Attorneys: No need for temporary restraining order to halt sale of Brauer artwork as any sale wouldn’t come until fall
An attorney representing two retired Valparaiso University professors with long standing relationships with the university’s Brauer Museum of Art agreed to drop a request for a temporary restraining order to stop the sale of three cornerstone pieces of artwork after learning during a Tuesday court hearing that sale of the artwork is not imminent.
Portage attorney Patrick McEuen, representing Richard Brauer, the museum’s first director and curator and for whom the facility is named, and Philipp Brockington, a former law school professor and benefactor to the museum, appeared before Porter Superior Court Judge Jeffrey Clymer.
The petition for a temporary restraining order was withdrawn, Clymer said, with “an informal agreement of some type” that the paintings will remain in the university’s collection for the time being.
“It’s not that they’re going to be sold tomorrow,” Clymer said. “That was my concern.”
Clymer is recusing himself from the case because he taught at the university’s law school on a part-time basis for 20 years. The law school graduated its last class in 2020. A special judge will handle the complaint for declaratory and injunctive relief also filed Monday.
The complaint argues that Brauer and Brockington both have standing to challenge the sale of the artwork because of Brauer’s longtime association with the museum and personal stake in it, and because of an endowment for the museum established by Brockington to “acquire, restore, and preserve” works of art and artifacts for the museum.
The proposal to sell the artwork for renovating dorms, the documents note, is “as if the Percy H. Sloan donation is a mere ATM to be used irrespective of donor intent.”
The plans, which opponents said are in violation of the restricted trust from Percy Sloan that provided the artwork, created an immediate outcry on campus, from students, a majority of the Faculty Senate, alumni and the four major art museum associations in North America, which said the museum could face sanctions or censure for going against standard museum protocol for deaccessioning artwork. More than 2,300 people also have signed a petition protesting the sale.
Since then, the university confirmed $2.2 million in restricted funds from its endowment were used to purchase the former Strongbow Inn site at 2405 U.S. 30, funds that couldn’t be used to renovate the dorms, and Jonathan Canning, the museum’s director, has put together an exhibit about how to deaccession artwork.
Tuesday’s hearing offered new details about the procedure and timeline for the sale of the artwork, the proceeds of which the university plans to use to renovate two dorms for first-year students, Wehrenberg and Brandt halls.
Valparaiso attorney Colby Barkes, who attended the hearing on the university’s behalf with university counsel Darron Farha, confirmed for Clymer that the university’s board voted in October and again in January to sell the artwork, a plan announced by Jose Padilla, the university’s president, in a Feb. 8 campus email.
The sale, he said in the email, was to reallocate “resources that are not core or critical to our educational mission and strategic plan.”
The paintings are Georgia O’Keeffe’s “Rust Red Hills, which Brauer acquired for the Percy H. Sloan Trust in 1962 for $5,700; Frederic E. Church’s “Mountain Landscape,” which, according to court documents, Sloan acquired at auction for $22 and was part of the original body of artworks in the trust donated to the university; and Childe Hassam’s “The Silver Veil and the Golden Gate,” which Brauer purchased for the trust in 1967 for $9,000.
Collectively, the paintings are now worth several million dollars. A university spokesman has said the dorm renovations would cost about $8 million.
Barkes said he has been working with the Indiana Attorney General’s Office on the matter since March, because that office will determine whether sale of the artwork is a breach of the restrictive Percy H. Sloan Trust under which two of the three paintings were purchased. Per that trust, and standard museum protocol, any proceeds from the sale of the artwork are to be reinvested back into the museum’s collection.
Barkes didn’t expect a temporary restraining order to be necessary.
“There’s no real immediacy to any of this. This is a process that would take place in September,” if the Attorney General Todd Rokita’s Office gave its approval of the sale, Barkes said, adding there is no irreparable harm at stake, one of the points raised in court documents McEuen filed on Monday.
McEuen said he reached out to Rokita’s office but no one there had shared with him that there was a review of the trust agreement taking place.
“They can say all day we don’t have plans to sell or it’s not until September but there’s no evidence of it,” McEuen said.
The restraining order, Clymer said, would protect the status quo, which is why he asked about the timing and the immediacy of the sale.
“There would be irreparable harm if the artwork is sold and it was determined it shouldn’t have been sold and the artwork is gone,” he said.
Rokita’s office is still collecting information and has been in conversations with the university but there is no immediate sale, said Kari Molligan, a deputy attorney in that office.
“In the long run, the attorney general will determine the restrictions of the trust and whether they can be released,” she said.
The university has been in contact with Sotheby’s about selling the paintings but doesn’t have a contract with the auction house because university officials don’t have an answer yet from Rokita’s office, Fahra said, and even then, a sale would be one to two months out.
