Justice Lowy to Berkshire Museum Attorney Lee at Massachusetts Supreme Court: “So in other words, I have to tell you, I’m watching two different movies.”
In 2017, the Berkshire Museum was sued multiple times because of the possible sales of 40 works of art at public auctions. The art has long left the building. The winning consignor, Sotheby’s auction house, received all property prior to the 2017 public announcement from museum leadership blowing its “New Vision” horn. The art remains on hold at Sotheby’s.
At high noon on March 20, 2018, in Courtroom 2 of the John Adams Courthouse in Boston, Massachusetts, Justice David Lowy presided over the ongoing Berkshire Museum deaccession litigation. Four attorneys, two for each side, were summoned before the Massachusetts Supreme Court to argue positions. Justice Lowy began the hearing by addressing the elephant in the room. He announced that because the Attorney General Office and the Berkshire Museum, former adversaries, petitioned the court together for necessary relief, he thought it was important to hear opposing views. Therefore, he invited amici to present their arguments, too.
(A third amicus brief by a former director of Museum Services at Bonhams auction house, Martin Gammon, has since been filed and is under review.)
Naturally, this hearing was welcome news for opponents of the museum’s plans to liquidate a priceless core collection in favor of a makeover, still reeling from their perception that the Attorney General abdicated mightily February 9, 2018. Trustees, who believe the museum is broke and will shutter any day if not for this new strategy, were disheartened but determined.
Justice Lowy made the stunning announcement upfront that restrictions do apply, and are a given. The Office of the Attorney General (AGO) and the Supreme Court agree about standing. The museum maintains it has the right to liquidate. The only way that any art can be sold is if the legal contracts pertaining to the Berkshire Museum’s charter and mission and provenance for the art are abandoned because the museum successfully conveys its pending demise. Then it gets a do-over. The legal term is cy pres (pronounced say, pray. I prefer pray stay!)
IF sold, Norman Rockwell’s Shuffleton’s Barbershop, which has crystal clear provenance, was estimated to fetch the highest price at auction. Inexplicably, the petition before the court boasted of a breezy compromise between the AGO and Berkshire Museum: an anonymous museum will purchase the painting for 1)an undisclosed price (I guarantee that it’s less than public auction), 2) promises a temporary display in Massachusetts, at the Norman Rockwell Museum, and 3)eventually feature it as part of the mystery museum’s permanent collection. Where is the museum? What is the sale price and terms? If its destiny is beyond a Massachusetts border, why isn’t the Commonwealth protecting its resources?*
*Which museum committed funds for Shuffleton Barbershop and can afford to pounce and avoid driving up the price at auction? Perhaps Crystal Bridges Museum backed by Wal-Mart heiress, Alice Walton, could strike again. Norman Rockwell is already represented in its collection. Is it worth it to add another? The Lucas Museum of Narrative Art could be a contender. George Lucas boasts an impressive Rockwell collection, including ideal examples with cinematic connections or narratives, like the stunning study for charwomen (in movie theater). Is that enough representation to let it go were Berkshire Museum Rockwells cleared to sell?
The other works of art could be sold, or not. One doesn’t get the impression that the AGO was stepping in for the underdog. Leave it to Norman Rockwell to capture the attention of a busy world to illustrate a simple maxim: do the right thing. If legal manuevering is necessary, like crazy zoning variances for unfair construction, most collections will be at a disadvantage. It’s up to the Massachusetts Supreme Court to remedy this balderdash & betrayal else risk breaking the bank of non profits across the country.
Justice Lowy asked that the attorneys focus their arguments on selling with restrictions: “Is it necessary and impossible or impracticable for the Museum’s charitable mission to continue?” All parties stuck to this request, and to their filed briefs more or less. I tried to capture word for word the moments when Justice Lowy interrupted rote statements. Justice Lowy has made no decisions, yet. Eventually, he will decide whether to allow the parties’ petition, deny it, or reserve and report which means bringing the case back to the full court.
Proponents side or Opponents side?
Upon arrival, where to sit at the courtroom felt like where to sit at a wedding. The Berkshire Museum Trustees, Director Van Shields, and those in favor of the Berkshire Museum deaccession sale sat together on the left side of the courtroom. Opponents, numbering 2:1, sat in the center, off to the right, and spilled into the hall. With every available chair claimed some were left standing in the back.
Up first – Attorney Nicholas M. O’Donnell
of Sullivan & Worcester LLP law firm and Erika Todd on behalf of ‘Berkshire Museum Member Plaintiffs’: James Hatt, Kristin Hatt, and Elizabeth Weinberg
O’Donnell excerpt- “Massachusetts stands alone, this decision puts Massachusetts alone …That this court, this petition, this hearing, may be the ONLY obstacle left to account for this action should be unimaginable. IF a conclusory report of operational deficits can support the liquidation for the sale…Make no mistake, I say the art market is watching–”
Justice Lowy cut in- “Maybe they are. I’ve certainly read your key points, Maybe not. Systemic issues that flow from this are not my focus…”
O’Donnell- “To the extent on how it bears not only to a museum, but to an ART museum, (museum founder) Zenus Crane… and nearly a century later, Norman Rockwell, considered their options. They gave them to this unique museum in this unique place.”
As O’Donnell was I assume about to dive into more history to elaborate on community and public trust, the Justice pressed in:
Justice Lowy – “As it relates to Norman Rockwell’s Shuffleton’s Barbershop only: that painting has led to some success, yes? That public viewing will continue is certainly a by-product of this investigation where there had been uncertainty. I assume you think that’s positive?”
O’Donnell- “No your Honor. The attorney compromise undermines the argument for this petition and I’ll explain why…With respect to Shuffleton’s, this compromise has some flaws. It is still unclear what the details are so it’s hard to assess how close it is to the illusory inquiry into the intent of the donor. Norman Rockwell’s clear and stated intent is unequivocal. The compromise makes some effort (for Shuffleton’s) though not for the remaining 39 objects. As far as we know each in turn will be sold to the highest bidder.”
Justice Lowy- “Maybe sold.”
O’Donnell- “The Attorney General’s role doesn’t amount to much. The Attorney General agreed not to object. Let’s assume hypothetically that the next one to be sold is Norman Rockwell’s (though terms still unknown, penalties if any by auction house, etc) let’s say that object is sold…that’s hard to square with intent.”
Later Justice Lowy went to the issue of impracticability again. “Before you sit down address the issue from the museum’s perspective and the Attorney General’s 7 month investigation and decision to assent, mold in buildings, icicles in corridors, 1.5 million operating deficit and 6.5 million endowment.”
O’Donnell- “I think the museum did not give the court enough information. The evidence is conflicting…and not what it was saying even two years ago.”
Justice Lowy- “I can’t reconcile certainly some of the 2015 comments, but the Appeals court and Attorney General investigation did. What do I, the court, do with difficult reconciling of previous comments with the sky is falling?”
O’Donnell – “The answer is the petioner bears the burden to prove that. We believe that they failed to make the case that the museum situation is unpracticable. The petition is not about us…If that is the only hurdle, pausing fundraising is a really good way to run out of money.”
Appearance of Atty. Michael B. Keating
Michael Be Keating of Foley Hoag with Daniel Epstein of Barker, Epstein & Loscocco and former Attorney General Martha Coakley 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 makes way 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 Berkshire Eagle board
Keating – “Restricted by donor or statute, selling off 90% of the value of the entire collection requires permission…”
Justice Lowy reiterates, “Right, going to assume restrictions…”
Keating- “The facts don’t allow the sale of ANY of this art. I accept Mr. O’Donnell’s position and that of my client’s problems with the sale of ANY of the art, I’d like to turn my attention to the exercise of your responsibilities, if I might…”
Justice Lowy “I’m very interested with respect to what you have to say and where it fits in with the Attorney General’s role.”
Keating- “And we acknowledge that the Attorney General has supported this petition. But as we point out in our brief the Case of vs Barnes, it’s the function of the Attorney General to present the question to the court not to control or direct its judicial action. And what I suggest is this your Honor, because there are several questions that the museum has failed to answer that we raised in our Amicus brief that this petition deserves particular scrutiny by this court. We state and point out 2 or 3 problems *What is the basis that the museum needs enough endowment to cover debt…Seems to us that the museum must come forward to court with financial analysis that is accurate to their goals.”
(*table of contents and link to the brief )
Justice Lowy- “The Museum’s position is that GE left, Clark and Williams compete, dwindling population and industry flight. The position of the museum is they want to survive.”
Keating (author’s note building to great emotion in his voice and caught in his throat)– “If you approve conditions to comfortably allow cy pres, it is our position that you appoint an expert in museum managment or Special Master, to retain jurisdictions over something so momentous. Require the court to be steward of the funds…Shockingly little is required (per the petition agreement terms) Only one, single report (a year). Incredulous! Extraordinarily light!…”
Appearance of Attorney William F. Lee
of Wilmer Hale law firm with Atty. Mark C. Fleming and Atty. Greg Schmidt representing The Trustees of the Berkshire Museum
Lee’s preamble, ambled- He said he’d make four points, “and then focus on the issue of impracticability. We acknowledge that there are strong opinions on both sides. Some opponents’ vitriol and personal attacks I (don’t abide). Remember, the Attorney General started out adversely. We allowed investigation in parallel to the litigation, and then tried to reach resolution that would address the mission of the museum, at a legal standard that your Honor has identified, and allow the museum to continue to service the community and the constituency that it has.”
(author’s note: That was more than one point! And the only lawyer to give some shade thus far.)
Justice Lowy broke in and cut to a chase: “Why shouldn’t the petition include some preference for the sale of the other 39 objects to be sold to a museum that’s going to allow them to be displayed for the public?”
(author’s note: Attorney Lee was flustered.)
Lee- “The reason the one painting is treated differently, separately is not just because of attention and notoriety. The piece had documentation so it was treated differently…The other 39: What to sell is not just the highest evaluation. Art and artifacts worth more aren’t on the list. We’re looking at value and interpretive value, how it fits the museum’s mission and leaving some room for discretion.”
(author’s note: Lee is no art authority.)
Justice Lowy- “39 objects and 90% of the value of the entire collection?”
Lee – “No. We disagree with that. Plus, there is a steward and expert at the top- that’s the Attorney General. There was an interview at the beginning of the year and a consultant that actually advised the museum on what they needed to do, the amount they needed, and the AGO had access to ALL of that, together with the audited statements, and the way I think the system is supposed to work is when the Attorney General does her independent investigation we present that material and they come to their own conclusions. And they had a different set of conclusions that we didn’t agree with, and as we got closer to the end we didn’t agree on (anything) as your honor knows, we disagreed on the restrictions. But we are taking that as a given today…And with that history of disagreement, brings me to my 4th point:
“We tried to craft a resolution that allowed the museum to pursue its mission, allow it to serve a community, NOT as an art museum…Your honor this is a museum that is providing the science programs for under resourced schools that can’t provide science programs anymore. This is a museum that is providing an important population that is below the poverty line with their window to the world. An aquarium, a view of the explorers of the North Pole.
(author’s note: This string of statements is worrisome for leadership of any repository. There are numerous points to parse here, but I’ll touch on two. As a Massachusetts resident with kids in the public schools, I was stunned to hear this elitist claim before the Court that the schools 1)”can’t provide science programs anymore” and 2)poor kids (“below the poverty line”) have no window to the world (!) and must be saved. Poppycock! Don’t worry: there is science in our schools. The museum’s youth attendance stats–whether by walk in with friends, field trips or family– is not saving or replacing the science teachers at local schools. Is this the museum’s example of outreach? The reasoning begs another question – if the schools are that bad, are the schools’ dire straits more impracticable than the museum? And as for having to explain that wonder –self-generated or experienced– comes in every income bracket, well that’s just deflating and tone deaf at best, offensive at worst. The potential interpretive value for each work slated for sale is off the charts, and you can’t beat hometown or state pride. Youth and student populations can help design displays. Shuffleton’s Barbershop could be a built environment. There’s just no need to denigrate community and stakeholders, and manipulate demographic analysis for argument sake.)
“It’s also an art museum, and will continue to be so. No one has mentioned it but Norman Rockwell’s portrait of Dwight Eisenhower will remain at the museum.
(author’s note: Yes, he really did say that. I thought for a moment that I was witnessing a Saturday Night Live skit. “You won’t miss Shuffleton’s Barbershop one bit. Everyone likes Ike.”)
Lee- “AND naturally with the new mission, I’m not quite sure why folks can’t figure out what it is, but with the new vision, more art is displayed, not less…And my fourth point (again?) is this, your honor, I know I’m getting close to ten minutes, impracticability and impossibility is the threshold: We have a 1.2 million structural deficit; we have about 6 million left. We HAD seven and a half million before the litigation started, but the structural deficit doesn’t consume 20% of that. There is no time for us to wait another year, or two or three. That’s why the museum undertook this two year process, to reach broadly out to the community, to ask the community’s views…
Justice Lowy interjects- “That’s not what they- they have a little bit of a different take on that outreach- as far as the CEO coming from South Carolina, as well as a new vision that involved a secretive email going out, and the fundraising why it was stopped…and While I can’t consider technical issues with what’s going to happen with fundraising and donations as a result, certainly people who are going to make a donation now to the museum, that the fundraising could possibly be impacted…
Lee tries to interrupt, “Sure, but,”
Justice Lowy continues: “So in other words, I got to tell you, I’m watching two different movies.”
(*author’s note: In the spririt of Justice Lowy’s memorable quote, and if Norman Rockwell can’t bring it home, cuing Oz for an emblematic protective comparable)
Lee- “You are your honor, you are…There are 125,000 residents in Berkshire County. There are literally hundreds and hundreds of members of this museum. You have (only) 8 total people out of 125,000 residents making allegations, who don’t have access to the material that the Attorney General had and who make some allegations if they were to be tested…The Fundraising with all do respect…that’s just not true. We have an annual fund. Museum just paused its capital campaign, not fundraising.
“In 2015 when the master planning process started, the finances and the building were examined closely. And the consultant was brought in. The Attorney General had access to statements 2016-17. Let me quote just this: “This is a situation where a museum that serves an enormous community purpose — that provides a window on the world to a group of folks who otherwise might not have it — It is in dire circumstances and looking for a way to fulfill its mission.
“The museum went through a two year planning process and came to the conclusion that this was the way to do it. The Attorney General independently decided the process was a reasonable process. Given our differences on whether IN FACT the art is restricted, there are things to be resolved and negotiated, and that’s what we’ve done. This is a solution where the expert – the Attorney General- the steward that our law defines, the Attorney general that’s qualified had the ability to look at EVERYTHING and we reached decision that allowed the museum to move forward to allow community to benefit and the museum…The AGO will have notice of the report we will do, but ultimately they have the same responsibilities that they had year ago: to make sure that we’re fulfilling our purpose and charitable obligations.”
Appearance of Assistant to the Attorney General (AAG) Courtney M. Aladro
Chief of Non Profit Organizations/Public Charities Division with AAG Emily Gabrault for Maura Healey, Attorney General of the Commonwealth
Aladro – …But as your honor has suggested, the reason that we are here is to make sure the museum’s plans comply with charity law and to answer two questions: 1) Whether the museum has met its burden of showing its impossible and impracticable to continue to adhere to restrictions and 2)whether relief as requested is as near as possible to original intent. We believe the answer to both these questions is YES.
JUSTICE So, the amica have requested that a special master be added? That is an Issue before court and how does that square with the Attorney General Office and Separation of powers?
Aladro – I don’t believe that it’s beyond the power of the court, however we don’t believe it’s necessary as outlined in the Amica’s brief… The Special Master request seems to operate more like receivership…No need to second guess our judgment. Board is not necessary — we have the ability …respectfuly we think it’s our role.
JUSTICE as it relates to that the possibility and the impossibility of the issue of these other 39 items. Do you think that there should be some mention proposed or order at least a preference what is to be sold so that public viewing is still possible?
Aladro- I think for the other 39 objects what is important to remember is that we understand that any restriction that the items be sold to public institutions could depress that purchase price if limited to public stipulation on sale. The relief that is structured for those 39 items in no way prohibits institutions from bidding.
The four arguments completed, Justice Lowy then offered a nutshell opportunity to make sure no one left feeling like they forgot to mention one thing in the preliminary argument.
O’Donnell- I would underscore that the court — I don’t believe– is presented with an all or nothing question. And I think the court–I encourage the court–to assess the museum’s asserted needs and in parallel to the museum’s asserted (new vision) plans…There’s a difference between accepting an argument: “The structural deficit number is X” that’s different then “We need Y to realize our New Vision.” Everybody has/understands quixiotic dreams they would like to do. I think they’re different and I think that to the extent that your Honor is considering various options, I would encourage you to consider that the question is something less than all-or-nothing. And that for example, comparing the compromise with respect to Shuffleton’s Barbershop the court can make some kind of condition for the donor’s intent, yet it may not be needed (period).
Keating- I would like to underscore that the desirability of the court is to a) retain jurisdiction and b) to appoint a Special Master– under conditions that are helpful to the court– it doesn’t have to be (looking over to Aladro) as receivership type situation — rather as helpful assignment to satisfy yourself, and satisfy us and our clients, that funds are necessary to achieve the museum’s objectives, and that funds by sale are appropriately applied to purposes.
Lee- The math is simple (he went on to list financial specs)
Justice Lowy stopped him short. “I did the math. At least figuratively did the math. But I think that they’re contesting also: Why is there a 1.5 million deficit? What is going on with management? And what happened to the fundraising? Not sure it’s as simple as how much money do you have to add to an endowment to kick off to be able to cover-–
Lee interrupts- Your honor, I would say to pick up on that, this is math that involves a charitable organization, by executive court order actually provides for that–the Attorney General Office asked those questions and got those same answers…We still disagree even today about that foundation of the investigation, but we’ve tried to move on. If this goes on for another year, it will bring us 25% closer to the end. The last thing I’d like to say your honor that I forgot at the beginning. There’s been some question about what kind of timing we’re under…(author’s note–this sounded like an ultimatum) April 6th is the date that we need to go to the press to sell in the spring (see contract). If we couldn’t go to press, then it would be off for another six months.
Aladro- The investigation was comprehensive, and we asked many of the same questions that you’ve asked. We believe that relief is warranted…and this petition upholds the integrity of the museum board and our office. The Court is the ultimate overseer.
More scenes from the Courthouse March 20, 2018 (click to enlarge; hover for info)
Ever since he was a kid, fine artist Tom Patti, was inspired by the Berkshire Museum. At the hearing, Attorney Lee’s remarks reinforced precisely why Patti engaged attorneys to take on the museum. Any goals were possible with the art collection in place. The museum was operating without curators and development staff. No artists sit on its board. Art expertise is lacking on TDC staff, the consultancy engaged by the Berkshire Museum. There are options.
America’s earliest museums were set up before the 20th century; encyclopedic collections like the Berkshire Museum were filled at the outset, their quality and reputation held in high regard. The operating costs have changed drastically. My industry, the art world, ancillary industries, public and private foundations– ALL have exacerbated the insurmountable difficulties many collections face. Attendance tracking, justification and reporting have ballooned. Professional organizations straddle grey areas. Museums do deaccession, often well, and bigger ones have an easier time of it.
Any contract can be broken with enough time and resources. (One example: See Georgia O’Keefe’s presumably penultimate air tight protection for the Stieglitz Collection at Fisk’s University.) The Berkshire Museum suit is one of the highest profile attempts at holding back a ruling that makes a mockery of promised gifts and forces too costly and burdensome backtracking on needless investigations. It’s the opposite of protecting fiduciary duties, boards, and the public.
If Jusice Lowy allows the Berkshire Museum and AGO petition, the only thing that is certain is that business will boom for legal firms working with non profit repositories. If Justice Lowy denies the petition, there will be a precedent at long last on the books in the halls of justice for the underdogs.
Larry Parnass of The Berkshire Eagle
Like grateful news outlets worldwide, I’ve mentioned in several posts on Good Morning Gloucester my hope that journalist, Larry Parnass, is recognized for his outstanding coverage about the Berkshire Museum controvertial deaccession story. Here are the two stories he filed following the hearing on March 20, 2018.
The court directed registered Media guests to fixed spots within the courtroom: moving and further coverage by anyone other than registered media was disallowed. Hence the same vantage for my photographs from the hearing, which I loved. I could emphasize the distance between the attorneys and Justice Lowy and the magnitude of the case at hand.
Besides Parnass, fantastic media coverage within the courtroom included Andrew Russeth for Artnews. Parnass’ article links are above. Here is Russeth’s Artnews: As Closely Watched Nears Possible End Lawyers Duel Over Berkshire Museum sales in Massachusetts Supreme Court. Save the Art- Save the Museum participants have been instrumental in bringing attention to the case.
Save the Art – Save the Museum
Prior posts about this controvertial art sale on Good Morning Gloucester:
March 20 2018 Order for Oral Arguments
podcasts Gloucestercast #252, 250, and
Would Gloucester or Massachusetts allow the iconic Leonard Craske Fisherman at the Wheel memorial to leave the state? Know your Massachusetts cultural resources (See Essex National Heritage and Massachusetts Cultural Districts.) Gloucester based fine artist, Kim Smith, exhibited at Berkshire Museum. Google map with relative distances.