Berkshire Museum assails Attorney General's probe as 'one-sided'

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PITTSFIELD — Lawyers for the Berkshire Museum will oppose the state's effort to renew an injunction that blocks art works from going to auction.

In a filing expected by Tuesday, the museum will argue against Attorney General Maura Healey's request that a justice of the Massachusetts Appeals Court give her staff seven additional weeks to complete its investigation into the disputed deaccession and sale, a museum spokeswoman said Saturday.

At the same time, the museum's legal team is pressing to cut short challenges that could foil the museum's hopes of completing a sale it says is critical to its survival and success.

In a filing Friday to the Appeals Court, lawyers with the Boston firm WilmerHale say the institution must be allowed to carry out its plan, blocked since a preliminary injunction was granted Nov. 10.

That action, set to expire Monday, forced the museum and Sotheby's to pull seven items from a Nov. 13 auction of American art, including two paintings by Norman Rockwell.

That same week, the museum had won in Berkshire Superior Court when Judge John A. Agostini denied a request from the Attorney General's Office, which had joined two earlier civil lawsuits as a plaintiff, to halt the art sales pending a fuller study.

Since the first suit was filed Oct. 20, the legal terrain has become complex. It includes a Berkshire Superior Court case that has been frozen by a judicial stay from the Appeals Court, filings with the justice who issued the injunction and stay and, now, motions before a three-judge panel of the Appeals Court.

The three-judge panel will review actions taken by the court's rotating single justice, in this case Joseph A. Trainor, who granted the injunction.

In a filing Friday to the three-judge panel, the museum takes issue with the sale interruption and implores the court to embrace its request to move the case as quickly as possible.

Under normal procedures, it can take many months, or years, for cases to go through the appellate process in Boston. In earlier filings this month, the museum has asked that the court-ordered pause on Berkshire Superior Court proceedings be lifted, and that the appellate action be expedited.

"The Museum's request to expedite this appeal is critical given the Museum's undisputedly dire financial situation," attorney Felicia H. Ellsworth of WilmerHale writes in a reply filed Friday.

The Attorney General's Office has pushed back on the museum's bid to accelerate the proceedings.

"The AGO responds by embracing delay for its own sake," the museum's lawyers write, "sharply contradicting its stated commitment to prompt resolution of this dispute. Given that the AGO asserts no potential harm from an expedited schedule in this appeal, the Museum's request for expedition should be granted."

The attorney general's staff has said that it has not yet received documents requested from the museum. And it wants to interview additional members of the museum's staff.

Museum's argument

In its Friday filing, the museum questions the legality of a single justice issuing a stay of proceedings at the trial court level.

That is the action Trainor took in a clarification the justice filed in response to a request from the museum's attorneys.

The museum argues that the full case can and should be heard at the Pittsfield court.

The earlier action by Agostini was focused on the question of preliminary injunction. The museum's reply Friday to the Appeals Court makes the case that the appellate reviews can be rendered moot once the issue is settled in the lower court, saving judicial resources.

Ellsworth's reply includes other challenges to how the Attorney General's Office has handled its review of the museum's planned art sale, and to the litigation surrounding the deaccession.

Perhaps the sharpest assertion in the museum's latest filing is that the attorney general lacks authority to investigate — a word WilmerHale attorneys generally put in quotes — without first getting approval from a trial court judge.

Ellsworth argues that there is "manifest unfairness" in what the museum's legal team sees as a "unilateral `investigation' " that involves "one-sided discovery" by the state's legal team.

The probe is being conducted by the attorney general's nonprofit and public charities division, led by Assistant Attorney General Courtney Aladro.

Her office has said it began its review in June, the same month it learned of the planned sale, but years after the action was first considered by museum trustees.

The state says by extending the injunction, it gains time to narrow its review. But the museum complains in the latest filing that the probe seems to have only expanded with time.

More technically, the museum's reply Friday also suggests that the attorney general erred by never asking the single justice for a stay of proceedings at the Pittsfield court. And it says the state fails to show that it would suffer harm if the museum's effort to "stay the stay" — and thus resume action at the Superior Court level — were to be allowed.

Trainor last week gave the parties until Tuesday to reply to the attorney general's request to extend the injunction.

Carol Bosco Baumann, the museum's spokeswoman, said Saturday that the WilmerHale team will submit an opposition by Tuesday.

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


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