COMMONWEALTH OF MASSACHUSETTS

Appeals Court

BERKSHIRE, SS. NO. 2017-P-1523

THOMAS ROCKWELL, JARVIS ROCKWELL, PETER ROCKWELL, TOM PATTI, TOM PATTI DESIGN LLC, JAMES LAMME, DONALD

MACGILLIS, JONAS DOVYDENAS, AND JEAN ROUSSEAU, Plaintiff-Appellees,

v.

TRUSTEES OF THE BERKSHIRE MUSEUM AND MAURA HEALEY, IN HER CAPACITY AS ATTORNEY GENERAL

OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant-Appellants.

ON APPEAL FROM AN ORDER OF A SINGLE JUSTICE OF THE APPEALS COURT (NO. 2017-J-0510)

BRIEF OF THE SUBSTITUTED PLAINTIFF-APPELLEE

MAURA HEALEY

Attorney General Courtney M. Aladro (BBO No. 671104) Argie K. Shapiro (BBO No. 674511) Andrew M. Batchelor (BBO No. 673248) Adam Hornstine (BBO No. 666296) Assistant Attorneys General

One Ashburton Place, 18th Floor Boston, Massachusetts 02108 617-963-2545

Courtney.Aladro@state.ma.us Argiro.Kosmetatos@state.ma.us Andrew.Batchelor@state.ma.us Adam.Hornstine@state.ma.us

TABLE OF CONTENTS TABLE OF AUTHORITIES................................iii 

QUESTION PRESENTED....................................1 

STATEMENT OF THE CASE.................................1 

Prior Proceedings................................2 

Statement of Facts...............................9 

SUMMARY OF ARGUMENT..................................10 

ARGUMENT.............................................11 

I.  The Single Justice’s Order Staying Superior Court Proceedings Can Be Reversed Only If He Abused His Discretion.................................11 

II.  The Single Justice Did Not Abuse His Discretion in Concluding that a Stay Was Appropriate............................12 

A.  It Was Well Within the Single Justice’s Power to Stay the Superior Court Proceedings............12 

B.  A Stay Is Appropriate Here............17 

1.  The Stay Is Justified by Judicial Economy and the Risk of Public Harm...................18 

2.  The Museum Has Not Demonstrated that the Stay Is Causing Harm.....................21 

3.  The AGO Has a Reasonable Likelihood of a Successful Appeal...........................23 

III.  The AGO Has the Authority to Investigate the Museum’s Extraordinary Decision to Dispose of its Fine Art Collection.................................28 

CONCLUSION...........................................32 

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ADDENDUM

1. The Museum’s Memorandum in Support of Emergency Motion for Immediate Status Conference and Expedited Trial (Dkt. #55 of 1776CV00253) .............. ADD001

2. Mass. R. App. P. 6 ..................... ADD009 3. 1871 Mass. Acts & Resolves Ch. 129 ..... ADD011

4. 1903 Mass. Acts & Resolves Ch. 131 ..... ADD014

5. 1932 Mass. Acts & Resolves Ch. 134 ..... ADD016

6. Mass. Gen. Laws ch. 12, § 8 ............ ADD021

7. Mass. Gen. Laws ch. 180, § 8A .......... ADD022

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TABLE OF AUTHORITIES

Cases

Ames v. Attorney General,

332 Mass. 246 (1955) .............................. 30

Attorney General v. Flynn,

331 Mass. 413 (1954) .............................. 31

Attorney General v. Hahnemann Hospital et al.,

397 Mass. 820 (1986) .............................. 25

Biotti v. Bd. of Selectmen of Manchester,

25 Mass. App. Ct. 637 (1988) ....................... 8

Boston Athletic Ass’n v. Int’l Marathons, Inc.,

392 Mass. 356 (1984) .............................. 26

Boston Children’s Heart Foundation v. Nadal-Ginard,

73 F.3d 429 (1st Cir. 1996)........................ 27

Boston Seaman’s Friend Soc., Inc. v.

Attorney General et al.,

379 Mass. 414 (1980) .............................. 15

C.C. v. A.B.,

406 Mass. 679 (1990) .............................. 14

Commonwealth v. Charles,

466 Mass. 63 (2013) ............................... 16

Commonwealth v. One 2004 Audi Sedan Automobile et al.,

456 Mass. 34 (2010) ............................... 14

Demoulas Super Markets, Inc. v.

Peter’s Market Basket, Inc.,

5 Mass. App. Ct. 750 (1977) ................... 17, 19

Demoulas v. Demoulas Super Markets, Inc.,

33 Mass. App. Ct. 939 (1992) ...................... 15

Dillaway v. Burton,

256 Mass. 568 (1926) .............................. 30

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Edwin R. Sage Co. v. Foley,

12 Mass. App. Ct. 20, 24 (1981) ................... 15

G.D. Mathews & Sons Corp. v. MSN Corp.,

54 Mass. App. Ct. 18 (2002) ................... 14, 15

Goldstein v. Barron,

9 Mass. App. Ct. 644 (1980) ....................... 14

Graizzaro v. Graizzaro,

36 Mass. App. Ct. 911 (1994) ...................... 16

Halebian v. Berv et al.,

457 Mass. 620 (2010) .............................. 20

In re Opinion of the Justices,

237 Mass. 613 (1921) .............................. 27

Jackson v. Phillips,

96 Mass. 539 (1867) ............................... 30

Jet-Line Services, Inc. v.

Bd. of Selectmen of Stoughton,

25 Mass. App. Ct. 645 (1988) .................. 15, 17

M. DeMatteo Constr. Co. v. A.C. Dellovade, Inc.,

39 Mass. App. Ct. 1 (1995) ........................ 14

Madsen v. Erwin,

395 Mass. 715 (1985) .............................. 14

Mass. Bonding & Ins. Co. v. Peloquin,

225 Mass. 30 (1916) ............................... 12

Massachusetts Charitable Mechanic Ass’n v.

Beede et. al.,

320 Mass. 601 (1947) .............................. 25

Merles v. Lerner et al.,

391 Mass. 221 (1984) .............................. 14

Museum of Fine Arts v. Beland et al.,

432 Mass. 540 (2000) .............................. 25

Oznemoc, Inc. v. Alcoholic Bev. Control Comm’n,

412 Mass 100 (1992) ............................... 15

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P.B.C. v. D.H.,

396 Mass. 68 (1985) ............................... 14

P.W. v. M.S.,

67 Mass. App. Ct. 779 (2006) ...................... 14

Parker v. May,

59 Mass. 336 (1850) ............................... 30

Quirk v. Data Terminal Systems, Inc.,

379 Mass. 762, 764 (1980) ......................... 14

Sanchez v. Witham,

2003 WL 1880131 (App Div. Northern Dist. 2003) .... 20

Secretary of Administration and Finance v.

Attorney General,

367 Mass. 154 (1975) .............................. 29

Tober Foreign Motors, Inc. v. Reiter Oldsmobile, Inc.,

376 Mass. 313 (1978) .............................. 14

Troy Industries, Inc. v. Samson Manufacturing Corp.,

76 Mass. App. Ct. 575 (2010) ...................... 12

Trustees of Andover Theological Seminary v.

Visitors of the Theological Inst. of Phillips Acad.,

253 Mass. 256 (1925) .............................. 26

Wojcicki v. Caragher,

447 Mass. 200 (2006) .......................... 14, 15

Zimmerman v. Bogoff,

402 Mass. 650 (1988) .............................. 28

Statutes

G.L. c. 180, § 8(A).................................. 4

G.L. c. 211, § 3.................................... 14

G.L. c. 231, § 118.............................. 14, 15

G.L. Ch. 12, § 8..................................... 4

G.L. Ch. 12, § 8G.................................... 3

G.L. Ch. 12, § 8H................................... 30

QUESTION PRESENTED

Did the single justice appropriately exercise his

discretion in briefly staying Superior Court

proceedings to permit the Attorney General’s Office,

which oversees public charities, to conclude its

investigation into a museum’s decision to dispose of

substantially all of its collection of fine art to

fund operating deficits and new renovations?

STATEMENT OF THE CASE

A longstanding museum of art, natural science and

history, Pittsfield’s Berkshire Museum (the “Museum”),

intends to sell its most valuable artwork, shift its

focus to science and history, and use the art proceeds

to fund operating expenses and new renovations.1 The

Museum intends to sell 40 works of art, works that

constitute almost all of the Museum’s valuable art and

that include notable pieces such as two paintings

created and donated by Norman Rockwell and 19 works

that have been with the Museum since it was

incorporated in 1932.

1 The Legislature incorporated the museum and named it the “Trustees of the Berkshire Museum.” See 1932 Mass. Acts & Resolves Ch. 134. In this brief, the term “Museum” refers to the entity, while the term “Board” refers to the individual “trustees” who serve as the trustees of the Museum.

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As described in further detail below, the AGO

sought a preliminary injunction to stop the sale. When

the Superior Court denied the motion, the AGO appealed

and sought an injunction pending the appeal from a

single justice. The single justice issued an

injunction, stayed the Superior Court proceedings, and

permitted the AGO to move for an extension with an end

date for the investigation.

The AGO’s appeal of the Superior Court’s denial

of the preliminary injunction is proceeding in this

Court under Docket No. 2017-P-1548. The Museum,

however, has raised its own appeal: the discrete issue

of whether the single justice abused his discretion

when he stayed the Superior Court proceedings while

the AGO concluded its investigation. The Museum

noticed, but then abandoned, an appeal of the single

justice’s injunction temporarily precluding sale of

the artwork.

Prior Proceedings

This suit was initially commenced in Berkshire

County Superior Court on October 20, 2017 by several

private plaintiffs, including the children and

beneficiaries of the estate of renowned artist Norman

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Rockwell (the “Rockwell Plaintiffs”). A59. 2, 3

The Rockwell Plaintiffs sued the Museum, alleging

that the charity – through its officers and directors

– had breached its fiduciary duties, breached

charitable trusts, and breached contracts by proposing

to sell the artwork and use the proceeds to fund major

building renovations, cover operating deficits, and

enlarge its endowment. A76-77. The Rockwell Plaintiffs

also named the Attorney General “as a necessary party

pursuant to G.L. Ch. 12, § 8G,” and asked the court

for a temporary restraining order and preliminary

injunction to prevent the Museum’s sale of artwork

through Sotheby’s, an auction house whose U.S.

operations are based in New York City. A68, A78.4

2 References to “A__” and “SA__” are to the three-volume appendix and single volume supplemental appendix, respectively. The material in the SA is no longer under an impoundment order.

3 The Rockwell Plaintiffs include Norman Rockwell’s children (Thomas, Jarvis, and Peter); James Lamme, Donald MacGillis, Jonas Dovydenas and Jean Rousseau (members of and donors to the Museum); and Tom Patti, a prominent artist and owner of Tom Patti Design LLC. A67-A68.

4 Shortly after the Rockwell Plaintiffs filed suit, the “Hatt Plaintiffs” (Berkshire residents and museum members) brought a second suit making similar allegations against the Museum and its board. James Hatt, et.al v. Trustees of the Berkshire Museum, Suffolk Super. Civ. A. No. 1784CV03439 (Sept. 25,

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The Rockwell Plaintiffs filed suit while the AGO

was in the midst of an extensive review and

investigation into the Museum’s proposed sale,

pursuant to the AGO’s common law and statutory

authority under G.L. c. 12, § 8 and G.L. c. 180,

§ 8(A)(c).

Although the investigation was not complete when

the Rockwell Plaintiffs commenced their lawsuit, the

investigation had progressed enough for the AGO to

notify the Museum that the proposed sale would amount

to a change in purpose and thus require court approval

under cy pres. A1197. As part of its ongoing

cooperation with the AGO, the Museum requested that

the AGO not respond to the Rockwell Plaintiffs’ motion

for a preliminary injunction until after the Museum

had an opportunity to respond. Id. Accordingly, the

AGO joined the Plaintiffs’ motion after the Museum

filed its opposition. A1200.

Following a November 1, 2017 hearing on the

motion for preliminary injunctive relief, the AGO

moved to substitute itself as plaintiff and for a

2017). The Superior Court consolidated the two suits on October 27, 2017. A61. The AGO is not a party to that lawsuit.

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preliminary injunction in the event the original

plaintiffs were found to lack standing. A1163-65. The

Superior Court substituted the AGO as a plaintiff,

A63, and immediately thereafter, the AGO filed an

answer and four-count claim against the Museum. A1180-

94.5

On November 7, 2017, the Superior Court found

that the Rockwell and Hatt Plaintiffs lacked standing

to sue, but concluded that the AGO was a proper

plaintiff to challenge the Museum’s planned sale of

its fine art collection. Order at 9-10 (A1399-1400).

The Superior Court then correctly summarized the AGO’s

grounds for relief:

the AGO assert[ed] three grounds in support of her motion for a preliminary injunction to enjoin the sale: (1) the Sotheby’s sale could be a breach of fiduciary duty; (2) the sale could be a breach of any of three alleged trusts; and (3) if the sale occurs before the AGO finishes its investigation, the public will have been deprived of the AGO’s oversight.

Order at 12 (A1402). The Superior Court, however,

denied the AGO’s motion for preliminary injunctive

relief. Order at 25 (A1415).

5 Counts I, II, and III seek declaratory relief that the sale would violate the trusts in which the Museum holds the art. Count IV alleges breach of the fiduciary duty of care.

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The AGO timely appealed that decision on November

10, 2017 pursuant to G.L. c. 231, § 118, ¶ 2, and

simultaneously sought an order from the single justice

of this Court pursuant to Mass. R. App. P. 6(a). The

latter motion requested that the single justice enjoin

the Museum from selling, auctioning, or otherwise

disposing of any of the 40 works of art the Museum

identified for sale (some of which were scheduled for

auction on November 13, 2017), pending the appeal of

the Superior Court’s decision. A1477; Dkt. #1 (17-J-

510).

By order entered the same day, the single justice

stayed the Superior Court proceedings (A1417) and

enjoined the sale of the artwork until December 11,

2017 (A1418). In so doing, the single justice

explained that, “[p]rior to the expiration of the

injunction, the Attorney General’s Office may move to

extend the injunction with a date certain by which the

[AGO’s] investigation will be completed.” Id.

The Museum then sought emergency relief in the

Superior Court, asking that court to schedule an

“immediate status conference and expedited trial.”

A1429. The Museum asserted that it was “prepared to

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proceed to trial now.” Id.6 The Superior Court took no

action on the Museum’s motion. Thereafter, the Museum

filed a motion with the single justice for a

“clarification” of the stay, essentially asking the

single justice to withdraw the stay. A1419-A1426. In

response, the single justice ordered that, “[t]o the

extent clarification is needed, all proceedings in the

trial court are stayed pending further order of the

single justice.” A1454.

The Museum appealed that order, as well as the

single justice’s orders enjoining the sale and his

order staying the litigation. A1456-7. In its December

4, 2017 brief to this Court, however, the Museum

abandoned its appeals from the injunction, and

challenges only the propriety of the single justice’s

order on the stay of the litigation. Br. at 3 (“The

Single Justice’s injunction order is not the subject

6 The Museum’s memorandum in support of its emergency motion for immediate status conference and expedited trial is Dkt. #55 of 1776CV00253 (attached in the addendum at ADD001-ADD008). See A1478 (docket report). In the memorandum, the Museum argued that the AGO had no basis for a continued investigation, and that “if there [wa]s additional information the AGO fe[lt] it need[ed] prior to trial, it should [have] identif[ied] that information to the Museum and the Court without further delay.” ADD006.

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of this appeal.”).

On December 6, 2017, the AGO filed a report

updating the single justice on the status of its

investigation. The AGO requested an extension of the

injunction and stay until January 29, 2018, a date by

which it anticipates completing the investigation –

assuming continued cooperation from the Museum. See

Dkt. #23. The Museum opposed extending the injunction

and the stay. See Dkt. #24.

On December 13, 2017, the single justice extended

the injunction and stay of the Superior Court

proceedings until January 29, 2018, and requested a

status update on January 3, 2018. See Dkt. RE23. The

Museum has not appealed the December 13 order of the

single justice.7 The AGO is filing its supplemental

7 The Museum noticed its appeal of the single justice’s November 10, 2017 injunction and stay on November 22, 2017, Dkt. #19 (17-J-510), and filed its opening brief on December 4, 2017, Dkt. #4 (17-P-1523). That order expired by its own terms on December 11, 2017, see Dkt. #12 (17-J-510), and the Museum’s appeal of it is therefore moot. See Biotti v. Bd. of Selectmen of Manchester, 25 Mass. App. Ct. 637, 639 n.8 (1988). The AGO recognizes that the time in which to notice an appeal of the single justice’s December 13, 2017 order (Dkt. RE23, 17-J-510) has not yet expired, and therefore is proceeding as though this case is not moot, but notes that, the propriety of that order does not technically appear to be before this Court.

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status report simultaneously with this brief.

Statement of Facts

The Museum is an art, science, and history museum

in Pittsfield, Massachusetts, pursuant to practice and

its statutory charter. 1932 Mass. Acts & Resolves Ch.

134, § 3.8 The Museum helped advance the careers of

Alexander Calder, Norman Rockwell, and other prominent

American artists. A87, A1002. The Museum exhibits fine

art from its collection in addition to works that it

borrows from other museums. A1001-2. The Museum is

struggling financially and its endowment is down to $8

million, but it describes any possible closure as

“years” away. A1371.

In December 2015, the Museum began a two-year

process to identify a new path forward. A425-7. It

hired a consultant, who estimated that it would need

to raise $25.6 million. SA30-41; A425. But after the

Museum learned that it could sell its art collection

for $47 million to $85 million, SA46-48, it abandoned

8 As set forth below, the single justice’s stay can be supported based purely on the procedural posture, although the facts (and resulting likelihood of success on the merits) also support affirming the stay. A more detailed recitation of the facts can be found in the AGO’s forthcoming appellant’s brief in Case No. 17-P-1548.

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its own consultant’s recommended goal of $25.6 million

and pursued plans costing at least $52 million. A472.

On March 27, 2017, the Museum settled on a $72

million proposal. A473. By May of 2017, it had

executed a written contract with Sotheby’s to sell its

art at auction, SA50-79, and only after that did the

Museum notify the AGO of its plan. A1042. The sale, if

consummated, would result in the Museum losing “the

most valuable and important works of art in its

collection” and the “single part of the Berkshire

Museum that make[s] it special.” A194-95. The Museum

also stands to lose its affiliation with art museum

professional organizations and its ability to borrow

works from other museums. A1156. It would become “an

interdisciplinary museum with a heightened emphasis on

science and history.” A378.

SUMMARY OF ARGUMENT

The single justice’s stay of the Superior Court

proceedings is reviewed under the deferential abuse of

discretion standard. See infra Section I at 11-12. The

single justice appropriately exercised his broad

statutory and common law authority to stay the

Superior Court proceedings. See infra Section II(A) at

12-17. The stay furthers judicial economy by avoiding

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simultaneous, overlapping litigation in Superior Court

and in the single justice session of this court, and

protects the public from irreversible loss. See infra

Section II(B)(1) at 18-21. The Museum failed to

demonstrate that the stay is causing harm, see infra

II(B)(2) at 21-23, and that any harm it may be

suffering outweighs the AGO’s likelihood of success on

the merits. See infra Section II(B)(3) at 23-28. The

Museum’s claim that the AGO lacks authority to conduct

its investigation is not properly before the Court, as

the Museum has not appealed the injunction that is

predicated upon the AGO’s authority, and is wrong in

any event. The AGO’s authority to investigate is

firmly grounded in longstanding legal precedent that

speaks to the AGO’s broad powers to conduct

investigations necessary to perform its obligation to

see to the due application of charitable assets. See

infra Section III at 28-31.

ARGUMENT

I. The Single Justice’s Order Staying Superior Court Proceedings Can Be Reversed Only If He Abused His Discretion.

This Court reviews the single justice’s stay of

lower court proceedings under a deferential abuse of

discretion standard. Troy Industries, Inc. v. Samson

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Manufacturing Corp., 76 Mass. App. Ct. 575, 581

(2010). To overcome this high threshold, the Museum

must demonstrate that the single justice’s order

granting the stay was “characterized by arbitrary

determination, capricious disposition, whimsical

thinking, or idiosyncratic choice.” Id. (citation

omitted); Mass. Bonding & Ins. Co. v. Peloquin, 225

Mass. 30, 30–31 (1916) (“Matters that rest in the

discretion of a single justice are not subject to

review by this court save in instances where an error

has been committed so gross in its nature as to amount

to an abuse and to be an arbitrary exercise of power,

or where equitable considerations in view of all

circumstances condemn its exercise.”).

As argued below, the Museum has not made that

showing here.

II. The Single Justice Did Not Abuse His Discretion in Concluding that a Stay Was Appropriate.

Here, the single justice had the authority to

issue the stay, and did not abuse his discretion in so

doing.

A. It Was Well Within the Single Justice’s Power to Stay the Superior Court Proceedings.

The single justice had the legal authority to

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stay the lower court proceedings during the pendency

of the AGO’s appeal while the AGO completed its

investigation. Therefore, the Museum’s argument that

the single justice’s stay of all proceedings in the

Superior Court pursuant to Rule 6(a) constituted

“legal error,” Br. at 17, lacks merit.

The text of Rule 6(a) confers broad authority on

the single justice to enter “an order … granting an

injunction during the pendency of an appeal.” Mass. R.

App. P. 6(a)(1). The rule further authorizes the

single justice to condition relief “on such reasonable

terms as the appellate court or single justice may

impose,” and to “make such further order as it or he

deems just and appropriate” in the event of failure to

comply. Id. 6(a)(3). The rule sets forth no limits on

the single justice’s authority to order whatever

relief, and on whatever conditions, he in his

discretion may deem appropriate. In particular,

nothing in Rule 6(a) bars the single justice from,

inter alia, staying proceedings in the lower court.

Accordingly, numerous reported cases from this

Court and the Supreme Judicial Court have referred to

a single justice’s having stayed lower court

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proceedings in the course of an interlocutory appeal.9

Some of these cases show Rule 6(a) as the basis for

the single justice’s action, see, e.g., Wojcicki v.

Caragher, No. 2004-J-587 (Dkt. ##2, 7); G.D. Mathews &

Sons Corp. v. MSN Corp., No. 2001-J-421 (Dkt. ##3, 7),

and we have discovered no case suggesting that a

single justice might lack the authority under Rule

6(a) to enter a stay of this kind. Indeed, the Museum

cites to no such case in its own brief.

Single justices have also entered similar stays

pursuant to G.L. c. 231, § 118, ¶ 1, or G.L. c. 211,

§ 3, and in several of the reported cases cited supra

9 See, e.g., Commonwealth v. One 2004 Audi Sedan Automobile et al., 456 Mass. 34, 35-36 (2010); Wojcicki v. Caragher, 447 Mass. 200, 201 (2006); P.B.C. v. D.H., 396 Mass. 68, 69 (1985), abrogated on other grounds by C.C. v. A.B., 406 Mass. 679 (1990); Madsen v. Erwin, 395 Mass. 715, 717 (1985); Merles v. Lerner, 391 Mass. 221, 223 (1984); Quirk v. Data Terminal Systems, Inc., 379 Mass. 762, 764 (1980); Tober Foreign Motors, Inc., et al. v. Reiter Oldsmobile, Inc., 376 Mass. 313, 316 (1978); P.W. v. M.S., 67 Mass. App. Ct. 779, 779 n.2 (2006); G.D. Mathews & Sons Corp. v. MSN Corp., 54 Mass. App. Ct. 18, 19 n.2 (2002); M. DeMatteo Constr. Co. v. A.C. Dellovade, Inc., 39 Mass. App. Ct. 1, 2 (1995); Goldstein v. Barron, 9 Mass. App. Ct. 644, 645-46 (1980). Because single justice orders are routinely unpublished and thus not readily discoverable using electronic search tools, it seems likely that such orders have been entered in many more cases than those listed here.

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n. 9, the basis on which the single justice acted is

not specified. Importantly for present purposes, the

cases contain no suggestion that the single justice’s

authority to enter a stay of lower court proceedings

differs depending on whether the source is Rule 6(a)

(as in Wojcicki and G.D. Mathews) or some other

source.10 That is consistent with the rule that “[t]he

statutes and rules regulating appellate procedure and

rights ‘should be read with the aim of finding

consistency rather than conflict.’” Edwin R. Sage Co.

v. Foley, 12 Mass. App. Ct. 20, 24 (1981) (quoting

Boston Seaman’s Friend Soc., Inc. v. Attorney General

et al., 379 Mass. 414, 416 (1980)). In short, a single

justice’s authority to stay lower court proceedings

pursuant to Rule 6(a) is well established and, prior

to this case, appears to have been non-controversial.

Moreover, the single justice’s inherent powers

10 A single justice acting pursuant to G.L. c. 211, § 3 has “plenary power” to “‘issue all writs and processes . . . necessary to the furtherance of justice and to the regular execution of the laws.’” Oznemoc, Inc. v. Alcoholic Bev. Control Comm’n, 412 Mass 100, 109 (1992) (quoting the statute). Similarly, the single justice’s authority under G.L. c. 231, § 118, ¶ 1 has been described as “plenary.” Demoulas v. Demoulas Super Markets, Inc., 33 Mass. App. Ct. 939, 940 (1992); Jet-Line Services, Inc. v. Bd. of Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988).

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easily extend to staying ongoing litigation in a lower

court. “The boundaries of inherent judicial

authority[,]” such as the ability to issue a stay,

“have been established on a case-by-case basis as

challenges to the exercise of a particular power have

arisen.” Commonwealth v. Charles, 466 Mass. 63, 73

(2013). The case-specific challenges arising in this

action, as discussed below, are such that briefly

staying the Superior Court proceedings until a date

certain pending the AGO’s investigation was a

reasonable and appropriate exercise of judicial

discretion. Cf. Graizzaro v. Graizzaro, 36 Mass. App.

Ct. 911, 911-12 (1994) (single justice’s order staying

trial court proceedings indefinitely was an abuse of

discretion).11

The Museum’s citation to Demoulas Super Markets,

Inc. v. Peter’s Market Basket, Inc., 5 Mass. App. Ct.

750 (1977) and Jet-Line, as well as its reliance on

11 The mere fact that the AGO did not specifically request this temporary stay of the Superior Court’s proceedings does not change this analysis. The single justice, who had the ability to stay the Superior Court’s proceedings, also had the ability to do so sua sponte. In any event, the AGO did request – and receive - an extension of the stay through January 29, 2018. Dkt. #23.

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treatises and out of state cases (Br. at 18-19), do

not support its claim that the single justice was

categorically without power to stay proceedings. These

authorities stand for the unexceptional propositions

that the AGO’s notice of appeal from the denial of its

preliminary injunction motion did not divest the

Superior Court of jurisdiction during the pendency of

the interlocutory appeal, and that in some

circumstances and as a matter of discretionary

judicial policy, litigation should proceed in the

Superior Court while interlocutory appeals are heard.

See, e.g., Jet-Line, 25 Mass. App. Ct. at 649;

Demoulas, 5 Mass. App. Ct. at 753. The circumstances

of this case, however, are quite different and

extraordinary, as explained below. It makes sense as a

matter of judicial economy to permit the AGO to

complete its investigation before proceeding with

litigation arising from the Museum’s decision to move

forward with the November auction dates prior to

seeking AGO approval, cy pres relief, or other court

approval. The single justice acted within his

discretion in so recognizing.

B. A Stay Is Appropriate Here.

The Museum’s assertions that the stay lacks any

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legitimate purpose and imposes a severe harm on its

ability to continue operating financially are

meritless. The stay has a sound purpose in judicial

economy, does not severely harm the Museum, and

protects the public from harm. Moreover, the stay is

further supported by the AGO’s substantial likelihood

of success on the merits.

1. The Stay Is Justified by Judicial Economy and the Risk of Public Harm.

The stay of the litigation protects judicial

economy. When the single justice issued the original

injunction and stay, he also ordered the AGO to

provide a status update and allowed the AGO to move

for an extension of the injunction and stay with a

date certain as to the end of the investigation.

A1417-18. As such, the timing of the investigation

became central to the single justice proceedings. The

Museum, however, responded to the single justice’s

orders by threatening to stop cooperating with the

investigation and attempting to truncate the

investigation through Superior Court motion practice.

See A1427-1439. Indeed, the Museum even argued to the

Superior Court that it was “prepared to proceed to

trial now.” A1429. As a result, if the stay had not

-19-

issued, the parties would have been simultaneously

litigating over the scope of the ongoing

investigation, trying the case on the merits, and

briefing the AGO’s appeal from the denial of the

preliminary injunction. The inevitable overlap among

these three proceedings demonstrates the soundness of

the single justice’s approach.12

It was more than reasonable for the single

justice to issue an order that prevented such wasteful

and duplicative proceedings. See Demoulas, 33 Mass.

App. Ct. at 940 (concluding that single justice did

not abuse discretion where his injunctive order

“preserve[d] judicial resources” by avoiding

“ancillary proceedings [that] would only prolong the

litigation and intensify the animosity among the

litigants”).

As a result, the unusual and specific

12 Through its previously-filed motion for expedited trial, the Museum appears to suggest that if a stay were to issue, it should be ordered by the Superior Court. See Dkt. #55 (1776CV00253). For example, the Museum would proceed with its motion for an expedited trial (seeking a date before the investigation was complete) in the Superior Court, and the AGO would respond in Superior Court with a request to stay discovery pending the completion of the investigation. But that still would result in the Superior Court and the single justice simultaneously considering motions focused on the duration of the investigation.

-20-

circumstances of this case place a stay of the

Superior Court proceedings, pending the completion of

the investigation, well within the single justice’s

discretion to issue such relief. Cf., e.g., Charles,

466 Mass. at 73 (holding that, in the context of “the

ongoing investigation of misconduct at the Hinton drug

lab and the uncertainty about when such investigation

will be completed . . . the allowance of a stay [of

execution of a sentence pending appeal] is properly

within the judge’s inherent authority”); Halebian v.

Berv et al., 457 Mass. 620, 631 (2010) (recognizing

that, in derivative shareholder suits, the governing

statute gives the court “discretion to stay the

proceedings, including all discovery, until the

[corporation’s] inquiry [into the allegations] is

completed); Sanchez v. Witham, 2003 WL 1880131, at *4

(App Div. Northern Dist. 2003) (“[T]here is a body of

unpublished, single justice decisions from the Supreme

Judicial Court and the Massachusetts Appeals Court

that have, on interlocutory appeal, stayed proceedings

and discovery in G.L. c. 93A litigation based upon

G.L. c. 176D.”).

The severity of the harm to the public, and the

AGO’s legal authority to protect against that harm,

-21-

also weighed heavily in favor of the stay. The people

of the Berkshires and the broader community in the

Commonwealth have a vested interest in the enjoyment

of the art that the Museum is now trying to sell. The

works of art are irreplaceable public treasures. Once

sold to private bidders, they will disappear from the

public realm, depriving the community of their

enjoyment and appreciation as to their cultural

significance. Once these paintings are sold and

removed from the Berkshires and the Commonwealth,

securing their return will likely not be an option,

even if the Superior Court ultimately finds that the

Museum was not authorized to sell them in the first

place.

For these reasons, it was reasonable for the

single justice to conclude that the balance of

irreparable harms and likelihood of success on the

merits favored the AGO. His finding, therefore, that

this factor weighed heavily in favor of entry of a

preliminary injunction and a stay of the trial below

was an appropriate exercise of discretion.

2. The Museum Has Not Demonstrated that the Stay Is Causing Harm.

The record does not support the Museum’s blanket

-22-

assertion that the stay causes it to suffer severe

harm “every day.” Br. 1, 4, 15, 21, 23. While the

Museum may be experiencing financial difficulties, it

admits that it is years away from closing its doors.

A1371. Moreover, although the Museum claims that it

needs to sell the paintings in order to “maintain and

sustain itself” (Br. at 23), lifting the stay will not

alter the injunction against selling the art, which

the Museum has not appealed. Further, the Museum has

made clear through its actions – in retaining the

November 13, 2017, auction date and resisting a

preliminary injunction – that, if permitted by the

Massachusetts courts, it apparently intends to sell

the art despite the pendency of this litigation.

Accordingly, a stay of that litigation will not impact

the timing of the sale; that timing depends only on

the injunction, which the Museum has not challenged.

In other words, even if the Museum had articulated a

daily harm to its finances, lifting the stay would not

ameliorate that harm.

In any event, if each day without a sale were a

genuine source of harm, the Museum could – and should

– have alerted the AGO when it first considered a sale

of this magnitude. Instead, the Museum considered the

-23-

sale for over a year, and even entered into a contract

of sale with Sotheby’s, before notifying the AGO.

Compare A427-28 (the Museum alleging that the Board

discussed the legal implications of the sale as early

as May 2016); A431 (the Museum entered into the

consignment agreement with Sotheby’s on June 13, 2017,

and notified the AGO of the sale on June 22, 2017).

The Museum should not be allowed to create the

compressed timeframe and then cry foul.

In sum, the Museum failed to demonstrate that the

stay of the Superior Court proceedings is harming the

Museum.

3. The AGO Has a Reasonable Likelihood of a Successful Appeal.

The Museum premises its claim of harm on the

erroneous belief that it will ultimately be allowed to

fund its New Vision through the liquidation of its

art. But as the single justice rightly opined, the

“balance of the risk of irreparable harm to the

petitioner and the respondent in light of each party’s

chance of success on the merits weighs in favor of the

petitioner.” A1418. The single justice, in the

exercise of his discretion, thus found that the

balance of the harm and the AGO’s likelihood of

-24-

succeeding on the merits weighed in favor of pausing

the litigation, just as it favored pausing the sale of

the art.

The Museum does not dispute the merits of the

injunction itself, nor does it argue likelihood of

success on the merits in this appeal. Therefore, to

the extent that it now claims that the single justice

abused his discretion in holding that the balance of

the harm against likelihood of success favors a

preliminary injunction, that argument is waived.

In any event, as will be described at greater

length in the AGO’s brief for the related appeal (17-

P-1548) of the Superior Court’s denial of a

preliminary injunction, the single justice was well

within his discretion in finding that the AGO has a

substantial likelihood of prevailing on the merits. As

an initial matter, the Museum’s proposed sale would

violate restrictions under which the Museum holds its

art collection in three ways. First, the Museum’s

decision to reinvent itself – to change itself from an

art museum into a history and science center with no

artistic mission or connection to the art museum

community – is a violation of the Museum’s charitable

and legislative mandate to be a museum of art,

-25-

science, and history. Even in hard times, charities

cannot unilaterally sell their assets and use the

proceeds for a purpose other than that for which they

were intended. See Attorney General v. Hahnemann

Hospital et al., 397 Mass. 820, 836 (1986)

(criticizing argument that “would, in effect, grant to

charitable corporations unfettered discretion to apply

funds to any charitable purpose”). Charities hold

their assets in quasi-trust for the purposes in effect

when the assets were acquired. See, e.g.,

Massachusetts Charitable Mechanic Ass’n v. Beede et.

al., 320 Mass. 601, 610 (1947). If it is not possible

for the Museum to maintain all three elements of its

charter, it can alter its purpose through an

application to the Court under the doctrine of cy

pres. See, e.g., Museum of Fine Arts v. Beland et

al., 432 Mass. 540, 544 & n.7 (2000). The Museum has

not done so here.

Second, the Museum has a duty to maintain the

restriction that none of the paintings that were

donated to the Museum’s predecessor, the Berkshire

Athenaeum, before 1932 (including 19 of the 40 works

designated for sale) “shall ever be removed from the

town of Pittsfield.” 1871 Mass. Acts & Resolves Ch.

-26-

129. Although the Legislature, in separately

chartering the Museum in 1932, permitted the Berkshire

Athenaeum to transfer to the Museum certain assets

that had been donated to the Athenaeum, the

Legislature did not repeal the existing Pittsfield

restriction on those assets. See 1932 Mass. Acts &

Resolves Ch. 134. Further, the Pittsfield restriction

is implied based on donor intent as donors are

presumed to know the extent of a charity’s powers and

purposes. Boston Athletic Ass’n v. Int’l Marathons,

Inc., 392 Mass. 356, 367 (1984); Trustees of Andover

Theological Seminary v. Visitors of the Theological

Inst. of Phillips Acad., 253 Mass. 256, 273 (1925)

(“[D]onors presumably ‘knew on what trusts the library

was established and was to be managed, and that they

made their gifts to be held under the same trusts.’”)

(citation omitted).

Third, the two most significant works on the

auction block (in both monetary and community value)

are the Norman Rockwell paintings, SA60-74, which the

artist himself donated, A349, 342. At the time Norman

Rockwell donated his works of art, it was “accepted as

a ‘given’ that the works would be permanently retained

in the collection.” A1097. The artist also indicated

-27-

that he intended that his art remain in the Museum’s

“permanent collection” for the community and the

“favorite art museum” that he respected and cherished.

A1159, A1061. Therefore, the Museum is barred from

selling these two items. See In re Opinion of the

Justices, 237 Mass. 613, 617 (1921)(“Gifts to trustees

. . . accepted by them to be held upon trusts

expressed in writing or necessarily implied from the

nature of the transaction, constitute obligations

which ought to be enforced and held sacred under the

Constitution).

Separately, the Museum’s officers and trustees

breached fiduciary obligations to the organization and

its charitable purpose. The basic standard of care is

one of “complete good faith plus the exercise of

reasonable intelligence.” Boston Children’s Heart

Foundation v. Nadal-Ginard, 73 F.3d 429, 433-34 (1st

Cir. 1996). The Board’s actions were not reasonable

under the circumstances. The needs of the Museum were

substantial but did not require selling its art

collection to the highest bidder. See Zimmerman v.

Bogoff, 402 Mass. 650, 657 (1988) (fiduciary liable

for a breach of good faith for an action serving a

legitimate purpose if that purpose “could have been

-28-

achieved through a less harmful, reasonably

practicable, alternative mode of action”); see SA30-41

(report from the Museum’s own consultant estimating

that the Museum would need to raise $25.6 million to

address its structural deficit and stabilize its

operations by building up its endowment). But when the

Museum learned that its art collection was worth $54

million to $95 million, almost all of which ($47

million to $85 million) was attributed to the 40 most

valuable works, SA46-48, it abandoned the reachable

goal of $25.6 million and pursued paths of at least

$52 million, each of which required the Museum to sell

its art collection. A472. That is not a reasonable

approach for a Museum mandated by law to be a museum

of art, science, and history. A1093-1099.

In sum, the AGO’s arguments on the merits are

substantial, and the single justice acted well within

his discretion in concluding that the balance of harms

against the parties’ likelihood of success weighed in

favor of the AGO.

III. The AGO Has the Authority to Investigate the Museum’s Extraordinary Decision to Dispose of its Fine Art Collection.

The Museum’s final argument, that the AGO lacks

authority to continue its investigation, is not

-29-

properly before this Court. The Museum has expressly

abandoned its appeal of the single justice’s November

10, 2017 orders enjoining the sale of art pending the

completion of the AGO’s investigation.13 See Br. at 3.

Having done so, it may not now collaterally attack the

propriety of those orders by questioning the AGO’s

authority to investigate, which was the predicate of

the orders.

In any event, the argument is wrong. The AGO has

a long-established authority – pursuant to common law

and statute – to investigate the Museum’s drastic

decision to dispose of its fine art collection. The

AGO is charged with supervising, regulating, and

investigating charities under common law and statutory

authority. See Secretary of Administration and Finance

v. Attorney General, 367 Mass. 154, 159-65 (1975)

(discussing generally the AGO’s common law authority);

Ames v. Attorney General, 332 Mass. 246, 250

(1955)(noting that AGO has a duty to protect public

charities “both at common law and under G. L. (Ter.

13 In addition, the Museum has not appealed the single justice’s December 13, 2017 order (Dkt. RE#23 (Revised Action), 2017-J-510) extending the injunction to the investigation’s anticipated completion date of January 29, 2018.

-30-

Ed.) c. 12, Section 8”); Dillaway v. Burton, 256 Mass.

568, 573 (1926) (it is “the exclusive function of the

Attorney General to correct abuses in the

administration of a public charity by the institution

of proper proceedings.”); Jackson v. Phillips, 96

Mass. 539, 579 (1867) (the Attorney General represents

the indefinite public in a parens patriae power role

to protect property devoted to charitable uses);

Parker v. May, 59 Mass. 336, 337 (1850) (a suit by the

Attorney General “in the name of the Commonwealth, for

establishing and sustaining charitable trusts is . . .

a suit to protect public interests”); Restatement

(Draft) of Charitable Nonprofit Organizations § 5.01

(2017) (noting that the “contemporary role of the

state attorney general to protect charitable assets

and interests, as well as the justifications for this

authority, stemmed from the application of the

[English] Crown’s powers over charitable trusts by its

senior lawyer, the attorney general”).

The Museum’s claim that the AGO is limited to

investigating only upon the issuance of a formal Civil

Investigative Demand (CID) pursuant to G.L. c. 12,

§ 8H, ignores the AGO’s well-settled common law

authority to oversee the due application of charitable

-31-

funds. E.g., Attorney General v. Flynn, 331 Mass. 413,

426 (1954) (“[T]he respondent gave false answers to

inquiries by or in behalf of the Attorney General for

the purpose of impeding his investigation…. It is a

function of the Attorney General to enforce the due

application of charitable funds and to prevent

breaches of trust in the administration thereof. G. L.

(Ter. Ed.) c. 12, Section 8. It was the duty of the

respondent to assist and not to obstruct.”).

Certainly, nothing precludes the AGO from seeking

voluntary cooperation from regulated entities in the

course of exercising its oversight responsibilities,

as opposed to racing straight to court.14

Moreover, the Museum cooperated with the

investigation for months without demanding a CID

instead of the informal investigation, and should not

now be heard to belatedly demand a CID. There is no

reason to discourage the AGO from working

cooperatively with the many charities who prefer the

informal (and private) investigations to CIDs.

14 Generally, the AGO tries to work with charities to help resolve problems related to administration of charitable funds. Litigation is the last resort.

-32-

CONCLUSION

For the foregoing reasons, the Court should

affirm the single justice’s discretionary order

temporarily staying proceedings in the Superior Court.

Respectfully submitted, MAURA HEALEY ATTORNEY GENERAL

By:_/s/ Andrew Batchelor ____ Courtney M. Aladro (BBO No. 671104) Argie K. Shapiro (BBO No. 674511) Andrew M. Batchelor (BBO No. 673248) Adam Hornstine (BBO No. 666296) Assistant Attorneys General One Ashburton Place

Boston, MA 02108 (617) 963-2545 Courtney.Aladro@state.ma.us Argiro.Kosmetatos@state.ma.us Andrew.Batchelor@state.ma.us Adam.Hornstine@state.ma.us

Date: January 3, 2018.

ADDENDUM

1. The Museum’s Memorandum in Support of

Emergency Motion for Immediate Status Conference and Expedited Trial (Dkt. #55 of 1776CV00253) .............. ADD001

2. Mass. R. App. P. 6 ..................... ADD009 3. 1871 Mass. Acts & Resolves Ch. 129 ..... ADD011

4. 1903 Mass. Acts & Resolves Ch. 131 ..... ADD014

5. 1932 Mass. Acts & Resolves Ch. 134 ..... ADD016

6. Mass. Gen. Laws ch. 12, § 8 ............ ADD021

7. Mass. Gen. Laws ch. 180, § 8A .......... ADD022

ADD001

ADD002

ADD003

ADD004

ADD005

ADD006

ADD007

ADD008

1/3/2018 Massachusetts Appellate Procedure Rule 6

http://www.mass.gov/courts/case-legal-res/rules-of-court/appellate-procedure/mrap6.html 1/2

(a) Civil Cases.

(1) Stay Must Ordinarily be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. Incivil cases, an application for a stay of the judgment or order of a lower court pending appeal, or for approval of a bondunder subsection (a) (2) of this rule, or for an order suspending, modifying, restoring or granting an injunction during thependency of an appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may bemade to the appellate court or to a single justice, but the motion shall show that application to the lower court for therelief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief whichthe applicant requested, with the reasons given by the lower court for its action. The motion shall also show the reasonsfor the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported byaffidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed suchparts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall befiled with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the SupremeJudicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(2) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the appellatecourt under this rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. Ifsecurity is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety therebyshall submit to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as an authorizedagent upon whom any papers affecting liability on the bond or undertaking may be served. A surety’s liability may beentered against the surety on motion in the lower court without the necessity of an independent action. The motion andsuch notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shallforthwith mail copies to the sureties if their addresses are known.

(3) Terms. Relief available in the appellate court under this rule, or denial of such relief, may be conditioned on suchreasonable terms as the appellate court or single justice may impose. For failure to observe such terms, the appellatecourt or single justice may make such further order as it or he deems just and appropriate.

(b) Criminal Cases. A motion for a stay of execution of a sentence shall be governed by paragraph (b) of this rule and byMassachusetts Rules of Criminal Procedure 31

(1) Stay Must Ordinarily be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. Incriminal cases, an application for a stay of execution of a sentence pending appeal must ordinarily be made in the firstinstance in the lower court. A motion for such relief may be made to the single justice of the appellate court to which theappeal is being taken, but the motion shall show that application to the lower court for the relief sought is notpracticable, or that the lower court has previously denied an application for a stay or has failed to afford the relief whichthe applicant requested with the reasons given by the lower court for its action. The motion shall also show the reasonsfor the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported byaffidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed suchparts of the record as are relevant The motion shall be filed with the clerk of the appellate court to which the appeal isbeing taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of theSupreme Judicial Court for Suffolk County).

(2) Reasonable Notice. Reasonable notice of the motion for a stay shall be given to the Commonwealth. If the motionis filed at least 30 days prior to the date the appellant’s brief is due, the time for a response shall be governed by Rule15. If the motion is filed at any other time, the Commonwealth shall have 30 days to respond. A single justice mayshorten or extend the time for responding to any motion authorized by this Rule.

(3) Appealability of Single Justice Order. Finality. An order by the single justice allowing or denying an application fora stay may be appealed to the appellate court in which the appeal is pending. An order by the appellate court in whichthe appeal is pending, allowing or denying an application for a stay, shall be final.

(4) Revocation of Stay Pending Appeal. If a defendant fails at any time to take any measure necessary for thehearing of an appeal or report, a stay of execution of a sentence may, on motion of the Commonwealth, be revoked.

(5) Expiration of Stay. Upon the release of the rescript by the appellate court of a judgment affirming the conviction,the stay of execution of sentence automatically expires, unless extended by the appellate court.

(6) Notice of Expiration of Stay. Upon release of a rescript affirming the conviction, the clerk of the appellate courtshall notify the clerk of the trial court and the parties that the conviction has been affirmed and that therefore, the stay ofexecution of sentence has automatically expired.

Rules of Appellate Procedure

Rules of Appellate Procedure

Massachusetts Court Rules &Documents Ebook

Rules Amendments

Superior Court Rule 73Added November 7, 2017,effective January 1, 2018.

Superior Court Standing Order 1-82Rescinded and replaced by Rule73, effective January 1, 2018

SJC Rule 3:01Amended November 7, 2017,effective March 1, 2018.

Rules Board of Bar ExaminersAmended November 7, 2017,effective March 1, 2018.

Massachusetts Court System Case & Legal Resources Rules & Orders Appellate Procedure Appellate Rule 6

Appellate Procedure Rule 6: Stay or Injunction Pending Appeal

Massachusetts Court System

The Official Website of the Massachusetts Judicial Branch

ADD009

1/3/2018 Massachusetts Appellate Procedure Rule 6

http://www.mass.gov/courts/case-legal-res/rules-of-court/appellate-procedure/mrap6.html 2/2

Amended December 14, 1976, effective January 1, 1977; May 15, 1979, effective July 1, 1979; June 24, 2009, effectiveOctober 1, 2009.

Reporter’s Notes

(2009) [The notes to the 2009 amendments were drafted by the Reporter for the Massachusetts Rules of CriminalProcedure]. This Rule was revised in 2009 to describe more fully the procedure for obtaining a stay of execution of acriminal sentence in an appellate court. It complements Rule 31 of the Rules of Criminal Procedure.

The 2009 amendment clarified the appellate process for stays of execution of a criminal sentence pending an appeal. As incivil cases, requests for a stay must first be presented to the trial court, unless such an application is not practicable. Eitherthe defendant or the Commonwealth may seek relief from a single justice of the court that will hear the appeal concerningthe trial judge’s decision to deny, e.g., Commonwealth v. Aviles, 422 Mass. 1008 (1996), or grant, e.g. Commonwealth v.Hodge, 380 Mass. 851 (1980), a stay. Only the parties may do so. See Hagen v. Commonwealth, 437 Mass. 374 , 375(2002) (crime victim lacks standing to request revocation of stay). In the ordinary course of events, for all but first-degreemurder cases a single justice of the Appeals Court is the appropriate forum. The single justice does not review the decisionof the trial judge, but considers the matter de novo. See Commonwealth v. Allen, 378 Mass. 489 , 497 (1979).

Rule 6(b)(2) recognizes that it is important to give the Commonwealth adequate time to prepare a response to a motion fora stay, since that will often require substantial effort in addressing the merits of the underlying appeal.

After the single justice decides the issue, there is only one further step in the process: an appeal to the panel of theAppeals Court that will decide the merits, or the full bench of the Supreme Judicial Court if the case will be decided there.This changes prior practice, which allowed a party aggrieved by the decision of a single justice of the Appeals Court theoption of seeking relief both by appealing the decision in that court and asking a single justice of the Supreme JudicialCourt to entertain the matter. See e.g., Duong v. Commonwealth, 434 Mass. 1006 (2001). The appeal from the decision ofthe single justice may be accompanied by a motion for an expedited ruling. See e.g., Restucci v. Commonwealth, 442Mass. 1045 (2004).

As also provided in Mass. R. Crim. P. 31, a stay of execution of sentence automatically expires when the appellate courtconsidering the appeal releases a rescript affirming the conviction, unless the appellate court decides to extend it. Arescript is “released” when it is announced to the public and the appellate court notifies the parties that the court hasdecided the case. Cf. Mass. R. App. P. 23 (requiring the clerk of the appellate court to mail the parties a copy of the rescriptand the opinion, if any). In the ordinary course of events, the rescript “issues” twenty-eight days following the release dateor upon the denial of any petition for rehearing or application for further appellate review, whichever is later. Id.

When a rescript is released affirming a conviction, the clerk of the appellate court, in addition to the obligation that Mass. R.App. P. 23 imposes, shall notify the parties and the trial court clerk that the stay of execution of sentence has automaticallyexpired. If the defendant wishes to apply for a new stay, in order to seek a rehearing or further appellate review, such arequest should go to the appellate court that decided the case (either the panel of the Appeals Court or the full bench of theSupreme Judicial Court).

The court that decided the appeal may exercise its discretion to extend a stay of execution pending a petition for rehearing,application for further appellate review, or petition for certiorari. Unless otherwise specified, an extended stay expires whenthe rescript issues. The appellate court may act sua sponte or pursuant to the defendant’s motion, which may be filedbefore the appeal is decided or after the rescript is released.

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ADD010

HOUSE No. 178.

House of Representatives, March 11, 1871.

The Committee on Education, to whom was referred thepetition of E. H. Kellogg, that Thomas Allen and others maybe incorporated as the Pittsfield Athenaeum, report the accom-panying Bill.

Per order,

GEO. PUTNAM.

toimomocaltl) of illaosacljusctte.

ADD011

[Mar.2 BERKSHIRE ATHENAEUM.

AN ACTTo incorporate the Trustees of the Berkshire Athenaeum.

1 Sect. 1. Thomas Allen, John Todd, Ensign H.2 Kellogg, Henry L. Hawes, Thomas Colt, Edwin3 Clapp, George Y. Learned, William R. Plunkett,4 Edward S. Francis, William P. Bartlett, James M.5 Barker, their associates and successors, are hereby6 made a body corporate by the name of the Trustees7 of the Berkshire Athenaeum, for the purpose of estab--8 lishing and maintaining in the town of Pittsfield an9 institution to aid in promoting education, culture

10 and refinement, and diffusing knowledge by means11 of a library, reading-rooms, lectures, museums and12 cabinets of art and historical and natural curiosities;13 with all the powers and privileges, and subject to all

Be it enacted by the Senate and House of Representa-tives, in General Court assembled, and by the authority ofthe same, as follows:

tonmomocaltl) of ittasoadii^cUs.

In the Year One Thousand Eight Hundred and Seventy-One.

ADD012

31871.] HOUSE—No. 178.

14 the duties, restrictions and liabilities set forth in all15 general laws which now are or may herafter be in16 force applicable to such corporations.

1 Sect. 2. Said corporation may hold real and per--2 sonal property for the purposes aforesaid to the3 amount of two hundred and fifty thousand dollars;4 and all gifts, devises and bequests thereto shall be5 devoted to such purposes exclusively, and used in6 conformity with the conditions made by any donor7 and expressed in writing: provided , such conditions8 are not inconsistent with the provisions of this act;9 and provided , further, that no part of such real and

10 personal property, or such gifts, devises or bequests,11 shall ever be removed from the town of Pittsfield.

1 Sect. 3. The town of Pittsfield, so long as said2 corporation maintains a public library for the use of3 the inhabitants thereof, is hereby authorized to ap--4 propriate and pay money to aid in supporting such5 institution, the same as may be done by law for the6 support of public libraries, and said corporation may7 receive such appropriations as may be made.

1 Sect. 4. The trustees of such corporation shall2 have authority to fill all vacancies in any manner3 occurring, but the number thereof shall never exceed4 eleven.

1 Sect. 5. This act shall take effect upon its pas--2 sage.

ADD013

HOUSE No. 875

[Bill accompanying the petition of Charles W. Kellogg and others,nstees, for legislation to change the name of the Trustees of the Berk-tv

re Athenseum, and to enlarge the number of trustees and prescribeir term of office. Libraries. Feb. 4.]t

In the Year One Thousand Mine Hundred and Thr

AN ACTTo change the Name of the Trustees of the Berkshire

Athenaeum to Trustees of the Berkshire Athenaeumand Museum, and Relative to the Election ofTrustees of Said Corporation.

xted by ike Senate and House of RepresentativesGeneral Court assembled, and by the authority of the/

'lotsj

1 Section 1. The name of the “ Trustees of tins hereby changed to thelire Athenaeum and Mu-

11 Berkshire Athenaeum ”

3 “ Trustees of the Berk4 seura.”

1 Section 2. The corporation may elect nine2 trustees in addition to the number now authorized

CommcmiDcaitl) of Jttnsoadjusctts.

ADD014

)

ri

n

h

•>

1 Section' 3. The corporation may by its by- laws limit the term of office of all trustees hereaftc1 elected, and from time to time reduce the numbe

1 of trustees to not less than ten in number3 addition to trustees holding office “ex officio,

and may classify such trustees so that the term7 of a certain number of trustees shall expire eaco year.

1 Section 4. This act shall take effect upcnooooo’Q

1passage.

BERKSHIRE ATHENAEUM. [Feb. 19Uc

ADD015

Department of Corporations and Taxation,State House, Boston, January 12, 1932.

To the Honorable Senate and The House of Representatives.

There is just presented to me and hereby referred toyou a petition of the Berkshire Athenaeum and Museumwhich has for its purpose legislation to authorize a changeof name from The Trustees of Berkshire Athenaeum andMuseum to the Trustees of Berkshire Athenaeum, andto establish another corporation under the name Trusteesof the Berkshire Museum, and to authorize the transferof certain property from the trustees of the old to thetrustees of the new corporation.

The provisions of section 7 of chapter 3 of the GeneralLaws, as last amended by chapter 107 of the Acts of1926, require that this kind of a petition be filed with

the Commissioner of Corporations and Taxation on orbefore November 1 of the preceding year. The filing nothaving been made in compliance with the statute, theGeneral Court only is authorized to permit the con-sideration of the petition.

The Trustees of The Berkshire Athenaeum was in-corporated by a special act, chapter 129 of the year 1871,as an educational corporation to encourage art, cultureand refinement, through lectures, the maintenance of alibrary, and museums of historical and natural curiosi-ties. In 1903, chapter 131, it was authorized to changeits name to the present title. Through gifts or bequeststhe corporation has received and now owns a museumand a library, and they now desire to transfer museumand land connected to the proposed new corporation,

No. 1193HOUSE

Cbe Commontoealtb of Massachusetts

ADD016

[Feb.HOUSE— No. 11932

maintaining the ownership and control of the AthenaeumLibrary in the old corporation.

The corporation could probably change its name undergeneral laws and a new corporation could be formed undergeneral laws, but the petitioner evidently desires legis-lative sanction for the transfer of trust estate from theold to the new corporation, and feels that such sanctionshould also be received to the change of name and theestablishment by a special act of incorporation for thenew corporation.

There may be some questions as to whether any powerexists in the Legislature to authorize a change in themanagement of trust fund, or whether consent of theProbate Court is essential.

No fee is required with this petition.

Respectfully yours,

HENRY F. LONG,Commissioner of Corporations and Taxation.

ADD017

1932.] HOUSE —No. 1193. 3

By Mr. Sisson of Pittsfield, petition of Clement F. Coogan, GeorgeH. Tucker and others that the name of the Trustees of the BerkshireAthenaeum and Museum be changed to Trustees of the BerkshireAthenaeum and that the Trustees of the Berkshire Museum be in-corporated. Mercantile Affairs.

In the Year One Thousand Nine Hundred and Thirty-Two.

An Act changing the Name of the Trustees of the Berk-shire Athenaeum and Museum to Trustees of theBerkshire Athenaeum, and to Incorporate the Trusteesof the Berkshire Museum and Authorize the Transferto it of Museum Property.

Be it enacted by the Senate and House of Repre-sentatives in General Court assembled, and by theauthority of the same, as follows:

1 Section 1. The name of the “Trustees of the2 Berkshire Athenaeum and Museum” is hereby changed3 to the “Trustees of the Berkshire Athenaeum.”

1 Section 2. The Trustees of the Berkshire Athe--2 naeum are authorized and empowered to transfer and3 convey to the Trustees of the Berkshire Museum, a4 body corporate chartered by this act, the museum5 building and the land used therewith given to said6 Trustees of the Berkshire Athenaeum by the late7 Zenas Crane. The Trustees of the Berkshire Athe--8 naeum are also authorized to convey to the Trustees

Cbc Commomncaltj) of Massachusetts

ADD018

HOUSE— No. 1193. [Feb.4

9 of the Berkshire Museum, and to reserve to the10 Trustees of the Berkshire Athenaeum, any rights of11 way and other easements which they deem it expe--12 dient to create or reserve in either or both properties13 and to transfer to the Trustees of the Berkshire14 Museum the Zenas Crane endowment fund and all15 objects donated by the said late Zenas Crane and16 such other objects of or illustrating natural science,17 culture history or art as they deem proper.

1 Section 3. Zenas Marshall Crane, John Barker,2 Frances C. Colt, Henry A. Francis, Charles J. Kit--3 tredge, Josephine C. Robbins and George H. Tucker,4 their associates and successors, are hereby made a5 body corporate by the name of the Trustees of the6 Berkshire Museum for the purpose of establishing7 and maintaining in the city of Pittsfield an institu--8 tion to aid in promoting for the people of Berkshire9 county and the general public the study of art,

10 natural science, the culture history of mankind and11 kindred subjects by means of museums and collections12 with all the powers and privileges and subject to all13 the duties, restrictions and liabilities set forth in all14 general laws which now are or may hereafter be in15 force applicable to such corporation.

1 Section 4. Said the Trustees of the Berkshire2 Museum may hold real and personal property for the3 purposes aforesaid; and all gifts, devises and be--4 quests thereto shall be devoted to such purposes5 exclusively and used in conformity with the condi--6 tions made by any donor and expressed in writing,7 provided that such conditions are not inconsistent8 with the provisions of this act. ADD019

1932.] HOUSE —No. 1193. 5

1 Section 5. The Trustees of the corporation hereby2 chartered as the Trustees of the Berkshire Museum3 shall have authority to fill all vacancies in any manner4 occurring, but the number of said trustees shall never5 exceed fifteen.

1 Section 6. The Trustees of the Berkshire Museum2 shall be entitled to receive any gifts, devises or be--3 quests to the Trustees of the Berkshire Athenaeum4 and Museum which by their express terms are in--5 tended for the museum.

1 Section 7. This act shall take effect upon its2 passage; provided that whatever authority or right3 is granted or conferred by this act is hereby declared4 to be limited to such authority or right as the general5 court may constitutionally grant or confer, without6 prejudice to any proceeding that may be instituted7 in any court of competent jurisdiction to effect the8 purposes of this act.

ADD020

12/18/2017 Section 8

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter12/Section8 1/1

Part I ADMINISTRATION OF THE GOVERNMENT

Title II EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE

COMMONWEALTH

Chapter 12 DEPARTMENT OF THE ATTORNEY GENERAL, AND THE DISTRICT

ATTORNEYS

Section 8 DUE APPLICATION OF CHARITY FUNDS ENFORCED

Section 8. The attorney general shall enforce the due application of fundsgiven or appropriated to public charities within the commonwealth andprevent breaches of trust in the administration thereof.

ADD021

12/18/2017 Section 8A

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter180/Section8A 1/5

Part I ADMINISTRATION OF THE GOVERNMENT

Title XXII CORPORATIONS

Chapter 180 CORPORATIONS FOR CHARITABLE AND CERTAIN OTHER

PURPOSES

Section 8A SALE, LEASE, OR EXCHANGE OF CORPORATE PROPERTY ANDASSETS; GRANT OF SECURITY INTEREST; PUBLIC CHARITIES;NOTIFICATION OF ATTORNEY GENERAL AND COMMISSIONEROF PUBLIC HEALTH; INVESTIGATION

Section 8A. (a) A corporation may authorize, by vote of two-thirds of itsmembers entitled to vote thereon or, in the case of a corporation havingcapital stock, by the holders of two-thirds of its capital stock entitled tovote thereon, at a meeting duly called for the purpose, with notice given asprovided in section six B, the sale, lease, exchange or other disposition ofall or substantially all of its property and assets upon such terms andconditions as it deems expedient, except that no such vote shall berequired if such transaction does not involve or will not result in a materialchange in the nature of the activities conducted by the corporation.

(b) The authorization by members of the mortgage or pledge of, orgranting of a security interest in, property or assets of a corporation shallnot be necessary except to the extent that the corporation's articles oforganization or by-laws provide otherwise.

ADD022

12/18/2017 Section 8A

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter180/Section8A 2/5

(c) A corporation constituting a public charity shall give written notice tothe attorney general not less than thirty days before making any sale, lease,exchange, or other disposition not referred to in subsection (b) of all orsubstantially all of its property and assets if that sale, lease, exchange orother disposition involves or will result in a material change in the natureof the activities conducted by the corporation, except that no such noticeshall be required if a written waiver of such notice is executed by theattorney general before or after such sale, lease, exchange or otherdisposition. A certificate signed by an officer of the corporation whichstates that notice was not required, that notice was given, or that noticewas waived by the attorney general, with respect to any sale, lease,exchange or other disposition of property by the corporation shall beconclusive in favor of any purchaser, lessee, transferee or other personrelying thereon for purposes of determining compliance with theprovisions of this subsection.

(d)(1) A nonprofit acute-care hospital, as defined in section 25B of chapter111, or a nonprofit health maintenance organization as defined in chapter176G shall give written notice of not less than 90 days to the attorneygeneral and to the commissioner of public health if such notice concerns anonprofit health maintenance organization, before it enters into a sale,lease, exchange, or other disposition of a substantial amount of its assetsor operations with a person or entity other than a public charity. No suchnotice shall be required if a written waiver of such notice is executed bythe attorney general. When investigating the proposed transaction, theattorney general shall consider any factors that the attorney general deemsrelevant, including, but not limited to, whether:

(i) the proposed transaction complies with applicable general nonprofitand charities law;

ADD023

12/18/2017 Section 8A

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter180/Section8A 3/5

(ii) due care was followed by the nonprofit entity;

(iii) conflict of interest was avoided by the nonprofit entity at all phases ofdecision making;

(iv) fair value will be received for the nonprofit assets; and

(v) the proposed transaction is in the public interest.

(2) The attorney general shall assess the entity proposing to receive suchassets or operations for reasonable costs related to, and shall expend suchamounts for the review of the proposed transaction, as determined by theattorney general to be necessary. Such reasonable costs may include expertreview of the transaction, a process for educating the public about thetransaction and obtaining public input, and administrative costs. Allmaterials filed by the parties in the course of the attorney general's reviewshall be made available for public inspection pursuant to section 10 ofchapter 66 and section 7 of chapter 4.

(3) The attorney general shall, during the course of his investigation, holdat least one public hearing, in a location convenient to the populationserved by the nonprofit entity, at which any person may file writtencomments and exhibits or appear and make a statement. At least 21 daysin advance of the public hearing, the nonprofit entity shall publish noticeof the hearing in a newspaper of general circulation where the entity islocated. The notice shall include the name of the nonprofit entity, the nameof the acquirer, or other parties to the proposed transaction, the nature ofthe proposed transaction and the anticipated consideration that will be paidby the acquirer. In addition, the notice shall offer to provide to any personupon request to the nonprofit entity a detailed summary of the proposedtransaction and copies of all transaction and collateral agreements. Asdefined in section 7 of chapter 4, compliance with this notice requirement

ADD024

12/18/2017 Section 8A

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter180/Section8A 4/5

will not require disclosure of confidential trade secret, commercial orfinancial information contained in schedules or exhibits of thoseagreements.

(4) If a charitable fund results from the transaction, and if the nonprofitentity making the disposition does not continue its operation of a nonprofithospital or nonprofit health maintenance organization, the governance ofthe charitable fund shall be subject to review by the attorney general andapproval by the court. The governance of the charitable fund shall bebroadly based in the community historically served by the predecessornonprofit acute care hospital or health maintenance organization and shallbe independent of the new for-profit entity. The attorney general shallconduct a public hearing in connection with his review of the plan for thegovernance of the resulting charitable fund. An appropriate portion of anyresulting proceeds shall, if determined to be necessary by the attorneygeneral, be used for assistance in the development of a community-basedplan for the use of the resulting charitable fund.

(5) The entity receiving such assets or operations shall, if determined to benecessary by the attorney general in consultation with the department ofpublic health, provide the funds, in an amount determined by thecommissioner of public health, for the hiring by the department of publichealth of an independent health care access monitor to monitor and reportquarterly to the attorney general, the department of public health and thecommittee on health care on community health care access by the entity,including levels of free care provided by the entity. The funding shall beprovided for three years after the transaction. The entity receiving suchassets or operations shall provide the monitor with appropriate access tothe entity's records in order to enable the monitor to fulfill this function.To prevent the duplication of any information already reported by the

ADD025

12/18/2017 Section 8A

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter180/Section8A 5/5

entity, the monitor shall, to the extent possible, utilize data alreadyprovided by the entity to the center for health information and analysisunder chapter 12C or to any other agency. No personal identifiers shall beattached to any of the records obtained by the monitor and all such recordsshall be subject to the privacy and confidentiality provisions of section70E of chapter 111.

(6) No officer, director, incorporator, member, employee, staff, physician,expert or advisor of the nonprofit entity making the disposition shallderive improper benefit from the transaction. The officers, directors,incorporators, members, senior managers, staff, physicians, experts andadvisors of the nonprofit entity making the disposition shall be prohibitedfrom investing in the for-profit entity for a period of three years followingsuch disposition.

ADD026

CERTIFICATION PURSUANT TO MASS. R. APP. P. 16(k) I certify that, to the best of my knowledge, the foregoing brief complies with all rules of court pertaining to the filing of briefs, including, but not limited to, Mass. R. App. P. 16 and 20.

_/s/ Andrew Batchelor____

Andrew M. Batchelor, AAG

CERTIFICATE OF SERVICE

I, Andrew Batchelor, hereby certify, under the penalties of perjury that on January 3, 2018, I filed the foregoing with the Clerk of the Appeals Court via the Court’s electronic filing service and served by email on counsel of record listed below:

Michael B. Keating FOLEY HOAG LLP 155 Seaport Boulevard Boston, MA 02210 Nicholas M. O’Donnell SULLIVAN & WORCESTER LLP ZAG/S&W LLP One Post Office Square Boston, MA 02109 William F. Lee WilmerHale 60 State Street Boston, MA 02109

_/s/ Andrew Batchelor____

Andrew M. Batchelor, AAG