Rector, Church Wardens & Vestrymen of St. Bartholomew's Church v. Committee to Preserve St. Bartholomew's Church, Inc.

OPINION of the court Asch, J. This case involves the proposal to sell a portion of the realty of St. Bartholomew’s Church in the City of New York for the construction of a high-rise office building. On this appeal, the appellant committee et al. seek to impugn the election by which the church membership approved the plan. — 426 — Subdivision 6 of section 43 of the Religious Corporations Law sets forth certain voter qualifications as follows: “6. Persons of full age belonging to the parish, who have been baptized and are regular attendants at its worship and contributors to its support for at least twelve months prior to such election or special meeting or since the establishment of such parish, shall be qualified voters at any such election or special meeting. Whenever so permitted by the canons of the diocese, persons of less than full age, but of the age of eighteen years or more, and having like qualifications except as to age, may vote at the annual elections and special meetings of any parish of such diocese, whenever such parish shall so determine in the manner provided in said section forty-six.” A conference was held in the chambers of Justice Greenfield, before whom the matter was pending. The voting procedures were discussed and agreed upon. Among other things, it was agreed that the court would interpret subdivision 6 of section 43 of the Religious Corporations Law with respect to the qualification of such parishioners who would be allowed to vote, and that the court would supervise the actual vote. In addition to counsel for the respective sides, Mr. Armstrong, for the defendants, and Reverend Bowers, the rector, were present at this conference. After oral argument, upon the stipulation of all parties and counsel, the court stated, inter alia, as follows: “First, all parties agreed that the ruling that the court makes with respect to clarifications for voting will apply equally to the proposed membership meeting on the 1982 lease of church property and the Article 78 proceeding with respect to election of vestrymen in 1981. The court rules after having examined this section and comparing it to other language of the Religious Corporations Law, that the provision which limits voting to contributors of record for at least 12 months prior to the annual or special meeting sets the minimum limitation so that voters cannot appear for the first time and make a contribution during a current year which would entitle them to vote. The court rules, however, that there is nothing in the language of the statute or by-laws which necessitates contributors doing so — 427 — in successive years. There is nothing in the by-laws which requires that a contributor shall have contributed in the next preceding year (which is the language of §195 RCL, Kroth v. Congregation, 430 N.Y.S. 786, 793). As a practical matter however, the court rules that there has to be some exhibition of current interest as indicated by the requirement that they belong to the parish and be regular attendants. “Accordingly, the court concludes that any person who has been a contributor of record at some point more than 12 months prior to the annual meeting and who makes a contribution to the support of the church during the current year, shall qualify to vote at the arinual or special meeting. In other words, anyone who has made a contribution in the years 1979 or 1980 and makes a further contribution in the year 1981 shall be deemed a qualified voter.” It seems noteworthy that in addition to the substance of Justice Greenfield’s ruling regarding parishioner voting qualifications, the parties expressly stipulated that the court ruling would “dispose of the issues pertaining to the Church election matters.” Special Term should be affirmed, even if Justice Greenfield erred in his construction of who was entitled to vote, simply because the defendants, as a result of their role in what transpired, cannot be heard to complain about the outcome of the vote. Justice Greenfield responded to a request for assistance from both parties. Certainly, defendants’ counsel never objected to the Justice’s assertion of authority to formulate the rules and supervise the election. After Justice Greenfield’s rulings, the defendant committee sent out a letter dated November 27, 1981, confirming the stipulation reached before the court, detailing the eligibility standards set for voters at the court conference and urging parishioners to vote against the proposal. Both factions did more than simply acquiesce. They actually participated in the formulation of the rules propounded by the court and then, those they represented voted in the election. It comes with ill grace for a faction which had accepted the terms of the election to stand by, await the outcome, and upon dissatisfaction with the result of the election, complain. — 428 — The reliance by appellants upon such cases as Matter of McGuinness v DeSapio (9 AD2d 65) and Bramley v Miller (270 NY 307) is misplaced. Those cases reaffirm the right of sufferage in public matters. No one can quarrel with the proposition that citizens should not be deprived of their votes in matters of public concern. It seems significant even in general elections, that the Court of Appeals has been ready to forgive “minor irregularities or irregularities and improprieties acquiesced in or ratified in some manner, not effecting the deprivation of the opportunity to vote”. In any event, as compared with the elections dealt with in Matter of McGuinness and Bramley (supra), the special election of St. Bartholomew was a private concern of the church, to be decided internally. Municipal elections are quite different from the conduct of an ecclesiastic body. It is no coincidence that from the earliest confrontation between church and secular authorities, even preceding the emergence of the principle in English common law, church affairs have been separated from secular dictation. (See Goebel, Cases and Materials on the Development of Legal Institutions [1946], passim, pp 347-352,354-360.) From the beginning, American legal authority has supported the idea that church matters be left to the church itself. (See, e.g., Bouldin v Alexander, 15 Wall [82 US] 131.) As Justice Hugo L. Black stated in Everson v Board ofEduc. (330 US 1, 16): “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa”. (See, also, McCollum v Board ofEduc., 333 US 203.) The law of New York affirms the principle that the presiding officer at a special meeting of the parish shall be the ultimate judge of its elections. Thus, subdivision 5 of section 43 provides: “5. The presiding officer of such annual or special meeting shall be the rector of the parish, if there be one, or if there be none, or he be absent, one of the church wardens elected for the purpose by a majority of the duly qualified voters present, or if no church warden be present, a vestryman elected in like manner. Such presiding officer shall be the judge of the qualifications of the voters; shall receive the votes cast; and shall declare the — 429 — result of the votes cast. The presiding officer of such annual or special meeting shall enter the proceedings of the meeting in the-book of the minutes of the vestry, sign his name thereto, and offer the same to as many qualified voters present as he shall think fit, to be also signed by them.” (Emphasis added.) An opinion of the Attorney-General states: “The presiding officer of the meeting (the rector), is the judge of the qualifications of voters and he should use his judgment and discretion as to whether an individual is qualified to vote”. (1933 Atty Gen [Inf Opns] 583; see, also, Matter of Williams, 57 Misc 327; Matter of Anthony v Cardin, 91 Misc 2d 506; Rector, Church Wardens & Vestrymen of Church of Holy Trinity v Manufacturers Trust Co., 18 Misc 2d 761, affd 9 AD2d 932, mot for lv to app den 10 AD2d 628.) We reiterate that the plaintiff rector (and the defendants) sought the assistance of Justice Greenfield in setting common grounds for determining the qualifications of individual voters and the election was conducted under the aegis of the rector (hearing of Dec. 16, 1981, p 103). The major reliance of the dissent is that Special Term was mistaken in its reading of subdivision 6 of section 43 of the Religious Corporations Law. Whether its construction was correct or not is by no means critical. Perhaps Justice Greenfield did not follow the language of the statute literally but it is clear that he endeavored to carry out its purposes. With respect to the voter qualification issue, appellants contend that the court below improperly construed the section by limiting qualified voters to those church members who contributed in 1979 or 1980 (as well as 1981), although the statute does not set forth any limitation. As appellants would have it, a member who contributed in 1981 and at a time earlier than 1979 (e.g., 1977 or 1978) is qualified under the statute. Accordingly, it is urged that a substantial number of church members were improperly disenfranchised from voting, and had they been allowed to vote, the outcome well could have been different. Given the statutory language of “Persons * * * who have been * * * contributors to its support for at least — 430 — twelve months prior to such election”, and in keeping with the obvious legislative intent that there must be a “current” showing of church support for a member to qualify, Justice Greenfield gave a practical construction to the statute. The statute reads “at least twelve months prior to such election”. (Emphasis added.) Thus, it is only those parishioners who have contributed during the 12 months prior who can vote under the terms of the section. The court below calculated correctly, at least in part, since the election was held on December 18, 1981 and “twelve months prior to such election” would be some time in December, 1980. A parishioner who contributed only commencing in 1981 would not be eligible under the statutory language. Special Term, by interpreting the section to include “anyone who has made a contribution in the years 1979 or 1980 and makes a further contribution in the year 1981 shall be deemed a qualified voter” may have actually enlarged the franchise. Indeed, if this statute is to be read as requiring current support in 1981, under Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie (105 Misc 2d 904), the Religious Corporations Law imposes only minimum requirements for the voter qualification, and therefore it was reasonable and not violative of this section to mandate, with the consent of the competing factions, additional requirements of a contribution in 1979 or 1980. This construction of the statute establishing minimum voter qualifications, protects the voting rights of parishioners while preserving church affairs from secular domination. Certainly, the construction that isolated contributions made “ad infinitum” before 1979, in addition to a 1981 contribution, would still qualify a member for voting is neither a reasonable nor practical construction of the statute, nor one in keeping with the legislative intent. It may well be that the public has a stake in the architecture or the use to which the physical property of St. Bartholomew’s should be put. In so noting, we do not express an opinion with respect to that question. In that case, however, the appropriate mechanism for regulating — 431 — this use would seem to be the zoning board or the Landmark Commission, not by judicial interference with the affairs of church management. While in our opinion, those presently before the court were not the persons who may legitimately complain about disenfranchisement, it is not our intention to preclude other parishioners, if any, who were not represented below from asserting their right to vote. If any such parishioners deem themselves improperly deprived of their rights, they can now so move to set the election aside on their own behalf and on behalf of those others similarly situated. Appellants also appeal from the order dated December 16, 1981, entered January 5, 1982, denying the motion to. enjoin the December 18, 1981 vote, upon the grounds that the committee was denied access to the relevant church membership and contribution lists for the relevant years (1979 through 1981) and thus was denied an opportunity to determine or challenge the qualifications of those members who were to vote or in fact voted. It appears that contrary to appellants’ contentions, they were given ample opportunity to ascertain the qualified voters from membership lists and to make challenges where deemed appropriate. We further note that this election was closely supervised by the court to assure its regularity. The respondent rector et al., have complained that this court lacks jurisdiction to hear this appeal because the orders appealed from were defective and not properly or timely entered when notices of appeal were filed. However, the order dated November 24,1981 was entered December 23, 1981 and the order dated December 16, 1981 was entered January 5, 1982 and notices of appeal were appropriately amended to reflect said entries. (See CPLR 2001.) Accordingly, the orders of the Supreme Court, New York County (Greenfield, J.), entered December 23, 1981 and January 5, 1982, which, respectively, set forth qualifications of parishioners who voted at the special election on the approval of the sale of church property, and, which denied the defendants-appellants’ application to enjoin the special election of December 18, 1981, should be affirmed, without costs or disbursements.