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Berkshire Museum loses bid to keep art auction case in Pittsfield court

From The Berkshire Eagle (http://www.berkshireeagle.com/stories/berkshire-museum-loses-bid-to-keep-case-in-pittsfield-court,525278)

A judicial ruling posted late Monday dashes the Berkshire Museum's hopes of keeping a legal fight in Pittsfield and may increase the odds against it bringing artworks to sale at the next significant Sotheby's auction.

Justice Joseph A. Trainor of the Massachusetts Appeals Court issued a terse, 21-word answer to the museum's request that he clarify the Nov. 10 order that stopped auctions last week. 

"To the extent clarification is needed, all proceedings in the trial court are stayed pending further order of the single justice," Trainor wrote. 

A "stay" means the court cannot act further for the time being. 

Meantime, state Sen. Adam Hinds, D-Pittsfield, says the delay affords people on both sides of the issue time to find common ground.

In his first written statement on the art sale controversy, Hinds suggested that museum leaders, whom he praised for "bold leadership" in pursuit of "innovative solutions," may need to consider compromise. 

The senator urged people with a stake in the museum's success to come together — and offered to play a role in that effort.

"Ongoing litigation continues to take the Berkshire Museum and the community down a path that will be divisive no matter the outcome," Hinds said. "It is my hope we can now use this moment to work together and create a thriving Berkshire Museum. I intend to assist in any way that I can." 

Boston bound

Monday's ruling by Trainor means the focus of the legal dispute remains for now at the higher court in Boston, where the Attorney General's Office won an injunction against the sales three days before they were to begin Nov. 13 at Sotheby's in New York City.

Trainor's ruling is, on the surface, a loss for the museum. But the full impact will likely depend on how Trainor, acting in a "single-justice" role with the Appeals Court, views the progress of the state's investigation into the legality of the sale.

The museum's attorneys argued in a motion Nov. 16 that they wanted clearance for the issue to go to trial in Berkshire Superior Court, where they'd won the first round Nov. 7. 

That is when Judge John A. Agostini denied a request for an injunction and called the Attorney General's Office to task over what he characterized as a sluggish investigation into the disputed deaccession of art, calling the office "a reluctant warrior." 

The museum's lead attorney filed a request for an expedited trial in Berkshire Superior Court, then followed up last week with a motion to the Appeals Court.

"It is imperative that the Superior Court and the parties be able to continue to address the litigation on its merits," wrote William F. Lee of the Boston firm WilmerHale in his motion to the Appeals Court.

Time is critical, the museum has argued, because of the short shelf life of marketing efforts already undertaken on behalf of the museum's artworks by the auction house. In an affidavit, its chief operating officer estimated that the firm had spent half a million dollars to market and promote sale of the museum's artworks, including flying the Rockwell paintings to exhibits overseas. 

Hinds statement

In his statement Tuesday, Hinds, a first-term senator representing 52 Western Massachusetts communities, cited the museum's importance to the region. He praised the volunteer board of trustees for what he termed a "good faith effort to bolster its positioning."

The board announced July 12 it would seek a "New Vision" for its programming, shifting to a focus on science and nature. To fund that, it signed a contract with Sotheby's the month before for the sale of 40 of its most valuable works, including two paintings given to the museum by Norman Rockwell. 

"The Museum has clearly experienced a difficult financial posture for some time. For any institution in this situation, what is required is committed and bold leadership, innovative solutions, community support and compromise," Hinds said in the statement. 

With an injunction barring sales in place at least until Dec. 11, "everyone involved" has time now to consider options, the senator said. 

"It is an opportunity to bring together a range of stakeholders to ensure the Museum achieves sustainability and a rejuvenated presence while acknowledging the significance of the Museum's collection to the Berkshires and protecting relations with other cultural institutions, state agencies and the community," he said. 

The senator's office provided the following answers to questions from The Eagle about the statement:

QUESTION: Does the senator's reference to "bold leadership, innovative solutions" constitute support for the specific path taken to deaccess the 40 works?

ANSWER: "He deliberately referenced simultaneously the fact that the museum has been bold and the importance of community support and compromise."

Q: Who specifically does Sen. Hinds envision acting to "bring together a range of stakeholders?" Is he asking the museum to take that step by reaching out?

A: "He believes there are ways to achieve sustainability and a New Vision while not compromising relationships with cultural institutions, the state or the community. This period before Dec. 11 would appear to be an important time for the development of alternatives."

Q: Doesn't the existence of the litigation make that hard, if not impossible, given that the museum has been saying its lawyers recommend it not speak as the litigation plays out?

A: "There are always ways to achieve this."

Q: By saying he is willing to assist, does that include the possibility of the senator moderating a discussion between museum leaders and people challenging the wisdom of the deaccession?

A: "He is certainly open to playing a role that is helpful." 

Earlier this fall, state Rep. Tricia Farley-Bouvier, D-Pittsfield, sided with the museum board, saying that while she knows people on both sides of the dispute, she backs the trustees' plan to sell the artworks. 

"I stand firmly with the board of the Berkshire Museum," she told The Eagle Sept. 22. "I do believe it's the right course."

Farley-Bouvier's remarks came a day after the Massachusetts Cultural Council urged the board to halt the planned auction.