What a low blow: Justice Lowy clears contested Berkshire Museum art for auction

Justice Lowy’s JUDGEMENT was released April 5, 2018. The Museum may sell Shuffleton’s Barbershop, and — via Sotheby’s– the remaining 39 works free of any restrictions.

“The museum has satisfied its burden of establishing that is has become impossible or impracticable to administer the Museum strictly in accordance with its chartiable purpose, thus entitling the Museum to relief under the doctrine of equitable deviation. Accordingly the court allows the Museum’s request for equitable relief to sell the designated artwork.”

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Justice Lowy MEMO OF UNDERSTANDING

page 1 MEMO OF UNDERSTANDING Justice Lowy Berkshire Museum and AGO April 5 2018

Reaction from Sotheby’s Auction House:

“We are very pleased that the court approved the agreement reached between the Berkshire Museum and the Massachusetts Attorney General. We look forward to working with the museum to ensure a bright future for the people of Pittsfield and Western Massachusetts.” Judge Lowy’s decision came in just in time to meet the auction’s press deadline clearing for art sales this spring, else sales would have been pushed back till the fall at the earliest. The catalogue pages are ready from last fall’s prep.

Reaction from Elizabeth McGraw, President, Berkshire Museum Board of Trustees:

“This is great news for the people of Berkshire County and everyone who visits the Berkshire Museum for one-of-a-kind experiences in history, art, and science. We recognize this decision may not please those who have opposed the museum’s plans. 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. “

Reaction from Save the Art – Save the Museum (STA-STM)

“Save the Art-Save the Museum continues to oppose the sale of the Berkshire Museum’s art treasures and its unrestricted use of the resulting funds. We also regret the judge’s disregard of the public trust in which the museum held its collections. 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. As a group, we will make a more detailed statement after meeting in person to consider the loss to our community and its impact.”

Patiner flight into egypt featured in 1953 article celebrating Berkshire Museum 50th celebration
1953

Have a look back at an inspiring 1965 Berkshire Eagle profile about Berkshire Museum Director Stuart C. Henry, and an earlier feature from the Berkshire Evening Eagle, published Thursday, Aug. 20, 1953, heralding the Berkshire Museum’s 50th anniversary. Both convey the museum’s seamless blend of high art, science, community and education.

I wonder what happened to the marble swans over the Berkshire Museum elliptical pool designed by A. Sterling Calder, father of the sculptor, Alexander Calder, and resident of Richmond, Massachusetts, less than 20 minutes away from Pittsfield?  Continue reading “What a low blow: Justice Lowy clears contested Berkshire Museum art for auction”

Berkshire Museum art case: Mass Supreme Court Justice Lowy allows third amicus brief

Amy Stewart, Second Assistant Clerk for the ‎Massachusetts Supreme Judicial Court for the County of Suffolk, confirms that Justice Lowy has allowed a third Amici Curiae filed by Martin Gammon related to the Berkshire Museum case. Gammon has a new book coming out “Deaccessioning and its Discontents: A Critical History,” (Cambridge, MA: MIT Press, 2018). He has long art world experience, and is an antiques roadshow appraiser and a former director of Museum Services at Bonhams auction house. Although he is opposed to the current deaccession agreement reached by the Attorney General and the Trustees of the Berkshire Museum, and backs off from the panic, Gammon articulates some sell-off, specifically:

“Consequently, if the court were to warrant a limited sale of the European and non-Western works, and that in turn proves to be insufficient for supporting operations in the course of time, then the trustees could then petition the court and consider some of the core American works for potential sale, but then they should be offered in a collaborative process through the auspices of the AAMD to other public institutions first, as the likelihood of another museum willing to acquire them is high, and they would in most cases remain in the public trust.”

Gammon underscores the irregularity of any deaccession planning with no curators on staff as is the case with the Berkshire Museum. One of the paintings Gammon muses a curator may have considered selling was the now infamous cover lot yanked back on the eve of the Sotheby’s November 21, 2017 sale: LOT 18 L’Agneau Nouveau (The Newborn Lamb), oil on canvas, presale estimate 1.5 to 2 million)

x Bouguereau LOT 18 Berkshire Museum Bouguereau featured on the cover of the Sotheby's catalogue 70 lots Nov 21 sale L'Agneau Nouveau-Ne THE NEWBORN LAMB oc 65 x 34 est 1500000 to 2mil

A poignant counter perspective was expressed in a Letter to the Editor on March 13, 2018: Crane gifts to museum would be painful loss, (aka “beyond the Rockwells) by David Peter Moser, a former resident of Pittsfield who benefited from amazing enrichment programs developed between the museum and community organizations

To the editor:
I am saddened by the potential loss of Berkshire County’s cultural assets, those being the gifts Zenas Crane made during his lifetime to his Berkshire Museum. Often overlooked in the press are those gifts associated with former Massachusetts governor and senator Winthrop Murray Crane, subject to being deaccessioned for cash. Governor (1900-1903) and senator (1904-1913), Winthrop Murray Crane and his family also donated works that are among the 40 to be sold, acquired over the last century as his heirs wanted to honor their direct ancestors and the mission of the Berkshire Museum. A native son of Dalton, both businessman and statesman, Winthrop Murray Crane is equally revered as part of this area’s proud heritage. Sen. Crane’s wife, Josephine Boardman Crane, and daughter, Louise Crane, gave art treasures either directly or through their nonprofit foundations. Louise Crane had no descendants.

Works include: William-Adolph Bouguereau’s “La Bourrique/The Horseback Ride;” Girolamo Troppa’s “Apollo and Satyr;” Thomas Wilmer Dewing’s “Two Ladies in a Drawing Room/The White Dress;” George Henry Durrie’s “Hunter in Winter Wood;” Adriaen Isenbrandt’s “Adam and Eve/The Temptation;” Augustus Saint-Gaudens’ “Diana of the Tower; ” Henry Moore’s “Three Seated Figures;” Edward Vuillard’s “Deux femmes dans un interieur;” and Edwin Lord Weeks’ “Indian Prince, Palace of Agra.”

The Josephine and Louise Crane Foundation, now located in Falmouth., has assets of over $70 million and gave $500,000 during the 2007 Berkshire Museum Capital Campaign. Attempts to reach out to the Winthrop Murray Crane ancestors regarding their feeling towards the Berkshire Museum’s intended renovation plans and deaccessioned artworks have gone unanswered.

As an aside, I thank Josephine Boardman Crane for also establishing the Junior Naturalist Program at the Berkshire Museum, which was an important part of my childhood learning experiences growing up in Pittsfield during the 1970s with Woody Bousquet and Thom Smith. My experiences, enhanced by visits to the Berkshire Museum as well as later hiking excursions through the hills of the Catskills and Berkshires with Woody, compelled me to study art history in college at Tufts University. Memories of the paintings by Hudson River School artists’ depictions of our beloved mountain ranges remain clear. Science, nature, history and art interconnected through paintings — treasures “once” known at the Berkshire Museum in Pittsfield.“- David Peter Moser

Moser was compelled to detail the strong accession stories and local community support for the Berkshire Museum 39– the works of art off the beaten press path. Justice Lowy asked about them, too.

Gammon filed one day ahead of the March 20th public hearing where parties and amici presented oral arguments. Although Gammon will not have an opportunity to present oral argument,  Justice Lowy will read and consider this file along with all the other documents. No further information is available at this time.

AMY STEWART FANTASTIC Boston MA John Adams Courthouse -Berkshire Museum deaccession case oral arguments before SJO Justice Judge Lowy_Mar 20 2018 _102144 © catherine ryan (17).jpg

03/28/2018      #24   Notice to counsel/parties regarding paper #18 file

MOTION For Leave To File A Brief Of Amicus Curiae filed by Martin Gammon. (No Certificate of Service included). (3/27/18: “Per the within, Motion is ALLOWED WITHOUT HEARING” (Lowy, J.))

Breaking News: This isn’t just another lost cause- Justice Lowy has scheduled a Hearing for Berkshire Museum litigation

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan_105912

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.

Catch up on the case Continue reading “Breaking News: This isn’t just another lost cause- Justice Lowy has scheduled a Hearing for Berkshire Museum litigation”

What will Justice Lowy decide and the room where it happens | Last stop for Berkshire Museum docket SJ-2018-065 at John Adams Courthouse #BostonMA Supreme Court

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan (9)
Front entrance John Adams Courthouse, Boston, MA. The Berkshire Museum case is under review by Supreme Court Justice Lowy

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.

Sullivan & Worcester Berkshire Museum
Sullivan & Worcester blog post about their position

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 

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan (2)
The John Adams Courthouse Great Hall is stunning. On the right side in this photos is a Daniel Chester French gilded sculpture of Rufus Choate

 

Continue reading “What will Justice Lowy decide and the room where it happens | Last stop for Berkshire Museum docket SJ-2018-065 at John Adams Courthouse #BostonMA Supreme Court”