Pursuing Civil Redress To Keep Your Viable Parish Open

                                      Sharon M. Harrington, JD

 Sharon Harrington is an attorney and an active member of

 Boston’s St. Albert parish. Parishioners successfully

 resisted closure after the Archdiocese of Boston announced

 its intent to suppress her vital parish.  In this brochure,

 Harrington details some of the legal issues involved.

 Three Considerations Before Pursuing a Lawsuit

 •    Is the decision to close the right decision for your

 parish?

 •    How much money (for lawyers) can you raise?

 •    How do you find the right attorney(s)?

 Boston’s St. Albert Parish experience At St. Albert's, we

 decided to fight in every possible way, because the decision

 was WRONG as applied to us. The more ways you can find to

 oppose a bad decision, the larger the opportunity you will

 have to correct the decision. We used prayer vigils,

 hundreds of letters to the archbishop and the vicar general

 responsible for church closures;  letters to the editor;

  publicity on TV, radio and newspapers; a Mass on the Common

 with other parishes affected by reconfiguration; canon law

 appeals; regional networking; and legal action. We also

 worked hard to keep our parish functioning as before, to

 show that the decision was wrong.

 Litigation is expensive.  In Massachusetts, lawyers’ fees

 could easily reach $100,000 for a parish lawsuit, depending

 on the amount of time required (pretrial motions and discovery, trial, any appeals). If there are other parishes

 who decide to oppose closure, you may chose to use the same

 lawyers, who can then split the cost of research and work on

 issues that the parishes share. You may be fortunate and

 find lawyers who will work “pro bono” or discount their hourly rate due to the charitable nature of the claim--and their charitable

 natures. You will probably need to do significant fundraising or

 otherwise collect a large “war chest”. Most lawyers

 considering representing you will want to see that you will

 be able to make a significant down payment on the lawsuit

 (at least $5,000-$10,000), and will have the ability to fund

 their work in the future as it goes on and on. (Lawyers have

 bills, too.)

 Finding the Right Lawyer.  Form a small search committee.

 Contact lawyers you know—either to serve on the

 sub-committee or to recommend prospective lawyers. Collect

 referrals for lawyers. Call them. Discuss your situation

 with them. If they're not interested, do they know anyone

 they'd recommend? Talk with Pro Bono committees at large

 firms. However lawyers fees should not

 be the deciding factor. Try to find the lawyers who will

 best represent you, regardless of how they're paid.

 Commitment to the case and ability are what matters. It will

 be helpful to have a lawyer on the search committee who is

 familiar with litigation, but it's not essential. You will

 want to hire lawyers with trial experience because this very

 likely will go to trial and not settle.  If you are

 represented by a law firm, it will be easier for them to

 handle the intensity of effort, as compared to a solo

 practitioner.

 Do You Have a Case? It’s up to the lawyers to find the bases

 for your lawsuit. How is the title to the parish real estate

 held? How was the parish built and paid for? How recently?

 Was your parish promised anything when they built and paid

 for the Church or adjacent building(s). Or perhaps when

 significant improvements or remodeling occurred with your

 parish buildings. Were there significant or special donations for building or improving your parish?

 Your lawyers will need to thoroughly research state law.

 A claim might exist that the parish, not the diocese, owns

 the parish assets. This would mean that the parish, not the

 diocese decides whether or not to sell its building and to

 whom to give the assets. The bishop still ultimately decides

 whether to close the parish. Parishioners might decide to

 set up a “Friends of St.______Parish” association, which could then qualify for and receive tax exempt donations in escrow until the legal

 issues are resolved.   Your parish might plead that your

 “Friends” group is the appropriate new owner of the property

 and assets.

 You might have a claim that the bishop holds the parish “in

 Trust” under civil law for the parishioners, who built and paid for the

 parish.  As a trustee, he cannot act contrary to the benefit

 of your parish, or he can be removed as a trustee.  In that

 case, a new, more faithful trustee would be appointed in

 that case.

The Bishops of Spokane, WA and Portland, OR, and their canon law expert, Dean Nicholas Cafardi, agree that diocesan bishops hold parish assets in trust for the parishes and CANNOT use parish assets for diocesan debt. Their affidavits, filed in the Spokane and Portland diocese Bankruptcy actions, are public records. Recently, the prefect of the Congregation for the Clergy (which decides the second level of parish appeals) has authored a letter circulated to the US bishops which declares that church closings as in Boston are not suppressions and that the assets must follow the parishioners to their new parish. If the diocese cannot seize and spend parish assets, the incentive to close or “suppress” vibrant parishes is greatly diminished.

 You, as a parish or as separate donor-parishioners, might

 have claims for the return of “dedicated” gifts that are substantial—an

 addition, a parish hall, an organ, the stained glass

 windows, etc. Under canon law and potentially under the

 civil law of your state, the donor’s intent must be honored.

 Is it honored by what the diocese intends?

 Again, if the diocese sees that it will not benefit financially

 from the closure, your parish may be less likely to close.

 Why Pursue Civil Litigation?

 Usually, once your have the lawyer, she or he will advise

 whether or not to pursue legal action. Laws and causes of

 action differ in many states, so there is no guarantee of success with this  course of action.

 When we started our opposition to closing at St. Albert’s,

 we recognized that might not win the canon law appeals or

 the lawsuit, but we felt we would surely change how

 reconfiguration was done.  Without taking action, we

 believed that the "Boston model"—church closings—would be copied as “the solution” to administrative problems in many dioceses.

 It is still unclear whether our parishes will ultimately prevail

 legally. What I firmly believe is that legal action (AND the

 canon law appeals) slow the process down, so that everyone

 has time to think carefully and work out better solutions. When the true facts of the situation are known (as opposed to what the diocesan bureaucracy proclaims), public concern raised by media reports has a chance to motivate the diocese towards a better solution.

If you do not pursue a lawsuit and/or canon law appeal, you have conceded the diocese’s right to ownership and control parish property. The diocese will be free to remove vigillers, whether by intimidation (as happened in Ohio) or through action by police. Law enforcement has less basis to refuse to enforce demands for removal of vigillers under threat of criminal charges where you do not claim ownership of the property.

 As  an additional benefit to bringing a lawsuit, in Massachusetts, and I suspect many other states, if the lawsuit claims an ownership interest in the parish real estate, you can get a paper (“lis pendens”) to file with the local registry showing your claim to property ownership until the case is completed (which will discourage mortgage lenders for prospective buyers).

 To recap: If you claim ownership in the property, and not just

 ownership of liquid assets, you have a right to BE physically

 on the premises and it becomes more difficult to force

 you off the property to stop a vigil.  A claim of ownership of the property defeats a claim such as trespass, and also creates a jury issue at any criminal or civil trial for trespass. Additionally, it gives

 the local law enforcement a reason to "stay out" of the

 dispute, and leave it to the courts. Further, with a civil

 lawsuit, it may be possible to get an injunctive order to

 prevent the diocese from interfering in any vigil or disposing

 of assets pending determination after trial.

 Slowing the Process Down. So, while lawsuits themselves may

 be successful for aggrieved parishioners, success itself is not

 essential. What lawsuits can give, is time.  If you pursue

 canon law appeals all the way up, and civil lawsuits all the

 way up (First Amendment issues will be raised, so appeals

 WILL be brought), the result can be years of delay. With

 that  kind of delay, along with the accompanying media coverage—favorable for vibrant parish communities, unfavorable for the diocesan bureaucracy—incentive to close the parish

 lessens.