Foes of Berkshire Museum art sale to file with top court Tuesday

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Foes of the Berkshire Museum's art sale face a Tuesday deadline to submit what could be their closing arguments.

Two groups of plaintiffs are expected to file briefs to the Supreme Judicial Court in Suffolk County, and one did so late Monday. The documents will object to the Feb. 9 agreement between the museum and the Attorney General's Office that ended their adversarial stance over proposed sale and vaulted the matter up to the state's top court.

With support from Attorney General Maura Healey, the museum is asking the SJC to grant what's known as an "instant petition" that would remove restrictions on the sale of up to 40 works of art. The agreement sets a $55 million limit on proceeds from the sales. It imposes reporting requirements and restrictions on how the museum can use $5 million of that money.

While plaintiffs who oppose the planned sale will get their say before the SJC, it will be in the limited capacity as a "friend of the court," not as intervenors with more litigation options.

Justice David A. Lowy last week allowed two groups of plaintiffs to separately file a "friend of the court" brief, formally known as an amicus curiae.

Though the plaintiffs were parties to litigation in both Berkshire Superior Court and the Massachusetts Appeals Court, they will not have that status with the SJC. By definition, amicus briefs are submitted by "nonparties."

Amy Stewart, the assistant clerk overseeing the case for the SJC, said Lowy will review all documents and determine whether to call a hearing on the petition. The justice can decide the matter himself, with or without a hearing, and can also opt to refer it to consideration by the full court.

Stewart said it is hard to predict how long it will take to decide the issue. The museum's petition asks for a prompt resolution so that it can pursue sales through Sotheby's in New York City.

Lowy is handling the case because he was the "single justice" sitting for February. Though he rotates out of that duty next week, he will retain oversight of the museum's petition, Stewart said.

The agreement reached with Healey's office would allow the museum to dispose of all of the pieces it marked for sale last July. But the most acclaimed work in that group, Norman Rockwell's 1950 painting "Shuffleton's Barbershop," would be sold to a nonprofit museum and would be displayed for up to two years at the Norman Rockwell Museum in Stockbridge.

Lowy is scheduled to sit on the full SJC next week — a duty that could delay his response to the museum's petition, Stewart said.

"That could consume some time," she said. "When you're on the bench you're on the bench."

If Lowy opts to hold a hearing on the petition, the museum's legal team is expected to oppose allowing the plaintiffs who file amicus briefs to participate.

"There's been some objection put on the record," Stewart said.

However, the museum and Healey's office did not oppose the filing of the amicus briefs.

In a motion to the SJC on Feb. 20, attorney Nicholas O'Donnell indicated that his three clients — James and Kristin Hatt and Elizabeth Weinberg, all of Lenox — did not seek to win intervenor status. O'Donnell's brief was filed late in the day Monday.

O'Donnell wrote that his clients "propose to express their views about the instant petition as an amicus curiae to avoid delay of the question."

Other plaintiffs

Another group of plaintiffs represented by attorney Michael Keating first asked Feb. 15 for Lowy's permission to file a brief either as intervenors or as a friend of court. But those plaintiffs later consulted with the museum and Attorney General's Office and agreed to go the "friend of the court" route.

Keating's clients had included three of Rockwell's sons, but they left the case last week, saying they had achieved their main goal of keeping "Shuffleton's Barbershop" in the public realm. The museum poised to buy the painting has not been identified.

But other clients in Keating's lawsuit stayed in — artist Tom Patti, his company and four Berkshire County residents: Jonas Dovydenas, Jean Rousseau, James Lamme and Donald MacGillis. (MacGillis is chairman of The Berkshire Eagle's advisory board.)

While those plaintiffs agreed to file for amicus status, they held out for the right to speak at any hearing. Their brief acknowledged that the museum would oppose that.

"The Parties [the museum and AG] and the Original Plaintiffs further agree that the Original Plaintiffs have preserved all rights to request to participate and argue in any hearing in this matter, and the Parties have preserved all rights to object to any such request," the Feb. 21 brief says.

Meantime, plaintiffs represented by Keating's firm, Foley Hoag, have agreed to dismiss cases before the Berkshire Superior Court and the Appeals Court. Those dismissals were made "without prejudice," meaning the parties preserve the right to pursue further legal action.

O'Donnell's clients continue to pursue their case before the Appeals Court. They are fighting the Nov. 7 decision by Judge John A. Agostini of Berkshire Superior Court to deny them legal standing.

'Amicus' status

Arguments put forward in amicus briefs are designed to inform a court. The filings due Tuesday provide what is likely the last chance for art-sale opponents to influence the outcome of the case.

Unlike intervenor status, an amicus brief does not grant its filer any say over how the matter is argued before a court, according to the Legal Information Institute of Cornell Law School.

The plaintiffs in the Berkshire Museum case could have attempted to win the right to intervene by claiming that status is needed for them to protect their rights or interests.

In his filing, O'Donnell noted that the decision hinged in part on a wish "to avoid delay of the question."

That fight would have also increased legal costs on all sides.

In contrast, an intervenor generally holds a right of appeal (depending on the venue in which the matter is being heard) and the ability to litigate its side in court, according to the Cornell institute.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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