Opinion
No. X 09 CV 08 4039582
February 4, 2009.
MEMORANDUM OF' DECISION ON MOTION TO DISMISS
This case involves a dispute over ownership of church property arising out of the withdrawal of a local parish from its prior affiliation with the Episcopal Church. The defendants are the former rector of Bishop Seabury Church (parish) in Groton, Reverend Ronald S. Gauss, and twelve other individuals identified in the complaint as former members of the governing body (vestry) of the parish who hold themselves out as continuing to serve in that capacity. The original plaintiffs are the Episcopal Church in the Diocese of Connecticut (diocese), the parish and Reverend David Cannon, appointed by the bishop of the diocese as the "priest-in-charge" of the parish after the retirement of Rev. Gauss. With the consent of all the original parties, the Protestant Episcopal Church in the United States of America (Episcopal Church or Church) has intervened as a plaintiff.
The attorney general is named as a defendant because of his "interest in any gifts, legacies or devises intended for public or charitable purposes." Conn. General Statutes § 3-125. While the attorney general has appeared in the case, he has taken no part in the litigation to date; in particular, he has taken no position on the issues raised by the defendants' motion to dismiss, which is the subject of this decision.
The defendants have moved to dismiss the complaint, claiming that neither the Episcopal Church nor the diocese nor the parish have standing to bring this lawsuit, for a variety of reasons. As to the Episcopal Church and the diocese, the defendants claim that only the trustee of a charitable trust, not its beneficiaries, can bring an action to enforce the trust. As to the diocese, the defendants also argue that, as the alleged donor of property to a charitable trust, at common law it has no standing to challenge the use of trust property. Finally, as to the parish, they contend that the "Church Society," i.e., the membership of the parish, did not authorize the initiation of the lawsuit, and, without such authorization, the parish has no right to act as a plaintiff in this case.
Defendants also challenge the right of the Episcopal Church to bring an action in Connecticut because, pursuant to Conn. General Statutes § 33-921(a), an unlicensed foreign corporation may not "maintain a proceeding in any court in this state." The Episcopal Church, however, is not a foreign corporation but a "not-for-profit unincorporated association." Intervening Complaint, ¶ 1 (June 5, 2008). As such it "may sue and be sued and plead and be impleaded" in the courts of Connecticut just as any other "voluntary association." See Conn. General Statutes § 52-76.
I
The legal principles governing the court's action on this motion to dismiss have been often stated. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "[I]n ruling on whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999).
Standing "is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action . . ." Fink v. Golenbock, 238 Conn. 183, 199 (1996). "Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." Herzog Foundation v. University of Bridgeport, 41 Conn.App. 790, 793 (1996), rev'd on other grounds, 243 Conn. 1 (1997). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing." Cambodian Buddhist Society of Conn., Inc. v. Planning Zoning Commission of Newtown, 285 Conn. 381, 395 (2007).
In resolving issues of standing the court must be mindful of the "time honored rule that standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather, it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49 (1989).
II
According to the complaint and the intervening complaint, the facts giving rise to this lawsuit, very briefly stated, are as follows. The parish began as an "ecclesiastical society" in or about 1875 "as a mission within the Diocese of Connecticut." Complaint, ¶ 44. It attained the status of a parish in 1955. Intervening Complaint, ¶ 3. Its first church building was constructed in 1875 on property in Groton owned by the diocese; Complaint, ¶ 45; the present church and parish house are located on property deeded to the parish in 1966. CT Page 2690 Id., 4. The first church was consecrated by the bishop of the diocese in 1881; Id., 47; the present church, in 1998. Id., 54. Throughout its history, until 2007, the parish requested and obtained permission from the diocese before entering into real property transactions; Id., ¶ 49; and sought and received financial assistance from the diocese. Id., ¶ 49.
Individual "worshiping congregations" within the Episcopal Church are known as parishes, aided parishes or missions. Complaint, ¶ 20.
"Whether a parish holds record title . . . is not dispositive of whether a trust agreement exists." Trinity-St. Michael's Parish v. Episcopal Church, 224 Conn. 797, 819 n. 21.
Canon II.6.1 of the Episcopal Church provides that "(n)o church or chapel shall be consecrated until the Bishop shall be satisfied that the building and the ground on which it is erected are secured for use and ownership by a Parish, Mission, Congregation or Institution affiliated with this Church and subject to its Constitution and Canons." Complaint, ¶ 39. This canon has been in effect since 1868. Intervening Complaint, ¶ 25.
In October 2007 Rev. Gauss announced his intention to retire from active ministry and applied for retirement benefits from the pension fund established and maintained by the Episcopal Church and the diocese (pension fund); his application was granted on November 13, 2007. Id., ¶ 56. The next day, November 14, 2007, defendants Richard Vanderslice and Arthur H. Hayward, Jr. wrote to the bishop of the diocese, informing him that "the parish has affiliated itself with the Convocation of Anglicans in North America (CANA)." Id., ¶ 57. Despite the facts that he retired from the active ministry and is collecting retirement benefits from the pension fund, the defendants continue to hold Rev. Gauss out as rector of the parish. Id., ¶ 59. The other defendants, despite having been removed as members of the parish vestry by the bishop because of their departure from the Church and their alignment with CANA; Id., ¶ 64; continue to hold themselves out as members of the vestry of the parish. Id., ¶¶ 7-18. The defendants have rebuffed requests from the bishop and from Rev. Cannon, as priest-in-charge of the parish, that they relinquish possession and use of the real and personal property of the parish, including the parish books and records. Id., ¶¶ 68, 72. They continue to use the property in connection with their affiliation with CANA, which is not a part of or in communion with the Episcopal Church or the diocese. Id., ¶ 74.
Diocesan canon I.14 provides, inter alia, that any parish desiring to terminate its parochial organization may do so only on condition that it transfer to the diocese "all right, title and interest of such Parish to all property, real and personal, theretofore owned or controlled by it . . ." Complaint, ¶ 43.
This court is not now addressing the merits of the plaintiffs' claims against the defendants, only their right to assert those claims. Nevertheless, even as to that threshold issue, the court is not writing on a blank slate. In 1993 the Connecticut Supreme Court decided Trinity-St. Michael's Parish v. Episcopal Church, 224 Conn. 797 (1993), a case strikingly similar to this case. In the course of affirming a declaratory judgment that the diocese was the owner of real and personal property in the possession of a local parish which had withdrawn from its prior affiliation with the Episcopal Church, the Court made two findings relevant to the issues raised by the defendants' motion. First, like numerous courts before and since, it found that the Episcopal Church is hierarchical in structure; Id., 807; i.e., "a general organization of churches having similar faith and doctrine with a common ecclesiastical leader" who exercises the ecclesiastical authority of the church. Id., 804 n. 8, quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 110 (1952). Second, by virtue of the hierarchical nature of the Episcopal Church and the resultant binding effect of its constitution and church laws, known as canons, on affiliated dioceses and parishes, it has been true since the Church's founding in 1789 that all property held by the parishes was held in an implied trust for the use of the mission of the Episcopal Church. Id., 821-22. Unless the facts as alleged in this complaint, and taken as true by the court, differ from the facts found in Trinity-St. Michael's, those issues are already determined, with consequences for the defendants' motion which will be spelled out, later in this decision.
Id., 822.
See, e.g., Parish of St. Paul's Episcopal Church v. The Episcopal Diocese of Connecticut Donations Bequests for Church Purposes, Inc., U.S. District Court, D.Conn., Civil No. 3:05cv1505, 20-21 (Aug. 21, 2006).
In 1979 the Episcopal Church's general convention adopted canon 1.7(4), which provides that "(a)ll real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located." The parties in Trinity-St. Michael's and the Court agreed that adoption of this canon created an express trust for the benefit of the Church and the diocese in all property acquired after 1979. Trinity-St. Michael's v. Episcopal Church, supra, 224 Conn. 805. Since the relevant property transactions there antedated adoption of the canon, however, it was necessary for the court to determine, as it did, whether an implied trust existed prior to that date. Id., 806. The same situation pertains here inasmuch as it appears from the complaint that the relevant real property transactions occurred in 1966. See Complaint, ¶ 4.
The only affidavit submitted by the defendants in support of their motion is that of a person identifying herself as the present "secretary" of the parish, averring that (1) at no time did those claiming to be the present vestry and membership of the parish authorize this litigation, and (2) that the present bylaws of the parish do not permit the vestry or membership to be changed by anyone other than the present membership of the parish, and attaching a copy of the bylaws. None of these averments contradict any of the allegations of the complaint relevant to the standing issue.
A review of the complaint demonstrates that it alleges and describes the same hierarchical structure of the Episcopal Church as the Court found to exist in Trinity-St. Michael's. See Complaint, ¶¶ 20-31. In addition, it invokes some of the same canons relied on by the Court in Trinity-St. Michael's to illustrate the Episcopal Church's retention of control over church property, as well as other canons of the Church and the diocese to the same effect. Id., ¶¶ 33-43. Finally, it alleges and describes the same subordinate relationship between the parish here and the Episcopal Church and the diocese as the Court found in Trinity-St. Michael's. Id., ¶¶ 44-48.
Thus, for the purpose of deciding whether the Episcopal Church and the diocese have standing to "set the judicial machinery in motion" via this action the court will consider that they are part of a hierarchical structure, and that their constitutions and canons, including those having to do with the use and disposition of real and personal property, are binding on the parish. Moreover, this court will find, just as the Supreme Court did in Trinity-St. Michael's, that an implied trust exists for their benefit over the property owned and held by the parish.
III
The defendants argue that neither the Church nor the diocese can bring this lawsuit; rather, it must be brought by the trustee of the trust over the parish property. ". . . (A) `trustee' is a person who holds legal title to property under an express or implied agreement to apply it . . . to the benefit of another." 76 Am.Jur.2d, Trusts § 2 (2005). So, the defendants' argument appears to be that the only entity with standing to bring this action against them is the parish of which they claim to be the governing body.
Apart from the obvious conflict of interest ignored by this argument, the court notes that the diocese was a plaintiff in Trinity-St. Michael's, without apparent objection by the defendants there or by the Court. This court finds that significant because standing is a jurisdictional requirement, and could have been raised by the Court, itself, even without objection by the parties.
See Zaubler v. West View Hills, Inc., 148 Conn. 540, 545-46 (1961); Giuletti v. Giuletti, 65 Conn.App. 813, 873 (2001) ("The result would be . . . strange here if [the president of a closely held corporation] were forced to obtain [the director/defendant's] approval to bring an action on behalf of Vernon Village, Inc. against [the defendant/director] . . . We note in that regard that the law does not require the performance of a useless act").
The defendants offered at oral argument one Connecticut case in support of their position, Naier v. Beckenstein, Superior Court, judicial district of Hartford, Docket No. CV 07 5014236 (May 13, 2008). Citing the Restatement (Second) of Trusts, § 281, the trial court there held that the proper party to assert claims of unfair dealing with the trust is the trustee not the beneficiaries. The plaintiffs here allege not that the defendants have acted adversely to the trust but to them as its beneficiaries. And, the court in Naier makes it clear that trust beneficiaries have a "right to sue . . . [for] the enforcement of the trust according to its terms," the right which the Episcopal Church and the diocese seek to exercise here. This distinction makes sense because, when an injury to the trust, itself, is alleged, the real party in interest is the trustee, who has title to the trust property. When the trust is not being administered according to its terms, the real party in interest is the beneficiary. See Practice Book § 9-23.
They had cited no Connecticut authority in their memorandum in support of the motion to dismiss.
Given the hierarchical nature of the Episcopal Church and the binding nature of the constitutions and canons of the Church and the diocese on the parish, including those having to do with the holding and disposition of property, both the Episcopal Church and the diocese are classically aggrieved by the alleged failure of the defendants to comply with those canons and turn over to Father Cannon, as the duly designated representative of the diocese, the property held by the parish. They have a "specific, personal and legal interest in the [withholding of that property], as distinguished from a general interest, such as is the concern of all members of the community as a whole," and they allege that their "specific, personal and legal interest has been specially and injuriously affected by [withholding of the property]." See Steeneck v. University of Bridgeport, 235 Conn. 572, 579 (1995). The public in general has no interest in the disposition of the property held by the defendants, and the Episcopal Church and the diocese, as beneficiaries of an implied trust, have an interest which has been validated by the Connecticut Supreme Court.
In Trinity-St. Michael's the Supreme Court held that there exists "a legally enforceable trust in favor of the [Episcopal] church" in property in possession of a parish that has disaffiliated itself from the Church and the diocese. Trinity-St. Michael's Parish v. Episcopal Church, supra, 224 Conn. 823. If the Episcopal Church and the diocese do not have standing to enforce that trust, it is difficult to know who does.
IV
The remaining ground claimed for dismissing this action as to the diocese is that, as the alleged donor of property to the parish; Complaint, ¶¶ 16-18; the diocese has "no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do do." Defendant's Memorandum in Support of their Motion to Dismiss, 6 (July 11, 2008) (defendants' memorandum), citing Cynthia Sterling Russell et al. v. Yale University, 54 Conn.App. 573, 578 (1999).
The "special interest" exception to the general rule that beneficiaries of a charitable trust may not bring an action to enforce it, however, gives the diocese standing to sue. To qualify for that exception a plaintiff must plead "sufficient facts to demonstrate that he is entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled." (Internal quotation marks and citation omitted.) Grabowski v. City of Bristol, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 95-468889, 1997 Super.Ct. 6952, 6957 (June 3, 1997) [198 Conn. L. Rptr. 623] aff'd, 64 Conn.App. 448 (2001). The diocese satisfies the criteria set forth in Grabowski, in that it has plead "sufficient facts to demonstrate that [it] is entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled."
For purposes of deciding this motion, the court assumes without deciding that the trust pursuant to which the parish and the defendants hold property for the benefit of the diocese and the Episcopal Church is a charitable trust.
Moreover, pursuant to canons of the Church and the diocese, it has reserved control over and a right of reverter in the trust property. See Complaint, ¶¶ 33, 36, 42 and 43. "By expressly reserving a property interest such as a right of reverter, the donor of the gift or the settlor of the trust may bring himself and his heirs within the `special interest' exception of to the general rule that beneficiaries of a charitable trust may not bring an action to enforce the trust, but rather are represented exclusively by the attorney general." Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 9 n. 5.
For all of the reasons set out in this memorandum the court concludes that the Episcopal Church and the diocese have standing to bring this action.
V
As to the remaining plaintiff, the parish, the defendants contend that the "Church Society," i.e., the membership of the parish, did not authorize the initiation of the lawsuit, and, without such authorization, the parish has no standing as a plaintiff in this case. "The premise of the defendants' claim is that [Bishop Seabury Church] is a religious society governed by its own by-laws and members and that this action was not authorized by [Bishop Seabury Church]." Defendants' Supplemental Brief in Support of Motion to Dismiss, 1 (Dec. 15, 2008) (defendants' supplemental brief).
At oral argument of the defendants' motion on Dec. 8, 2008 the court ordered supplemental briefing of this claim by the parties.
The first problem for the defendants is that their premise is at odds with the allegations of the complaint, which the court must take as true for purposes of the motion to dismiss. For example, paragraph 44 of the complaint alleges that the parish was organized "in or about 1875 as an ecclesiastical society under the laws of the State of Connecticut within the Diocese of Connecticut." (Emphasis added.) This is followed by twelve paragraphs alleging, inter alia, that the land on which the first church of the parish was constructed in 1875 was owned by the diocese, that the church was consecrated by the bishop of the diocese in 1881, and that for over 100 years the parish's rectors, vestry and members, including the defendants, have in words and actions acknowledged the parish's subordinate status within the diocese and the Episcopal Church. Thus, the premise of this argument, as well as the claim made in the defendants' initial memorandum in support of their motion that "Bishop Seabury Church is an entity that is separate and distinct from the other entities [the Church and the diocese] identified as plaintiffs in this action"; Defendant's Memorandum, 2; is contradicted by the specific allegations of the complaint and unsupported by affidavits raising an issue of fact as to the status of the parish. See Practice Book § 10-31(a). This alone is fatal to the defendants' motion.
There is nothing in the statutes referenced by the defendants as part of their supplemental briefing of this issue which is at odds with the plaintiffs' allegations. Part V, article I of the general statutes in 1875 does allow "Christians of every denomination and Jews . . . to form religious societies" and such societies to "hold and manage all property belonging to them." Defendants' Supplemental Brief, exhibit 1. The court is willing to assume that a group of individuals took advantage of this statute to join in a religious society, but the question begged is whether those individuals, as alleged in the complaint, connected themselves with the diocese and the Episcopal Church, an entity the existence of which is recognized in article II of part V of the same general statutes of 1875. Id. There is nothing other than argument to support the defendants' assertion in their supplemental brief that "societies . . . connected to the Episcopal Church . . . were considered distinct and congregational [as opposed to hierarchical] in governance . . . exercising all the powers that the committees of other congregational Christian denominations exercised." Defendants' Supplemental Brief, 2.
This statute is now codified as Conn. General Statutes § 33-264a through 33-264c. A footnote to the statute in the revision of 1875 gives an interesting account of Connecticut's transition from a colony in which approval of the general assembly was needed to form a "church estate" and the Church of England enjoyed favored status to one in which, first, religious tolerance and then, in the Constitution of 1818, religious liberty became part of the fundamental law of Connecticut.
The defendants' position that the members of this religious society did not affiliate themselves with the Episcopal Church leaves unexplained just how they came to control the affairs of what to all outward appearances was an Episcopal parish for over a hundred years.
To the contrary, public act 149 of the 1877 general assembly provided in section 1 that "all ecclesiastical societies which have been heretofore organized . . . in communion with the [Episcopal Church] shall be known in law as parishes as well as ecclesiastical societies, and shall have power to receive and hold by gift, grant or purchase, all property, real or personal, that has been or may be conveyed thereto for maintaining religious worship according to the doctrine, discipline, and worship of said church . . ." Section 2 specified that "(t)he manner of conducting such parishes . . . shall be such as are provided and prescribed by the constitution, canons, and regulations of said [Episcopal Church] in this state." Joint Memorandum of Plaintiffs and Intervening Plaintiff in Response to Defendants' Supplemental Brief in Support of Motion to Dismiss, exhibit 1.
This public act is now codified as Conn. General Statutes §§ 33-265 33-266, essentially unchanged since its original enactment.
Pursuant to the canons of the Church, Rev. Cannon was appointed by the bishop of the diocese as priest-in-charge of the parish after the retirement of Rev. Gauss and the purported withdrawal of the parish from its affiliation with the diocese and the Episcopal Church; in that capacity he became chair of the parish vestry, its governing body. Because of their withdrawal from the Church, the bishop had removed the former members of the vestry, who are some of the defendants herein, leaving Father Cannon as the only member. He has averred, in an affidavit of Sept. 23, 2008 and submitted with the plaintiffs' Opposition to the Defendants' Motion to Dismiss, that, in his capacity as chair of the vestry and its only member, he authorized the parish to become a plaintiff in this lawsuit. The court finds that to be sufficient authorization to give the parish standing as a plaintiff in this action.
VI
For all of the reasons stated in this memorandum, the motion of the defendants to dismiss the complaint is DENIED.