Thomas ROCKWELL et al.
TRUSTEES OF the BERKSHIRE MUSEUM et al. James Hatt et al., individually and derivatively on behalf of the Trustees of the Berkshire Museum
Trustees of the Berkshire Museum
MEMORANDUM OF DECISION ON PLAINTIFFSâ MOTIONS FOR
A. Agostini, Associate Justice
plaintiffs, under Civil Action Number 17-0253 ("
Rockwell case"), have requested by way of motion that
the Court enter a preliminary injunction prohibiting the
defendant, Trustees of the Berkshire Museum ("
Trustees" or " Board"), from selling,
auctioning, or otherwise disposing of any of the artworks
that have been listed for auction commencing on November 13,
2017. The defendant Trustees have opposed this motion. The
co-defendant, Maura Healey, in her capacity as Attorney
General of the Commonwealth of Massachusetts ("
AGO" or " Attorney General"), initially
supported the plaintiffsâ request for an injunction. After
the hearing, the AGO sought and was granted plaintiff-status
and is seeking an injunction on behalf of the Commonwealth,
but only if the other plaintiffs fail to establish standing
to file such claims.
related action initially filed in the Suffolk Superior Court
but transferred and consolidated with the Rockwell case by
order dated October 30, 2017, different plaintiffs also seek
injunctive relief to prevent the sale of the artwork ("
Hatt case"). The AGO is not involved in that litigation.
non-evidentiary hearing was held on November 1, 2017. Based
upon the submissions of the parties, including the affidavits
and exhibits, as well as argument of counsel, I make the
following findings and rulings.
genesis of the Berkshire Museum goes back to 1903.
Philanthropist Zenas Crane donated a building that was
located behind the Berkshire Athenaeum to hold and display
art and artifacts for the benefit of the public. This
property was transferred to the management of the Athenaeum,
and the name was changed to the Berkshire Athenaeum and
Museum. Although the organizations maintained separate
identities and collections, there was a single board of
significance, the Athenaeum was incorporated in 1871 as a
library with the authority to provide " reading-room,
lectures, museums, and cabinets of art and historical and
natural curiosities." See St. 1871, c. 129, An Act to
incorporate the Trustees of the Berkshire Athenaeum. The Act
further stated that " no part of such real and personal
property, or such gifts, devises or bequests, shall ever be
removed from the town of Pittsfield." Id. at Â§
1932, a citizensâ petition resulted in a separate legal
existence for the Museum and a formal incorporation of the
Trustees of the Berkshire Museum as the overseers of this
entity. The Act created this corporation
" for the purposes of establishing and maintaining in
the city of Pittsfield an institution to aid in promoting for
the people of Berkshire county and the general public the
study of art, natural science, the cultural history of
mankind and kindred subjects by means of museums and
collection, with all the powers and privileges ... set forth
in all general laws now or hereafter in force relating to
such corporations." See St. 1932, c.134, Â§ 3. The Museum
and the Athenaeum were now separate legal entities. As will
be discussed in greater detail later in this decision, the
1932 Act establishing the Museum as a separate legal entity
did not include language prohibiting its property from being
removed from Pittsfield. However, it did have language that
any gift or bequest would be " used in conformity with
the conditions made by any donor and expressed in writing
provided, that such conditions are not inconsistent with the
provisions of this act." Id. at Â§ 4.
the years, the Berkshire Museum has matured and evolved into
a repository of more than 40, 000 items with a large
concentration of items in the natural sciences, such as
fossils, minerals, and reptiles. Since the seventies, the
national economic winds have eroded the Berkshire County
business environment, resulting in many industries and
businesses dying off or relocating. The population has shrunk
and, most importantly, generous benefactors have vanished.
However, to its benefit, the County has supplanted its
industries with recreational and cultural attractions as it
progresses to a tourist-based economy. Of course, this has
created greater stress on the existing non-profit
institutions as they compete for tourist dollars and donor
appears to be no dispute that the Museum is in serious
financial trouble. It has operated at a deficit for many
years causing it to rely on its endowment to sustain its
operations. Although the extent of the financial woes is
disputed, it is beyond cavil that the Museumâs financial
outlook is bleak.
with these consequences, the Trustees initiated discussions,
by way of a Master Planning Process (" MPP") to
address the financial issues. They initially considered
merging with another museum, however that was rejected, as
both of these institutions had financial problems. The MPP
also considered and adopted more aggressive fundraising,
changes in programming, increasing ticket sales, grant
writing and reduced operational costs through hiring freezes,
reduced hours and reduced programming.
to the information before the court, the Trustees first
considered the issue of deaccession as a possible option in
June 2015, when they began developing the MPP. At a retreat
on October 24, 2016, the Board discussed the potential items
for deaccession and, most importantly, moved forward with
this method of financing. A meeting in December 2016,
established a timeline for the proposed deaccession. Thus,
over the course of two years, the Trustees and its
subcommittees held numerous meetings regarding the economic
future of the Museum.
22, 2017, the Board voted to authorize the Board President to
execute a consignment agreement with Sothebyâs. An agreement
was signed on June 13, 2017.
proposed auction includes forty items, with the two garnering
the most attention being the works of renowned artist and
Berkshire County resident Norman Rockwell. The paintings
identified as " Shuffletonâs Barbershop" and "
Shaftsbury Blacksmith Shop" were personally donated by
Mr. Rockwell to the Museum. Judgment on art is subjective;
however, these two paintings are considered his finest works
and their value is in the millions.
included within the art works for deaccession are paintings
from prominent artists and sculptors including Alexander
Calder, Frederic Church, George Henry Durrie, William Adolphe
Bouguereau and Albert Bierstadt. For all the items submitted
to Sothebyâs the range of " hammer" value (the
winning bid at an auction) is approximately $46, 000, 000 to
$68, 000, 000. The auction of these and other art works from
around the country will be scheduled on different dates,
commencing on November 13, 2017. On November 13, seven works
from the Museum are up for sale, including the two Rockwell
paintings. Twelve more art works will be sold in auctions
stretching out into March. The sale of the remaining works
have not been scheduled.
PARTIES AND CLAIMS
first three plaintiffs identified in the Rockwell Complaint
are Thomas Rockwell, Jarvis Rockwell and Peter Rockwell. They
are the three children of Norman Rockwell and all are
principal beneficiaries of the estate through testamentary
trusts. The residue of the estate passed to trusts of which
they are the beneficiaries. Thomas Rockwell was the executor
of Norman Rockwellâs estate.
plaintiff Tom Patti is a prominent artist and owner of Tom
Patti Design, LLC, a Massachusetts limited liability company
located in Pittsfield. The company entered into a contract
with the Museum for the creation and installation of two
items of glass affixed to the building.
other plaintiffs in the Rockwell Complaint are James Lamme,
Donald MacGillis, Jonas Dovydenas and Jean Rousseau. It is
asserted that they are each members of the Museum and
Dovydenas and Rousseau have made " substantial donations
to the Museum." Membership in the Museum is afforded to
any individual or family that provides a financial donation,
with the level of donation determining the benefits
available, including free admission, guest passes, reciprocal
privileges to other museums, etc. The types of membership
start with a $50 per year individual account and progress to
Crane Society status for $1, 000 per year. A member has no
right to participate in the management or operation of the
Rockwell Complaint asserts two claims: a breach of fiduciary
duty, breach of trust and absence of authority under Count I,
and breach of contract regarding the glass work of Tom Patti
under Count II. The relief requested includes voiding the
contract with Sothebyâs, and enjoining the Museum from
deaccessioning the forty items for sale, as well as
preventing the Museum from " modifying or otherwise
altering" the glass works of Tom Patti. The Patti
plaintiffs are requesting specific performance of the
defendants in the Rockwell case are the Trustees of the
Berkshire Museum and Maura Healey, in her capacity as
Attorney General of the Commonwealth of Massachusetts.
Initially, there were no counterclaims or cross claims
asserted by the defendants; however, after the hearing, the
Attorney General filed an emergency motion to " convert
from defendant to plaintiff if plaintiffs lack standing"
and, if so, to seek a preliminary injunction on behalf of the
Commonwealth. This motion was allowed.
plaintiffs in the Hatt case are James Hatt, Kristin Hatt and
Elizabeth Weinberg. All are residents of Berkshire County and
James and Kristin Hatt are members of the Museum. Elizabeth
Weinberg is a former member of the Museum.
claims raised in the Hatt litigation are breach of contract
between the Trustees and its members and breach of fiduciary
duty against the individual Trustees.
defendants in the Hatt case are the Trustees of the Berkshire
Museum and each of the 22 individual trustees. The Attorney
General is not a defendant in this litigation. The Attorney
General did not seek plaintiff status with respect to this
legal issue before the court is straightforward and
well-traveled; the court must decide whether the plaintiffs
are entitled to a preliminary injunction enjoining the Museum
from selling or otherwise disposing of the 40 works of art
under contract with Sothebyâs. A preliminary injunction is an
equitable remedy, and thus is not appropriately granted in
those circumstances where it would impose an unfair or
inequitable advantage on one party. Cote-Whitacre v.
Depât of Pub. Health, 446 Mass. 350, 357 (2006),
abrogated on other grounds by Obergefell v. Hodges,
135 S.Ct. 2584 (2015).
to prevail on a request for a preliminary injunction, the
plaintiff must show (1) a strong likelihood of success on the
merits of the claim, (2) that they will suffer irreparable
harm without the requested injunctive relief, and that (3)
the harm, without the injunction, outweighs any harm to the
defendant from being enjoined. Packaging Indus. Group,
Inc. v. Cheney, 380 Mass. 609, 616-17 (1980). See
Planned Parenthood League of Mass., Inc. v.
Operation Rescue, 406 Mass. 701, 710 (1990). In
appropriate cases, the court may also consider the risk of
harm to the public interest. GTE Prods. Corp. v.
Stewart, 414 Mass. 721, 723 (1993). Relevant to this
case, a governmental entity need not show irreparable harm in
enforcing a legislative policy or statute. Commonwealth
v. Mass. CRINC, 392 Mass. 79, 89 (1984).
addressing the merits of a preliminary injunction, a
digression is required to put in context a core issue in this
case. This case is essentially about art deaccessions.
According to the Association of Art Museum Directors (AAMD),
deaccession is the practice by which an art museum formally
transfers its ownership of an object to another institution
or individual by sale, exchange, or grant, or disposes of an
object if its physical condition is so poor that it has no
aesthetic or academic value. Deaccession is not a pejorative
term; it is an integral part of collection management in
museums. The failure to periodically both pare down and
complement a collection may render the art collection
obsolete. Consequently, deaccession involves both artistic
and financial decisions that go to the core of its mission.
See generally, Michael Conforti, Deaccessioning in
American Museums: II Some Thoughts for England,
reprinted in A Deaccessioning Reader (Stephen E. Weil ed.
conflagration occurs, not with deaccession, but the purpose
or reason for the deaccession. If it is used to pay for a
greater work of art or to change a collectionâs focus,
deaccession is generally tolerated. However, if it is used
for operations or capital expenses, it is discouraged, if not
condemned. See Association of Art Museum Directors,
Policy on Deaccessioning (October 2015).
Deaccessioning items from a museum is neither illegal nor
unethical per se and every proposed deaccession must be
examined on its own merits.
the art world has relied on two tools to control deaccession:
self-regulation and peer-regulation. Self-regulation is
simply the policies and procedures that a museum promulgates
to guide its operations. The Berkshire Museum allows
deaccession and has enacted specific policies for such an
event. Peer-regulations relies on accreditation and
professional ethics codes. Accreditation is undertaken by the
American Association of Museums and ethical considerations
are generally regulated by the AAMD. Peer-regulations often
have been a powerful tool in shepherding the herd of museums
that are considering deaccession for financial reasons.
However, there are numerous examples of museums
deaccessioning artwork for operating or capital costs. See
Ralph E. Lerner and Judith Bresler, Art Law, A Guide for
Collectors, Investors, Dealers & Artists, p. 1503-04 (4th ed.
2012). To date, the courts have played a very limited role
and there is scant legal authority, statutory or case law,
when a conflict of this nature arises.
issues before the court are (1) whether the plaintiffs (other
than the AGO) have standing to assert their claims and, if
the non-governmental plaintiffs have failed to establish
standing, (2) whether the AGO has satisfied the requirements
for a preliminary injunction.
long been the rule that only the Attorney General has
standing " to protect public charitable trusts and to
enforce proper application of their funds" and assets.
Degiacomo v. City of Quincy, 476 Mass. 38,
45 (2016); Maffei v. Roman Catholic Archbishop
of Boston, 449 Mass. 235, 244 n.20 (2007); Dillaway
v. Burton, 256 Mass. 568, 573 (1926) (citing cases). See
also G.L.c. 12, Â§ 8. The law presumes that the Attorney
General can protect public charitable trusts " more
satisfactorily ... than ... individuals, however honorable
their character and motives may be." Burbank v.
Burbank, 152 Mass. 254, 256 (1890). Since the law
authorizes only the AGO to enforce public rights in a public
charity, it falls on would-be plaintiffs to demonstrate that
they seek to enforce some kind of private right. See
Maffei v. Roman Catholic Archbishop of Boston, 449
Mass. at 245, citing Lopez v. Medford Community
Ctr., Inc., 384 Mass. 163, 167 (1981).
Rockwell plaintiffs, Norman Rockwellâs heirs and the
beneficiaries of his trust, argue that their unique right to
enforce promises made to their father gives them standing in
this case. But the law does not allow them as
heirs or beneficiaries to enforce their fatherâs contracts;
that responsibility generally belongs to Norman Rockwellâs
estate or his trust, which are not parties to this
litigation. See Kobrosky v. Crystal, 332 Mass. 452,
461 (1955) (only executor can maintain action for personal
property of deceased person); Gulda v. Second
National Bank, 323 Mass. 100, 103 & n.1 (1948) (trustee
generally represents estate unless " existence of the
trust itself" is threatened, in which case beneficiaries
have standing even if trustee fails to act).
fundamentally, even if a legal representative of Norman
Rockwellâs interests had joined this case, the claim, as
presented, nonetheless only seeks to enforce Mr. Rockwellâs
intent regarding the permanent domain of his two works. That
private right, if it exists, is no different from the public
right that may be enforced only by the Attorney General. See
Dillaway v. Burton, 256 Mass. at 574 (general rule
of Attorney Generalâs exclusive standing " has been held
applicable to heirs or other representatives of such donors
or grantors"). Accordingly, the Rockwell plaintiffs do
not have standing to enforce any promise made to their father
that would bind a public charity.
Patti contends that his unique private right to enforce his
contract against the museum gives him standing in this
action. It is difficult to see how the alleged breach of
contract relates to the preliminary injunction the parties
seek. Mr. Patti alleges that, pursuant to his contract, the
Museum may not unilaterally move his artwork, and he
complains that the Sothebyâs sale would cause his artwork to
be unilaterally moved. To repeat: Mr. Pattiâs works are not
part of the forty artworks set to be sold at auction. "
Not every person whose interests might conceivably be
adversely affected is entitled to [judicial] review."
Ginther v. Commissioner of Ins., 427 Mass. 319, 323
(1998), quoting Group Ins. Commân v. Labor Relations
Commân, 381 Mass. 199, 204 (1980). A plaintiff must
demonstrate injuries that are not " speculative, remote,
[or] indirect, " which must be " a direct
consequence of the complained action" (citations
omitted). Ginther v. Commissioner of Ins.,
427 Mass. at 323. Mr. Patti has failed to show any likelihood
that his artwork will be unilaterally moved if the Sothebyâs
sale proceeds as scheduled; his allegations are too
speculative to confer standing upon him to ask the court to
enjoin the sale. See id.
remainder of the Rockwell plaintiffs are all members of the
Museum who live in Berkshire County. Two of them (Dovydenas
and Rousseau) have made substantial donations to the Museum.
One of them is a resident of Pittsfield. These plaintiffs
variously argue that they have standing to stop the Sothebyâs
sale by enforcing rights peculiar to them as members, donors,
and residents of Pittsfield and Berkshire County.
Unfortunately, none of these characteristics are sufficient
to supply standing to enjoin the Sothebyâs sale.
Attorney General conceded at the hearing, a member does not
have standing to sue a public charity except in situations
like those described in the Lopez case. See
Lopez v. Medford Community Ctr., Inc., 384 Mass.
163. Lopez is instructive: the plaintiffs attended a
board meeting to mount a coup of the nonprofitâs management
by paying $2.00 to become associate members and attempting to
vote out the board. Id. at 165. The board rejected
the plaintiffsâ membership and the plaintiffs sued alleging
corporate mismanagement and seeking a declaration of their
rights as members and an injunction against the boardâs
enrolling new members. Id. at 165-66. The Supreme
Judicial Court held that the plaintiffs did have standing to
litigate their claim that the nonprofit unlawfully denied
their membership. Id. at 168. The SJC, however,
explained that only the Attorney General had standing to
address the alleged corporate mismanagement, ruling that it
was improper to take any evidence on corporate mismanagement
without the Attorney Generalâs involvement. Id. at
Lopez case perfectly illustrates that members may
sue when enforcing a right or remedy only available to them,
and that, otherwise, they do not have standing. See also
Jessie v. Boynton, 372 Mass. 293, 305 (1977)
(dues-paying members had standing where nonprofit hospital
board allegedly tricked them into approving bylaws that
disenfranchised them). The members in this case allege that,
" [b]y planning and approving the sale, " the
Trustees breached their fiduciary duty. This claim is similar
to the Lopez plaintiffsâ claim of corporate
mismanagement and, under Lopez, only the Attorney
General has standing to bring it.
plaintiffs who made substantial donations to the Museum argue
that they have a private right to sue by virtue of their
gifts that is unique from the rights of the general public.
They do not, however, allege that their donations conferred
any special rights upon them. Since " the Legislature
has determined that the Attorney General is responsible for
ensuring that ... charitable funds are used in accordance
with the donorâs wishes, " it is difficult to see why a
donor should also have standing to seek the same end. See
Weaver v. Wood, 425 Mass. 270, 275 (1997). The
donors in this case have failed to explain how their interest
in enforcing the terms of their gifts is any different from
the general publicâs right to have those terms enforced.
Accordingly, they do not have standing because the Attorney