Hearing in the Berkshire Museum deaccession case

Posted on: November 3, 2017 by

On 1st November, Judge John Agostini, presiding over the Pittsfield Court remarked that people “don’t often see a large crowd here,” but a large crowd had indeed gathered that day. As previously discussed, the case before him involved two separate hearings for preliminary restraining orders against the Berkshire Museum and its Trustees to stop the sale of a number of works from the Museum, including two Rockwell paintings due to take place at Sotheby’s on 13th November.  The plot thickened when, at the end of the day, the Massachusetts Attorney General intervened in the pleadings, filing a 27-page brief in support of the plaintiffs’ request for an injunction.

The hearings proceeded with a warning by the Museum’s attorney that “loud voices and character assassination” had no place in the courtroom.  And there had been plenty of both in the months preceding the hearing.

Notwithstanding the complexity of the Berkshire deaccession issue, and its growing cast of players, here is an attempt to identify three of the key issues.

First, the issue of legal standing: did the sons of Norman Rockwell fulfil the conditions to bring a petition for a restraining order to prevent the sale of their father’s work, or, in the matter of the second petition, did members of the Museum?  Did they have the capacity to “create havoc” simply because they were members ?  From the start, Judge Agostini signalled that he wasn’t convinced by the argument that being a member or living in Berkshire County gave the plaintiffs’ legal standing, which prompted the Attorney General’s office to file an emergency motion to officially become a plaintiff in the case.

Second, in the context of a preliminary injunction, a prima facie case of wrongdoing must be based on evidence.  Judge Agostini reportedly asked: “What did the Trustees do wrong?”   As a reminder, it has been alleged that the Trustees were neither transparent nor forthcoming about their deaccession plans and the Attorney General’s office argued that the museum should have informed the office that it wanted to sell the works.

Third, a preliminary injunction was sought to prevent irreparable damage.  In the present case, the loss of works of art through the Sotheby’s sale did not immediately strike the Court as irreparable damage as it was argued the proceeds of an eventual sale would be used for substitute works of art.  Thus the Berkshire museum, even sans Rockwell, could still, in the words of the President of the Museum Board, continue in its “100-plus-year-old unchanged mission of [acting as] a magnet for adults, children, art lovers, history and science enthusiasts.”  Arguably, however, the Berkshire’s ‘New Vision’ is a departure from its fine art purposes, a step which triggers the need for notice and approval by the Attorney General’s office.

Somewhat lacking in-depth justification was the proposition that the sale was in violation of the donor’s will, although the judge questioned whether the Rockwell children had standing since any promises made to the artist at the time of his donations would remain with his estate, and not the children individually.  The lack of debate on this issue is not quite clear, but perhaps there was insufficient proof or evidence of Rockwell’s intention.

Meanwhile, the sale at Sotheby’s is still scheduled to proceed on November 13th 2017.

The cover of the Sales Catalogue features Rockwell’s iconic Shuffleton’s Barber Shop (1950), which is featured in the image above.

For detailed information on the deaccession of artworks by public institutions in the United Kingdom, please refer to The Deaccessioning of Objects from Public Institutions: Legal and Related Considerations by Edward Manisty and Julian Smith, published in Art Antiquity and Law in 2010.