Art Law Report

Members of the Berkshire Museum Ask Supreme Judicial Court to Stop Berkshire Museum’s Deaccession Plan

Posted by Nicholas O'Donnell on February 26, 2018 at 5:36 PM

(Boston, MA, February 26, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg filed today a brief with the Supreme Judicial Court of Massachusetts asking the state’s highest court not to permit the sale of 40 works of art by the Berkshire Museum. The Berkshire Museum filed a petition on February 9, 2018 asking the SJC to permit deviation from the historical restrictions that would prevent such sale. Today the museum member filed a brief as amicus curiae, or “friend of the court.”

Partner Nicholas M. O’Donnell, attorney for the members, said, “My clients are optimistic that the SJC will see through the Berkshire Museum’s petition to deviate from its historical restrictions as unnecessary, and harmful. Such a petition must show that the current state of affairs is impossible or impracticable, and that the requested change is ‘as near as possible’ to the original purpose of the institution. This petition fails to meet either criterion.”

Added O’Donnell, “One of the many problems with this sale has always been that the claimed need to stabilize the museum’s finances somehow changed into the attempt to monetize the most important components of the artistic treasures given to it to keep for the public good. And even if one accepts at face value the supposed financial needs of the Museum, the evisceration of a collection of American art unique to Pittsfield and the Berkshire community is the very worst remedy, not the nearest to the original purpose.”

From today's brief:

The petition by the Museum to permit deviation from restrictions on the sale of the core of its art collection should be denied. The further management of the Museum is not impossible or impracticable–the first element of a cy près petition–it is difficult because the board of Trustees ceased fundraising years ago and chose instead to try to be an iconoclast of museum ethics by bartering paintings that the Pittsfield community has cherished for over a century. Bent on “monetizing” a collection that was assembled for precisely the opposite reason, the petition fails to persuade. The AGO’s endorsement, or at least refusal to oppose, this abandonment of the Museum’s charitable restrictions is particularly disappointing; after assembling a months-long record of the Museum’s mismanagement, the AGO now waives the Trustees through the gate that it should be guarding.

Even if one accepts at face value the supposed financial needs of the Museum, the evisceration of a collection of American art unique to Pittsfield and the Berkshire community is the very worst remedy, not the nearest to the original purpose. The proposed sale of Shuffleton’s Barbershop, while painful to contemplate, at least makes some gesture towards the public accessibility of a work that Norman Rockwell gave for that purpose in perpetuity. The proceeds of that sale would more than satisfy the amount that the Museum has said for months that it needed to stabilize its finances. Cy près is not to turn an institution inside out, it is to return it “as near as possible” to where it began. If this Court finds that the Museum has met its burden of establishing impossibility, it should permit only the one sale of Shuffleton’s Barbershop and then entrust the Museum to different Trustees and leadership .

BACKGROUND:

Initially chartered by statute in 1871, the legislature placed geographic restrictions on the collection of what was then known as the Athenaeum, requiring its display within Pittsfield. Paper manufacturer Zenas Crane and his family endowed it with its land and significant artwork in the early 20th century. The legislature chartered the entity that now constitutes the museum in 1932 as the Trustees of the Berkshire Museum.

The artwork proposed for sale includes masterpieces by Norman Rockwell and Frederic Edwin Church, and by several members of the Hudson River School whose work is inextricably connected to the Hudson River watershed in which Pittsfield is located. Shuffleton’s Barbershop is widely considered Rockwell’s greatest work. In the summer of 2017, The Berkshire Museum announced what it termed a “New Vision,” pointing to the sale proceeds of the artwork as the financial foundation of its plans.

The professional museum community is overwhelmingly opposed to the Berkshire Museum’s plan to sell art to support operations and capital improvements and monetizing the Berkshire Museum’s extremely important collection of American art.

The member plaintiffs sought a preliminary injunction in the Superior Court in October, which a trial court judge denied on November 7, 2017. That ruling is still on appeal. The Massachusetts Appeals Court stopped the sale on November 10, 2017 in response to an emergency motion by the Attorney General, and recently extended the prohibition in successive orders until February 5, 2018. On that date, the Attorney General’s office announced it had reached a tentative agreement with the Museum, which was announced on February 9, 2018.

Topics: Deaccessioning, Norman Rockwell, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Pittsfield, Berkshire Museum, Shuffleton’s Barbershop

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