Berkshire Museum pushes for speedy appeal, citing 'precarious condition'

Attorneys representing the Berkshire Museum argued in Monday's filing that the state Attorney General's Office failed to obtain a judge's authorization for it to conduct the investigation now underway on the planned deaccession and sale of 40 art works.

PITTSFIELD — Lawyers for the Berkshire Museum, citing the "severe cost" of paused art sales to an institution in a "precarious financial condition," want a three-judge panel of the Massachusetts Appeals Court to accelerate its handling of the issue and to allow a lower court to hear the case in Pittsfield.

In papers filed late Monday, the museum asks the panel to reverse a fellow justice's order to stop any such proceedings while a preliminary injunction remains in effect.

Instead, the museum is imploring the Appeals Court to act right away to allow the case to proceed to trial in Berkshire Superior Court, even as aspects of the matter are reviewed at the appellate level in Boston.

William F. Lee of the Boston firm WilmerHale had earlier moved for an expedited trial in Pittsfield on the legality of the museum's planned deaccession and sale of 40 works of art.

Planned auctions in November were canceled after Attorney General Maura Healey secured a Nov. 10 injunction from Justice Joseph A. Trainor of the Appeals Court.

The state said it had not finished an investigation into the deaccession. The court granted the injunction until Dec. 11 and allowed the office to return seeking more time.

Meantime, Lee asked Trainor to clarify whether he intended to stop action at the trial court level when acting on an emergency basis in his capacity as a "single justice" under the court's rules.

"Because the AGO had not asked for such an extraordinary measure, much less cited any authority that would allow the Single Justice to issue it, the Museum sought clarification," Lee writes.

Trainor said Nov. 20 he did "stay" the trial court proceedings.

Lee's legal team now argues, in a memo filed Monday, that doing so irreparably harms the museum, is not justified by the probe underway by the Attorney General's Office, and exceeds the authority of the appellate court's "single justice" system.

Lee's filing is sharply critical of the attorney general's handling of the case, including the very existence of its probe.

He argues that the Attorney General's Office failed to obtain a judge's authorization, required by state statute, for it to conduct the investigation now underway.

Emily Snyder, a spokeswoman for the Attorney General’s Office, declined to comment Monday night on assertions in Lee’s memo, saying the office would reply in a court filing.

As The Eagle reported Sunday, the museum is determined to get back on a Sotheby's auction schedule, but faces months of waiting at the appellate level.

In his filing Monday, Lee seeks to dramatically shorten that timetable. He argues that the museum is likely to win on appeal, since the rule the Attorney General's Office cited while seeking the original 30-day injunction does not allow a single justice to halt proceedings entirely at the trial court level.

Lee also notes that Trainor granted something the attorney general had not even sought: a stay of trial court proceedings.

"The Single Justice's stay of all Superior Court proceedings is particularly egregious," Lee writes in the memo filed Monday, "because the Museum is a defendant eager to adjudicate to final judgment the claims that the AGO has brought against it, and every day that passes with the AGO's claims pending is one more day that the Museum must continue to operate in an unsustainable financial condition, rather than execute the plan it developed, after two years of planning and deliberation, to remain open serving the community."

Along with enabling the trial court to hear the case, the museum is asking the Appeals Court to expedite the process for receiving attorneys' briefs and deciding the case at the appellate level.

Lee notes in his filing that Judge John A. Agostini of the trial court and the Attorney General's Office both acknowledged the museum's financial woes.

Further, the museum claims that it has been hurrying to satisfy document requests from the state, producing over 5,000 pages of documents in the last month.

"Since the Single Justice's orders, the AGO has presented the Museum with further demands that have increased in burden and decreased in relevance," Lee writes.

"The AGO's most recent letter," Lee's memo states, "makes clear that it will seek from the Single Justice some form of unfettered discretion to continue its `investigation' of the Museum, all while ignoring the litigation that it initiated and that is the only basis on which the Single Justice or any other court could issue an order enjoining the Museum from proceeding with its planned sale."

Lee argues elsewhere in the 35-page memo that the museum should be allowed to go to trial in Superior Court and defend itself "on the merits" of the case.

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