FEO tnarcia J. Rqf:PJGEL CLERK SUPREIUIP CpURT qf OHIO IN THE SUPREME COURT OF OHIO. Supreme Court Case No

Transcription

1 IN THE SUPREME COURT OF OHIO JOHN J. PLOUGH, ET AL Plaintiffs-Appellants V. ) Supreme Court Case No Court of Appeals Case No P 0083 Eleventh Appellate District JOHN LAVELLE, ET AL Defendants-Appellees MEMORANDUM OF FATHER JOHN-MICHAEL LAVELLE, THE MOST REVEREND THOMAS J. TOBIN, AND IMMACULATE CONCEPTION ROMAN CATHOLIC CHURCH IN RESPONSE TO MEMORANDUM IN SUPPORT OF JURISDICTION JOHN J. PLOUGH, pro se Appellant ( ) 447 Madison Street Ravenna, OH Fax No.: bostonion47@vahoo.com DONALD MITCHELL ( ) 2866 Fishcreek Road Stow, OH Counsel for Appellants, Cyrus B. Plough Norman Mack, Edward Grodecki, Jr. and Robert Drugan MICHAEL RYZMECK, Asst. Atty. General 150 E. Gay Street Columbus, OH Counsel for Attorney General MARY BETH HOUSER ( ) Newman, Olson & Kerr 11 Federal Plaza Central, Ste Youngstown, OH mhousernnoklaw.com Counsel for Appellees, Fr. John-Michael Lavelle, Diocese of Youngstown, Bishop Thomas J. Tobin, and Immaculate Conception Roman Catholic Church FEO tnarcia J. Rqf:PJGEL CLERK SUPREIUIP CpURT qf OHIO

2 TABLE OF CONTENTS RESPONSE TO CLAIM THAT THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST RESPONSE TO STATEMENT OF THE CASE AND FACTS RESPONSE TO ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW RESPONSE TO PROPOSITION OF LAW I PAGE RESPONSE TO PROPOSITION OF LAW II RESPONSE TO PROPOSITION OF LAW III RESPONSE TO PROPOSITION OF LAW IV CONCLUSION PROOF OF SERVICE i

3 Now come the Reverend John-Michael Lavelle, The Most Revered Thomas J. Tobin and Immaculate Conception Roman Catholic Church (Appellees) and file their Response to the Memorandum in Support of Jurisdiction filed by Appellants. RESPONSE TO CLAIM THAT THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST The Appellees strongly disagree with the contention of the Appellants that this case is a case of public or great general interest, or that it involves a substantial constitutional question. This case is about landscaping a cemetery property: It is hardly an issue that rises to the level of consideration by the highest Court in the State of Ohio. The Appellants have been relentless in their attack on Reverend John-Michael Lavelle, Pastor of Immaculate Conception Roman Catholic Church, in Ravenna. Father simply wants to clean up and improve a small parish cemetery. Father wants to solve drainage problems, build a chapel and mausoleum, perhaps widen the road, construct a fence around the perimeter, and plant trees and bushes that are easy to maintain. In the process, trees are being removed and some of those trees are large and old. The bottom line in this case is whether the Pastor of a Roman Catholic Church, that operates a small parish cemetery, has the authority to remove trees on the cemetery grounds. This is a case of very limited interest to a small group of people who are the Appellants in this case. The cemetery is not being closed. The cemetery is not being desecrated. The cemetery is not being covered with gravel or made into a carnival ground as Appellants suggest. The cemetery is being landscaped. The Appellants do not like the -]-

4 fact that large trees will be removed in the process, but that does not make this a case worthy of the attention of the Ohio Supreme Court. Appellees have been successful in defending themselves against Appellants at the trial level and at the appellate level, both during the case in chief and on reconsideration. The complaints of the Appellants were heard by the Ohio Cemetery Dispute Resolution Commission, which found no basis for wrongdoing by Father, and took no action on the complaints of Appellants. The Ohio Attorney General is a party to this action but has taken no action in the case. At some point, reasonable minds must prevail to end the expense of the limited resources of the Church in the defense against Appellants' complaints. It is likely that more trees have suffered destruction to create the paper used by the parties and the Courts in this case than are slated for removal at the cemetery. While Appellants have been relentless in their attacks against Father Lavelle, they have not been entirely consistent. The decision of the Court of Appeals is based in part on Appellants' claim that they are members of the congregation of Immaculate Conception Church, of which St. Mary Cemetery is a part. The Appellants further claim that as members of the congregation, they are beneficiaries of the charitable trust under which the cemetery is held. As beneficiaries they claim they have rights under the trust that are enforceable in the civil courts. Appellees contend that the congregation of hnmaculate Conception Church is the beneficiary of the trust. The beneficiary is not a particular individual parishioner or group of five or ten individual parishioners, but rather the congregation as a body. The governance of a Catholic congregation is set forth in Canon Law, which is the law of the -2-

5 Catholic Church. If Appellants are, for argument's sake, really parishioners of Immaculate Conception Church, they voluntarily submit themselves to the laws of the church, and their dispute will be handled in the Church's tribunal. The Appellate Court agreed with the position of the Appellees after applying well established case law. Now the Appellants try to present themselves to this honorable Supreme Court as plot holders and/or descendants of plot holders at the cemetery. While they still refer to themselves as beneficiaries of the charitable trust, they no longer claim to be members of the Congregation of Immaculate Conception Church. They now claim to be secular third parties. RESPONSE TO STATEMENT OF THE CASE AND FACTS The first two sentences under Appellants' Statement of the Case and Facts read in part "This case involves beneficiaries of a charitable trust... Appellants are either plot holders and/or descendants ofplot holders at the cemetery... ". This statement is different from the position that Appellants set forth in their Response to Defendants' Motion for Summary Judgment. At that time, Appellants stated "Plaintiffs submit that they and their ancestors buried in St. Mary's Cemeteryare or have been members ofthat congregation and thus are entitled to beneficiary status". (Defendant/Appellants' Response to Plaintiff's Motion for Summary Judgment, Page 12). On pages 9-10 of the Brief filed with the Eleventh District Court of Appeals by Plaintiffs-Appellants, Cyrus B. Plough, Norman Mack, Robert Drugan and Edward Grodecki, Jr., Appellants state: -3-

6 "While some ofappellants may indeed have written license agreements... with the cemetery.... Appellants suggest the same are irrelevant, since the principal thrust oftheir argument is they are beneficiaries of the very deed which gives legal title to the Bishop in the first place. The deed is replete with the words "trust" and "trustee", and the logical question is therefore who are the beneficiaries of the trust? The deed specifically answers with the inclusion of the words "... primarily for the use and benefit ofthe several congregations..." The change in position by the Appellants is significant. The parties agree "... that the cemeteryproperty is the subject res ofa charitable trust explicitly setforth in a recorded warranty deedsigned and witnessed on February 1, " (Plough v. Lavelle,l I Dist. No P-0083, 2006 Ohio 6200, Paragraph 15). The Court of Appeals explained that the deed conveyed ownership of the cemetery property to Bishop Tobin in trust "... under the Rules, Regulations, Canons and Discipline of the Roman Catholic Church, primarily for the use and benefit of the several congregations, institutions, and agencies of the said Diocese of Youngstown." ((Plough v. Lavelle, 11 Dist. No P-0083, 2006 Ohio 6200, Paragraph 15) emphasis added. There is no dispute that the St. Mary cemetery is a part of Immaculate Conception Church. It is clear that the beneficiary of the charitable trust is the congregation of Immaculate Conception Parish. The Appellants, as members of the congregation of Immaculate Conception Parish, and by virtue of their membership, consented to the Rules, Regulations and Discipline of the Catholic Church, including the authority of the Pastor to govern his parish property and the authority of the Church's own tribunals to moderate and resolve disputes within the Church. The Appellate Court incorporated into its Opinion the often quoted language of Watson v. Jones (1871), 80 U.S. 679, 729, "... those who unite -4-

7 themselves to such a body [f.e. the Church] do so with an implied consent to [its] government, and are bound to submit to it. " After losing on this point, Appellants now recast themselves as "... plot holders and/or descendants ofplot holders at the cemetery....". They apparently have disowned their claimed membership in the congregation of Immaculate Conception Church. If that is their current position, then they cannot maintain they are beneficiaries of the charitable trust that is the subject of this action and the basis for the decision of the Court of Appeals. Their argument is reduced to a simple contract claim about their rights as alleged property owners. On Page 2 of their Memorandum in Support of Jurisdiction, the Appellants state, "Once a church enters into the business ofselling cemetery plots, purchasers of a property interest therein have a right to review of arbitrary decisions by a fzduciary that effect their rights in such property. " Again, Appellants no longer describe themselves as members of the Congregation of Immaculate Conception Church, but rather participants in a business transaction; purchasers of property. If that is their newly claimed status, then this certainly is not a case of public or great general interest, nor does it involve any constitutional question. Appellants recast and mischaracterize the facts throughout their Memorandum in Support of Jurisdiction. On page 2 of their Memorandum, Appellants describe the Church's investigation and review ofthis dispute as taking place "... without notice to Appellants and without input by Appellants." Contrast this with the statement on page 5 in the Reply Brief ofplaintiffappellants filed with the Court of Appeals on June 26, 2006, in which Appellants -5-

8 acknowledge thatthe offer of the churchto resolve the dispute through the Church Tribunal's Conciliation Process was discussed with Plaintiffs before the written notice was forwarded. Plaintiffs-Appellants acknowledge that they rejected the offer, stating "PlaintiffsAppellants had told the trial court judge and Defendants' attorneys before the alleged [written] offer was made by the church that such an offer would not be acceptable." In addition, the Affidavit of Monsignor Michael Cariglio, which is attached to Defendants-Appellees' Motion for Summary Judgment and a part of the record in this case testifies that notice was forwarded to Atty. Plough (at that time Plough was a Plaintiff as well as counsel for all Plaintiffs in the case) by certified mail, regular mail, and facsimile transnussion and copies of the certified mail return receipt card and facsimile transmission report are attached to Monsignor's Affidavit. The Plaintiffs-Appellants, in their Memorandum in Support of Jurisdiction, on page 8, seem to admit receipt of the letter from Monsignor Cariglio, but state that the "alleged letter" was never opened by John Plough. It is a blatant mischaracterization of the facts to now assert that the church had a "Secretive hearing... without notice to Appellants. " Appellants had verbal notice, notice by mail and notice by facsimile. Another misstatement of fact is made on Page 5 with Appellants claiming that Father Lavelle "... admitted that he acted arbitrarily. " No such admission has ever been made on the record ( or off the record, for that matter). On page 7 of the Memorandum in Support of Jurisdiction Appellants make reference to the removal of certain trees for "... alleged reasons given by Defendant Lavelle after the fact, which have all been proven either wrong or unnecessary." There is no support for this -6-

9 statement anywhere in the record. To the contrary, the findings of the Ohio Cemetery Dispute Resolution Commission, which heard the complaints of the Appellants, is attached to the Affidavit of Father Lavelle in support of Defendant's Motion for Summary Judgment. Among other things, the Conunission found "... no basis for any violation of Ohio Revised Code Chapter " and "... no basis for any violation to refer the matter to any prosecutor." On Page 9 of their Memorandum in Support of Jurisdiction, Appellants discuss the mediation process held at the Appellate court level. Appellants state "... none of the defendants attended. " They fail to mention that Fr. Lavelle was conducting a funeral that moming and the subsequent burial of a parishioner at St. Mary Cemetery, and that Father was available by telephone to counsel for Appellees, who attended the entire mediation. Appellants also fail to mention that Bishop Tobin was appointed as Bishop of the Diocese of Providence, was no longer Bishop of Youngstown, and a replacement had not yet been appointed as of the date of the mediation. (Affidavit of The Most Reverend Thomas J. Tobin, Bishop Administrator of The Roman Catholic Diocese of Youngstown, in support of Defendant's Motion for Summary Judgment, Paragraph 2.) Finally, on Page I I of their Memorandum in Support of Jurisdiction, Appellants further misstate the facts as follows: "Appellants have contended, and proven, that the decision of Defendant Lavelle, as a designee ofthe trustee was not only arbitrary and unnecessary, but contrary to the wishes of the benef:ciaries. " -7-

10 While it is true that the actions of Father Lavelle are contrary to the wishes of the Appellants, the Appellants are not the beneficiaries ofthe charitable trust. The Congregation of Immaculate Conception is the beneficiary of the charitable trust. The record is clear that Father Lavelle consulted with the Parish Council of Immaculate Conception Church relative to his plans for the improvements to the cemetery ( Affidavit of Father Lavelle in Support of Defendants' Motion for Summary Judgment, Page 8). Parish Council is a consultative body that assists Father Lavelle in his decision making (Affidavit of Bishop Tobin in Support of Defendants' Motion for Summary Judgment, page 9). "The Parish Council and its committees, consisting oflayparishioners and parish staffare elected/appointed to assist and support the pastor. This is a consultative body that advises the pastor in his decision making. " (Affidavit of Monsignor Michael Cariglio, in Support of Defendants' Motion for Summary Judgment, Paragraph 7). Based on the facts as set forth in the record of this case, the Appellants are entirely wrong in their statement. Appellants have not proven that Father acted contrary to the wishes of the charitable trust beneficiary. While these are only some examples of the misstatements made by Appellants in their Memorandum in Support of Jurisdiction, they should be enough to expose the blatant mischaracterization of the case by Appellants. Rather than being a case of Public or Great General Interest, these are the angry, vituperations of some disgruntled people who want to challenge the authority of the pastor to administer parish property. RESPONSE TO PROPOSITION OF LAW NO. I This case does not involve a substantial constitutional question. The Court of -8-

11 Appeals merely applied the long established case law that recognizes that civil courts lack subject matter jurisdiction in Church disputes that involve matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. In Mannix v. Purcell (1888) 46 Ohio St. 102, the Ohio Supreme Court recognized the manner in which a Roman Catholic Bishop holds title to real estate in his diocese, in trust, in accordance with the canons and decrees of the Catholic Church. Mannix, Id, Syllabus by the Court. The Court further explains that the beneficiary of the trust is not a particular individual or individuals, but rather: "The individual recipients of the charity are constantly changing. For illustration, take the case of a congregation of one of the churches in question. It may be that among those who comprise it there is not one member who worshiped there ten years ago; yet it is, in legal contemplation, the same congregation. It is the congregation for whose use, as a place of worship, the church has been from the first devoted Its name and the location of its place of worship render its identification easy. " 140. While Appellants assert that the Mannix case stands for the proposition that the beneficiaries are the members of the congregation, the Mannix case really establishes that the beneficiary is the congregation, as a whole, the members of which are constantly changing. With regard to real property in the Diocese, the court explains: "The legal title to all this property is in the bishop, while the equitable or beneficial interest is in the several congregations, and others for whose several uses they are respectively held... Each piece of property is held upon a separate trust, and for a distinct use. "

12 Because St. Mary Cemetery is a part of Immaculate Conception Church, it is a parish cemetery that is held in trust for the benefit of the congregation of Immaculate Conception Church (Affidavit of The Most Reverend Thomas J. Tobin, in Support of Defendants' Motion for Summary Judgment, Paragraph 4). The Mannix case involved the attempt by the Plaintiff, John Mannix, to exercise control over property owned by Archbishop Purcell. The Archbishop made a personal assignment to Mannix of real estate that he owned in order to satisfy his personal debts. The Archbishop did not intend to assign archdiocesan property that he held in trust, in his capacity as bishop, for the benefit of his Catholic flock. At issue in the case was whether the diocesan churches, cemeteries, orphanages and schools could be sold to satisfy the personal debts of the Archbishop. The Court held that a trust did exist for the benefit of the various congregations within the archdiocese. The Court acted in this case to prevent the total destruction of the trust by a third party who would have auctioned off church property to the highest bidder in order to satisfy a debt. The Mannix case did not involve beneficiaries arguing with their pastor about. the landscaping at a cemetery. The Mannix case involved Archbishop Purcell and the Church beneficiaries challenging the right of a third party creditor to destroy the trust created for the benefit of the Catholic faithful. Explaining the role of the beneficiaries, the Court wrote: "Instead of asking that the execution of the trusts be decreed, they simply pray that their destruction be averted. They are content that the legal title to this property should remain where by all the canons of the church it has for so many years been reposed, but they pray that the uses to which during -10-

13 all these years it has been devoted be not abused, perverted or destroyed. " 136. There is no allegation made that Father Lavelle is destroying the very essence of the trust that is St. Mary Cemetery. There is no allegation that burials are not conducted, or graves are being desecrated. There is no allegation that the cemetery is being sold to satisfy the personal debts of the bishop or Father Lavelle. The trust remains in tact. The cemetery remains a Catholic cemetery. Father Lavelle is using his best judgment, after consultation with the duly elected/appointed Parish Council for Immaculate Conception Church, to improve the Cemetery. RESPONSE TO PROPOSITION OF LAW NO. II For the first time in these proceedings Appellants raise issues of due process of law under the Ohio and United States Constitutions. This issued was not raised previously, and therefore not properly preserved for this appeal. Belvedere Condominium Unit Owners' Association v. R.E. Roark Cos., Inc. (1993) 67 Ohio St. 3d 274, 617 N.E. 2d In addition, Appellees have already refuted Appellants' claim that they had no notice or knowledge of the investigation by Monsignor Cariglio. As the Appellate Court explained in its Judgment Entry denying Appellants' Motion for Reconsideration: "Appellants were offered an opportunity to be heard through a conciliation process by the Tribunal of the Diocese of Youngstown. However, they declined the invitation and chose to move forward with civil proceedings which did not work out in their favor. This was a calculated risk. However, the unfavorable result does not imply the trust violates public policy. " Plough v. Lavelle, Judgment Entry on Reconsideration, Page

14 RESPONSE TO PROPOSITION OF LAW NO. III Appellants raise for the first time in these proceedings that the rights of the Appellants to equal protection of the law under the Fourteenth Amendment of the United States Constitution, have been violated. Because this issue was not previously raised, it has not been preserved for this appeal. Belvedere Condominium Unit Owners' Association v. R.E. Roark Cos., Inc. (1993) 67 Ohio St. 3d274,617 N.E. 2d In addition, Appellants seem to claim that the ruling of the Appellate Court tied the hands of the Ohio Attorney General. The Ohio Attorney General has been a party to this case since the Amended Complaint was filed with the trial court, but has sensibly chosen not to take an active role in the dispute. RESPONSE TO PROPOSITION OF LAW NO. IV Appellants raise for the first time the First and Fourteenth Amendments to the United States Constitution. Appellants never raised these issues with the lower courts, and therefore have not properly preserved these arguments for appeal. Belvedere Condominium Unit Owners' Association v. R.E. Roark Cos.. Inc. (1993) 67 Ohio St. 3d 274, 617 N.E. 2d The appellate court correctly applied the well settled case law that requires a civil court to refrain from adjudicating disputes that involve ecclesiastical or spiritual disputes of a church, Presbyterian Church v. Hull Church (1969), 393 U.S Civil courts must accept the decisions of the highest judicatories of a hierarchical religious organization on matters of discipline, faith, internal organization or ecclesiastical rule, custom or law. Serbian E. Orthodox Diocese v. Milwojevich (1976), 426 U.S

15 Although Appellants nowtry to castthemselves as "secular thirdparties," they cannot escape their previous self description as members of the congregation of Immaculate Conception at this stage in the litigation. They want now to be considered "secular third parties" in order to claim a reliance on the holding in Niemann v. Cooley, 93 Ohio App. 3d 81 (1994). In Niemann the Appellate Court held that the Archdiocese of Cincinnati had to comply with a discovery order of the trial court requiring an in camera inspection of the file pertaining to a priest (Fr. Cooley) who was accused of sexually abusing a minor. The file was contained within the Church's secret archive. The resolution by the civil court of a discovery dispute in a sex abuse case is substantially different from the dispute in the instant case. The Niemann case has no bearing on a case involving a pastor's right and responsibility to administer parish property. CONCLUSION For all of the reasons set forth herein, Appellees respectfully request that this honorable Supreme Court dismiss the appeal of Appellants. Respectfully submitted, MARY BL>T HOUSER Reg. No Newman, Olson & Kerr, LPC 11 Federal Plaza Central, Ste Youngstown, OH Phone: mhouser@noklaw.com Attorney for Appellees

16 PROOF OF SERVICE A copy of the foregoing was sent to the following by regular U.S. Mail, postage prepaid, this 9`I' day of February, 2007: John J. Plough PO Box 72 Ravenna, OH Pro Se Donald Mitchell 2866 Fishcreek Road Stow, OH Attorney for Appellants, Mack, Grodecik & Drugan Michael Rzymek Assistant Attorney General Charitable Law Section 150 E. Gay Street, 23`d Floor Columbus, OH Atty. For State of Ohio, Ex Rel, Attorney General, Jim Petro Frank Cimino City of Ravenna 250 S. Chestnut Street Ravenna, OH Atty. For Defendant, City of Ravenna ^ I ll Mary B Houser, # Attorney for Appellees M:lpleadings\miscellaneous5plough-supremect.wpd -14-