M Appeals Court
Transcript of M Appeals Court
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
[email protected] [email protected] [email protected] [email protected]
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 [email protected] [email protected] [email protected] [email protected]
Date: January 3, 2018.
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
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,
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Cbe Commontoealtb of Massachusetts
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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.
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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
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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.
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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.
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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.
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(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;
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(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
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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
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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.
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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