Berkshire Superior Court.

THE STATE OF MASSACHUSETTS

Just two days before a scheduled hearing on a suit brought by the three sons of Norman Rockwell and others against the Berkshire Museum in Pittsfield, Massachusetts, the attorney general’s office (AGO) has submitted a legal filing stating that it “has significant questions and concerns” about the museum’s planned sell-off of 40 paintings on November 13 at Sotheby’s in New York. The filing calls on the court to grant a temporary restraining order or preliminary injunction so that the office has more time to study the case and formulate a final position.

“Although the AGO has not yet completed its review, there are a number of aspects that raise concerns,” the brief reads. The AGO, which has been reviewing the museum’s plan—undertaken to raise around $50 million to build its endowment, fund renovations, and adopt a “New Vision”—cites potential evidence in its filing that 19 of the works to be offered through Sotheby’s cannot be sold under the terms of an 1871 charter and that the Rockwell works are protected by the intent of the artist when he gave them. It also submits that the board’s ambitious plan to restructure itself into an institution focused more on science and technology-driven displays violates the museum’s founding principles and would require court approval.

“We respectfully disagree there is any further inquiry for the Attorney General to conduct before these long-scheduled sales can proceed,” William F. Lee, who is representing the museum, said in a statement. “For more than four months, the museum has cooperated fully in providing documents and information to the Attorney General’s Office.

“Sotheby’s is fully committed to the museum’s success,” a spokesperson for the auction house said in a statement, “and, unless a court rules otherwise, will proceed with the auctions beginning on November 13th.”

Both the museum and the auction house have vigorously defended their actions since critics first took issue with the plan, and have maintained that the sales represent the best way for the museum to solidify its finances and to serve its community.

The new brief “does not represent the AGO’s final position on those concerns,” according to language in the filing, since the office has not been able to finish a complete review. “The Museum’s most recent production of documents, consisting in part of documents that the AGO had originally requested on August 18, 2017, occurred as recently as October 24,” the filing says. The Massachusetts attorney general had been named as a defendant in the suit by the Rockwell sons and other plaintiffs because her office has oversight responsibilities of nonprofit organization in the state.

In parts of the filing, the AGO seems to chide the actions of the museum. “The Museum did not present all relevant facts and circumstances to the AGO when it sent its Notice,” the filing reads. “A number of important facts have only come to light through multiple inquiries and research.”

The museum and Sotheby’s have said they will be harmed if the first works do not hit the block on November 13, owing to costs related to marketing the work and the possibility that the art market may later soften. But the AGO says that these are “problems that were created by the Museum itself.” The AGO says that it was not notified of the Berkshire Museum board’s plan to sell works until after it had signed a contract with Sotheby’s.

Though it at some points notes the efforts that the Berkshire Museum’s board made in formulating a new plan for the museum, the AGO says “the Board set a financial goal through its Master Planning Process that was so grand it could only be funded through wholesale deaccessioning of the Museum’s most significant art.” The AGO also alleges that the museum violated its deaccessioning policy since it specifically selected high-value works to sell, rather than using criteria aimed at honing its collection.

While the museum has said that it will be able to continue to fulfill its commitment to educate the public on art, since it is selling off only 40 works from its fine and decorative art collection, which includes 5,000 pieces, the AGO says that “argument mistakenly equates the quantity of art it owns with the significance and value of that art.”

The “unprecedented sale,” the AGO argues, “is tantamount to the Museum abandoning its essence, one of its principal activities of promoting art.”

A hearing on a possible injunction will be heard in Massachusetts Superior Court in Pittsfield on Wednesday, November 1, at 11 a.m.

“We continue to believe that there is no legal barrier to the museum proceeding with the deaccession and its plans for a sustainable future which are critical to the region,” Lee, the museum’s attorney, said. “We look forward to presenting those arguments in court.”