| Blaudziunas v Egan |
| 2010 NY Slip Op 05702 [74 AD3d 697] |
| June 29, 2010 |
| Appellate Division, First Department |
| Mindaugas Blaudziunas et al., Appellants, v EdwardCardinal Egan et al., Respondents. |
—[*1] Leahey & Johnson, P.C., New York (Peter James Johnson, Jr., of counsel), forrespondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered November 24, 2008,which denied plaintiffs' motion for a preliminary injunction seeking to enjoin defendants fromdemolishing a church building and granted defendants' motion to dismiss the complaint,affirmed, without costs.
Within the hierarchical Roman Catholic Church, the decision to demolish the churchbuilding of the subject suppressed incorporated parish, duly made by the Archbishop and thetrustees of the parish in accordance with applicable canon law and church bylaws, wasecclesiastical in nature. We adhere "to the long-standing and sensible prohibition against courtinvolvement in the governance and administration of a hierarchical church" (Committee to Save St. Brigid's Inc. vEgan, 45 AD3d 375, 376 [2007]). Contrary to the arguments of the dissent andplaintiffs, Religious Corporations Law § 5 does not require that the demolition of thechurch be authorized by the parishioners. That statute and Religious Corporations Law §91 vest approval authority for all actions taken by the trustees of an incorporated RomanCatholic church in the archbishop or bishop of the diocese to which that church belongs (seeCommittee to Save St. Brigid's, 45 AD3d at 376). The decision to demolish the churchbuilding of a suppressed incorporated parish, such as the one at issue here, is not a use of thecorporation's property to further a religious, charitable, benevolent or educational object otherthan the support and maintenance of the corporation itself for which the authorization of "themembers of the corporation at a meeting thereof" is required by Religious Corporations Law§ 5, even assuming that the phrase "the members of the corporation" refers to theparishioners. Since Religious Corporations Law § 5 does not address the issue of thedisposition of the property of a suppressed incorporated parish, and does not conflict with thedecision-making authority vested in the archbishop and the trustees by applicable canon law andbylaws, we construe it to permit the demolition of a suppressed parish's church building withoutneed for consultation with the former parishioners. Indeed, given that plaintiffs do not challengethe validity of the archbishop's suppression of the parish in question, it is undisputed that theparish's ecclesiastical existence has been extinguished (as the dissent recognizes). Accordingly,plaintiffs, as former members of a now defunct religious society, have no standing to bring thisaction. For the same reasons, the court properly dismissed the claim for breach of fiduciary duty.[*2]
We have considered plaintiffs' remaining contentions andfind them unavailing. Concur—Friedman, J.P., Moskowitz and Renwick, JJ.
Catterson, J., dissents in a memorandum as follows: I must respectfully dissent. This is adispute over the demolition of real property owned by a religious corporation. The plaintiffs inthis case make no intrusion into ecclesiastical matters such as challenging the suppression of theparish. Indeed, the suppression, in August 2006, of the ecclesiastical entity that was Our Lady ofVilna Parish means that the focus of our analysis is a property owned by, and in the custody andcontrol of, a legal entity, a religious corporation. That corporation is bound by the laws of thisstate, specifically the Religious Corporations Law. The question arising on appeal is whether themembers of that church are members of the corporation as that phrase is used in ReligiousCorporations Law § 5. In my view, this dispute concerns the statutory interpretation of aReligious Corporations Law provision pursuant to "neutral principles of law," and avoids theprohibition against court intrusion into ecclesiastical matters.
Indeed, the necessary corollary to the majority's holding is that any time a diocese suppressesa parish, regardless of the genesis of the parish or its corporate status under state law, its assetsescheat to the bishop and/or the diocese. While the majority states baldly this is in accordancewith canon law, it does not cite to any such authority, nor is there any authority in canon law, asdemonstrated more fully below, for a diocese to plunder the assets of a parish.
The following facts are undisputed: Lithuanian immigrants built the Church of Our Lady ofVilna with their money "to have a place for worship and witness their love and faith in God" andestablished it to serve New York's Lithuanian community. The church was incorporated underthe Religious Corporations Law in 1909 as the Church of Our Lady of Vilna. Between 1910 and1912, the corporation obtained title in fee simple to the real property at 570 Broome Street inManhattan on which the church building and the former rectory are located.
On August 1, 2006, Edward Cardinal Egan, head of the Archdiocese of New York(hereinafter referred to as archbishop) issued a decree of suppression of the parish of "Our Ladyof Vilnius [sic]."[FN1]The decree stated that the parish was being suppressed because of a[*3]"serious decline in its parish population." More than five monthslater, on January 19, 2007, the archdiocese issued a press release making public its intention toclose the parish of Our Lady of Vilnius because, inter alia, "Sunday Mass attendance. . . had decreased to approximately 100 parishioners[,] . . . the Masswas celebrated in English, not in Lithuanian . . . [and t]here were virtually noweddings or baptisms at the parish in recent years."
On or about February 26, 2007, the archbishop summoned Father Eugene Sawicki, the pastorof the parish to a meeting at the diocese office. While at the meeting, and without any priornotice to him, the lay trustees, or the parishioners, the archbishop sent his representatives andagents to padlock the church. Security guards were placed at the doors, and neither theparishioners nor Father Sawicki were permitted entry into the church. Within 24 hours, 500parishioners signed and presented a petition at the diocese office asking the archbishop to reopenthe church, but he refused to meet the petitioners and denied their request.
Subsequently, the defendants began to remove church property from the building includingthe sacramental records, the parish checkbook, a pulpit, two deacon's chairs and one celebrant'schair. The record further indicates that some of the frescoes above the altar were painted over inblue following the closure of the church. Others were peeled off the walls and ceiling, leavingbare cement. The apse was boarded over, the altar and pews were removed and stained glasswindows and paintings were placed on the floor. Some paintings by Lithuanian artists were alsoallegedly removed.
On March 21, 2007, the archbishop dismissed Father Sawicki and appointed MonsignorGilleece to replace him as rector on the board of trustees. As of that date, the three ex officiomembers of the board were the archbishop, Monsignor Brucato as the vicar-general of thediocese, and Monsignor Gilleece. On April 12, 2007, the church trustees appointed Claire andThomas Libonati to be the lay trustees of the parish corporation.[FN2]
On April 30, 2007, the two former lay trustees of the church commenced an action(hereinafter referred to as Our Lady of Vilna I). The plaintiffs moved, inter alia, for atemporary restraining order and a preliminary injunction to stop the closing of the church and theremoval of church artifacts.
In a decision issued in May 2007, the court (Shirley Werner Kornreich, J.) denied theplaintiffs' motion, ruling that they had no standing as former trustees. (Church of Our Lady ofVilna v Archbishopric of N.Y., 15 Misc 3d 1143[A], 2007 NY Slip Op 51125[U] [2007].)The court noted that the defendants had denied that there was any plan to sell or transfer thechurch building, and that they were transferring only the personalty inside for safekeeping. Thecourt held that the board of trustees had authority under the corporation bylaws to dispose of thepersonalty, and that the archdiocese could proceed with its plans to shut down the church as amatter of ecclesiastical governance. By stipulation filed August 16, 2007, Our Lady of VilnaI was discontinued with prejudice.
Approximately two months later, at a meeting held on October 22, 2007, the board oftrustees voted to demolish the church. The record further reflects that a letter dated January 17,[*4]2008 was sent to neighbors of the church by a demolitioncontractor stating that the church building would be demolished "in the near future." OnFebruary 4, 2008, Monsignor Gilleece applied for a New York City Department of Buildingspermit for the demolition. It is undisputed that there was no meeting of the parishioners toconsider this decision.
On February 7, 2008, the plaintiffs, as members of the church, commenced the instant actionby bringing an order to show cause seeking a preliminary injunction preventing defendants fromdemolishing the church. They also filed a verified complaint alleging, inter alia, that thedefendants had violated Religious Corporations Law § 5 in going forward with thedemolition without the approval of the members of the church.
On November 24, 2008, the court denied the plaintiffs' motion for a preliminary injunctionand dismissed their complaint in its entirety. The court held that, to the extent the plaintiffschallenged the defendants' right to dispose of temporal church property, the issue was resolved inOur Lady of Vilna I and it would not allow relitigation of the matter. With respect to theissue of demolition, the court found that the board of trustees had been properly appointed and sothe decision to demolish the building was properly made. While acknowledging that thedefendants' prohibition against court intervention in this dispute was overstated, the courtnevertheless rejected the argument that the defendants had violated the Religious CorporationsLaw in voting for demolition without the approval of the plaintiffs as members of thecorporation. The court found that the plaintiffs were not members of the corporation. For thatconclusion, it purported to rely on this Court's determination in Committee to Save St. Brigid v Egan(30 AD3d 356 [1st Dept 2006] [hereinafter referred to as St. Brigid I]). On January13, 2009, this Court granted a preliminary injunction barring demolition pending a hearing anddetermination of this appeal.
On appeal, plaintiffs rely on Religious Corporations Law § 5 to argue that the courtbelow erred in its denial of the preliminary injunction and the dismissal of the complaint. Thatsection, in relevant part, states: "trustees of every religious corporation shall have the custodyand control of all the temporalities and property, real and personal, belonging to the corporationand of the revenues therefrom, and shall administer the same in accordance with the discipline,rules and usages of the corporation and of the ecclesiastical governing body, if any, to which thecorporation is subject, and with the provisions of law relating thereto, for the support andmaintenance of the corporation, or, providing the members of the corporation at a meetingthereof shall so authorize, of some religious, charitable, benevolent or educational object. . . and [the trustees] shall not use such property or revenues for any other purposeor divert the same from such uses" (emphasis added).
The plaintiffs claim that the defendants have violated this section specifically because theclosing of the church means the property is no longer being administered for the support andmaintenance of the corporation, the primary purpose of which is to "enable its members to meetfor divine worship." (Religious Corporations Law § 2.) The plaintiffs further claim thatpursuant to the provision, their authorization is needed for any other purpose such as thedemolition of the church. (See Religious Corporations Law § 5.) The plaintiffsassert that under the plain meaning of Religious Corporations Law provisions and the churchbylaws, the members of the parish and the corporation are the same. Moreover, the plaintiffs,citing Morris v Scribner (69 NY2d 418 [1987]), contend that allowing the [*5]defendants to proceed with the demolition without meeting withchurch members would undermine the very purpose for which the Religious Corporations Lawwas enacted, namely, to prevent the diversion of property from its true beneficiaries, themembers of the congregation.
The defendants, on the other hand, assert that Religious Corporations Law § 5 is ageneral provision and that its reference to a meeting of the "members of the corporation" pertainsto those denominations which are congregational and which permit votes by the parishioners,and not to the Roman Catholic Church which is hierarchal in nature. In any event, the defendantsassert that Religious Corporations Law §§ 91 and 92 recognize a Roman Catholicarchbishop's authority and supremacy in the right to dispose of a church corporation's property,including real property.
The defendants focus on the wording that emphasizes the administration of property inaccordance with the "discipline, rules and usages . . . of the ecclesiastical governingbody" (Religious Corporations Law § 5), that is the Roman Catholic Church. They arguethat the provision incorporates by reference the canons of Roman Catholic Canon Law; thatCanon Law puts all control and custody of goods and property in the hands of the hierarchy,specifically the archbishop as head of the diocese, and therefore the archbishop does not needauthority or approval from anyone for the demolition of the church. Moreover, they argue thatthe court below correctly relied on this Court's decision in St. Brigid I to conclude thatthe parishioners are not members of the corporation and that the only members of the corporationare the trustees. I disagree.
As a threshold matter, it should be noted that this Court did not consider the issue, nor did itreach the merits, of whether members of the church are members of the religious corporationeither in St. Brigid I or Committee to Save St. Brigid's Inc. v Egan (45 AD3d 375 [1stDept 2007] [hereinafter referred to as St. Brigid II], lv granted 10 NY3d 756[2008], appeal withdrawn 11 NY3d 921 [2009]). In the first action, parishioners askedthe court to direct the diocese to renovate and reopen St. Brigid's Church.[FN3]This Court held that "the relief sought by plaintiffs, i.e., an order mandating that the funds inquestion be used to restore the subject property for use as a church, would impermissiblyinvolve the court in the governance and administration of a hierarchical church." (30 AD3d at356 [emphasis added].) This Court viewed St. Brigid II, as deriving from "the samecircumstances as those dismissed in the first action" and thus continued to adhere to the"prohibition against court involvement in the governance and administration of a hierarchicalchurch." (45 AD3d at 376.)[FN4][*6]
Specifically, we rejected the argument that the factsbefore it in either action warranted an analysis of Religious Corporations Law § 5. In myopinion, the facts of the instant case are distinguishable. First, the archbishop issued a formalcanonical decree of suppression of the parish of "Our Lady of Vilnius [sic]." Second, theplaintiffs do not dispute the archbishop's authority to do so, nor his authority to close the churchfor religious services. Hence, the ecclesiastical entity of the church of Our Lady of Vilna hasbeen extinguished and no longer exists. Only the legal entity, the corporation that owns thechurch building and the real property on which it is located, remains. Since the board of trusteesvoted for demolition as a corporate matter without regard to the Religious Corporations Lawrequirement of meeting with the members of the corporation, this became solely a propertydispute between the plaintiffs and diocese. As such, it may be adjudicated by this Court.
Indeed, the Court of Appeals reiterated the permissibility of judicial intervention in churchproperty disputes as recently as October 2008. (Episcopal Diocese of Rochester v Harnish, 11 NY3d 340 [2008].)In so doing, the Court relied on the seminal First Amendment decision of the United StatesSupreme Court in Jones v Wolf (443 US 595 [1979]).
In Jones, the United States Supreme Court held that the First Amendment "prohibitscivil courts from resolving church property disputes on the basis of religious doctrine andpractice." (Jones v Wolf, 443 US at 602; see also Serbian Eastern Orthodox Diocesefor United States & Canada v Milivojevich, 426 US 696 [1976].) However, the Courtacknowledged that states have a legitimate interest in providing a civil forum for the resolutionof disputes over ownership of church property and can do so "so long as it involves noconsideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets offaith." (443 US at 602 [internal quotation marks and citation omitted].) The Court then provideda road map for determining property issues according to a "neutral-principles approach" which isthe approach the Court of Appeals used in Episcopal Diocese of Rochester (11 NY3d at350-351).
In Episcopal Diocese of Rochester, such application of neutral principles of lawrequired the Court to focus "on the language of the deeds, the terms of the local church charter,the State statutes governing the holding of church property, and the provisions in the constitutionof the general church concerning the ownership and control of church property." (Id. at350.) In this case, therefore, this Court is obliged to focus on the language of the deeds, and therelevant provisions of the Religious Corporations Law as they appertain to the holding of churchproperty. This necessarily includes the provisions that appertain exclusively to the RomanCatholic Church, the bylaws of Our Lady of Vilna Church and the relevant canons in the RomanCatholic Church's Code of Canon Law (the governing rules and laws of the Church),"scrutiniz[ing] [them] in purely secular terms" as the Court scrutinized the Dennis Canons inEpiscopal Diocese of Rochester (11 NY3d at 351).
Based on the certificate of incorporation, it is uncontroverted that Our Lady of Vilna Churchwas incorporated in 1909 pursuant to the Religious Corporations Law of 1895. The certificatestates that the then-archbishop of the diocese, the vicar general, the rector and "two laymenmembers of said church" are "desirous of incorporating said Church, or the congregation [*7]thereof" and "we do hereby certify that the name or title by whichwe and our successors shall be known as a body corporate by said law is Church of Our Lady ofVilna."
There is also no dispute that the corporation owns the real estate, that is the real property ofthe church and rectory at Dominick Street. In 1910, the corporation executed a deed to the realestate on which the church and the rectory were subsequently built. The deed conveyed title tothe real property in fee simple to the Church of Our Lady of Vilna, "a religious corporation." In1912, a second deed conveyed adjoining property to the corporation. Neither deed includes anyprovision for reversion to the diocese.
It is further undisputed that the Religious Corporations Law provides for the trustees of eachreligious corporation to administer the temporalities and property, real and personal of anincorporated church save that the trustees of a Roman Catholic church cannot transfer anyproperty without the consent of the archbishop or bishop of the diocese. (Religious CorporationsLaw § 5.) Certain sections of the Religious Corporations Law appertain solely to theRoman Catholic Church. Specifically, section 91 applies to the governance of religiouscorporations affiliated with the Church. The defendants correctly assert that pursuant to the plainmeaning of Religious Corporations Law § 91 the five trustees for each incorporatedRoman Catholic church are not chosen by the parishioners, and the parishioners are not entitledto participate in the appointment or determination of the composition of the board of trustees.Section 91 further provides that the board will be comprised of the archbishop and vicar generalof the diocese, as well as the rector of the church, and their successors in office are automaticallytrustees by virtue of their offices; and that these ex officio trustees will select two laypersonsfrom the church to serve as the appointive trustees.
Further, the bylaws of the corporation adopted by the trustees of Our Lady of Vilna in 1980reinforce the hierarchical nature of the church by stating that the archbishop or bishop of thediocese is by virtue of the office the president and the chief executive officer of the corporation,the vicar general is vice-president and the rector is secretary-treasurer of the corporation; thatthese three trustees, or a majority of them, will appoint the two lay trustees. The bylaws providethat the trustees administer the temporalities and property of the corporation in accordance with"the discipline, rules and usages" of the Roman Catholic Church and of the archdiocese "for thesupport and maintenance of the Church and of its various religious, charitable, benevolent andeducational activities." Further, the bylaws indicate that the duties of the trustees are severelylimited, and the consent of the archbishop is required for, inter alia, the following: mortgaging,leasing, selling any of the corporation's real property; for acquiring any real property by lease,purchase, gift or devise; for accepting by gift or bequest any money or personal property and forany expense in making repairs to the property or purchasing equipment for the church. Theyfully mirror the provision in Religious Corporations Law § 91 that states: "[n]o act orproceeding of the trustees . . . shall be valid without the sanction of the archbishopor bishop of the diocese."
All of the foregoing is uncontroverted but it does not end the inquiry. The provision that anyact or proceeding undertaken by the trustees of the corporation requires the consent of the bishopis not exclusive. It does not mean that every act or proceeding needs only the consent ofthe bishop—especially when the primary purpose of the corporation as defined by theReligious Corporations Law (enabling members to attend religious services) is no longer viable.In my opinion, the defendants have failed to show that the provision mandating a meeting andauthorization by the members of the corporation when the property is to be administered by thetrustees for a purpose other than the support and maintenance of the corporation does not applyto the Roman Catholic Church. Indeed, the first sentence of Religious Corporations Law §5 unequivocally states that the section applies to the [*8]trusteesof "every" religious corporation. Specifically, in my view, the defendants have failed to showthat the plaintiffs in the instant case are not the type of "members of the corporation" to whichsection 5 applies.
First, I disagree with the defendants' contention that, because pursuant to ReligiousCorporations Law § 2-b (2) a religious corporation is a type B corporation under theNot-For-Profit Corporation Law and may have no members, the subject religious corporation hasno members. Under N-PCL 601 (a), a corporation "shall have one or more classes of members,or, in the case of a Type B corporation, may have no members, in which case any such provisionfor classes of members or for no members shall be set forth in the certificate ofincorporation or the by-laws" (emphasis added). In this case, neither the certificate ofincorporation nor the bylaws of Our Lady of Vilna set forth either eventuality. Neither documentstates unequivocally that the corporation has no members, and since they do not provide fordifferent classes of members, by default the corporation has members—all of one class.
Second, the plain meaning of provisions in the Religious Corporations Law and the church'sbylaws indicate that the terms members of the church and members of the corporation areinterchangeable. According to Religious Corporations Law § 2, "[a]n 'incorporated church'is a religious corporation created to enable its members to meet for divine worship or otherreligious observances." The bylaws do not mandate a different conclusion. Article II of thebylaws contains the definitions of terms used in the document as follows: "4. 'Church' shall meanthe ecclesiastical entity (parish) that was incorporated under civil law as this Corporation"; "6.'Members of the Church' shall mean the parishioners of the aforesaid ecclesiastical entity(parish)." Hence, members of the church are members of the ecclesiastical entity as corporation.
While the parishioners of a hierarchical Roman Catholic church may not have voting rightsper se or membership certificates, Religious Corporations Law § 5's requirement thatmember authorization must be obtained to use church property for "other" religious or charitablepurposes imposes no requirement that such members be "voting" members. Indeed, where a voteof qualified voting members is required, Religious Corporations Law § 5 so provides.(See e.g. Religious Corporations Law § 5 [stating that the adoption or amendmentof bylaws requires a two-thirds vote of the "qualified voters"].)
Third, the defendants' argument is that if the Religious Corporations Law § 5provision is read "with an understanding of the unique and inviolate precepts of the particularreligious society" then it is evident that the provision requiring "authorization by members of thecorporation" cannot apply to the Roman Catholic Church. In my opinion, that argument iswithout merit as the defendants acknowledge that, "[a]lthough the Legislature has revised[Religious Corporations Law] § 5 numerous times over the last 200 plus years inattempting to make it applicable to other faiths and forms of religious societies, the languageregarding 'members' was never expunged." Clearly, the Legislature intended, and still intends theprovision to apply to every church that seeks the advantages of incorporation under theReligious Corporations Law.
Lastly, contrary to the defendants' assertions, the admittedly sparse case law that existsappertaining to incorporated Roman Catholic churches is not outmoded but is still good law.Moreover, it indicates that the parishioners of Roman Catholic churches that incorporate havesome, albeit restricted, role in the religious corporation. Notably, Baxter v McDonnell(155 NY 83 [1898]) involved the Roman Catholic bishop of an unincorporated church in1898 where the title to the church real estate was held by the bishop in his own name. The courtfound that, "[t]he purpose of this arrangement is to exclude the laity from that power ofinterference which they would have were the title vested in a corporation" (id. at94[*9] [emphasis added]).
Indeed, 35 years prior to that case, the 1863 amendment to the Religious Corporations Lawrevised the statute specifically with regard to the incorporation of Roman Catholic churches.With regard to that amendment, the Court of Appeals held in 1888 that while the amendmentchanged the mode of selection of trustees and had vested in them power of management andcontrol it "does not constitute the trustees [as] the corporation in place of the congregation."(People's Bank v St. Anthony's R.C. Church, 109 NY 512, 521 [1888].)
Ultimately, I disagree with the defendants' characterization of New York common law andstatutory law as supporting the view that the disposition of church property and funds "arematters solely and exclusively within the Archdiocese's ecclesiastical and hierarchical authority."This may be true to a large extent but it overstates the case. So far as statutory law is concerned,the defendants point to Religious Corporations Law § 92 as the provision that gives thearchbishop the power to distribute funds from a sale of property, at his discretion. ReligiousCorporations Law § 92, however, deals with a Roman Catholic parish that has been "dulydivided" and where "the original . . . church corporation is given one part of the oldparish, and a new or second . . . church corporation is given the remaining part ofthe old parish." This provision essentially speaks to a merger of parishes in the same diocese.That is not this case. No part of the old parish remains as an ecclesiastical entity. The parish wasnot merged or realigned. It was simply closed and extinguished, and such Lithuanianparishioners as were acknowledged to be remaining by the archdiocese were directed to servicesin two other dioceses, of Brooklyn and Newark.
Moreover, the power of the archbishop to dispose of church property is furthercircumscribed, as the defendants acknowledge, by Religious Corporations Law § 12,which provides that a religious corporation must obtain leave of a court before selling ormortgaging any of its real property. While Religious Corporations Law § 12 (3)acknowledges that the trustees of a Roman Catholic church cannot do so without the consent ofthe archbishop, nevertheless once that consent is given, the transaction is still subject to judicialreview. Thus, as stated above, the fact that any act or proceeding by the trustees requires thearchbishop's consent does not mean that only his consent is required for such act or proceeding.
In my opinion, the most troubling facet of the defendants' argument is their assertion that theReligious Corporations Law, by incorporating canon law, recognizes that the archbishop of adiocese has the sole, exclusive ultimate authority over the disposition of properties belonging tothe individual parishes. In placing such weighty reliance on canon law the defendants ensure thatthis dispute cannot be resolved without this Court following the guidelines of the Court ofAppeals in this area, and looking at the relevant canons within a secular context. (SeeEpiscopal Diocese of Rochester, 11 NY3d at 349.) In my view, we need not resolve themerits of this dispute by analyzing the canons; thus the following serves only the purpose ofilluminating the inconsistencies in the defendants' argument.
First, it should be noted that, in general, the Roman Catholic Church in the United States hasbeen less than consistent in the use of its canons. Depending on what interpretation inures to itsbenefit, ownership, and therefore custody and control of real property, either belongs to theparishes or to the diocese. (See Jonathan C. Lipson, When Churches Fail: TheDiocesan Debtors Dilemma, 79 S Cal L Rev 363, 385 [2006] [the dioceses in currentbankruptcy cases arising out of damages claimed by victims of sexual abuse "have all arguedthat parish property is not [*10]diocesan property and shouldtherefore not be part of the bankruptcy estates"].)[FN5]
Most notably in Spokane, Washington, the diocese invoked Canon 1256 which provides that"the ownership of goods belongs to that juridic person which has acquired themlegitimately."[FN6]Hence, the diocese argued that it had no interest in the property since a parish and a diocese arelegally distinct juridic persons. (Id. at 385-386, citing In re Catholic Bishop ofSpokane, 329 BR 304, 318-320 [Bankr ED Wash 2005].) The court found the argumentprohibited by res judicata since approximately eight years earlier, the diocese had argued itowned the parish property that it sought to demolish. (In re Catholic Bishop of Spokaneat 319, citing Munns v Martin, 131 Wash 2d 192, 930 P2d 318 [1997].)
In the instant case, the penchant for picking and choosing canons is also evident. Thedefendants cite Canon 515 (2) which states that a bishop has exclusive control over altering andsuppressing parishes, and with which the plaintiffs do not argue; they also cite Canon 1254which states that "the Catholic Church by innate right is able to acquire, retain, administer, andalienate temporal goods independently from civil power." However, there is no reference toCanon 1256 which, as detailed above, deals with ownership of goods accruing to those entitiesthat legitimately acquire them such as the religious corporation of the Church of Our Lady ofVilna. Nor is there any reference to Canon 1267 which states that "[o]fferings given by thefaithful for a specified purpose may be used only for that purpose." (See Nicholas P.Cafardi, The Availability of Parish Assets for Diocesan Debts: A Canonical Analysis, 29Seton Hall Legis J 361, 371 [2005].)
Most significantly, the defendants do not cite to, or explain, Canon 123 although it, alongwith Canon 515 (2), is referenced in the archbishop's decree of suppression of the parish of "OurLady of Vilnius." Specifically, in the decree of suppression, the archbishop stated, in relevantpart: "[a]fter serious consideration of the intention or will of donors and benefactors. . . in accord with Canon 123, allocation of the goods and obligations of this parishwill first provide for necessary pastoral care of its former parishioners and then, whateverremains, will belong to the Archdiocese of New York."
First, scrutinizing the canon in purely secular terms, this conflicts with the defendants'assertion on appeal that "the [r]ecord is devoid of any evidence that the church property was, oris, to be diverted away from the church corporation and to any other uses." Clearly, thearchbishop's intention is to divert some of the property to the archdiocese. Second, it appears thatthis particular canon dovetails somewhat with the requirement of Religious Corporations Law§ 5 that authorization is required when the property is administered for purposes other thanthe support and maintenance of the corporation.
Canon 123 states in pertinent part that when a parish is extinguished "the allocation of its[*11]goods . . . go[es] to the juridic personimmediately superior,[FN7]always without prejudice to the intention of the founders and donors" (emphasis added).Indeed, as the editors of the New Commentary on the Code of Canon Law point out: "While inmany cases such a disposition [to an immediately superior juridic person] would beunobjectionable . . . As in canons 121 and 122,[FN8]and frequently throughout the code, so also in canon 123 the Church's commitment to faithfulfulfillment of the intentions of founders and donors finds expression." (John P. Beal, NewCommentary on the Code of Canon Law 172.)
The idea that an archdiocese or diocese cannot simply alienate the property of a parish whereproperty has been accrued through the efforts of parishioners is explained succinctly in the lawreview article by author Cafardi, in which he writes: "Parishes are not plums for the diocesanbishop to pick." (Nicholas P. Cafardi, The Availability of Parish Assets for DiocesanDebts, 29 Seton Hall Legis J 361, 368 [2005].) "The assets of a parish were contributed bythe parishioners to serve that parish community, and not to serve the diocese. There were funddrives to build the parish church. There were fund drives to build the parish school, the rectory. . . Gifts to the parish were solicited so that the parish community had the meansavailable to them to work out their salvation. And when a bishop tells those people that he isclosing Parish X and they need to work out their salvation at Parish Y, then those means need tofollow them to Parish Y." (Id. at 372.)
The defendants appear to tacitly acknowledge the idea that former parishioners have someproperty right in the goods of the former parish by stating that, "the [r]ecord demonstrates that[d]efendants . . . took pains to carefully preserve the ecclesiastical and sacred itemsand even transferred certain goods to nearby parishes to allow former parishioners convenientaccess to same." At the very least, a meeting at which the will and intentions of the donors in theformer parish are enunciated to the archdiocese does not appear, in secular terms, to conflict with"the discipline, rules, and usages" (Religious Corporations Law § 5) of the RomanCatholic Church. Nor is it a challenge to the hierarchical nature of the Roman Catholic Churchor intrusion on its internal [*12]governance and administration inderogation of canon law. For all the foregoing reasons, therefore, I would reverse the court'sorder, and grant the preliminary injunction. [Prior Case History: 2008 NY Slip Op33144(U).]
Footnote 1: Although it is clear that thedecree of suppression applied to the parish in question, the archbishop chose to use the moderndesignation of "Vilnius" rather than the actual name of the parish, namely, Vilna. The parish wasapparently named for the Diocese of Vilna, established in Lithuania in 1387. "Vilnius" becamethe commonly used name for the capital city of Lithuania following the Soviet capture of the cityfrom the retreating German Army in 1944. Thus, the archbishop's decree may have been correctin using the post-German occupation denomination of "Vilnius," it was nonetheless in error withregard to the name of the century-old parish.
Footnote 2: Claire and Thomas Libonatireplaced Joseph Pantuliano and Gertrude McAleer as trustees after their one-year terms hadexpired on March 31, 2007. Thomas Libonati resigned from the parish board of trustees inSeptember 2007, and was replaced by Roseanne Nunziato in a special meeting held on October22, 2007.
Footnote 3: St. Brigid's, a church built byIrish immigrants in 1848, fell into disrepair. Parishioners raised more than $100,000 forrenovations, but the archbishop decided to close it in 2004.
Footnote 4: The defendants in this casedecried the granting of leave based on the sole judge dissent of Justice Kavanagh in St.Brigid II which the court below described as an "impassioned and thorough" dissent butwhich the defendants incomprehensibly characterized as "illogical, inconsistent and oftenincoherent." In any event, the appeal was subsequently withdrawn as moot after an anonymousdonor came forward with $20 million for renovation of the church, and the archbishop reversedthe decision to close it. Additionally, it could, of course, be posited that a decision based onreligious doctrine and "tenets of faith" could not be reversed by a mere infusion of cash, nomatter how large.
Footnote 5: In those dioceses of Spokane,Portland, and Tuscon, the bishop holds legal title to parish properties in a corporate form knownas "corporations sole." In those dioceses, the hierarchy has argued in these cases thatcorporations sole hold the legal title but only in trust for the parishes. (Jonathan C. Lipson,When Churches Fail: The Diocesan Debtors Dilemma, 79 S Cal L Rev 363, 385 [2006].)
Footnote 6: Parishes and diocese are publicjuridic persons according to canon law. (See John P. Beal, New Commentary on theCode of Canon Law 171 [Paulist Press 2000].)
Footnote 7: According to canon law, adiocese would be a superior juridic person to a parish in that diocese. (See John P. Beal,New Commentary on the Code of Canon Law 171).
Footnote 8: These two canons deal with thedivision and consolidation of juridic persons. (See id.)