No lower court resolution in sight for Berkshire Museum litigation

The Appeals Court has rejected a request by the Berkshire Museum to continue in Berkshire Superior Court in its litigation in support of the effort to sell 40 of the most highly valued pieces of art from its collection.

PITTSFIELD — The legal fight over the Berkshire Museum's move to sell art will remain in Boston for now, foiling hopes of the museum's attorneys to find a speedier lower-court path to auctions in 2018.

The action this week makes it harder for the museum to clear barriers to its planned sales. And it comes days after the Attorney General's Office won seven more weeks to probe the issue, setting up another face-off in late January.

In an order entered late Monday, the Massachusetts Appeals Court turned down the museum's bid to allow litigation over the deaccession of 40 works to continue in Berkshire Superior Court, where it won the first round of the dispute Nov. 7.

The museum had asked in a Dec. 4 motion that litigation be allowed to proceed in Pittsfield. It had earlier asked Justice Joseph A. Trainor to clarify whether he intended to "stay" proceedings in Pittsfield, but failed to get a green light from him to return to that court.

The museum's request to the appeals panel would have required justices to go against what Trainor decided Nov. 10 — in a decision that stunned museum officials days before hammers were to swing on their most valuable pieces at Sotheby's in New York City.

"The Trustees' request to stay the order of the Single Justice dated November 10, 2017 ... that stayed further proceedings in the Superior Court, is referred to the panel designated to decide this appeal," the panel wrote.

That order indicates the court did not accept the museum's claim that it faced an emergency that needed immediate relief. 

"Our goal remains a trial in Pittsfield where the issues in this case can be resolved fairly and publicly so the museum can take the actions needed to secure its future," the museum's lead lawyer, William F. Lee, said in a statement, in response to questions from The Eagle. "We will continue doing everything we can to help ensure that the Museum will remain open and able to serve the people of Berkshire County now and for generations to come."

The order Monday was entered by Associate Justice Eric Neyman, a former assistant district attorney in Berkshire County who was appointed to the appeals court in 2015 by Gov. Charlie Baker.

No acceleration

The same three-judge panel this week also denied the museum's request that the appeals process itself be accelerated, though the justices allowed that request to be considered again after another appellate action plays out on the "single justice" level, likely next month.

That is where Trainor dealt the first big blow to the museum's plan.

On Nov. 10, Trainor granted the attorney general a preliminary injunction three days before the start of a week of auctions at Sotheby's that would have included some of the most valuable works from the museum collection — led by two paintings by Norman Rockwell.

The museum maintains that it has the right to sell the Rockwells and 38 other works. Sotheby's has estimated that the pieces could bring more than $60 million at auction, money the museum says it needs to stave off closing within several years due to ongoing budget shortfalls.

Attorney General Maura Healey, whose team for months had been studying the legality of the deaccession, moved to the forefront of the case after Judge John A. Agostini of the Berkshire Superior Court found that two groups of plaintiffs lacked legal standing to challenge the auctions.

Agostini granted a request by Healey's office that it become a plaintiff in the case, but in a Nov. 7 decision soundly rejected the office's call for a preliminary injunction.

Three days later, Healey's office sought and won an injunction from the Appeals Court.

That injunction was to expire Dec. 11 but Healey's team asked for more time. The injunction was extended through Jan. 29 by Trainor last week.

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