Opinion
No. CV03-0475096
February 24, 2005
MEMORANDUM OF DECISION ON MOTION TO BE MADE A PARTY
In this case the plaintiff claims that when he was a youth he was sexually abused by the defendant priest, Stephen Foley. Suit has been brought against Foley, Christ the King Church, and the Archdiocese of Hartford seeking monetary, exemplary, and punitive damages, and attorneys fees. In the motion before the court Roger Frechette moves to be made a party defendant pursuant to P.B. § 9-18 which tracts § 52-107 of the General Statutes. Frechette moves for (1) intervention as of right and (2) permissive intervention. Frechette moves to be made a party defendant because he is a contributor to Christ the King Church and the Archdiocese and "he has both a legal and financial interest in this case which the judgment will affect. Judge Devlin denied a similar motion to intervene in Collins v. Hartford Roman Catholic Diocesan Corp., Christ the King Church, and Reverend Foley, (CVO3-0477873-S) writing an opinion dated October 26, 2004. This court has the advantage of that opinion in which Judge Devlin concisely sets forth the interest that Frechette argues entitle him to be made a party:
Practice Book Section 948 reads as follows:
The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party.
Frechette asserts that pursuant to both Canon Law and Connecticut Statutes, monies contributed to the Roman Catholic Church are held for the purposes of maintaining religious worship and for the support of the Church's educational and charitable institutions. Accordingly, neither a local church nor an archdiocese may be divested of its property because of the wrongs of abusive priests. In other words, an abuse victim may seek compensation from the offending priest and, if proven, a pastor, other priests or even a bishop, but may not seek compensation from the property of a local church or archdiocese. As particularized to himself, Frechette asserts that the payment of damages to the plaintiff in the present case out of church assets would be an illegal use of his money.
It is also suggested by Frechette that to permit compensation from the property of the local church or the archdiocese would impede his and those in his situation in the free exercise of their religion raising First Amendment issues.
The question is not whether there is any substantive merit to these claims but rather whether Frechette can intervene in this litigation to raise them.
What must be decided is whether Frechette has a right to intervene or if there is no intervention as of right whether the court should exercise its discretion and allow permissive intervention. Section 9-18 of the Practice Book does not explicitly refer to the two types of intervention. But Horton v. Meskill, 187 Conn. 187 (1982) in discussing intervention under the predecessor Practice Book Section to § 9-18, § 99, references Rule 24 of the Federal Rules of Civil Procedure which talks of intervention as of right in subsection (a) and permissive intervention in subsection (b). Horton v. Meskill, indicates that under § 99 there is intervention as of right, 187 Conn. pp. 191-96, and also indicates that under § 99 there can be permissive intervention, 187 Conn. at pp. 197-99. See also Washington Trust Co. v. Smith, 241 Conn. 734 (1997) alluding to this aspect of Horton v. Meskill at page 741. Horton v. Meskill, id. page 192 and Washington Trust Co. v. Smith also make clear that "where state precedent is lacking (on intervention issues) it is appropriate to look to authorities under the comparable federal rule, in this case Rule 24 of the Federal Rules of Civil Procedure."
Rule 24 reads as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Intervention as of Right
In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134 (2000) the court analyzed state and federal case law and held that under Federal Rule 24a four requirements must be met as under our P.B. § 9-18 to obtain intervention as of right, id. p. 140.
(1) The motion to intervene must be timely.
(2) The movant must have a direct and substantial interest in the subject matter of the litigation.
(3) The movant's interest must be impaired by disposition of the litigation without the movant's involvement.
and
(4) The movant's interest must not be represented adequately by any party to the litigation.All four parts of the test must be met to qualify for intervention as of right. U.S. v. State of New York, 820 F.2d 554, 556 (CA. 2, 1987), Washington Electric v. Mass. Mun. Wholesale Elec. et al., 922 F.2d 92, 96 (CA. 2, 1990). The court will discuss the second requirement because it perceives that the problem with Frechette's position is that he does not have a "direct and substantial interest in the subject matter of (this) litigation." The subject matter of the litigation for these purposes is the money or other assets of the local church and of the archdiocese.
Judge Devlin reasoned that compared to cases where intervention was allowed "Frechette's interest is more attenuated than those of successful intervenors." He then refers to three cases to support this proposition:
See e.g., Washington Trust Co. v. Smith, supra, 241 Conn. 748 (purchaser of equity of redemption allowed to intervene in foreclosure action); Wallingford Center Associates v. Board of Tax Review, supra, 68 Conn.App. 812 (person who purchased real estate at a time when prior owner had a pending tax appeal concerning the assessed value of property held to have direct and substantial interest in the litigation such that intervention of right required); Rosado v. Bridgeport Roman Catholic Diocesan Corp, supra, 60 Conn.App. 148 (seven priests allowed to intervene in lawsuit against a different priest in order to contest disclosure of their personnel files). Rosado makes clear that, so long as the movant has a direct and substantial interest in the proceedings, the intervenor need not have a direct interest in the judgment as between the existing parties to the litigation. Id., 145. Accord, Milford v. Local 1566, supra 200 Conn. 98 (state board of mediation and arbitration allowed to intervene in case seeking vacation of arbitration award in an employment dispute, the outcome of which was of no interest to the Board).
Frechette's asserted interest is not in this lawsuit per se, but rather in how Christ the King Church or the Archdiocese of Hartford would pay any judgment that might be rendered against them. This is a different type of interest that those asserted in the above cases. Those interests were immediate and direct to the litigation, while Frechette's interest is contingent and indirect.
This court agrees with Judge Devlin and would only add a few comments of its own. The Connecticut Appellate cases have not had much occasion to articulate the exact nature of what is meant by a direct and substantial interest. The federal courts have made this attempt. Two instructive cases are Washington Electric v. Mass Municipal Wholesale Electric Co., 922 F.2d 92 (CA. 2, 1990), and Mountain Top Condo v. Master, 72 F.3d 361 (CA. 3, 1995).
In the Mountain Top Condo case the court said
In defining the contours of a "significantly protectible" legal interest under Rule 24(a)(2), we have held that, "the interest must be a legal interest as distinguished from interests of a general and indefinite character" . . . The applicant must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene . . . This interest is recognized as one belonging to or being owned by the proposed intervenor . . . We must therefore determine whether the proposed intervenors are real parties in interest,
Id. page 366.
The court at the same page went on to note that a mere economic interest may be insufficient to support the right to intervene, an intervenor's interest in a specific fund is sufficient to entitle intervention in a case affecting that fund. One of the putative intervenors argued and the court accepted that certain funds deposited in district court in connection with the litigation were assets of an express trust of which they, along with others were the intended beneficiaries, id. page 367. The court went on to further hold that while the putative intervenors "may not have an interest in the merits of claims (pending in the underlying action), they do have an interest in property over which the court has taken jurisdiction," id. p. 368. Based on the foregoing reasoning, the court held that these parties had met the "significantly protectible interest" test for Rule 24(a) intervention.
The problem here is that, despite the fact that Frechette and other parishioners may have contributed, by way of charitable contributions, gifts to create the liquid and non-liquid assets of their local church and the archdiocese, this does not give Frechette a "significantly protectible interest" in those assets. In Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1 (1997) dealing with the issue of standing the court, among other things said at page 8 "Where the donor has effectually passed out of himself (herself) all interest in the fund devoted to a charity, neither (the donor) or those claiming under (the donor) have any standing in a court of equity as to its disposition and control." This is just a variation of the common-law rule that "In the absence of a resulting or constructive trust a completed gift is irrevocable," Manyak v. Manyak, 29 Conn.Sup. 1, 2 (1970), Russell v. Yale University, 54 Conn.App. 573, 577 (1999). In 38A C.J.S. "Gifts" at § 61, page 244 it says "The donor may not revoke a gift to gratify his (her) caprice or because he (she) has a quarrel with the donee, or on the ground that the gift was opposed to good morals and public policy," cf. 38 Am.Jur.2d, "Gifts," § 71, page 767. The point is that as said in 14 C.J.S. "Charities" § 31, page 201 "Generally speaking, a provision for a direct gift to charity or to a charitable organization is not a trust in the eyes of the law; it is a charitable donation." Also see 15 Am.Jur.2d, "Charities," § 143, page 129. It would be an odd interpretation of our procedural rules to say that in the context of a case like Herzog a litigant can be told he or she has no standing but not to worry, you can be given intervention as of right under § 9-18 in other litigation you did not even initiate where you have the same lack of a substantial interest.
An interesting case is St. Bartholomew's Church v. City of New York, 728 F.Sup. 958 (S.D.N.Y., 1989). There the church wanted to develop its property to secure added income. The city's landmark laws prevented the development and the church sued the city claiming among other things that the laws interfered with the church's First Amendment right to the free exercise of religion. St. Bartholomew's is a beautiful Episcopalian Church on Park Avenue and a group of parishioners felt the development would detract from its architectural presence — a skyscraper behind the church was, proposed. The district court denied intervention as of right "because the members of the committee (church members seeking intervention) had no ownership interest in the church property itself, but at best only had the right to vote on the development issue in an intra-church proceeding," footnote 8. The fact that in a hierarchical church Frechette and other church members may or may not even have the just-mentioned voting rights before the church hierarchy decides whether to satisfy any judgment out of church assets has nothing to do with the separate issue that, as in the St. Bartholomew case, Frechette has no protectible interest for intervention purposes in the liquid or non-liquid assets of the local parish or archdiocese.
Also it should be added that it is not so much that Frechette's asserted interest is not in the merits of the lawsuit but only in the assets at which it is aimed. He argues that any judgment should be and indeed ought to be satisfied by the particular priest found involved in these acts and the bishop if respondeat superior applies. Thus it is true that Mountain Top Condo, 72 F.3d at page 368 did say that "proposed intervenors need not have an interest in every aspect of the litigation . . ." But as that court went on to say such parties "are entitled to intervene as to specific issues so long as their interest in those issues is significantly protectible," id. As the court has discussed, Frechette has no protectible interest in the funds he is concerned about; those assets are under the control of the local church and the archdiocese. Carried to its logical extreme, if Frechette's position is accepted, every Catholic in the state who contributes to the Archdiocese would have a right to intervene since he or she could argue that the value or worth of his contribution is diminished if assets are diverted by the archdiocese to satisfy a successful judgment in one of these cases — less money might be available to accomplish a particular charitable purpose that any contributing Catholic might be interested in and which motivated the contribution in the first place.
A further consequence of Frechette's opinion is the area of settlements. What if the defendants sought to settle this matter and to do so the assets of the local church and archdiocese were to be utilized. Frechette could not claim standing to enjoin any of the defendants from using such assets to settle the case — assets in which he has no monetary interest or over which he has no control except such control as he hopes to gain by having his right to intervene recognized. This underlines a basic flaw in Frechette's position; it would stand Rule 24 (a) law and § 9-18 practice on its head — the purported protectible interest has to be a prerequisite for intervention as of right, it cannot be created by the intervention itself.
In conclusion, on the protectible interest question, Frechette's position is no stronger than that advanced by putative intervenor's in suits against corporations. The court in Gould v. Alleco, Inc., 883 F.2d 281 (CA. 4, 1989), said: "In a sense, every company's stockholders, bondholders, directors, and employees have a stake in the outcome of any litigation involving the company but this is insufficient to imbue them with the degree of `interest' required for Rule 24(a) intervention," id. Page 285.
In his memorandum Frechette raises a First Amendment claim, his free exercise of religion is interfered with because monies he contributed to his local church and the archdiocese for religious purposes as recognized in Canon Law and state statute are diverted to satisfying claims of plaintiffs abused by individual pedophile priests. The problem is that whatever the merits of this argument Rule 24(a) and thus P.B. § 9-18 do not, by their terms, give Frechette or others like situated a right to interject it into this particular lawsuit.
Finally another reason discussed in the case law and mentioned by Judge Devlin militates against intervention here. Even apart from the nature of the interest asserted in this matter, the threat to it is completely contingent: "An interest that is remote from the subject of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule (Rule 24(a)), Washington Electric v. Mass. Municipal Wholesale Electric, 922 F.2d 92, 97 (CA. 2, 1990). In Washington Electric the court rejected the party's motion to intervene because "its interest was based on a double contingency."
Here too Frechette's interest, whatever that may be, depends on the plaintiff's success against the defendants in the underlying litigation and as Judge Devlin noted, how the local church and the Archdiocese "would pay any judgment that might be rendered against them."
For the foregoing reasons the court denies Frechette's motion to intervene as of right.
Permissive Intervention CT Page 3618
In some respects permissive intervention is more difficult to analyze than intervention as of right. Moore's Federal Practice, Volume 3D, Sections 2.10 and 24.11, pp. 24-10 et seq. discusses permissive intervention under Federal Rule 24(b). Horton v. Meskill, supra, 187 Conn. at page 197 turned to that rule to decide the proper ambit of P.B. § 99, now § 9-18 as it concerns permissive intervention.
Rule 24(b) in the language relevant to our practice gives a conditional right to intervene when the applicant's claim or defense has a question of law or fact in common with the underlying or main action. Such intervention is discretionary with the court and Moore in § 24-10 lays out the factors deemed relevant to the exercise of' that discretion.
(1) Would intervention cause undue delay or prejudice to the rights of existing parties?
(2) Would the applicant's input add value to the existing litigation?
(3) Permissive intervention is less likely to be granted if applicant's interests are adequately represented in the main litigation.
(4) Is there an adequate remedy available to the applicant in another action?
Foregoing paraphrases topic headings at pp. 24-55 to 24-60 in which each factor is discussed. Also see New Orleans Public Service v. United Gas Pipe Line, 732 F.2d 452, 470 et seq. (CA. 5, 1984).
Interestingly there seems to be a dichotomy between federal and state law on the applicability of what may be called the "interest" factor in deciding whether a court should allow permissive intervention. This is indicated by two comments from Federal Practice and Procedure, Wright, Miller, and Kane at § 1911 pages 356, 358.
The rule (§ 24(b)) does not specify any particular interest that will suffice for permissive intervention and, as the Supreme Court has said, it "plainly dispenses with any requirement that the intervenor shall have a direct personnel or pecuniary interest in the subject of the litigation" (see SEC v. U.S. Realty Improvement Co., 310 U.S. 434, 459 (1940).
Close scrutiny of the kind of interest the intervenor is thought to have seems especially inappropriate under Rule 24 (meaning subsection b) since it makes no mention of interest. The rule requires only that (the applicant's) claim or defense and the main action have a question of law or fact in common.
Connecticut appears to take a slightly different approach on the question of interest as a factor in permissive intervention applications. According to 59 Am.Jur.2d "Parties" page 632 "some courts state the prerequisites for permissive intervention in much the same manner as in intervention as of right" — such as to having to consider "the proposed intervenor's interest in the controversy" citing In re Baby Girl B, 22 Conn. 263, 277-78 (1992), see similar view as early as Horton v. Meskill, supra when it discussed permissive intervention 187 Conn. at page 197.
Based on the foregoing the court concludes that permissive intervention should not be permitted. This court agrees with Judge Devlin that because of the contingent and indirect nature of his interest in this litigation, Frechette does not qualify for permissive intervention.
Another factor is mentioned in the cases. Permissive intervention can be appropriately denied where it would unduly complicate the litigation, Washington Electric, supra 922 F.2d at page 98. Also Illinois has a procedural statute on permissive intervention similar to Rule 24(b) and a case observed that "where intervention would result in the injection of many new and complicated issues, it may be denied," Chicago, Milwaukee R.R. v. Harris Trust, 380 N.E.2d 835 (Ill., 1978). The court is reluctant to became enmeshed in complicated questions of Canon Law as to when, in what manner and under whose authority church assets should be used to satisfy judgments or advance settlements.
The intervention of Frechette as of right or permissively is therefore denied.
Corradino, J.