AG, Berkshire Museum unite to seek court resolution to art-sale dispute

Though acting in concert now, the Berkshire Museum, above, and the state Attorney General's Office continue to disagree about the legality of the proposed sale of 40 works, announced last July.

PITTSFIELD — In a dramatic shift away from litigation, the Attorney General's Office is now working alongside the Berkshire Museum to resolve whether the storied Pittsfield institution has the right to sell the most valuable works in its collection.

The state and museum issued two documents in tandem Monday — a reply to a court awaiting a status report, and a public statement pledging cooperation to solve the question of whether museum trustees can sell two paintings by artist Norman Rockwell, among other works.

Until that answer is found, the parties say, no art will be sold.

While sharp differences remain, the filing Monday broke from what's been harsh criticism in court briefs between the two sides since November. The action could speed resolution of the case and be less adversarial, though no likely timetable was offered.

However, the development does not affect other actions involving the museum now before the Massachusetts Appeals Court, according to one of the attorneys involved.

"We'll still press the appeal," said Michael B. Keating of Foley Hoag, who represents three sons of Rockwell and a group of Berkshire County residents. They are appealing a finding in Berkshire Superior Court that they lacked legal standing to seek to block the art sales.

Keating said he was encouraged by the joint action because it affirms that after its investigation into the art sale, the Attorney General's Office continues to maintain that restrictions prevent the works from going to auction.

"I think that was good news for us," Keating said, referring to his clients.

Instead of battling for months or years in the Massachusetts Appeals Court, the state and museum will be going directly to the Supreme Judicial Court, the highest legal authority in Massachusetts.

"It probably would have ended up in the SJC anyway," Keating said.

Anyone who finds Monday's status report confusing should take heart. So does Keating.

"The report's pretty opaque," he said.

By Friday or soon after, the state and museum say, they will together file a petition with a single justice of the SJC. If the judge accepts the case, as is expected, matters in the lower courts could be dismissed.

"The AGO and the Museum have agreed to resolve these differences and will file a petition for judicial relief," the two-page status report says.

Emily Snyder of the Attorney General's Office and Carol Bosco Baumann of the museum reprised language from separate public statements last week, in which they emphasized a shift to a common effort to address the museum's future.

"We are working together to resolve this matter, recognizing our shared responsibility for the collection of the Berkshire Museum and to the community the museum serves," their joint statement said. "We are committed to helping this museum secure its future."

Members of Save the Art, a group opposed to the sales, met Monday night to take stock of the development.

In a statement, the group said it was encouraged by the development, but stressed its goal is to see the works return to Pittsfield.

After the museum signed a consignment contract with Sotheby's last June, the pieces were moved to the auction house. Some of them were then shown to prospective buyers around in the world, including at exhibits in London and in Asia.

The works are at Sotheby's New York headquarters, a spokesman there confirmed last week.  

"We concur with the AG's assertion that the artworks are subject to restrictions," the Save the Art statement said. "We look forward to a resolution to the impasse that restores the collection to the community and reaffirm our willingness to work with museum officials to secure the museum's future."

Disagreement remains

Though acting in concert now, the two parties continue to disagree about the legality of the proposed sale of 40 works, announced last July.

The state contends, as it has for months, that the artworks are under restriction and cannot be sold.

The museum holds that nothing bars it from selling the pieces and using proceeds to patch its financial condition and contribute to a major renovation called the New Vision. Proceeds from auctions through Sotheby's in New York City had been expected to top $60 million.

It remains to be seen how long the new approach to resolving the conflict will take to play out — and when the fate of the artworks will be decided.

For its part, the museum has agreed not to sell any of the 40 works until either the SJC acts or until there is a determination from Berkshire Superior Court, where the case was initially heard Nov. 1 and where Judge John A. Agostini ruled Nov. 7 against granting an injunction preventing art sales.

That ruling led the attorney general to seek relief from the Appeals Court, which on Nov. 10 granted the first of three injunctions that expired Monday.

The state is no longer seeking any renewal of an injunction or delay on Berkshire Superior Court proceedings, following agreement from the museum that the legal process will first be allowed to run its course.

Even as they work together now, the state and museum are reserving options.

The status report says that should the museum win, the attorney general has seven calendar days to seek relief through an appeal.

That would appear to restart the process not far from where it stands today.

In Boston

Though the joint status report mentions Berkshire Superior Court, it is not likely the case will return there.

Keating said that the SJC justice who handles the case may remand it back to the Pittsfield court with a specific order to be entered.

He said that in his experience, justices called to handle cases of this type sometimes refer them to the full seven-member court.

But the single justice can also act alone, reviewing materials presented by the parties and rendering a decision.

The court takes cases directly in this fashion when they are believed to hold public importance and multiple parties are ready to work out a resolution.

The status report says the joint petition to be filed in a week or so will ask for one or more of three types of court relief: "equitable instruction," "deviation" or "cy pres."

Under what's known as equitable instruction, parties ask a court to provide guidance on how trusts and assets should be interpreted.

Under deviation, a court would modify terms of a trust — in this case, the documents that govern how the museum must operate.

Or the court could engage in what's called "cy pres," a process by which a nonprofit's purpose is allowed to change.

The state has said in earlier briefs that by selling the art, the museum would change its mission from that of an art institution. The museum says it can continue to fulfill that role even with the sales.

Keating notes that the two parties must come to terms on how to present the case to the SJC. He said it is likely each side will present conflicting arguments through the use of affidavits from experts, just as they have done so far in the appellate process.

William F. Lee of the Boston firm WilmerHale, the museum's lead lawyer, signed the status report, as did Emily T. Gabrault, an assistant attorney general.

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

Joint Status Report Berkshire Museum by The Berkshire Eagle on Scribd