COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

CASE NO. SJ-2018-065

TRUSTEES OF THE BERKSHIRE MUSEUM,

Plaintiff
v.
MAURA HEALEY, ATTORNEY GENERAL OF THE COMMONWEALTH OF
MASSACHUSETTS,
Defendant

______________________________________________________
ON MOTION FOR ENTRY OF JUDGMENT

AMICUS CURIAE BRIEF OF MASSACHUSETTS CULTURAL COUNCIL

IN OPPOSITION TO MOTION FOR ENTRY OF JUDGMENT

David T. Slatery (BBO No. 550351)

Deputy Director
Massachusetts Cultural Council
10 Saint James Avenue, 3d Floor
Boston MA 02116
(617) 858-2725
David.Slatery@art.state.ma.us
 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES.................................1

INTEREST AND IDENTITY OF THE AMICI...................2

STATEMENT OF THE ISSUES FOR REVIEW...................4

STATEMENT OF THE CASE................................4

STATEMENT OF THE FACTS...............................4

SUMMARY OF THE ARGUMENT..............................4

ARGUMENT......... ...................................6

I. THE MUSEUM HAS NOT SHOWN IT IS ACTUALLY SUFFERING AN

EXISTENTIAL FINANCIAL CRISIS.......................6

II. THE MUSEUM HAS VIOLATED THE PUBLIC TRUST BY NOT

FOLLOWING SOUND PRACTICES.........................9

III. GRANTING THE MUSEUM’S REQUESTED EQUITABLE RELIEF

SETS A BAD PRECEDENT FOR MASSACHUSETTS MUSEUMS AND
ULTIMATELY THE PUBLIC. ..........................11

IV. THE COURT IS NOT THE PROPER PARTY TO ALTER

STATUTORY RESTRICTIONS ON REMOVAL OF THE PRE-1932
WORKS.............................................13

TABLE OF AUTHORITIES

Statutes

1871 Mass. Acts & Resolves Ch. 129................6,13

1903 Mass. Acts & Resolves Ch. 131..................13

1932 Mass. Acts & resolves Ch. 134..................13

G. L. c. 10 §§52-53..................................2

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 INTEREST AND IDENTITY OF THE AMICI

Amici, Massachusetts Cultural Council (the

“Council”) is a public instrumentality of the

Commonwealth of Massachusetts created and existing

under G. L. c. 10 §§52 et seq. The Council’s

statutory mission is to “promote excellence, access,

education, and diversity in the arts, humanities, and

interpretive sciences in order to improve the quality

of life for all Massachusetts residents and to

contribute to the economic vitality of its

communities” and as part of said mission, the Council

is directed to “make such reviews or surveys as it

deems advisable of the facilities, activities, and

needs of public and private institutions, and

organizations within the [C]ommonwealth concerned with

the arts, humanities, and interpretive sciences” and

to “encourage and make recommendations concerning the

development on the local level of institutions and

organizations which further the practice, study and

appreciation of the arts, humanities and interpretive

sciences in the interests of the citizens of the

[C]ommonwealth.” G. L. c. 10 §53.

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 As the Verified Complaint entered in this

proceeding seeks relief to sell unique irreplaceable

artworks by plaintiff, Trustees of Berkshire Museum

(the “Museum”), an organization within the

Commonwealth concerned with the arts, humanities and

interpretive sciences, and such relief, if granted,

may not only deleteriously affect the operations of

plaintiff and impede the access of Massachusetts

residents to such artworks subject to such relief, but

also establish a precedent affecting museums,

historical institutions and other cultural

organizations across the Commonwealth which hold

1
collections and potentially affect Massachusetts

residents’ access to the same, the Council, in

exercise of its statutory mission, has sought leave of

the Court to submit this amicus curiae brief in

opposition to such relief.

1
For purposes of this brief, “collections” are
considered to be a group of one or more original
tangible objects, artifacts, records or specimens,
including art generated by video, computer or similar
means of projection and display, that have intrinsic
historical, artistic, cultural, scientific, natural
history or other value that share like characteristics
or a common base of association held by a museum or
other institution.

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 STATEMENT OF THE ISSUES PRESENTED

The Council will address the issues of whether it is

appropriate in this matter for the Court to grant

equitable relief to the Museum in order to allow it to

sell the core of its art collection.

STATEMENT OF THE CASE

For purposes of this brief, the Council adopt the

statement of the case as articulated in the brief of

amici James Hatt et al.

STATEMENT OF THE FACTS

For purposes of this brief, the Council adopt the

statement of the case as articulated in the brief of

amici James Hatt et al.

SUMMARY OF THE ARGUMENT

The Court should not grant the Museum equitable

relief to enable it to sell 40 of its most prominent

artworks because

1. Based upon the Council’s its records and

research, the financial assumptions that the

Museum bases its request for relief upon are not

well-founded;

2. The Museum has not observed sound practices in

arriving at its decision to deaccession artwork

and in the process, has violated the public

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 trust, including failing to abide by its own

collections management policy, engaging a

financially-interested party in its appraisal

process, failing to abide by proper notice

procedures and entering into binding contracts

for sale in violation of its policies and prior

to obtaining required approvals;

3. The precedental impact of granting such relief

may encourage other Massachusetts institutions

with collections to flout existing practices and

customs and seek to sell for financial benefit

artworks and other collected materials to unknown

parties thus negatively impacting the ability of

the residents of Massachusetts to have access to

such works and collections; and

4. With respect to the 19 out of the 40 works of art

which the Museum seeks to sell which were

acquired by the Museum prior to 1932 in its

earlier incarnation as the Berkshire Athenaeum

and Museum (the “Pre-1932 Works”), the Court may

not properly employ the equitable remedies of

equitable deviation or cy pres to remove or alter

the restrictions which prohibit such works from

being removed from Pittsfield, Massachusetts as

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 such restrictions were imposed by an act of the

legislature, Chapter 129 of the Acts of 1871, §2,

and any modification to such restrictions would

necessarily require an act of amendment or repeal

of a duly enacted statute by the legislature, not

an action of the Court.

ARGUMENT

I. THE MUSEUM HAS NOT SHOWN IT IS ACTUALLY

SUFFERING AN EXISTENTIAL FINANCIAL CRISIS.

The Council, directly and through its predecessor

agency, has provided unrestricted “operating support”

grants as well as other financial support to arts and

other cultural organizations throughout the

Commonwealth for more than 50 years. In such

capacity, the Council has been a longtime supporter of

the plaintiff, Berkshire Museum through investments in

its operations, facilities, public education and

accessibility initiatives. As such the Council is

reasonably familiar with the operations of the

Berkshire Museum. Until this year2, Mass Cultural

Council has provided an operating support grant to the

Museum in each fiscal year since 2007 (aggregating

2
Mass Cultural Council has put a hold on the Museum’s
2018 grant pending a satisfactory conclusion of the
Attorney General’s review of the Museum.
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nearly $200,000) and in addition oversaw the award of

just under $950,000 in capital grants to the Museum

during that period.

In its Verified Complaint, the Museum cites its

“dire financial condition” and a dwindling fundraising

capacity as the reason it needs to sell its artwork.

However, the Museum’s applications and other

submissions to the Council over the past 9 years have

not highlighted nor even indicated any imminent threat

of closing or problem with fundraising. In fact the

Museum reported progress on several different capital

campaigns. While the financial reports submitted by

the Museum to the Council have shown annual operating

deficits during this period as noted in plaintiff’s

verified Complaint, no existential crisis was ever

noted in the Museum’s submissions during the period in

question. Further, the Museum has made statements

during the pendency of these proceedings to the effect

that even without any new influx of cash from selling

artworks, it will still remain solvent for eight more

years.

Since announcement of the de-accessioning plan by

the Museum in summer 2017, the Council has reviewed

the Museum’s finances and, after conferring with other

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experts, raised serious questions regarding the

Museum’s claims of needing $50-60 million to stabilize

its operations, and reasonably believes that a lesser

amount of funding, in the range of $10-15 million, is

needed to put the Museum on a sound footing. The

Council has sought to have further financial

discussions but the Museum has refused to share its

“New Vision” business plan with the Council and

cancelled a mid-October 2017 meeting to discuss its

finances.

To the extent that the Museum now is perceived to

suffer an existential crisis, this crisis has been

self-created. Announcing its plans to sell off its

masterworks, has resulted in its becoming a pariah to

the museum community generally and will no doubt scare

off future donors who will be wary of donating works

to an organization that may one day seek to discard

them.

For the reasons above, the Council has doubts

about the Museum’s statement as to its financial

condition. As the Museum’s claims as to its financial

condition constitute the underpinning for the Museum’s

claim that it needs to quickly de-accession the heart

of its art collection, it should not be granted

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equitable dispensation by the Court to remove any

restrictions on the sale of its artworks.

II. THE MUSEUM HAS VIOLATED THE PUBLIC TRUST BY NOT

FOLLOWING SOUND PRACTICES.

Non-profit institutions, by virtue of their

favorable treatment under state and federal law and

programs (i.e. tax exemptions, public grant funding

opportunities, tax-deductible contributions etc.…) and

by not being subject to shareholder oversight, are

imbued with a public trust to stay true to their

charitable missions. Non-profits are rightfully

expected to adhere to a certain reasonable level of

care in their operations.

The Museum has not shown a reasonable level of

care in reaching its decision to sell off the heart of

its art collection. Specifically, it has been

reported immediately prior and during the pendency of

these proceedings:

a. Just few weeks before the Museum announced

its New Vision plan which included a major

deaccessioning of the core of its art

collection, the Museum stated in its

submitted annual reports to the Council- “No

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 significant change to our core programming”

in the current year, or changes planned for

the next year.

b. The Museum contracted with a financially-

interested party- Sotheby’s- to evaluate its

art collection and recommend items for sale.

c. The Museum signed a binding contract with

Sotheby’s to sell the art in violation of

its own collections management policy3 and

also prior to any required Attorney General

approval.

d. The Museum presented a fait accompli, in the

form of the signed Sotheby’s contract, to

its board directors which required the

directors to retroactively change the

Museum’s collections management policy.

e. The Museum’s June 2017 notice to the

Attorney General of its plan to deaccession

art failed to identify the scope of the

3
The Museum’s collections policy was described as
follows in an application to the Council “The Museum
follows a practice of not capitalizing its
collections. The collection carries a significant
value in connection with the Museum’s mission of
enriching, educating and entertaining patrons.”

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 plan, the fact that the Museum would be

radically altering its corporate purposes,

that the subject artworks were subject to

statutory and other restrictions and that

the Attorney General’s review and a court’s

approval was required.

The items described above do not reflect well on the

Museum’s credibility or care in executing its

charitable mission and weighing the balance of

equities would argue against granting the Museum

equitable dispensations in equity to further evade its

mission.

III. GRANTING THE MUSEUM’S REQUESTED EQUITABLE

RELIEF SETS A BAD PRECEDENT FOR MASSACHUSETTS

MUSEUMS AND ULTIMATELY THE PUBLIC.

Should the Museum be successful in obtaining

equitable relief to sell the mainstay of its art

collection for cash, other Massachusetts museums and

cultural organizations with collections and financial

challenges will be tempted to follow suit. While no

doubt New York auction houses and wealthy private

collectors across the globe would cheer this news, the

residents of Massachusetts and the entire cultural

field would suffer. Over the years, collections

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practice as stated by organizations such as the

American Alliance of Museums, Association of Art

Museum Directors, and other similar organizations have

put forth the principle that art and artifacts

contained within collections for display are not

financial assets and may only be disposed of in

special circumstances related to the management of or

additions to the collection. This policy has had the

advantage of allowing art donors to know that their

donations won’t be disposed precipitously upon the

occurrence or a real or perceived financial shortfall

or effectively treated as a checking account by the

donee institution.

The Council fears that, if the requested relief

is granted, the temptation for cultural organizations,

especially smaller struggling organizations, will be

strong to sell off irreplaceable works in their

collections to meet financial gaps and operating

deficits. This would lead to potentially depriving

Massachusetts residents of access to such works,

discouraging donors and ultimately weakening the

sustainability of such institutions.

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 IV. THE COURT IS NOT THE PROPER PARTY TO ALTER

STATUTORY RESTRICTIONS ON REMOVAL OF THE PRE-

1932 WORKS.

As has been stated in the Museum’s complaint, the

Museum when founded in 1903 (Stat. 1903 c.131)became

subject to the 1871 enabling statute of the Trustees

of the Berkshire Athenaeum and Museum which stated

that no property of the corporation “shall ever be

removed from the town of Pittsfield.” (Stat. 1871 c.

129 §2). Although the Museum when it split from the

Athenaeum in 1932 (Stat. 1932, c. 134) was no longer

subject to such restriction with respect to after-

acquired works, the 1871 law restriction had applied

to the Pre-1932 Works. The Museum, finding such

restrictions inconsistent with its plans to sell the

Pre-1932 Works, is seeking to have this restriction

lifted through the Court by granting relief in the

form of deviation, cy pres or other equitable remedy.

Unlike donor restrictions, the restrictions on

moving the Pre-1932 Works out of Pittsfield were

imposed by statute. To change the language of a

statutory restriction, a new act of the legislature

would be the appropriate remedy. Cy pres and

deviation are appropriate equitable tools for

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situations where a donor is long dead and no

representative of the estate is available to act.

However in the case of a statutory restriction, the

legislature is currently sitting and available to

consider any petitions to change the language of a

duly-enacted law of the Commonwealth. The Court

should therefore refrain from modifying any

legislative restriction on the Pre-1932 Works and

instruct the Museum to, if it desires to change the

geographic restrictions imposed by statute, to seek a

legislative remedy.

CONCLUSION

Wherefore, for the foregoing reasons, and any others

that may appear to the Court, Amici Massachusetts

Cultural Council respectfully requests that the Court

not grant the equitable relief requested by the Museum

in its Verified Complaint.

Respectfully submitted,

_______________________________
David T. Slatery (BBO No 550351)
Deputy Director
Massachusetts Cultural Council
10 Saint James Avenue, 3d Floor
Boston MA 02116
617) 858-2725
David.Slatery@art.state.ma.us

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 CERTIFICATE OF SERVICE

I, David Slatery, Esq. do hereby certify under

the penalties of perjury that on this ___ day of
February, 2018, I served this brief on the persons
below by hand or first class mail.

William F. Lee
Mark C. Fleming
Felicia H. Ellsworth
WILMER CUTLER PICKERING HALE AND DOOR LLP
60 State Street
Boston MA 02109

Mark S. Gold
SMITH GREEN & GOLD, LLP
75 North Street, Suite 400
Pittsfield, MA 01201
ATTORNEYS FOR PLAINTIFF

Courtney Aladro
Emily T. Gabrault
Andrew M. Batchelder
Assistant Attorneys General
Office of the Attorney General
One Ashburton Place
Boston MA 02108

______________________________
David Slatery, Esq.

DATED; February __, 2018

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 MASSACHUSETTS RULE OF APPELLATE PROCEDURE 16((k)
CERTIFICATION

I, David Slatery, certify that this brief

complies with the Massachusetts Rules of Appellate
Procedure that pertain to the filing of briefs

________________________
David T. Slatery (BBO
No. 550351)
Deputy Director
Massachusetts Cultural
Council
10 Saint James Avenue,
3d Floor
Boston MA 02116
(617) 858-2725
David.Slatery@art.state.
ma.us

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