Court hearing held on whether lawsuit to stop sale of art from Brauer Museum should be dismissed

Do Dick Brauer, the namesake of the Brauer Museum at Valparaiso University and its first curator, and Philipp Brockington, a retired university law professor who is one of the museum’s benefactors, have legal standing to stop the sale of the museum’s most valuable artwork so the proceeds can be used to fund dorm renovations?

That’s now in the hands of Porter Superior Court Judge Jeffrey Thode.

After a 45-minute hearing Wednesday in his Portage courtroom, Thode said he would take under advisement whether to dismiss the lawsuit Brauer and Brockington have filed against the university to halt the sale because it would be a violation of the Percy H. Sloan Trust, which provided directly or indirectly for the three renowned paintings.

“I’ll give it my due thought and good consideration,” Thode said.

Brauer and Brockington filed the lawsuit in late April against Valparaiso University President José Padilla, the university and Indiana Attorney General Todd Rokita. In turn, Padilla, the university and Rokita’s office asked for the lawsuit to be dismissed, claiming that Brauer and Brockington don’t have standing in the case to file the lawsuit.

The lawsuit argues that Brauer and Brockington have standing to challenge the sale 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.

Padilla first announced the possible sale of three renowned works of art to fund the dorm renovations in early February. The paintings are considered cornerstones of the museum’s collection and have an estimated worth of millions of dollars. They are “Rust Red Hills” by Georgia O’Keeffe; Childe Hassam’s “The Silver Veil and the Golden Gate”; and Frederic Edwin Church’s “Mountain Landscape.”

The O’Keeffe and Hassam paintings were purchased through the Percy Sloan Trust; Church’s work was a direct gift from Sloan. Collectively, the paintings are estimated to be worth millions of dollars.

The projected cost of renovating Brandt Hall and Wehrenberg Hall for first-year students is approximately $8 million, a university spokesman has said.

In mid-September, Padilla announced that, given the court case, the paintings had been removed to a safe, secure location for the time being.

“In light of this heightened activity, and in accordance with the University’s responsibility to safeguard these works, they have been relocated to a secure off-site location out of an abundance of caution. The off-site location is not that of an art broker,” Padilla said in a statement to campus, adding that a final decision about the possible sale of the paintings had not been made.

Brauer’s name on the museum is honorary and can be removed at any time, Colby Barkes, the attorney representing the university, said in court Wednesday.

“While the museum is named for Brauer, he has no connection to the trust,” Barkes said, adding Brockington’s own endowment to the university also is not a connection to the Percy H. Sloan Trust.

Brauer and Brockington also claim reputational injury if the sale of the paintings moves forward, which Barkes also refuted, noting they have no special interest in the case and any reputational harm would be speculative.

“We’re not here to determine the merits of the case, but if we can determine standing,” Barkes said. “We’re going to win this case.”

Attorney Patrick McEuen, who represents Brauer and Brockington, both of whom attended the hearing, said he was aware when he filed the lawsuit that standing was going to be an issue for his clients.

Still, in addition to Brauer’s name being on the museum, he oversaw the accession of two of the three works in question as the museum’s curator at the time and a member of its board. Brockington, meanwhile, established his endowment for the maintenance and betterment of artwork at the museum.

The announcement of the sale, he said, drew criticism from museum associations that pointed out selling artwork from a trust and using the funds for something other than their intended purpose wasn’t the way to go about deaccessioning the artwork.

The announcement, first reported in the Post-Tribune, set off a firestorm of criticism from students, alumni, faculty and the art world and included a wide range of concerns, from possible sanctions against the museum by the nation’s art museum associations to the loss of donations for fear that the university would not respect donors’ wishes, as well as the violation of the trust that provided for the artwork to begin with.

The inability to borrow or loan out its artwork — a possible sanction from the art world if the sale proceeds — jeopardizes the future of the museum, McEuen said, and Brockington’s contribution to it.

“We’re challenging whether the Percy Sloan Trust allows the sale of artwork for capital improvements, and we don’t see that,” McEuen said.

Barkes also said that the Indiana Attorney General’s Office is the proper forum for determining whether the artwork from the trust can be sold.

In court filings, that office has backed up Valparaiso University’s contention that the lawsuit should be dismissed because the plaintiffs who filed the suit don’t have standing to do so.

“In this particular case, the Attorney General’s Office has not made any particular decision of what they’re going to do with the trust,” Barkes said, adding the lawsuit was an attempt to usurp that.

Indiana Code lays out that her office is the enforcement authority if a trust is breached, and it’s not to be named as a defendant, Kari Morrigan, an attorney in Rokita’s office, said.

McEuen, though, said he doesn’t see why that office is the only one that can oversee a public charitable trust. “Somebody has to afford judicial review,” he said, rather than the Attorney General’s Office saying this one time, the tenets of a public trust could be violated.

The Attorney General’s Office must make sure a trust is not misused, Morrigan said, and the university is not doing that. Her office has been working on the matter, and the process has been stalled by the court filings.

“Nothing has been done. The process is not complete. If anything, they’ve jumped the gun,” she said of Brauer and Brockington, adding she disagreed with claims by McEuen that the office was somehow compliant with the university or unwilling to enforce the terms of the trust.

alavalley@chicagotribune.com