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
- links to prior GMG Berkshire Museum posts
Interior views John Adams Courthouse
If the case goes to the full court, the room where it will happen:
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
p.30 “…The Member Plaintiffs are or were dues-paying members of the Museum, invested in the purposes for which the Museum has always held itself out to the public. As noted above, the Member Plaintiffs sought timely enforcement of principles of good governance, claims that are still pending in the courts of the Commonwealth (and which the Court may elect to review now if it determines to be prudent)…The Member Plaintiff’s interest in the current proceeding is to oppose the cy pres petition that is the final stage of the solution in search of a problem. The current petition effectively substitues a standard of “difficult” in place of the actual legal requirement that the status quo be impossible or impracticable, and the petition leaves the museum public and the Commonwealth with no voice or advocate. Regrettable the AGO has aceded to this disastrous outcome even as it confirms the Museum’s mismanagment. The Member Plaintiffs come to the Court as amici curiae to seek the only safeguard left for the cultural artifacts–and reputation–of the Commowealth. Given the highly unusual posture of the case and that both initial parties to the proceeding support the petition, Member Plaintiffs respectfully request the opportunity to address the Court at any hearing that may be scheduled…”
(Click on each image to enlarge the pages)
AMICUS CURIAE Foley Hoag and Barker, Epstein & Loscocco
Attorneys Michael Keating of Foley Hoag and 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, and Chairman of the Berkshire Eagle’s advisory board. (21 pages)
(Click on each image to enlarge the pages)
Affidavit from Dan Monroe Peabody Essex Museum
dated October 30 2017 and part of the docket attachments bundle
(Click on each image to enlarge the pages)
Sotheby’s Contracts
was part of the docket attachment bundles
(Click on each image to enlarge the pages)
excerpt from Consignment Agreement (bold emphasis mine) – “…For the avoidance of doubt, all of the items of property listed on Schedule 1 attached hereto shall be deemed to be Property for purposes of Agreement. You hereby confirm that (a) all of your representations and warranties set forth in the Agreement are true and correct as if made on and as of the date of this amendement and (b) you are not in default or breach of any covenant set forth in the Agreement. As amended hereby the agreement shall remain in full force and effect. This amendement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to its conflice of law rules and principles. In the event of a dispute hereunder, you agree to submit to the exclusive jurisdiction of the state courts of and the federal courts sitting in the State and County of New York...”
MCC applications show robust building renovations and stability
Sample pages, part of the docket attachment bundle
Before Berkshire Museum Director Van Shields came to the Berkshire Museum
Added after my visit to the Courthouse
- Added after my visit (Berkshire Eagle uploaded to SCRIBD)- #15 Attorney General’s Response To Briefs Of Amici Curiae with Certificate of Service filed by AAG Courtney Aladro and #16 Response Of The Trustees Of The Berkshire Museum To Briefs Of Amici Curiae with Certificate of Service filed by Atty. William Lee, Atty. Mark Fleming, Atty. Felicia Ellsworth, and Atty. Mark Gold. “While these eight private citizens may well believe that they can discern or implement the public interest better than the Attorney General, or run the Museum better than its Board, the law does not permit them to do so.”
Prior posts about this controvertial art sale on Good Morning Gloucester:
Feb 12 Massachusetts Attorney General assent letter for Berkshire Museum
Feb 9 2018 Cy pres and mon-ey: Berkshire Museum #AGO greenlight sale & cue Massachusetts SJO
Nov 20 2017 A Tale of Two AGOs | Berkshire Museum on hold, but James Prendergast Library a go
Nov 13 Sotheby’s auction tanked as Berkshire Museum art yanked & Paul Manship…
Nov 8 Berkshire Museum Can Sell ALL art | Judge Agostini Okays Sotheby’s Auction
Nov 2 Emergency Motion! Berkshire Museum dramatic courtroom hearing …
Oct 31 Berkshire Museum Nailbiter- Healy halts Sotheby’s…some …
Oct 21 Will Pittsfield museum be the pits? Last ditch attempts to keep the art in …
podcasts Gloucestercast #252, 250, and
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Thank you! I trust Judge Lowy will carefully consider all the facts and make a just decision in accordance with the law. (I _hope_ the artwork remains!)
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