Outtakes from justice's decision on Berkshire Museum case

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PITTSFIELD — In a six-page decision, Associate Justice David A. Lowy noted in passing the passion of those who oppose the Berkshire Museum's art sales.

But the jurist cited case after legal case supporting the museum's February petition to put 40 of its most valuable works on the block.

The following are key points in Lowy's decision, released Thursday, acting in his role as a single justice for the Supreme Judicial Court for Suffolk County:

- Attorney General Maura Healey says it's OK. Lowy's memo begins by noting that Healey's office agrees it would be "impossible or impracticable" for the museum to continue operations without auctions. That is the legal standard set for the type of petition on which Lowy ruled.

- Critics of the sale have no legal standing. Though Lowy mentions opposition to sales expressed through three "friend of court" briefs, the justice writes that seeing to it that a charitable trust is properly administered is the "exclusive province" of the state's attorney general.

- This is standard stuff.
Lowy writes that the SJC "has long held" that the type of petition the museum presented Feb. 9 is permissible in cases when the original charitable purpose is not possible — the claim the museum made.

In such instances, he wrote, it falls to the court to look favorably on petitions so that the charitable purpose can be fulfilled in another way. Under the "equitable deviation" provision, the court allows, in effect, for a charity's original purpose to evolve. That process clears away any possible barriers due to donor intent or other restrictions.

In making that point, Lowy cites a case involving the Museum of Fine Arts in Boston, in which a court found that it acts on a petition "if it appears to the court that compliance is impossible or illegal."

- Only the AG has sway. In addition to noting the fact that Healey's office is the "exclusive province" when it comes to monitoring public charities, Lowy observes, in a footnote, that it will require the museum to make periodic reports on the progress of the art sales.

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


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