Deal likely in hand as part of AG, Berkshire Museum court plan

The Berkshire Museum is in Pittsfield.

PITTSFIELD — A deal to resolve the Berkshire Museum art sale dispute is on the table, legal observers predict.

But it could be days before the public learns what that compromise might look like.

After months of skirmishing, the museum and Attorney General's Office are heading side by side to the state's top court.

That development, announced Monday, suggests the parties have compromised on a question that has riven the art world and divided the museum's membership.

Justice Francis X. Spina of Pittsfield, a retired Supreme Judicial Court justice, said Tuesday the wording of this week's court filing suggests the parties are in the process of reaching terms that allow them to jointly support a specific course of action.

That comes nearly seven months after museum trustees revealed a plan to raise more than $60 million from the sale of their most valuable works, including two iconic paintings by Norman Rockwell.

One person familiar with the case said a compromise may call for modifications to the museum's rules that allow at least some of 40 artworks to be sold.

Spina said language in the filing points to the existence of a predetermined agreement and proposed court order.

"I think that's right," the retired justice said.

In other words, rather than presenting the facts of the case to the top court and shrugging, the parties are crafting a resolution that allows each of them to win on some points, but concede others.

Spina is not involved in the case and spoke only as someone familiar with the court's operations.

Still disagree

In their joint filing Monday with the Massachusetts Appeals Court, the museum and Attorney General's Office say they continue to disagree about the legality of the art sales.

The state maintains, after a months-long investigation it just concluded, that works are restricted from sale. The museum says nothing prevents it from sending pieces from its collection to auction, then using proceeds to heal its balance sheet and pursue renovations.

That faceoff has carried through a Nov. 1 Berkshire Superior Court hearing into litigation still before the Appeals Court.

But in an abrupt shift, the two sides said this week they are ready to work it out.

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

The filing names three legal principles that may govern how the court acts on the case, all of which offer wiggle room from stances both legal adversaries have taken to date.

The document then reveals that the official petition to the single justice of the Supreme Judicial Court for Suffolk County, due Friday "or shortly thereafter," will set its own goal posts.

"The AGO will support the relief requested by the petition," the document states.

William F. Lee, the museum's lead attorney, said in an email Tuesday his client and the state are working to resolve the dispute.

What they craft for the SJC to consider, Lee said, will address "the concerns and needs of the community, charities law, and the importance of securing the future of this museum."

It isn't yet known what that relief entails, but observers said Tuesday the language indicates the attorney general and museum have found common ground, though perhaps not easily.

The filing was made public at 5 p.m. Monday, the date it was due to be filed with the Appeals Court.

Nicholas O'Donnell, a Boston attorney representing one of two groups of plaintiffs opposed to the sales, said the petition likely will include a proposed settlement agreement for approval by the court.

"Based on the language of [Monday's] filing, I expect that the two of them will go to the SJC and say, 'Please approve the following,' whatever that turns out to be," O'Donnell said.

He said that once the petition is filed, he will discuss its impact on his clients, all of whom want premier works of the museum's collection to remain with the institution.

"Once I see what they are proposing we'll evaluate where that leaves our case," he said. "Our priority remains to keep the collection intact and preserve the principles of good governance [by trustees]."

The Eagle asked both the museum and the Attorney General's Office on Tuesday to confirm that a settlement agreement is being discussed.

Neither would address that question directly.

On Monday, the two released a joint public statement in which they pledged common steps to resolve the dispute over the art sales, "recognizing our shared responsibility for the collection of the Berkshire Museum and to the community the museum serves."

Nature of petition

The petition to the single justice would be considered an original action, not one related to lower-court proceedings.

While the museum and state were on a slow track through the Appeals Court, the new filing can be expected to receive quicker action.

The single justice sitting for February is Justice David A. Lowy.

On average, the single justice session receives 60 or more petitions a month.

The Berkshire Museum case is expected to be accepted for consideration because it concerns a high-profile public issue, and not only in Massachusetts.

Arts advocates have cautioned that the Pittsfield case could reshape the legal landscape on deaccession and sales. The museum field views art sales to pay operations costs as an ethical violation.

The SJC's single justice system is a common path for cases involving nonprofits and public charities overseen by the Attorney General's Office.

Rather than face years of proceedings in the Appeals Court, the new petition could be resolved in weeks or months, based on the court's track record.

That is possible largely because it will arrive gift-wrapped for the single justice: two parties in agreement with a set of agreed-upon facts. The high court does not typically hold hearings or call witnesses to establish facts.

Still, the matter could eventually lead the single justice to call a hearing in open court to confirm the parties are in agreement.

The petition is expected to detail how the two sides will rationalize support for a resolution, given that they've taken opposite stands on the legality of art sales.

Lawyers in the nonprofits and public charities division of the Attorney General's Office were said to be continuing to labor this week on the document.

The status report said the two parties will ask the single justice for one or more of three types of relief: "equitable instruction," "deviation" or "cy pres."

All relate to steps that can be taken to adjust rules governing the operation of trusts and public charities.

According to one legal expert following the case, the Attorney General's Office may ask the single justice to support modifications in the Berkshire Museum's rules. That would enable the state to overcome its belief that sales would violate restrictions.

It remains to be seen what compromises museum trustees may have agreed to embrace.

The filing Monday notes that the museum has pledged not to sell any artworks until the SJC acts on the petition or another pending civil action is resolved.

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