Berkshire Museum ruling unlikely before next week

A judge with the Supreme Judicial Court is expected to decide next week whether to approve an agreement himself allowing the Berkshire Museum to sell art, or to send it to the full court.

Clocks will "spring forward" before the Berkshire Museum learns whether it can sell art.

The justice reviewing the museum's request sat this week for proceedings of the full Supreme Judicial Court. That service prevented Justice David A. Lowy from focusing on the museum issue, according to Amy Stewart, an assistant clerk with the Boston court.

Stewart said Lowy was not likely to act on the museum issue until next week, after the return Sunday to daylight saving time.

Lowy took on the case in the rotating role of "single justice." On Feb. 9, the museum petitioned the court to allow it to sell up to 40 works of art. The request is supported by Attorney General Maura Healey, whose staff negotiated a settlement with the museum after months of litigation.

The high-profile case, opposed by the museum industry, is considered a test of whether collections can be "monetized," with proceeds used to cover operations costs.

The agreement would allow the museum to raise up to $55 million, if granted approval from the SJC, and would impose other conditions.

Further filings

Meantime, two Boston attorneys who filed "friend of court" briefs opposing the art sales said Friday they do not expect to add to documents already before Lowy.

"We're confident the right questions are before the single justice," said Nicholas M. O'Donnell of Sullivan & Worcester, who represents three Lenox residents.

O'Donnell's brief, filed Feb. 26, argued that the museum failed to show it is "impossible or impracticable" for it to continue without selling art. That is the standard under which the court could grant the museum's petition.

The museum's legal team responded to the briefs Tuesday, urging Lowy to endorse the sales because the museum is in dire financial condition and runs the risk of closing.

Lowy could decide to grant the museum's request, with or without a hearing. He can also refer the case to the full court, rather than handle it on a "single justice" basis.

If O'Donnell wanted to add to Lowy's reading, he would first need to secure the court's permission.

"I see little benefit in adding more paper to the record," O'Donnell said.

Attorney Michael B. Keating of Foley Hoag filed a friend of court brief on behalf of Pittsfield artist Tom Patti, Patti's company and several Berkshire County residents.

"I am not sure what we would say that we didn't say in our main brief," Keating said Friday.

Both attorneys, in their filings, questioned the need for art sales and criticized the conduct of museum leaders. They urged Lowy to restrict how many works of art can be sold.

In his brief, Keating suggested the court appoint a special master to oversee museum finances.

Attorney William F. Lee of WilmerHale, representing the museum, said in his response this week that the oversight role belongs with the attorney general, a view seconded in that office's own response.

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