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OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT
ROMAN CATHOLIC BISHOP OF SPRINGFIELD,
) ) ) )
VICTOR ANOP, PETER STASZ, HALlNA HELEN DOMURAT, IWANA BORUCH, CHURCH, ROE SULEWSKI, SHIRLEY ANOP, EVA BORUCH,
) ) )
) ) )
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
FRlENDS OF MATER DOLOROSA
JOI-IN DOE ROE
#1, JOHN DOE #2, MARY #2, AND OTHER JOHN DOES
STATEMENT OF THE CASE
This is an action to preliminarily and permanently
enjoin the defendants from trespassing The
on and within Mater Dolorosa Church (the "church") in Holyoke, Massachusetts,
defendants are occupying the church and refuse to leave, The church steeple is in dire need of repair, making it a threat to passers-by and to the occupying defendants themselves. Because
the defendants, through their continuing trespass, continue to refuse to leave the church, they interfere with the plaintiff'S rights of ownership, and they put themselves and others in danger.
Mater Dolorosa Church (the "church"), located at 71 Maple Street, Holyoke, Massachusetts, is the property of the plaintiff Roman Catholic Bishop of Springfield (the
"RCB,,).l The defendants and others are occupying the church as a show of opposition to a decision by the RCB to merge Mater Dolorosa Parish with Holy Cross Parish and to close Mater Dolorosa Church,
The steeple of Mater Dolorosa Church has extensive significant structural damage. The damaged steeple must be removed to ensure the safety of the public. The removal of the damaged steeple will protect the defendants and the public from immediate and possibly irreparable physical harm that may result from the deteriorating physical condition ofthe church steeple. Because of safety concerns, the church should be unoccupied and only appropriate construction personnel should have access to the church while the steeple is being removed. No other persons should be inside Mater Dolorosa Church while this extensive work is going on. The issuance and enforcement of the requested preliminary injunction will protect the defendants and others occupying the church from any immediate and possibly irreparable physical harm that may result from the removal work itself. On information and belief, the defendants entered Mater Dolorosa Church on June 30, 2011, or some time thereafter. On information and belief, the defendants remained inside Mater Dolorosa Church following Mass on June 30, 2011. The defendants are currently occupying and
1 Title is not in dispute. Defendants, improperly as a matter oflaw, claim some undefined equitable interest in the property. See Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 788 (1994) (the Court, in holding that the plaintiffs had no equitable interest in the church at issue, began its analysis by "noting that the Bishop holds record title to all of the disputed property."). A copy of the Fortin case is attached as Exhibit A. 2
an internal Church decision, and since the Roman Catholic Church is, as a matter oflaw in this a hierarchical church with its own internal dispute resolution procedures, the Courts of the cannot and do not interfere with such decisions. See Fortin, 416 Mass. at 787 ("(1) the Roman is hierarchical and (2) it maintains an internal system oftribunals for resolution of disputes"); see also Wheeler v. Roman Catholic Archdiocese 0/ Boston, 378 Mass. 58,62 ("The First Amendment, applicable to the States through the Fourteenth Amendment, permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters."), cert. denied, 444 U.S. 899 (1979). A copy of the Wheeler case is attached as ExhibitB. This is clearly Commonwealth, Commonwealth Catholic Church
remaining inside the church. The defendants were told to leave the church both orally and in writing. The defendants were orally told to leave the church on June 30,2011 by the Reverend Alex Cymerman, the Pastor of the former Mater Dolorosa Parish, now Pastor of the current Our Lady of the Cross Parish. The defendants were given a written no-trespass notice by the RCB on July 8, 2011. The defendants were given a second written no-trespass notice by the ReB on September 23,2011. Notwithstanding the oral and written notices to the defendants to leave
Mater Dolorosa Church, the defendants have remained in the church and have refused to leave the church.
The Court May Preliminarily and Permanently Enjoin the Trespassing Defendants
For well more than a century, Massachusetts courts have had the power to enjoin
trespasses, including the power to enjoin defendants from entering on the premises of a plaintiff. Boston & Maine R.R. v. Sullivan, 177 Mass, 230, 231-34 (1900). See also Hennessy 11. Boston, 265 Mass. 561 (1929) (court had the power to "enjoin the continuance of the trespasses").
fact, even unwanted golf balls coming onto a plaintiff's property constitute sufficient continuing trespass to be worthy of injunctive relief. Fenton v. Quaboag Country Club, Inc., 353 Mass. 534,538 (1968); Amaral v, Cuppels, 64 Mass. App. Ct. 85,86,91, 1102 (2005). The language used by the Supreme Judicial COUli more than a century ago rings clear and true in this case: "The facts show that the defendants have been guilty of trespass, which they propose to continue, involved." The ownership of the plaintiff is admitted, and no question of title is review denied, 445 Mass.
Sullivan, 177 Mass. at 232. With regard to its decision with respect to the 3
appropriateness of injunctive relief as a remedy for a continuing trespass) the Sullivan court itself referred to an even earlier holding when it stated: "The defendant in this case is admittedly a trespasser. He has committed a trespass upon the plaintiff's land without any legal justification
or any legal excuse whatever; and he proposes to continue that trespass from day to day .... )) Jd.,
quoting Goodson v. Richardson, L. R. 9 Ch. 221) 226 (1874).
The Supreme Judicial Court
concluded) in holding that an injunction should issue, that "a court having general equity powers may issue an injunction in a case like the present) where the trespasses are continuing." Massachusetts courts have continued to follow the holding in Sullivan, repeatedly enjoining continuing trespasses. See, e.g., Anntco Corp. v. Shrewsbury Bank & Trust Co., 353 Mass. 250 (1967) (store owner and commercial landlord aggrieved by overburdening of easement for drainage); Chesarone v. Pinewood Builders, Inc., 345 Mass. 236 (1962) (owner of unoccupied land complained of flooding caused by drainage system constructed on neighboring land); Sheppard Envelope Co. v. Arcade Malleable Iron Co, 335 Mass. 180,187 (1956) (injunction the propel' remedy for continuing trespass by soot particles from defendant's smokestack); Doody v. Spurr, 315 Mass. 129 (1943) (homeowner sought decree enjoining defendant from parking automobile on and driving over homeowner's property); Suburban Land Co. v. Billerica, 314 Mass. 184 (1943) (land owner and water company complained of town's construction of water pipes across plaintiffs' property without taking by eminent domain); Ferrone v. Rossi) 311 Mass. 591(1942) (owner of vacant land aggrieved by defendant's construction of wall that encroached on landowner's property); Franchi v. Boulger, 12 Mass. App. Ct. 376 (1981) (trustees of condominium trust objected to improperly constructed retaining wall built partially
ld. at 23.
The circumstances in this case are precisely the same as in the cases cited above: the defendants have trespassed, are currently trespassing, and have publicly stated that they intend to continue to trespass on the property of the RCB. Therefore, the Court must issue preliminary and permanent injunctions to prevent this continuing trespass. The Group "Friends of Mater Dolorosa" is a Proper Defendant Pursuant to Mass. R. Civ. P. 23.2 The RCB believes that the group "Friends of Mater Dolorosa" is an unincorporated voluntary association. Generally, an unincorporated voluntary association cannot be named as a party to litigation. Save the Bay, Inc. v, Department of Public Utilities, 366 Mass. 667,675
(1975); Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App, Ct. 491,496 n.9 (1989), However, Rule 23.2 of the Mass. R. Civ. P. permitsactions to be brought "against the
members of an unincorporated association as a class" so long as the association's representatives who are named as individual defendants "fairly and adequately protect the interests of the association and its members." See Mass. R. Civ. P. 23.2; Massachusetts v. Propac-Mass., Inc., 420 Mass. 39, 43A4(1995); In this case: 1) all of the named individual defendants are occupying the church; 2) two of the named individual defendants (Victor Anop and Peter Stasz) are attorneys who, in court filings in this case) claim to represent both the other named defendants and the group Friends of Mater Dolorosa; Cheever v. Graves, 32 Mass. App. Ct. 601,604-605 (1992).
3) four of the named individual defendants (Victor Anop, Peter Stasz, Helen Domurat, and Halina Sulewski) attached their names as signatories to a letter dated Sep. 22, 2011 from the Friends of Mater Dolorosa to Attorney John Egan; and 4) the September 22, 2011 letter referred to immediately above stated: "Replies in Writing To: Friends of Mater Dolorosa, 65 Richard Eger Drive, Holyoke, Massachusetts 01040." This is the same address as that of the named individual defendant Halina Sulewski.
For the reasons set forth herein, the RCB submits that it is entitled to have this Court issue the requested preliminary and permanent injunctions against all defendants.
ROMAN CATHOLIC BISHOP OF SPRINGFIELD,
John J. gan, Esq., BBO# 1 80 Richard J. Kos, Esq., BBO# 277760 Stephen E. Spelman, Esq., BBO# 632089 EGAN, FLANAGAN and COHEN, PC 67 Market Street - P.O. Box 9035 . Springfield, MA 01102-9035 Tel: 413-737-0260; Fax: 413-737-0121 firstname.lastname@example.org; email@example.com; firstname.lastname@example.org
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum of Law in Support of the plaintiff's Motion for Preliminary Injunction was served on the attorneys for the Defendants (Attorney Anop and Attorney Stasz) via e i1 0 October 11,2011.
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625 N.E.2d 1352 416 Mass. 781 Ronald FORTIN
ROMAN CATHOLIC BISHOP OF WORCESTER. Supreme Judicial Court of Massachusetts, Worcester. Argued Sept. 9, 1993. Decided Jan. 14, 1994.
Page 1353 [416 Mass. 782] Stephen Gordon (Roberta Fitzsimmons, with him), for plaintiffs. Samuel R. DeSimone (Dale R. Harger, with him), for defendant. [416 Mass. 781] Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ. [416 Mass. 782] LIACOS, Chief Justice. This case presents a dispute between two parishioners of the former parish of St. Joseph's Church in Worcester and the Roman Catholic Bishop of Worcester (Bishop). On June 1, 1992/ the parish of St. Joseph's was merged with the parish of Notre Dame, in accordance with a decision by the Bishop. In a complaint of the same date/ the plaintiffs alleged that the Bishop's decision to merge the parishes wrongfully deprived Page 1354 them of property to which they were equitably entitled, and constituted a breach of an oral contract between the Bishop and the plaintiffs. They sought an injunction prohibiting the Bishop from taking any action in regard to the real and personal property of St. Joseph's Church. They also sought an order of specific performance of the alleged oral contract and damages, and declaratory relief. The Bishop responded to the plaintiffs' complaint with a motion for summary judgment. The Bishop advanced three main arguments why he was entitled to judgment: (1) the First Amendment to the United States Constitution prohibited a civil court from taking jurisdiction over the matter; (2) the plaintiffs lacked standing to maintain the action; and (3) the plaintiffs could not prevail on the merits on any of
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their legal claims. A judge in the Superior Court found that the First Amendment imposed no restraints on the court's jurisdiction, but he allowed the Bishop's motion, based on his conclusion that the plaintiffs could not prevail on any of their legal claims. The plaintiffs filed a timely appeal, and we transferred the case here on our own motion. We agree with [416 Mass. 783] the judge below that the Bishop was entitled to summary judgment, although we hold that the court lacked subject matter jurisdiction over some of the parishioner's claims. We begin with the undisputed facts established by the plaintiffs. On September 26, 1886, the Church of St. Joseph was established in the Wall Street area of Worcester. The founding members were the pastor, Father Brouillet, and five communicants. Shortly thereafter, a church school was established. By June of 1887, an effort was undertaken to build a church that would replace the original chapel. In December, 1890, St. Joseph's parish was established. In May, 1891, St. Joseph's parish purchased a parcel of land on Wall Street, on which the members of the St. Joseph's parish voted to construct a new church and other facilities. Members of the parish financed the project completely. Early in this century, two tracts of land bounded by Hamilton, Dupont, Chrome, and Plantation Streets in Worcester (Hamilton Street property) were conveyed to the Bishop of Springfield, in whose diocese St. Joseph's Church belonged. The Bishop then conveyed this land to the St. Joseph's School of Worcester Corporation. Parishioners formed the School Corporation in 1914 to hold title to parish real estate and to manage the internal affairs of the parish. In 1927, the School Corporation reconveyed the parcel to the Bishop of Springfield, retaining only a parcel at the corner of Chrome and Plantation Streets. The School Corporation and the Bishop of Springfield then jointly mortgaged both parcels as security for a $325,000 note to build a new church on the property. The parishioners funded the construction of the building, which cost over $1,000,000. This structure served as the parishioner's house of worship until the Bishop's decision to merge St. Joseph's with another parish took effect. The General Court created the Roman Catholic Bishop of Worcester as a corporation sole in 1950. St.1950, c. 197. Thereafter, the Bishop of Springfield conveyed, by an omnibus deed, all of the property situated in the diocese of Worcester to the Bishop of Worcester. In 1958, the treasurer [416 Mass. 784] of the School Corporation signed a deed which conveyed the corner parcel of the Hamilton Street property to the Bishop of Worcester. At this time (and until the present day) the Bishop held legal title to all the property at issue in this dispute. In May of 1991, the Bishop met with the pastor of St. Joseph's and certain parish members to discuss some structural problems that had developed with the church building. The following month, a representative of the Bishop, Monsignor Tinsley, met with the parishioners and allegedly told them that if they raised one-half of the funds needed to repair the church, the diocese would lend the parishioners the remaining funds, and the church would remain open.
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The plaintiffs claim to have raised pledges of over $600,000. The Bishop nonetheless decided to merge St. Joseph's Page 1355 with another Roman Catholic parish in Worcester, Notre Dame. The new parish, Notre Dame-St. Joseph, controls the property of both former parishes and uses the facilities of the former Notre Dame as the sole place of worship for the merged parishes. 1. The plaintiffs' claims. On the date that the merger took effect, June 1, 1992, the plaintiffs commenced this action. The numerous causes of action (which were not divided into counts in the complaint) derive from two basic assertions by the plaintiffs. The first is that the plaintiffs are the equitable owners of the real estate and personalty of St. Joseph's parish. Conceding that the Bishop holds legal title to all of the property in question, the plaintiffs claim to be equitable owners under a theory of resulting trust or constructive trust. 3 Based on their claim that they equitably own the property, [416 Mass. 785] the plaintiffs further claim that the Bishop is liable to them for conversion. We shall refer to these claims as "the ownership claims." The second basic assertion is that the Bishop breached his promise to the plaintiffs that he would not close the parish if the parishioners raised sufficient funds to repair the church. Emanating from this are claims of breach of contract and promissory estoppel and requests for specific performance and damages. We shall refer to these as the "promise-based claims." 2. Jurisdiction. The first question facing the judge below and facing this court today is whether this dispute properly belongs in the civil courts of the Commonwealth. The judge below held that he had "jurisdiction to hear the present action." We believe this conclusion sweeps too broadly. We begin our discussion with the long-recognized principle that "the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization." Alberts v. Devine, 395 Mass. 59, 72,479 N.E.2d 113 (1985), and cases cited. As to the plaintiffs' promise-based claims, the judge below ought not to have looked beyond this principle to dismiss those counts. To inquire into an alleged promise by the Bishop to keep a parish open or refrain from merging it with another parish was an impermissible intrusion into the Bishop's ecclesiastical authority. See Serbian E. Orthodox Diocesefor the U.S. & Can. v. Milivojevich, 426 U.S. 696, 708-709,96 S.Ct. 2372,2380,49 L.Ed.2d 151 (1976). Parent v. Roman Catholic Bishop of Portland, 436 A.2d 888, 890-891 (Me.1981) (no jurisdiction over dispute regarding Bishop's alleged promise to provide church services). As to the plaintiffs' ownership claims, such a cursory review is not warranted. Although "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes," Wheeler v. Roman [416 Mass. 786] Catholic Archdiocese of Boston, 378 Mass. 58, 63, 389 N.E.2d 966, cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979), quoting Presbyterian Church v.
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Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658 (1969), this circumscription is not absolute, and courts have recognized instances where civil resolution of church property disputes may occur without offense to the First Amendment. Probably the most notable departure from the traditional notion that civil courts ought not resolve church property disputes came with Jones v. Wolf, 443 U.S. 595, 602. 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979). In that case, the United States Supreme Page 1356 Court held that States are constitutionally entitled to adopt "neutral principles of law" to resolve church property disputes. Id. at 602-603, 99 S.Ct. at 3025. Thus, if a dispute can be resolved without inquiry into matters of religious doctrine or polity, a court may examine such sources as JI(a) statutory provisions governing the holding of property by religious corporations; (b) the constitutions and by-laws of the religious organizations involved, especially in so far as they pertain to the ownership and control of church property; and (c) the deeds to the property in question," to resolve the dispute. Antioch Temple, Inc. v. Parekh, 383 Mass. 854, 867, 422 N.E.2d 1337 (1981), citing Jones v. Wolf, supra, 443 U.S. at 599-601! 99 S.Ct. at 3024. This court has never expressly taken the "neutral principles of law" approach to a church property dispute. As an alternative, this court has, in the past, focused primarily on the distinction between hierarchical and congregational church structures in determining when jurisdiction is appropriate. 4 See Antioch Temple! Inc., supra, 383 Mass. at 860-864, 422 N.E.2d 1337; Wheeler! supra, 378 Mass. at 61-62, 389 N.E.2d 966. The Supreme Court has recognized the validity of this distinction. See Jones v. Wolf, supra, 443 U.S. at 602, 99 S.Ct. at 3025; Serbian E. Orthodox Diocese for the U.S. & Can., supra, 426 U.S. at 724-725, 96 S.Ct. at 2387-2388; Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-734! 20 L.Ed. 666 (1871). We have noted that "lilt is in disputes involving hierarchical churches that civil courts must tread [416 Mass. 787] more cautiously, for the First Amendment 'permits hierarchical [churches] to establish their own rules and regulations for internal discipline and government! and to create tribunals for adjudicating disputes over these matters.' " Antioch Temple! Inc., supra, 383 Mass. at 861, 422 N.E.2d 1337, quoting Wheeler! supra, 378 Mass. at 61, 389 N.E.2d 966. The judge below did not inquire into the question of church structure, reasoning that Jones v. Wolf, supra, "essentially ... overturned" Wheeler. In our view this position overstates the holding of Jones v. Wolf. As the Bishop correctly notes! Jones v. Wolf! supra! does not constitutionally obligate courts to employ the neutral prlnclples approach. Rather! it allows courts to do so without violating the First Amendment. Additionally, our declsicn in Antioch Temple, Inc., supra, makes it clear that this court has not chosen to adopt the "neutral prlnclples'' approach exclusively. Id., 383 Mass. at 867-868, 422 N.E.2d 1337. We need not adopt this approach in this case as the exclusive approach to such disputes in the future. The Bishop is correct when he states that, if we considered the present dispute
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only in terms of the traditional structural approach, we would not take jurisdiction. This is so because (1) the Roman Catholic Church is hierarchical and (2) it maintains an internal system of tribunals for resolution of disputes. Such facts were presented in a sworn affidavit of the Bishop which was appended to his motion for summary judgment. See also Wheeler, supra, 378 Mass. at 62, 389 N.E.2d 966. 5 If Page 1357 taking jurisdiction[ 416 Mass. 788] is proper, then, it must be so under the neutral principles of law approach. Thus, we must be able to resolve the dispute without entangling ourselves in questions of religious doctrine, polity, and practice, and rely instead on objective, well-established concepts of trust and property law. See Jones v. Wolf, supra, 443 U.S. at 604, 99 S.Ct. at 3026. In the circumstances of this case, we believe the question of ownership properly may be resolved under such principles, and hence we need not determine whether the traditional approach of Massachusetts cases distinguishing the treatment of disputes in congregational and hierarchical churches need be applied. 3. Application of neutral principles of law to the plaintiffs' claims of ownership. In allowing the Bishop's motion for summary judgment, the judge below dismissed the ownership claims because the plaintiffs had failed to show that they were the successors in interest to any beneficial interest that either the original corporation (if one existed) or the School Corporation retained in the property. In our view, the same conclusion (i.e., that summary judgment was appropriate) is more easily reached by the determination that the plaintiffs have failed to allege any supportable fact indicating that the Bishop does not hold all legal and beneficial interest in the property. The judgers ruling that the plaintiffs would not succeed to any interest not held by the Bishop, is therefore a secondary, but equally sustainable basis for the allowance of the Bishop's motion for summary judgment. Under the neutral principles of law approach, we may examine any relevant statute, the deeds to the property in question, and any pertinent constitutions or bylaws of the organizations involved. Antioch Temple, Inc., supra, 383 Mass. at 867, 422 N.E.2d 1337. We begin, then, by noting that the Bishop holds record title to all of the disputed property. The question we must consider is whether the facts as shown of record on the motion for summary judgment could support their claim of equitable ownership. [416 Mass. 789] Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-712,575 N.E.2d 734 (1991). There is no basis for the plalntlffs' claim that a resulting trust arose from the 1927 conveyances. 6 A resulting trust in real estate arises where one party furnishes the consideration to purchase property, not intending a gift or advancement, yet title is taken in the name of another. Meskell v. Meskell, 355 Mass. 148, 150, 243 N.E.2d 804 (1969); Davis v. Downer, 210 Mass. 573, 575, 97 N.E. 90 (1912). rrA resulting trust must arise, if at all, at the time of the execution of the deed." Dwyer v. Dwyer, 275 Mass. 490, 494, 176 N.E. 619 (1931). In the 1927 conveyances, the School Corporation granted all of its interest in certain property to the Bishop of Springfield. As such, it falls outside the traditional boundaries of a resulting trust where one party
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furnishes the consideration and another party takes title. The only allegation made by the plaintiffs to justify their claims of a resulting trust is their contention, that "there was no intention to make a gift." Unsupported by any evidence whatsoever, this fails to create a genuine issue of fact sufficient to prevent judgment as a matter of law. Meskell, supra, 355 Mass. at 150-151, 243 N.E.2d 804 ("By the great weight of authority no resulting trust arises [when a party voluntarily transfers an undivided interest in realty, not money]"). See also Kourouvacilis v. General Motors Corp., supra, 410 Mass. at 711-712, 575 N.E.2d 734. Likewise the plaintiffs' claims of equitable ownership based on a theory of constructive trust were properly dismissed. Under Massachusetts law, a court will declare a party a constructive trustee of property for the benefit of another if he Page 1358 acquired the property through fraud, mistake, breach of duty, or in other circumstances indicating that he would be unjustly enriched. Nessralla v. Peck. 403 Mass. 757. 762-763. 532 N.E.2d 685 (1989). The plaintiffs have presented no evidence[ 416 Mass. 790] of wrongdoing or unjust enrichment. 7 Instead, the plaintiffs attempt to manipulate the requirements of summary judgment as set forth in Kourouvacilis, supra, so that the Bishop's inability to prove the "absence of wrongdoing" renders summary judgment inappropriate. The plaintiffs did not set forth any facts to prevent the entry of summary judgment against them on this count. We note in closing that, undoubtedly due to inadvertence, the judge below did not enter a declaratory judgment regarding the status of the property. We therefore remand this case to the Superior Court for entry of judgment declaring that the parishioners have no legal or equitable interest in the disputed property. The plaintiffs' promise-based claims are dismissed for want of jurisdiction. As to the plaintiffs' ownership claims, the judgment of the lower court is affirmed. So ordered.
1 As a member of the Church of St. Joseph's Committee, on behalf of himself, the other members of the committee, and the members of St. Joseph's parish. 2 David Desroches, individually and as chairman of the Committee and on behalf of the other members of St. Joseph's Church. to save St. Joseph's Church,
3 As a corollary to their argument that they are equitable owners of the property, the plaintiffs devote much attention to the issue of their status as a corporate entity, either as successors to some original corporation (the existence of which is challenged by the defendant) or as successors to the School Corporation. In deciding that summary judgment was appropriate on the counts arlstnq under a resulting or constructive trust theory, the judge below appears to have based his conclusion on his determination that the plaintiffs lacked corporate status. In our view, the questions whether these corporations exist and whether the plaintiffs succeed to the interests of either of them are not material ones, because, as we shall discuss below, the Bishop is both the
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legal and beneficial owner of the property. 4 For an explanation of the basic differences between the structures, Wheeler v. Roman Catholic Archdiocese of Boston. 378 Mass. 58, 62 n. 2, cert. denied, 444 U.S. 899, 100 S.Ct. 208; 62 L.Ed.2d 135 (1979). Antioch Temple. Inc. v. Parekh. 383 Mass. 854. 860-861. 422 N.E.2d 1337 (1981). 5 We pause here to address an issue which arose after the briefs in this case were filed and which pertains to this issue. Around the time of oral argument, the plaintiffs filed a motion requesting that we vacate the judgment and a motion to remand the case to the Superior Court for further proceedings, on the ground that they had obtained evidence tending to show that certain representations made in the Bishop's affidavit in regard to the structure of the church were contradicted by certain statements made in court documents in an unrelated tort case involving the Bishop. Even assuming that the plaintiffs' motion was properly made under Mass.R.Civ.P. 60 (b)(2) and (6), 365 Mass. 828 (1974), it is clear that the new "evidence," at best, goes toward establishing that the Roman Catholic Church is not hierarchical. Jurisdictionally, this would favor the plaintiffs, i.e., less of an obstacle would be posed to the court's authority to hear the case. See Wheeler, supra at 61, 389 N.E.2d 966. Given our conclusion that it was permissible for the judge to take jurisdiction over the ownership claims (and the fact that the "evidence" in no way concerns the jurisdictional problem with the promised-based claims), we therefore deny the motions. 6 The plaintiffs state in their reply brief that "the conveyances giving rise to the resulting trust were the 1927 conveyances." In that year, the School Corporation conveyed all but a corner parcel of the Hamilton Street property to the Bishop of Springfield. 7 The plaintiffs did contend that the 1958 deed to the Bishop, conveying all of the School Corporation's remaining interest in the property, evidences wrongdoing on its face. The supposed wrongdoing was two fold: (1) the deed was executed by the School Corporation's treasurer, who was also the pastor of the parish, and thus, allegedly, an agent of the Bishop; and (2) no authorizing vote for the conveyance occurred. As to the vote, the deed indicates that it occurred, and the plaintiffs presented no evidence to suggest that it did not. As to the charge that the treasurer was the pastor, the plaintiffs have set forth no acceptable legal theory for why this fact could constitute "wrongdoing."
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389 N.E.2d 966
378 Mass. 58
Ann WHEELER et al.
ROMAN CATHOLIC ARCHDIOCESE OF BOSTON et al. Supreme Judicial Court of Massachusetts, Argued April 5, 1979. Decided May 10, 1979. Plymouth.
William J. Clary, SCituate, for plaintiffs. James G. Dolan, Jr., Boston, for defendants. Before HENNESSEY, . J., and QUIRICO, KAPLAN,LIACOS and ABRAMS,JJ. C Page 967 [378 Mass. 59] HENNESSEY, hief Justice. C The complaint in this case was brought by parishioners of St. Mary's of the Nativity, a Roman Catholic church in Scituate, seeking to impose a trust on certain land conveyed to the Roman Catholic Archbishop of Boston. The defendants filed a motion to dismiss the complaint under Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). They also filed an affidavit of the Most Reverend Thomas V. Daily, D.D., who is an auxiliary bishop, chancellor, and vicar general of the Archdiocese of Boston. No counter-affidavits were filed by the plaintiffs. A District Court judge, sitting by statutory authority in the Superior Court, dismissed the complaint after hearing. The plaintiffs appealed. No reasons were given in the judge's order of dismissal, and the parties on appeal have treated the dismissal as granted under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure of the complaint to state a claim on which relief can be granted. Since there was an affidavit on file as well as the complaint, it seems clear to us that the judge treated the motion to dismiss as a motion for summary judgment. It is appropriate for us to consider the case in that light, and we do so. Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). There was no error. The Constitution of the United States requires dismissal of the complaint. We summarize the facts from the complaint, and from Bishop Dailey's uncontroverted affidavit. The plaintiffs are Scituate residents and members of St. Mary's of the Nativity Parish (St. Mary's). St. Mary's was established in 1921 as an unincorporated subdivision of the Archdiocese of Boston. The Archdiocese itself is a
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purely ecclesiastical entity of the Roman Catholic church, having no separate legal existence, and exists to minister to the members of the Catholic faith within its geographic jurisdiction. All real estate within the parish of St. Mary's, including! until August 4, 1977, the vacant land which is the subject of this controversy, is owned by the Archbishop of Boston, a corporation sole. Archdiocesan property is held subject to St.1897, c. 506. [378 Mass. 60] The Archdiocese of Boston is part of the Roman Catholic church, an episcopal church which is hierarchical in nature. It shares an identical faith and doctrine with other Catholic churches throughout the world and all these churches look to the Pope in Rome as their ultimate earthly authority. The Roman Catholic Archbishop of Boston administers the Archdiocese both directly and through a number of boards and tribunals which are quasi-legislative or quasi-judicial in character. The Archbishop is in turn subject to higher ecclesiastical authorities in the church. These authorities also include quasi-legislative and quasi-judicial bodies. Under canon law! members of the Roman Catholic church! both lay and clerical, who are aggrieved by any action of their Ordinary (the Archbishop) should seek redress through the Archdiocesan judicial system! particularly the ecclesiastical court of the Archdiocese, the Metropolitan Tribunal. To date, none of the plaintiffs or any other members of St. Mary's parish, have brought any proceeding in the ecclesiastical judicial system. During the 1930's and 1940's! the plaintiff parishioners and other parishioners contributed extra and substantial sums to St. Mary's with the intent of purchasing the subject locus! a vacant area of land on the corner of Stockbridge Road and Meeting House Lane, Scituate. The purpose of this acquisition, as stated by the priests of St. Mary's and as understood by the parishioners! was to establish a cemetery for the parishioners. On May 24, 1939! the subject property was purchased by the Archbishop, a corporation sole, for approximately $2/000. This $2,000 was the money contributed by the parishioners. The deed contains no restrictions or other indications as to its proposed use. The land was vacant at that time and remains so today. At the 1939 Scituate town meeting/ the board of health was authorized "to grant a permit for the extension of St. Mary's cemetery to include land on Meeting House Lane and Stockbridge road." On October 2, 1939, and again in Page 968 later years, parishioners were buried in St. Mary's Cemetery.
[378 Mass. 61] In August of 1972, the Archbishop of Boston decided to undertake an Archdiocesan housing program to consist of the construction of low and moderate income multi-family housing units. To this end, the Archbishop on August 4, 1977, conveyed the subject land to the Planning Office for Urban Affairs, Inc., a corporation organized by the Archbishop under G.L. c. 180 to undertake this type of activity.
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The plaintiffs argue that the parcel of land has been impressed with a parol trust, with the beneficial enjoyment of that trust secured in the parishioners of St. Maris, citing Bailey v. Wood. 211 Mass. 37.42.97 N.E. 902 (912), and Metropolitan Life Ins. Co. v. Pollack. 332 Mass. 582. 583. 126 N.E.2d 373 (1955). In the alternative, they argue that a resulting trust should be recognized for the beneficial enjoyment of the parishioners, citing Howe v. Howe. 199 Mass. 598. 600601, 85 N.E. 945 (1908), Meske" v. Meske", 355 Mass. 148. 150, 248 N.E.2d 804 (1969), and Murphy v. McKenzie. 1 Mass.App. 553, 555, 303 N.E.2d 744 (1973). As we have stated above, the Constitution of the United States requires dismissal of the complaint. The First Amendment, applicable to the States through the Fourteenth Amendment, permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724. 96 S.Ct. 2372, 49 L.Ed.2d lSi, rehearing denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976). Indeed, State governments, like the Federal government, are required to refrain from involving themselves in ecclesiastical affairs [378 Mass. 62] or controversies. Id. McDaniel v. Paty, 435 U.S. 618. 638, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (Brennan, J., concurring). Thus, in our view, the relevant issues for the court's determination in this proceeding for summary judgment are whether the Roman Catholic church is a hierarchical church, whether that church maintains a tribunal for the resolution of controversies of this nature, and whether the plaintiffs assert their claims as members of that church. All three matters are uncontroverted: a competent church tribunal exists and has been identified; the plaintiffs assert their rights as members of a Roman Catholic parish; 'and the Roman Catholic church is hierarchical, since its local parishioners are not intended to be self-governing. 2 It follows that the complaint was properly dismissed. 3 The plaintiffs particularly argue that their case is not "purely ecclesiastical" in nature, but instead involves a property dispute of which the courts should take cognizance. Page 969 They rely especially on Gorodetzer v. Kraft, 360 Mass. 743. 277 N.E.2d 685 (1972), and Mitchell v. Albanian Orthodox Diocese in America. Inc., 355 Mass. 278, 244 N.E.2d 276 (969), in both of [378 Mass. 63] which this court decided that there were justiciable controversies. The plaintiffs: view is that the courts should take jurisdiction where the case essentially concerns a property interest, trust relation, or personal, contractual, or tortious rights of the parties. See Moustakis v. Hellenic Orthodox Soc'v, 261 Mass. 462, 465, 159 N.E. 453 (1928). Our view is more restrained. "Bven when rival church factions seek resolution of a church property dispute in the civil courts there is substantial danger that the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs." Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. at 709, 96 S.Ct. at 2380. Thus, "the First Amendment
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severely circumscribes the role that civil courts may play in resolving church property disputes." Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church. 393 U.S. 440. 449. 89 S.Ct. 601, 606. 21 L.Ed.2d 658 (1969). In the circumstances of the instant case, that language is persuasive. The Gorodetzer case, Supra, relied on by the plalntlffs, concerned a claim by a kosher caterer against a member and officer of a religious congregation, for an alleged libel which occurred after the plaintiff had resigned from the congregation. Thus it did not involve a dispute between members or factions of a church. In the Mitchell case, Supra, also relied on by the plalntiffs, it is far from clear that a hierarchical church was concerned. 4 Further, our words in these and other cases (cf. Moustakis v. Hellenic Orthodox Soc'y, supra, 261 Mass. at 467, 159 N.E. 453) suggesting generally that the courts should be less reluctant to intervene in cases involving property rights or personal rights were written before the teachings of more recent relevant Supreme Court opinions, particularly Serbian Eastern Orthodox Diocese, were available. [378 Mass. 64] We have also said that, even apart from any constitutional considerations, we believe that sound policy dictates that the denominations/ and not the courts, interpret their own body of church polity. Gorodetzer v. Kraft, supra, 360 Mass. at 7451 277 N.E.2d 685. 5 The plaintiffs, if they are to be heard on the merits of this controversy/ must have recourse to the ecclesiastical system. The ultimate result of any such proceeding will not be reviewable in the civil courts. In the circumstances of this case, the Constitution requires that the civil courts accept the decision of the ecclesiastical tribunal as binding on them. Serbian Eastern Orthodox Diocese v. Milivojevich/ supra, 426 U.S. at 725, 96 S.Ct. 2372. Judgment affirmed.
1 Although the defendants, for purposes of their motion to dismiss, concede that several parishioners were buried upon the land which is the subject of this action, it is plain from the defendants' brief and argument that their ultimate position would be that these burials took place in the presently existing st. Mary's Cemetery, which is a locus separate from the one here concerned. The single "record of death" attached to the complaint shows burial merely at "St. Mary's" Cemetery. 2 There are at least three kinds of internal church structures, or polity, which may be discerned: congregational, presbyterial, and episcopal. "In the congregational form, each local congregation is self-governing. The presbyterial polities are representative, authority being exercised by laymen and ministers organized in an ascending succession of judicatories presbytery over the session of the local church, synod over presbytery, and general assembly over all. In the episcopal form power reposes in clerical superiors, such as bishops. Roughly, presbyterial and episcopal polities may be considered hierarchical, as opposed to congregational polities, in which the autonomy of the local congregation is the central principle." Note, Judicial Intervention in Disputes over the Use of Church Property, 75 Harv.L.Rev. 1142, 1143-1444 (1962). Accordingly, whether or not a given church is hierarchical is a question of fact. Kellev v. Riverside Boulevard Independent Church of God, 44 III,App.3d 673, 3 I1I.Dec. 298, 358 N.E.2d 696 (1976); State ex reI. Morrow v. Hill. 51 Ohio St.2d 74, 364 N.E.2d 1156 (1977).
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3 We express no opinion whether, if the hierarchical church had no ecclesiastical tribunal, it would then be appropriate for the civil courts to take jurisdiction. 4 Kirk, J., dissenting from this court's decision in Mitchell That the courts should take jurisdiction in the case, stated: "I think the court should stay away from it." Id. 355 Mass. at 284, 244 N.E.2d at 280. 5 The approach in some cases has not been by constitutional reasoning. Serbian Eastern Orthodox Diocese v. Milivoievich, 426 U.S. 696, 732, 96 S.Ct. 2372, 2391. 49 L.Ed.2d 151 note, rehearing denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), Mr. Justice Rehnquist, dissenting (joined by Mr. Justice Stevens), suggested that the constitutional issues had not been reached in some church cases, since they were "applications of the general principle that persons who have contractually bound themselves to adhere to the declsions of the ruling hierarchy in a private association may not obtain relief from those decisions in a civil court." See, e. g., Bouldin v. Alexander, 82 U.S. (15 Wall.) 131, 21 L.Ed. 69 (1872); Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871).
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