art deaccessioned and proposed for sale are subject to one or more restrictions that limit the Museum’s ability to proceed with its planned sale and use of proceeds to fund an endowment, pay for operating expenses and fund renovations. The Museum continues to believe no restrictions (beyond the Museum’s charitable purposes) apply.”
This alliance left many scratching their heads and interested parties formerly #TeamAGO adrift. Although the Rockwell plaintiffs backed off and dropped their case, law firms Sullivan & Worcester and Foley Hoag with Barker, Epstein & Loscocco solicited amicus status on behalf of their clients.
Immediately, the AGO and the Berkshire Museum filed opposition papers. They weren’t persuasive. The Justice granted the participation of the law firms which means that the SJ-2018-065 docket was vastly enlarged and enlightened on February 27, 2018, and I had to see. And share. (Although everything I was looking for and questioned was not there.) The attorneys disagree with the AGO and Berkshire Museum proposal, and request oral argument. The AGO and Museum responses were filed after I visited. Justice David A Lowy will make that decision. He can act on filed papers related to Docket SJ-2018-065, order a hearing, or pass the case back to the full court. What will he do? I’m crossing fingers that arguments will be heard, and with the full court (which meets the first week each month and is open to the public), especially after I considered the material in person. The Berkshire Museum could inspire a Frank Capra-esque courtroom movie treatment one day.
In the meantime, the art remains in Sotheby’s possession and the auction house stands down as the case is sorted. The docket includes Sotheby’s contract.
For armchair lawyers and detail detectives: I offer a blizzard of documents, on the eve of the next Nor’Easter blizzard and hope I’ve peaked your interest. (Leaving my analysis aside for now.) Scroll past this post’s “read more” indicator to see interior architectural photos I took of the stunning John Adams Courthouse, and to read some of the complete and unfiltered new filings and documents related to the Berkshire Museum case, specifically-
AMICI CURIAE Sullivan & Worcester LLP law firm on behalf of ‘Berkshire Museum Member Plaintiffs’: James Hatt, Kristin Hatt, and Elizabeth Weinberg, filed Feb 26 2018, case SJ-2018-065 (52 pages)
AMICUS CURIAE Foley Hoag and Barker, Epstein & Loscocco – attorney Michael B Keating of Foley Hoag with attorney Daniel Epstein of Barker, Epstein & Loscocco on behalf of clients: Tom Patti, who completed two commissioned installations for the Berkshire Museum entrance and reception areas–spaces that will be gutted if the historic building is disfigured for the New Vision; Marilyn Holtz Patti – resides and works in Berkshire County as does Tom Patti; Jean Rosseau and Jonas Dovydenas- residents of Stockbridge and Lenox; James Lamme, resident of Egremont; and Donald MacGillis, resident of Pittsfield, MA. (21 pages)
Sotheby’s Contract with the Berkshire Museum (9 pages)
Affidavit from Dan Monroe, Director of the Peabody Essex Museum opposed the Berkshire Museum sale (4 pages)
Massachusetts Cultural Council (MCC) provided major facility funding since 2000. Some related construction was completed by a board member and warrants scrutiny
Cy pres petition it is! The Berkshire Museum had to demonstrate dire financial need to modify any restrictions on charter or mission, like selling its priceless art core and renovating its landmark building else risk withering and shuttering. Well, the museum has succeeded to the next round according to its website. Here’s their summary of the agreement between the Berkshire Museum and the Attorney General Office that was sent to the Single Justice Court. I have not seen a release from the AGO, yet. I’ll link to the actual document(s) soon.
Generally after a filing is ready to be reviewed, there are a couple of route options for a Single Justice. The SJO can act on the filed papers, order a hearing, or pass it back to the full court. What will the SJO decide with this one?
The Museum’s summary reads like a slam dunk for the Berkshire Museum New Vision position. An unnamed American Museum will acquire Norman Rockwell Shuffleton’s Barbershop at an undisclosed price (which should have been negotiated high enough to cover all fundraising goals if it was to happen at all. Public auction would have gone higher.) Regardless, whatever sale price was set, that purchase does not preclude further sales according to the light conditions. I suspect that’s to appease Sotheby’s, in possession of all the art and waiting for this to sort out.
Sotheby’s would rather auction that Rockwell. The Rockwell family is not part of this agreement, and was waiting to review the papers as it impacts their suit vs. the museum.
Which museum committed funds for Shuffleton Barbershop and can pounce? Lucas Museum of Narrative Art could be a contender: George Lucas and Steven Spielberg are major Rockwell collectors. Perhaps Crystal Bridges Museum backed by Wal-Mart heiress, Alice Walton, strikes again. Both were two likely clients at Sotheby’s, too. The reputation and value of the art targeted for sale will continue to rise. Legal firms, auction houses, and collectors are poised and AGOs across the country are trending pro boards and trustee, since 2000. The leadership at the Berkshire Museum failed to raise its own money for its new vision, was unable to brand despite possessing masterpieces, celebrate its landmark building, and imagine innovative science and history programming built around Calders and Rockwells. Let’s give them more money and the art, too?
I wonder if there is a percentage of SJO decisions opposing agreements like this one, overturning a lower court ruling and now a proposed agreement with the AGO-state? The February 5th joint statement confirmed that the Berkshire Museum and AGO were at an impasse related to standing. Come on SJO!
Emily Snyder, spokesperson for the Massachusetts Office of the Attorney General and Carol Bosco Baumann for the Berkshire Museum convey a shared goal: “We are working together to resolve this matter, recognizing our shared responsibility for the collection of the Berkshire Museum and to the community the museum serves. We are committed to helping this museum secure its future.”
Here’s the complete joint status report:
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT 2017-J-0510
Berkshire County, ss.
THOMAS ROCKWELL, JARVIS ROCKWELL, PETER ROCKWELL,
TOM PATTI, TOM PATTI DESIGN LLC, JAMES LAMME, DONALD MACGILLIS, JONAS DOVYDENAS, and JEAN ROUSSEAU,
TRUSTEES OF THE BERKSHIRE MUSEUM and MAURA HEALEY, in her capacity as Attorney General of the Commonwealth of Massachusetts, Defendants. CONSOLIDATED WITH
JAMES HATT, KRISTIN HATT, AND ELIZABETH WEINBERG, individually and derivatively on behalf of the Trustees of the Berkshire Museum, Plaintiffs,
TRUSTEES OF THE BERKSHIRE MUSEUM, et al., Defendants.
On Appeal From Berkshire Superior Court
Joint Status Report of the Attorney General and Trustees of the Berkshire
The Substituted Plaintiff-Appellant Attorney General Maura Healey (“AGO”) and Defendant-Appellee Trustees of the Berkshire Museum (the “Museum”) submit this joint status report.
The AGO has now concluded its investigation into the decision by the Museum to sell 40 works from its collection. The additional time granted by this Court for the investigation permitted the AGO, with the Museum’s cooperation, to undertake additional review of inter alia over 1500 documents and interview further key Museum employees and board members. The AGO believes that the 40 works at issue are subject to restrictions, which the Museum does not believe exist. The AGO and the Museum have agreed to resolve these differences and will file a petition for judicial relief pursuant to the principles of equitable instruction, deviation and/or cy pres with the Single Justice of the Supreme Judicial Court on February 9, 2018 or shortly thereafter. The AGO will support the relief requested by the petition. In addition, the Museum will not sell any of the 40 works until the SJC acts on the petition or until the Berkshire County Superior Court enters final judgment regarding the AGO’s complaint in the matter captioned Rockwell et al. v. Trustees of the Berkshire Museum, No. 17-253 (allowing, if the Museum should prevail, for 7 calendar days post-judgment for the AGO to seek further relief pending appeal), should such proceedings again become necessary. The Museum and the AGO intend to file a motion in the trial court requesting that proceedings there be held in abeyance while the aforementioned petition is pending. As a result of these commitments by the Museum, the AGO does not seek any further injunctive relief or stay of Superior Court proceedings at this time.
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Today, January 29, 2018 was the next milestone in the ongoing battle over the Berkshire Museum’s quest to deaccession. Attorney General Maura Healey (AGO) filed a request to push the AGO status report deadline to February 5, 2018. And the “Defendant- Apellant, Berkshire Museum, does not oppose.”
“Unopposed Motion for Extension of Deadlines The Substituted Plaintiff-Appellant Attorney General Maura Healey (“AGO”) hereby requests a one week extension of the deadlines set by this Court on January 12, 2018, such that the preliminary injunction and stay of the trial court proceedings entered on 11/10/17, as well as the AGO’s deadline for filing a status report regarding the status of the investigation, are continued to February 5, 2018. Counsel for Defendant-Appellant Trustees of the Berkshire Museum has informed the undersigned that Defendant-Appellant does not oppose the relief sought herein.” – Respectfully submitted, Dated: January 29, 2018
MA Appelate Court dockets RE#28: The preliminary injunction and stay of the trial court proceedings entered on 11/10/17 are continued to January 29, 2018. The Attorney General’s Office shall file a status report on, or before, January 29, 2018, regarding the status of the investigation or within 5 days of the completion of the investigation, whichever is earliest. (Trainor, J.) *Notice/attest/Agostini, J. – Dated: January 12, 2018
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