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FIRST CONGREGATIONAL CHURCH & SOCY. OF BURLINGTON

March 28, 1958

FIRST CONGREGATIONAL CHURCH AND SOCIETY OF BURLINGTON, IOWA, First Congregational Church of Pontiac, Michigan, First Congregational Church of Wauwatosa, Wisconsin, Mayfair Congregational Church of Toledo, Ohio, Malcolm K. Burton, Bruce H. Masselink, Angus MacDonald, Harry R. Butman, Gladys T. Kennedy, Norman S. McKendrick, Roy W. Abel, Richard H. Plock, John G. Pryor and Frederick Grabow, suing on behalf of themselves and all others similarly situated, Plaintiffs,
v.
EVANGELICAL AND REFORMED CHURCH, John T. Beach, as Treasurer and a member of The General Council of the Congregational Christian Churches of the United States, The Board of Home Missions of the Congregational and Christian Churches, The American Missionary Association, The Congregational Home Missionary Society, The Congregational Church Building Society, The Congregational Sunday School Extension Society, The Congregational Board of Ministerial Relief, Congregational Education Society, Congregational Publishing Society, The Annuity Fund for Congregational Ministers, Retirement Fund for Lay Workers, The Corporation for the General Council of the Congregational Christian Churches of the United States, and American Board of Commissioners for Foreign Missions, Defendants



The opinion of the court was delivered by: DAWSON

These are three motions brought by defendants in the above-entitled action.

1. Defendant General Council of the Congregational Christian Churches and defendants Congregational boards, corporations and funds move to dismiss the complaint under Rules 12 and 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. on the grounds that this Court lacks jurisdiction or that its jurisdiction has been improperly contrived, and on grounds of res judicata, or, alternatively, that the Court should exercise its discretion not to accept jurisdiction over the action.

2. Defendant Evangelical and Reformed Church moves for judgment dismissing the complaint pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure on the grounds that the Court is without jurisdiction of the subject matter and that the complaint fails to state a claim on which relief can be granted.

 3. Defendant American Board of Commissioners for Foreign Missions moves to dismiss the action as against it for failure of jurisdiction over the defendant in that the defendant is not doing business within the Southern District of New York, or, alternatively, that the Court should decline jurisdiction over a matter dealing with the internal affairs of a foreign corporation.

 Nature of the Action

 The action is brought as a representative action, seeking a declaratory judgment, by a number of Congregational Christian Churches and ministers and members of Congregational Christian Churches who also are, or were, members of the General Council of the Congregational Christian Churches of the United States, and by corporate members of The Board of Home Missions of the Congregational Christian Churches and of the American Board of Commissioners for Foreign Missions, and members of The Annuity Fund for Congregational Ministers. The action is brought to determine questions of the validity, interpretation and construction of a purported written agreement entitled 'The Basis of Union of the Congregational Christian Churches and The Evangelical and Reformed Church' and The Interpretations' and to determine questions in respect of the rights and other legal relations of plaintiffs and those similarly situated arising out of and in connection with said agreement, and their rights as affected by the proposed or existing merger of the Congregational Christian Churches and the Evangelical and Reformed Church into the United Church of Christ. Plaintiffs say that they and a large number of Congregational Christian Churches and members thereof are opposed to the union of the Congregational Christian Churches and the Evangelical and Reformed Church, and plaintiffs seek a declaratory judgment that the various agreements for the merger of the churches and establishing the proposed new United Church of Christ are invalid as to themselves and invalid to change or affect the status, income, assets or junctions of defendant Council, boards, funds and corporations. They seek to have their rights in said boards, funds and corporations declared.

 The Issue of Res Judicata

 The two motions brought on by the Congregational defendants and by the Evangelical and Reformed Church raise principally the issue of the effect of a prior litigation in the New York State courts, which was entitled, 'Cadman Memorial Congregational Society of Brooklyn and The Cadman Memorial Church, suing on behalf of themselves and other Congregational Christian Churches similarly situated, against Helen Kenyon, as Moderator of the General Council of the Congregational Christian Churches of the United States.' See Sup.Ct.Kings Co., 1950, 197 Misc. 124, 95 N.Y.S.2d 133, reversed App.Div.2d Dept., 1952, 279 App.Div. 1015, 1074, 111 N.Y.S.2d 808, affirmed 1953, 306 N.Y. 151, 116 N.E.2d 481. Movants contend that the above litigation was a representative action which determined adversely to the present plaintiffs the issues which have been raised by the complaint in this suit. Plaintiffs counter that this is not the case, that the issues in the present suit are different from those in the New York suit; that the parties are different, and that the New York court did not, in fact, enter a declaratory judgment which would have a binding effect on the parties here. Plaintiffs also contend that the facts have changed since the time the New York State court adjudicated the matter and, additionally, that admissions and concessions of the defendants in that case have been breached and are not binding upon the additional parties defendant in this litigation.

 Since the prior New York litigation presents the principal issue here, it is necessary to present a brief review of conceded and apparent facts of the litigation and of the history of the litigation in the New York State courts. The controversy in the New York courts, as here, was concerned with the plan of union under which the Congregational Christian Churches of the United States and the Evangelical and Reformed Church proposed to unite, or have united, under the name of The United Church of Christ. The Congregational Christian Churches approximate 5,800 churches in America, which by tradition and usage are independent, self-governing fellowships without any central ecclesiastical control. These churches were or are organized in district associations, State conferences and conventions and a General Council national in scope. The membership in this group numbers over 1,300,000.

 The Evangelical and Reformed Church is or was a Protestant denomination of national scope consisting of congregations, synodical units and an ecclesiastical governing body having jurisdiction over such congregations and their members, ministers and organizations. At the time of the Cadman suit this church consisted of approximately 2,800 churches having a membership of over 700,000 persons.

 The Cadman Church, which was the plaintiff in the New York State court action, is one of the oldest and largest of Congregational Christian Churches, and is located in Brooklyn, New York. The General Council of the Congregational Christian Churches, which was the defendant in the New York State court action, is a voluntary association of Congregational Christian Churches, national in scope, having a constitution, by-laws and standing rules. According to its constitution its membership is made up of both laity and clergy representing individual Congregational Churches, local associations and district conferences or conventions and affiliated colleges and theological seminaries, as well as certain other designated groups or classes of persons, such as ex-officio members of the conferences or conventions, representatives of home and foreign missions, honorary members, ecumenical members and certain others, by invitation, the latter enjoying the privilege of the floor but having no vote.

 A Commission on Interchurch Relations and Christian Unity, representing the General Council and a committee representing the Evangelical and Reformed Church, after several years of study and negotiations, developed the document called 'The Basis of Union of the Congregational Christian Churches and the Evangelical and Reformed Church and the 'Interpretations,' and adopted the final form of this document in January of 1947. The document was submitted to the individual Congregational Christian Churches and State conferences who voted upon it, and it appears that about 72% of those voting approved the Basis of Union, as did 90% of the associations and district conferences. The General Council, at a meeting held in February 1949, voted (757 for and 172 against) to consummate the plan and so advised the Evangelical and Reformed Church, which itself approved the plan.

 It appears that a group of Congregational ministers and members of Congregational churches, who were opposed to the proposed merger, formed into a voluntary association called 'The Committee for the Continuation of the Congregational Christian Churches of the United States.' On April 18, 1949, the Cadman Memorial Congregational Society of Brooklyn, a New York religious corporation, and the Cadman Memorial Church, an unincorporated religious body affiliated with the Cadman Memorial Congregational Society, filed suit in the Supreme Court of New York State against Helen Kenyon, as Moderator of the General Council of the Congregational Christian Churches of the United States. The Cadman Memorial Congregational Society has custody and control of the temporalities and property of the Cadman Memorial Church and the Cadman Memorial Church conducts services of worship and other religious activities in the church edifice located in Brooklyn. The complaint in the Cadman action was framed as a representative action and the plaintiff church alleged itself to be suing for the benefit of all churches similarly situated. It alleged that a large number of Congregational churches were opposed to the merger of the Congregational Christian Church with the Evangelical and Reformed Church on the Basis of Union, and that a larger number of said churches had not voted on the merger. The complaint stated that the questions involved were of common or general interest to all of such churches and it would be impractical to bring them or any number of them before the Court. The complaint in that case is part of the record on appeal submitted to the New York Court of Appeals and is one of the exhibits before this Court on this motion. The complaint is in 27 paragraphs, with 8 additional paragraphs praying for declaratory judgment and injunction. The counsel for the Cadman Church in the New York action was the law firm of Davies, Hardy, Schenck & Soons, of New York City, who are counsel for the plaintiffs in the present action.

 The New York Court of Appeals made a good summation of the complaint in its opinion rendered in the case. It stated:

 'The plaintiff seeks a judgment declaring that the General Council has no power or authority to consummate the Basis of Union on its behalf or other Congregational Christian Churches, and that any Congregational Christian Churches uniting with the propose United Church of Christ, as proposed in the Basis of Union 'will cease to be churches of that (Congregational) fellowship and denomination and cease to have any right or interest in or any connection with the corporations, commission, board, agencies and instrumentalities representing or acting for or under the direction and control of the Congregational Christian Churches or the funds and properties thereof' and that any Congregational Christian Churches who do not join with the United Christian Church, will 'remain the Congregational Christian Churches entitled to all the rights and privileges presently possessed and enjoyed by such churches' including 'the control and benefit of all the corporations, commissions, boards, agencies and instrumentalities which now represent and act for or are under the direction of the present Congregational Christian Churches' and that the United Church and all those who join with it shall have no interest therein.

 'As an incident thereto it seeks injunctive relief to restrain the General Council, its members and officers, from consummating the Basis of Union and to restrain the General Council, its agencies and instrumentalities from merging or transferring and mingling their funds and assets with the Evangelical and Reformed Church or with the United Church of Christ.' Cadman Memorial Cong. Soc. v. Kenyon, 1953, 306 N.Y. 151, at page 161, 116 N.E.2d 481, at page 484.

 After a trial of over twenty days the Supreme Court of New York issued an opinion and judgment finding for the plaintiffs and granting substantially the declarations and the injunction they had sought. The opinion comprised some thirty-six pages.

 The decision of the trial court declared that the General Council of the Congregational Christian Churches has no power or authority on behalf of or in the name of the separate churches to proceed with or to carry out and consummate The Basis of Union of the Congregational Christian Churches and the Evangelical and Reformed Church; and that the General Council also has no power or authority to merge or unite itself with the Evangelical and Reformed Church, or with the General Synod, or with any other body or organization whatsoever. The judgment also declared that no acts taken by the General Council in attempted consummation of The Basis of Union will affect the separate Congregational Christian Churches, except in so far as individual churches shall, by independent action, unite with the new church attempted to be created under said Basis of Union, nor would those acts control in any manner the plaintiffs in their temporal or spiritual rights or possessions. The judgment also declared that no prior vote would commit a church as a member of the United Church of Christ and declared that the policy of the Congregational Christian Churches is that system which recognizes the independence and autonomy of the local church in all matters temporal and spiritual, and the association of churches through voluntary, independent organizations devised for fellowship and cooperation but without ecclesiastical authority. The judgment also declared that there was in existence a named group of corporations, boards and agencies of the Congregational Christian Churches controlling large sums of money and properties, listing some twelve boards (all of whom are defendants in the present action), and declaring that all of these boards, agencies, etc., except as otherwise required by express trusts, are held or controlled in trust for the benefit and activities of the Congregational Christian Churches and for the purpose of carrying out and aiding the Christian way of life through the principles of the Congregational Christian Churches and may not be alienated from those purposes. See Cadman Memorial Cong. Soc. of Brooklyn v. Kenyon, Sup. Ct. Kings County, 1950, 197 Misc. 124, 95 N.Y.S.2d 133.

 This judgment of the Supreme Court was reversed by the Appellate Division, 2d Department, in 1952; 279 App.Div. ...


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