Residents opposed to the sale of artwork by the Berkshire Museum, in a final attempt, asked the state Supreme Judicial Court on Tuesday to stop the transaction, or at the very least appoint a museum management expert to oversee the process.
The case is a precedent-setting dispute that could break an essential tenet of art stewardship for museums across the United States.
In a packed courthouse with nearly 70 spectators, and in the last step of the legal process to either approve or stop the art sale, Justice David Lowy of the Supreme Judicial Court heard arguments from two citizen groups opposed to the sale, as well as the attorney general's office, which has made a deal with the museum.
Critics of the sale argued the museum has not provided adequate financial analysis to justify the drastic step of selling up to 40 pieces of art, including Norman Rockwell's “Shuffleton’s Barbershop,” a painting the artist personally gifted the institution. The museum, which has been operating under a $1.2 million structural deficit, insisted it has no choice; it either sells the work, it says, or it ceases to exist.
Selling artwork for capital improvements or to balance budgets — what's called deaccessioning — is largely considered unethical by the art industry. The move is opposed by The American Alliance of Museums and the Association of Art Museum Directors, who have both chided the Berkshire Museum. Critics of the sale believe deaccessioning frays trust from both art donors and the public, who should count on cultural institutions to be wise stewards of the art that's been entrusted to them.
The concern is that the artwork will end up on the auction block, sold to the highest bidder, which will most likely be private collectors, and work that was donated for public view to public institutions will sit on a billionaire's mantle.
"It is awful for me to contemplate that Massachusetts might be the place that sets the example that this sort of thing is OK. The temptation, I think, will be too much to bear for museums that have financial challenges, which many museums do," said Nicholas O'Donnell, an attorney representing residents opposed to the sale, who filed a brief as a friend of the court.
Attorney General Maura Healey's office had initially opposed the sale of the artwork, citing the museum's original charter that prohibited such transactions. But after a seven-month investigation, the AG now sides with the museum, saying its finances are too dire to consider restrictions on the artwork.
Opponents hope the court will place a condition that the artwork can only be sold to other public institutions, but representatives for Healey on Tuesday told Justice Lowy that that kind of stipulation would only lower the potential revenue of the sales. The only one of the 40 artworks with such a restriction is “Shuffleton’s Barbershop,” which the AG ordered the museum to sell to an institution where it would be in public view and that it be exhibited at the Norman Rockwell Museum in Stockbridge for at least a year and a half before it goes to its new owner.
Museum attorneys on Tuesday argued that the sale of the artwork was urgent, with no other options left to exhaust.
"This is a question of the existence of a museum that's important to a community. That's what's at issue," said Bill Lee, the Berkshire Museum's lawyer.
He told Lowy that the museum would have "more artwork, not less" as a result of the sale, which would allow it to pivot into a new direction — one more focused on science and history, and less on visual art.
"If this drags on for another year or two, the museum will go out of business and the children who today get their science programming from the museum will not receive net programming, and the people from the community that have access to aspects of the world that they might not otherwise see won't have access to the museum," Lee said in an interview after the hearing.
The museum would need Lowy's green light by April 6, the last opportunity to print a catalog for the sale of the artwork in May. Otherwise, it would have to wait until the fall to begin the auction — a delay that could be hazardous for the museum's finances, said Lee.
If the court were to allow the sale of the artwork, opponents asked Justice Lowy to at least appoint a museum management expert to oversee the process, and ensure the museum was a good steward of the funds. Lee said there is already an expert overseeing the transactions: the attorney general. The AG's office ensures accountability and transparency, a representative of the office told the court. But critics say the AG would be an effective overseer in name only, pointing out that the office has lifted any restrictions it had placed on the museum before.
O'Donnell, the lawyer representing residents, hopes the court will stop the sale, or mitigate the damage in public trust that he believes would come from such a transaction.
"This is a contract that museums have with the public," he said. "They're subsidized for good reason through tax benefits and the like. And if we take away that barrier there's really no limiting principle left."