No quick result expected in Berkshire Museum litigation

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PITTSFIELD — Litigation over the Berkshire Museum's plan to sell art, while only in its second month, already includes an appeal of an appeal.

It's only going to get more complicated, interviews with lawyers involved suggest.

"It's a real legal morass," said Jim Lamme, a Great Barrington lawyer who joined one lawsuit as a plaintiff.

As of Saturday, 68 documents, some of doorstop heft, had been filed with the Berkshire Superior Court clerk. Even more are stacking up in two Massachusetts Appeals Court dockets.

While the court order that stopped November art auctions is set to expire in a week, this legal fight is expected to generate motions, responses, hearings and appeals deep into 2018, complicating the museum's wish to get back on a Sotheby's sale schedule.

Lawyers from Boston to the Berkshires have been working flat out to help a kaleidoscope of clients get what they want, in a closely watched case.

For the museum, that goal is a green light to bring 40 artworks to auction, raising $60 million or more to fix its troubled finances and propel significant renovations.

For sale opponents, it's the return of art now in a Sotheby's vault to the storied South Street institution, founded by a man, Zenas Crane, who died 100 years ago this month.

For the Attorney General's Office, which supplies its own lawyers, the clock is ticking on the 30-day injunction it won Nov. 10.

That office has just another workweek before the preliminary injunction expires.

It's crunch time.

But the legal odyssey is far from over.

Michael B. Keating, an attorney representing one group of plaintiffs, said he expects the case to go to the Supreme Judicial Court in Boston.

Wide interest

While the contest is playing out in Pittsfield, Boston and New York, interest continues to run high in the art world. A Google search for "Berkshire Museum art sale" brings 236,000 results. One observer tallied 4,000 separate pieces of news coverage about the deaccession, including radio and TV.

A commentary posted Saturday by the National Review argues that the controversy warrants all that attention.

"The biggest art-world headline of 2017 is probably, 'Leonardo Gets Sold for $450 Million,' but the biggest art-world story of 2017 looks like the little Berkshire Museum's quest to sell $70 million worth of art," writes Brian T. Allen.

Next up in the saga is the Attorney General's Office.

When it secured an injunction Nov. 10, Justice Joseph A. Trainor of the Appeals Court allowed it to come back and ask for more time, if it could provide "a date certain" for the completion of its investigation into the legality of the sale.

A spokeswoman told The Eagle that the office was working last week to wrap up its review. She declined to say whether the office will seek an extension on that work from the Appeals Court.

That court's calendar shows no hearings on the issue for Dec. 11 — or any other date in December.

A team of three lawyers is working the case for the attorney general, aided by other staff. While the full findings of an investigation aren't yet known, the office has shown, in an array of court filings, that it believes the museum's board erred in its handling of the deaccession.

But it remains to be seen how vigorously the office will contest the sale from here on out.

Ron Chester, a retired Boston College law professor who is following the case, said he expects the Attorney General's Office to emerge from its review determined to make a "substantive" case against the museum's planned art sale.

While museum trustees contend that they have the right to sell the works, that move runs counter to ethical practices in the museum field, if proceeds are used for any purpose other than the good of a collection.

That pits ethics against what's lawful — and in the first test of that, the museum won convincingly, when Judge John A. Agostini of the Berkshire Superior Court denied a bid to stop the sale.

Chester predicted that the Attorney General's Office will ask for the issue to be decided by a three-judge panel of the Appeals Court.

"It's a very important case," Chester said in an interview. "It really gets to the gut of what is a charity. It's not an ordinary business."

Moving up

Meantime, the case is already moving up to a three-judge panel at the Appeals Court, starting a process that could keep lawyers busy well into the next year.

And keep the art out of public view for months.

On Nov. 22, William F. Lee, the museum's lead lawyer, filed a notice of appeal taking issue with Trainor's Nov. 10 decision to grant the injunction. The sale was stopped just days before two paintings by Norman Rockwell were to be sold in a bid range of $27 million to $40 million.

Lee's notice indicated that he also wants the court to review Trainor's decision to pause proceedings in the Pittsfield court.

Earlier, he had asked Trainor to clarify whether a "stay" was in effect for the Superior Court. The museum hoped otherwise, because its fastest route to getting the deaccessioned art to auction is through a trial at the local level.

But now, the matter is moving on to a three-judge panel in a process that includes lots of time built in for briefs to be written.

The party writing an appellate brief has 40 days under court rules, followed by an additional 30 days for the other side to file, and then 14 more days for a reply, according to an Appeals Court clerk.

Once a case is considered fully briefed, in court parlance, it is deemed ready for oral arguments, and lawyers are given five or more weeks of notice. After that stage, once justices have heard the case, they can take 180 days — half a year — to decide it, though that timetable is sometimes abbreviated, the clerk said.

That timing could keep the museum's pieces from being available for the next big Sotheby's auction in late spring. If it misses that and the museum prevails, the next big auction house sales come in November 2018.

Other efforts

The Attorney General's Office and the museum aren't the only ones who've gone seeking relief from the Boston court.

Two groups of plaintiffs are appealing or plan to appeal the Nov. 7 finding in Pittsfield by Agostini that they lacked legal standing to bring suit and stop the Sotheby's auctions.

One group, represented by attorney Nicholas M. O'Donnell of the Boston law firm Sullivan & Worcester LLP, wants the Appeals Court to review whether they possess standing to challenge the art sale as museum members. Their appeal, filed Nov. 20, also asks the Appeals Court to allow an injunction to remain in effect until a full trial on the merits of their lawsuit.

The plaintiffs are James and Kristin Hatt and Elizabeth Weinberg, all of Lenox. Their action alone would not prevent the art sales from occurring if the museum wins in the Pittsfield or Boston courts.

O'Donnell, a Williams College graduate who specializes in art law, also differs with a decision to consolidate his case with a suit filed Oct. 20 by other plaintiffs, including three sons of Rockwell.

O'Donnell had filed his action Oct. 26 in the Business Litigation Section of Suffolk Superior Court in Boston. He believes that venue would have been more receptive to his arguments, because they are based on rules governing the museum's operation as a nonprofit corporation.

Keating, a partner with the Boston firm Foley Hoag, said he plans to file an appeal on behalf of his clients, who include the Rockwell sons and residents of Berkshire County.

"The whole proceeding is going to be in the Appeals Court," he said.

He said he expects that his clients' appeal — not yet recorded in the Appeals Court docket — will be joined with the appeal filed by O'Donnell.

Keating said the case will stay with the Boston court unless the museum's legal team succeeds in having it remanded back to Berkshire Superior Court.

That's the objective already sought by Lee, the museum's attorney. His firm filed Nov. 14 with the Pittsfield court seeking an immediate status conference and an expedited trial.

The plan foundered when Trainor said — in a Nov. 20 docket entry suggesting a bit of judicial impatience — that "to the extent clarification is needed, all proceedings in the trial court are stayed pending further order. ..."

Keating said he expects that the Attorney General's Office will seek an extension of the injunction past Dec. 11 — and perhaps even "well beyond" that date.

Meantime, he expects the Appeals Court to have plenty to consider, in a case in which points of dispute date to a state statute written in 1871.

"There are three or four overarching legal questions that have to be decided by an appellate court," Keating said.

If the three-judge panel were to accept Lee's argument that Trainor erred in granting the injunction, the case would be sent back to the Pittsfield court.

But Keating believes that the panel will agree that Trainor was right to stop the art auctions, granting the petitioner, the Attorney General's Office, what it came to get.

In his Nov. 10 order, the justice wrote, "The balance of the risk of irreparable harm to the petitioner and the respondent in light of each party's chance of success on the merits weighs in favor of the petitioner."

Lee says the museum's goal is to overcome delays that jeopardize its New Vision plan.

"It is critical to the museum's future that, as soon as possible, the legal issues are thoroughly examined and resolved by a trial in the Superior Court," he said in a statement, in response to questions from The Eagle.

"The delays in this case caused by the Attorney General are not only unfortunate but a serious threat to the museum's ability to secure its financial future," he said.

Chipping in

Watching from the legal sidelines are members of the Save the Art-Save the Museum group, who oppose the deaccession.

Last week, the group donated $7,500 to help defray legal costs incurred by the plaintiffs represented by Keating. The money comes from online fundraising by the group. The group also gave $7,500 to help O'Donnell's clients.

Kimberly Rawson, a spokeswoman for the group, said its members are pleased that the Attorney General's Office secured more time to complete its investigation.

"We are pleased that our initial goal to pause the sale has been met," she said in a statement on behalf of the group.

Carol Diehl, a member of the group, called the court-ordered pause "a valuable moment" that should be used to find common ground between the museum and those who believe it should not sell artworks.

In a statement Thanksgiving week, State Sen. Adam Hinds, D-Pittsfield, urged the museum and critics of the art sales to engage in compromise.

Hinds urged people with a stake in the museum to come together — and offered to help achieve that.

But amid the litigation, the sides remain far apart.

"Ongoing litigation continues to take the Berkshire Museum and the community down a path that will be divisive no matter the outcome," Hinds said in the Nov. 21 statement. "It is my hope we can now use this moment to work together and create a thriving Berkshire Museum. "

Leslie Ferrin, another member of Save the Art-Save the Museum, said the group wants to work with the museum's leaders.

"While we have other renowned museums in our county, the Berkshire Museum is the only one that collects and interprets from our region," she told The Eagle.

The museum can remain strong, she said, "but only if we can find a way to heal the cracks caused by this decision to use deaccession as a means to fund the badly needed changes. ... As individuals and as a group, Save the Art hopes to have that opportunity and will work hard if given the chance."

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


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