Sullivan & Worcester LLP has filed its papers in the appeal by its clients, the members of the Berkshire Museum who sued to enjoin the museum's sale of 40 works of art and sculpture. The appeal was brought as a result of the Berkshire County Superior Court’s November 7, 2017 denial of their request for an injunction, and dismissal of the case. That order denied not only the members' request, but also a motion by another group that includes Norman Rockwell's sons and the motion by Attorney General Maura Healy to pause the sale originally scheduled for November 13, 2017 at Sotheby's in New York—a sale that would have included Rockwell’s Shuffleton's Barbershop and other masterpieces.
Partner Nicholas M. O’Donnell, attorney for the members appealing the dismissal, said: "my clients set forth the museum's violations of its governing charter that they have standing to enforce as members. Further, the Trustees' harm to the museum itself is properly remedied by a derivative action where the members are like shareholders of a for-profit corporation. We respectfully submit that the dismissal was premature. My clients simply wish to have their day in court."
The appeal also seeks the imposition of a preliminary injunction against the proposed sale. Said O'Donnell: "My clients have always supported the Attorney General's investigation and are gratified at the injunction currently in place by order of the Single Justice of the Appeals Court. They hope it will be extended as necessary, but unless and until an injunction is issued without an expiration date and until a trial on the merits, the collection remains in peril." The papers filed explain that information disclosed by the Attorney General's investigation—including the museum's violation of its own collections management policy to approve the sale, before changing that policy to excuse those violations—supports entry of such an injunction. The Attorney General has characterized the sale as one of essentially all of the museum's art collection.
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. Independent financial experts have examined the supposed fiscal need and determined that the museum could sustain itself on an endowment a fraction of the one that it claims it needs the sale to realize, without the harmful collateral effects of the sale of art.
Similarly, 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 Massachusetts Appeals Court stopped sale on November 10, 2017 in response to an emergency motion by the Attorney General, and recently extended the prohibition until at least January 29, 2018.