Berkshire Museum, AG to rebut 'friend of court' briefs in art sale case

Lawyers for the Berkshire Museum and the Attorney General's Office plan to file responses to friend of the court briefs submitted by opponents to the agreement in the case pending in the Supreme Judicial Court. Their replies will likely be the last on the matter.

Lawyers for the Berkshire Museum and the Attorney General's Office might have the last word on challenges to their three-week-old agreement to allow the institution to sell up to 40 works of art.

Opponents of the sales filed "friend of the court" briefs this week to the Supreme Judicial Court for Suffolk County. They ask Justice David A. Lowy to consider alternatives to the agreement reached Feb. 9 between the museum and Attorney General Maura Healey.

Under the agreement, the museum needs the court's permission to proceed with sales.

Lawyers for the museum and Healey's office notified the court late this week that they plan to file responses to the opponents' briefs by Tuesday. Their replies will likely be the last on the matter.

Lowy indicated that he has the matter under advisement and will wait to receive the responses before acting. Lowy can opt to decide the legal matter himself or refer it to the full SJC, which meets next week.

This week, two groups of plaintiffs filed so-called amici curiae briefs that are sharply critical of the plan to sell art, even though the most famous work in the lot, "Shuffleton's Barbershop," by Norman Rockwell, would be kept in the public realm.

The agreement calls for that painting to be sold to an unidentified nonprofit museum; the buyer would allow the work to be displayed for up to two years at the Norman Rockwell Museum in Stockbridge.

On Thursday, Emily Gabrault, an assistant attorney general, and Mark Fleming, an attorney with the Boston firm WilmerHale, wrote to the SJC's clerk that they will be answering issues raised in the amicus briefs by Tuesday.

"We anticipate that we will file one short response," Gabrault wrote.

Unless Lowy calls for a hearing on the issue, and allows the lawyers for the plaintiff groups to speak, the Tuesday filings mightbe the last documents the justice receives.

"I would expect that would be the end of the briefing," said attorney Nicholas O'Donnell, who represents three residents of Lenox opposed to the sales.

Critics' arguments

In a brief filed on behalf of several clients, attorney Michael B. Keating urges Lowy to appoint a "special master" to oversee how the museum uses proceeds from art sales. The agreement allows the Pittsfield institution to fetch up to $55 million in proceeds.

Keating's brief urges the SJC justice to ensure ongoing financial oversight of the museum.

"It appears that the Attorney General intends to conduct little oversight of that process," Keating wrote in the 16-page brief. "Given these concerns, the large sums of money involved, and the Museum's importance to the community, [his clients] respectfully suggest that the Court ... maintain a supervisory role."

The other brief that will come in for rebuttal from the museum and Healey's office was filed by O'Donnell.

O'Donnell's 46-page brief contends that the museum has failed to meet a standard required for the type of petition it submitted to the SJC.

That "cy pres" petition must show it is "impossible or impracticable" for the museum to continue to operate without selling the artworks in question.

The museum and Healey's office say that the South Street facility, founded by Zenas Crane in 1903, would fail without an infusion of money.

O'Donnell also argues that the SJC needs to keep museum's stated charitable purpose "as near as possible" to its original one.

His brief suggests that museum leaders opted to raid their vaults rather than do the hard work of fundraising.

"The considered wisdom of museum professionals resoundingly and unanimously rejects this mercantilist approach to cultural stewardship," O'Donnell writes.

Keating and O'Donnell concede, in their briefs, that "Shuffleton's Barbershop" might be destined to be sold.

Keating asks the court at first to deny the sale of any work other than "Shuffleton's Barbershop."

Taking a slightly harder line, O'Donnell asks the court to either deny all sales, or to allow only "Shuffleton's Barbershop" to be sold.

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