Court
case attempting to dissolve the Mother Church of Christ Scientists
with comments
inserted by Rolf A. F. Witzsche
- Hearing Transcript Sept, 2007 -
Case No. 07e0072
SUFFOLK PROBATE AND FAMILY COURT
EDWARD W. BROOKE COURTHOUSE
24 New Chardon Street, 3rd floor
Boston Massachusetts 02114
DAVID E. ROBINSON, et al, pro se______________________
Plaintiff
v.
CHRISTIAN SCIENCE BOARD OF DIRECTORS, et al______
Defendants
TRANSCRIPT
The 09/24/07 Hearing
Probate Courtroom 3; Case 07e0072
Participants:
1. The Honorable Judge, Elaine M. Moriarty, hereafter (J).
2. Counsel for the Defense, Theodore Dinsmoor, Esq, hereafter (C)
3. Next Friend Counsel for the Discoverer and Founder of Christian Science:
Mary Baker G.
Eddy, David E. Robinson, pro se, hereafter (R)
9:32:21 AM, SEP 24, 07, MON, Normal, 1st Rt Law
(J) "Robinson vs. Christian Science Board of
Directors: Docket Number 07e0072."
(J) "For the counsel . . . if I could have each of you identify
yourself for the record . . . and who you are representing."
(C) "Yes, your Honor. I am Mr. Dinsmoor. I represent the Christian
Science Board of Directors. And this is our motion, this morning, to dismiss
on the rule 12(b)1."
(J) "And you, sir?"
(R) "I am David E. Robinson . . . and I am representing myself, pro se
. . . and the Founder of the Christian Science Church, Mary Baker Eddy,
deceased . . . And I'm here in opposition to the motion to dismiss."
(J) "OK. Let me state at the outset . . . counsel, are you still with
Burns & Levinson? . . . you are, aren.t you . . . is that right . . .
?"
(C) "Yes, I am."
(J) "Just so Mr. Robinson knows . . . "
"I was a partner in Burns & Levinson 18 years ago . . . not when
Mr. Dinsmoor was a member of the firm . . . And they have in the past
represented me . . . and I had them representing me in a couple of real
estate matters, but I have no current relationship with them again . . . but
I raise . . .
"So I'm not required to dismiss or recuse myself from the case, but I
raise this issue now in case you have any issue you want to raise with me
over that."
(R) "I have no objection to that. I.m basing . . ."
(J) "This gentleman here was never with the firm when I was with them,
so . . . OK. So let me hear his motion to dismiss."
"I.ve read through your pleadings . . . I have sort of a general sense
of what the controversy is, the two issues . . . And I guess I should really
be asking Mr. Robinson to discuss on his side . . . .
"It's going to be the standing issue, as I look at what you have
submitted, and that counsel has submitted, and the justiciable content of
this issues of the controversy being of the civil court proceedings. So if
there is anything in the argument that you want to touch, sir, and also on
your account, counsel . . . "
"Go Ahead."
(C) "Thank you, your Honor. As I indicated, this is our motion, this
morning, to dismiss the complaint under rule 12(b)1 . . . because the court
lacks subject matter jurisdiction over this particular complaint."
"As your Honor has already indicated, the basis for the motion is that
Mr. Robinson lacks standing to pursue any action in the nature of quo
warranto either at common law or under the Massachusetts statute . . .
Namely . . . the lack of standing arises from the fact that under the common
law quo warranto can only be pursued by the sovereign either directly or by
or through the sovereign's attorney general . . . And manifestly, Mr.
Robinson is not the attorney general for the Commonwealth of
Massachusetts."
"As to statutory quo warranto, the statute has been very
narrowly construed by the Supreme Judicial Court so as to permit standing
only to parties who have been injured by the exercise of a state franchise .
. . that is in excess of its authority, i.e. by acting ultra vires of the
franchise."
"Here . . . the church is an unincorporated, religious association . .
. it does not have a state charter . . . it has not been organized under the
Massachusetts Public Charities Act, Chapter 180."
(J) "It has not been organized . . ."
(C) "It has not. . . . it is not a chapter 180 corporation, and so it
does not have any form of state franchise."
"As a result, there can be no action in excess, if you will, of the
franchise . . . there can be no ultra vires act . . . and without an ultra
vires act, Mr. Robinson could not have possibly been injured by an ultra
vires act . . . and therefore he lacks standing to pursue an action in
quo warranto under the Massachusetts statute."
"The other point we have made in our brief is that Mr. Robinson . . .
having been excommunicated from the church . . . is no longer a member of
the church . . . has no standing to pursue any action under Mrs. Eddy's
deeds of trust, be they the real estate deeds of trust, or the deed of trust
created by her will."
"I think the SJC has already ruled in several occasions, one in the
(...?...) case, and more recently in the Weaver Case."
"Even members of the church lack standing to sue the board."
(J) "Individual members of the church lack standing?"
(C) "Individual members of the church lack standing to sue the polity
and organization. Here we don't even have a member of the church, we have an
excommunicant. So there is no basis upon which Mr. Robinson can sue under
Mrs. Eddy's trusts."
(J) "Do you see any remedy within the church system to . . . ?"
(C) "Not as an excommunicant. There are provisions in the church manual
for members to complain to the clerk, but he is not a member."
"And the first point that we make in our brief, is, simply, that for
any civil court to entertain an action in the nature of quo warranto
to remove the governing body of a church, would so intrude the civil court
into the religious affairs of the church to be a violation of the First
Amendment."
"And, so . . . there is a First Amendment bar to this action . . . and
it is on those bases that we seek to have this court dismiss the complaint,
with prejudice."
"Thank you, your Honor."
(J) "All right, Mr. Robinson, you can either argue there, or come up to
the podium, whichever you will feel more comfortable with."
(R) "I.ll just follow the suit of Mr. Dinsmoor . . . "
(J) "Go ahead, sir."
(R) "The reference to quo warranto was mentioned on the cover
with an explanation of the definition from Black's Law Dictionary for
the purpose of informing the members of the church, and the non-members of
interest also, as to the type of action that I was trying to do . . . on a
non-statutory basis.
"I am going on the basis that an equity court is not strictly confined
. . . restricted to statutes, but an equity court takes into consideration,
the intent . . . and also takes into consideration, contracts."
(J) "If you could sue, what is it your asking the court to do, and then
I want to see why you say you . . ."
(D) "What is my objective?"
(J) "Right. . . . ultimately, what do you want me to do, if you have
standing?"
(R) "I want the court . . . according to Mrs. Eddy's instructions . . .
to dismiss the 5-man board of directors and replace them with 4 trustees
under the 1892 deed of trust, that will go according to the 1892 deed of
trust and the 1903-1904 deeds of trust, and obey the estoppel clauses that
were recognized in the case . . . in 1921 . . . of Eustace vs., uhh .
. . "
(J) "I think you cited it in your brief, didn.t you?"
(R) "I'm repeating everything that's on the record, Ma-am, yes."
(J) "Right. Now, that's what you want to achieve . . . "
"Your not a member of the church, they tell me, so how do you say you
have a right to, because the law does not extend to everybody a right to
sue."
(R) "I became a member of the church in 1970 . . . and over the years I
became aware of the fact that there were indiscretions that needed to be
corrected."
"I wrote letters to the board, through the clerk . . . complaining . .
. And at that time as a member . . . a member, through the manual, can
address issues through the clerk, in complaint to the directors, but the
director and the clerk were one and the same person . . . which creates a
conflict of interest . . . and my letters were ignored."
"I listed 4 different letters, and 4 different dates, starting in 1987
. . . before I was excommunicated.
"Then in 2004, I filed an affidavit of complaint to 12 officers of the
Christian Science Church, with the idea that statements made in affidavits
stand as truth unless they're rebutted, point for point."
"The officials refused to respond, and therefore I consider them to be
in dishonor . . . And if they had responded then . . . the evidence would
have come out, to surface, that would have prevented this particular court
action today . . . and I was excommunicated, so called . . . by an officious
board that is illegal, based upon the founding documents of the church . . .
and so that is another thing for this court to either sustain or override,
as a part of what we are doing here today.
(J) "The counsel is saying basically that in the civil
court, you may have a grievance about what the church has done, or what
action they have taken that they shouldn't have, or should have taken that
they haven't, but that the civil court has no right to essentially tell the
government body of any religious institution how it implements its own
activities and charter . . . internally . . . and that therefore, if for
example, even if you were correct, this court does not have the authority to
step in and say to the board, you've got to turn it around. And that if we
were to do that, it would be un-Constitutional."
"How do you respond to that?"
(R) "I understand that, your Honor . . . But this is what I consider to
be a non-religious, non theological, secular, contract situation, based upon
deeds of trust that were established by Mary Baker Eddy, depending upon the
court to enforce the specifications in the deeds of trust even beyond her
present life here, and into the years to come . . . to guarantee the fact
that the church organization . . . which is not essentially a church as we
think of churches today . . . never becomes an hierarchical institution.
"There is no clergy . . . there is no minister involved, and never has
been . . . and the 5 man board of directors of the Mother Church have
violated the estoppel clauses and deed restrictions in the deeds of trust,
which is apart from a religious matter, and does not come under the First
Amendment of the Constitution.
"I have standing for other reasons . . . I have served a 3 year,
elected term as First Reader of a Christian Science Church . . . fully and
satisfactorily . . . and there is a manual designation that says that all
members . . . and especially, Christian Science people who have
served as First Reader in a Christian Science Church . . . Or former
First Readers of a Christian Science Church . . . who are officers .
. . the manual says that they are especially to see that indiscretions of
the officers of the Christian Science Church are checked on, corrected . . .
and so forth . . . So I stand . . . "
(J) "You mean the manual gives you an office in which you are to
do that? . . . The manual gives you a procedure that you are to
follow to do that?"
(R) "I am to complain to the clerk . . . And then if my complaint is
found to be legitimate, then the directors will either perform according to
the deeds of trust and Mrs. Eddy's Last Will & Testament . . . or they
are to resign."
"But because the clerk is also a director . . . with that conflict of
interest . . . I cannot perform my duty to Mary Baker Eddy without the
assistance of the court."
(J) "And how is it . . . Is this the only time that a director has been
the same person?"
(R) "I think they have been that for some time, now."
"Let me explain this . . . When Mrs. Eddy was here . . ."
(J) "Right . . ."
(R) ". . . she oversaw everything meticulously, point for point . . .
so . . . and at that time there was a director who fulfilled the office of
the clerk . . . But when she passed on, she passed on with the stipulation
that the manual estoppels would decentralize her church, and the church was
supposed to revert back from the Mother Church to being The First Church of
Christ, Scientist, in Boston, Massachusetts . . . which the manual
designates as the congregation of students."
"So therefore Mrs. Eddy . . . She gave complete control over the
officious nature of her church . . . aside from the First Amendment . . . to
her students who congregate to hear the lesson, weekly . . . and study it on
their own."
(J) "Now . . . You indicate what the process is . . . That if the court
determined that your complaint to be legitimate . . . that the Board would
either have to correct themselves, or resign."
"You make a compliant to the clerk, who you are saying, in this
instance, that the clerk is one of the directors?"
(R) "Yes . . . But to do that they would have had to convert from a 5
man board of directors of the Mother Church, to the 3 man board of trustees
[actually 4] under the 1892 deed of trust."
(J) "But I guess my question is . . . "
"You said if they found it a valid complaint, the clerk was responsible
for taking certain other actions, vis a vie the Board?"
(R) "Yes."
(J) "What happens . . . What is the process if he does not find it a
valid compliant, does he issue any kind of ruling, or . . . I mean, if he
says to you . . . which I gather he did in this process . . ."
(R) "Well, you see . . . It would be the directors who would have to
decide whether its valid or whether it is not valid . . . and since the
complaint is against the directors, then that is another conflict of
interest type of a thing . . . and if the complaint is found to be valid,
then they have to resign."
(J) "And if it is found invalid no body does anything . . . is that
correct?"
(R) "If its invalid . . . If the complaint is invalid things maintain
as the status quo."
(J) "Anything else you would like to add?"
"Cause it seems to me that . . . I know you're trying to put his into
the context of a civil enforcement of the terms of the trust, but it seems
to me that it is also going to . . . "
(R) "But there is also . . . Excuse me . . . "
(J) "Go ahead . . ."
(R) "There is also the factor of Mrs. Eddy's Last Will & Testament
. . . Because she makes a clear distinction between the 4 man board of
trustees, and the 5 man board of directors who are ecclesiastical. The 4 man
board of trustees are merely fiduciary. . ."
"And she makes this distinction, because when she first made her Will
& Testament, in 1901, there was only the 5 man . . . No, there was only
the 4 man board, but then later on . . . two years later . . . she created
the 5 man, ecclesiastical board to take place as her agent until her demise
. . . then they were to disband."
"After she established the 5 man board of directors, making it
distinctly different from the 4 man board of trustees, she then made a
second codicil to her Will, a year or so later, still leaving her
residuary estate to the 4 man board of directors, not the 5 man, because
after her demise, they would be no more."
"So the second codicil to her Will governs as to whom the estate
. . . after her demise . . . was to go to."
(J) "And you're saying its to the 4 man board?"
(R) "The 4 man board of trustees under the 1892 deed of trust . . .
Yes."
(J) "But then, isn't it their responsibility to enforce whatever
relates to the state and the assets she gave them, and to enforce any
restrictions and provisions against the board of directors, as opposed to .
. . It gets back to what your standing is to bring this . . . ah . . . The
board of directors . . . shouldn't that board of directors be the ones to
bring any sort of claim in a lawsuit, if a lawsuit is to be brought?"
(R) "Well . . . I'm complaining, actually, against the 4 man board of
trustees, and the 5 man board of directors, because they are
one-and-the-same, with the exception of one extra director . . . and in both
situations they have failed to fulfill Mrs. Eddy's directions under her
manual and the deeds of trust . . . . and also in her Last Will &
Testament."
"The 5 man board . . . that was supposed to have been
dissolved . . . went to the probate court in New Hampshire and mis-represented
themselves in order to get the probate court of New Hampshire to declare
them "Trustees Under The Will Of Mary Baker Eddy" . . . and they
were claiming that there was no function, officially, that could handle her
estate without them becoming trustees . . . but actually they were
fraudulently representing themselves to the court of New Hampshire, because
there was a mechanism for receiving Mrs. Eddy's estate after her demise,
because it would have gone to the 4 trustees under the 1892 deed of
trust."
(J) "But that's something I wouldn't be able to be involved with . . .
I mean . . . The New Hampshire court made its decision based on whatever
information, and . . ."
(R) "Well, um . . . your Honor . . . The main point that I am making
and standing on is the fact that Mrs. Eddy designated . . . and this was
recognized in the Court Case of 1921 . . . that the manual of by-laws was
never to be changed, and I have submitted proof of the fact that the
directors have changed the manual many times, and I've listed upwards of 50,
or so, changes that they have made . . . and therefore, I am claiming that
they have breached their trust under the deeds of trust which ought to be
enforced by the probate court here in Boston."
(J) "But even assuming . . . for a second . . . that I found you
correct on that, counsel saying, you can't bring a lawsuit, given your . . .
You don't have any standing under the law to bring a lawsuit to complain
about that, even if the complaint is valid . . . It would have to be brought
by somebody within the church that would have had standing . . . which would
be the Attorney General."
(R) "But, your Honor, I feel like . . . uh . . . that the defense has
not proven the fact that the 5 man board of directors that claim that I am
excommunicated, ever were legally allowed to exist beyond Mrs. Eddy's
demise."
(J) "So your saying that if the board is invalid, they don't have the
authority to excommunicate you?"
(R) "There were no members after Mrs. Eddy's demise, either . . . and
there was no board of directors, there was only the 4 man board of trustees
who had merely a maintenance function of doing whatever was necessary to
have weekly services with the church."
(J) "But do you see that a civil court would not be able to make that
determination . . . whether or not they had the authority to excommunicate
you?"
(R) "No . . . But the civil court . . . I'm asking the civil court to
adjudge based upon the stipulations in the deeds of trust that the court is
bound to enforce, and Mrs. Eddy expected that the court would enforce, and
then if they have breached the deeds of trust, then they need to be . . .
they need to be changed . . . I think.
(J) "OK. . . . Anything else you want to argue on your point, and I'll
give counsel a couple minutes to rebut."
(R) "I do stand on the extensive record . . ."
(J) "Oh, I'm going to re-read it . . . I read it once before I came to
this hearing this morning . . . but it is so voluminous . . . I wanted to
have a general sense of what's involved . . . but I want to go back,
obviously . . . and re-read it."
(R) "The manual is . . . basically . . . instructions on how the people
were to behave . . . which is not theological . . . there is nothing there
that needs to be decided by the court . . . its merely stipulations of
requirements that Mrs. Eddy made . . . and it was presented to the Court in
1921 as an ecclesiastical matter, when it was not . . . and there are other
situations, from that court case, that need to be corrected and
vindicated."
(J) "Well this case . . . counsel says it has sort of . . . some
related actions, kind of overlapping wha'.s involved here, and your position
hasn't been sustained (. . . cough, cough, in the room . . .)
"Have you been involved in another action involving some of this
interpretation?"
(R) " . . . err . . . Not with anyone else."
(J) "No, I mean in another court."
(R) "I did write the Transcript for Miss. Cassell, against the
Directors, and I've included that as an Exhibit with the paperwork."
(J) "In one of these pleadings . . . OK."
"Anything else you want to add?"
(R) "This is a situation that has international repercussions, or
could, and would."
"This has been damaging on an international situation, and I think it
needs to be corrected so that the . . . uh . . . expositions of the truth
that the church is presenting to the world is backed up by the actions of
the people who are . . ."
(J) "You understand that the only thing in front of me right now, is
not the merits of whether you should win the lawsuit, or not win the lawsuit
. . . Its whether the lawsuit goes forward, because counsel is saying that
it is not something the civil court can, or should decide . . . In any event
you're not the person who should bring it . . . "
(R) "The Court can dismiss the case . . . And I understand that . . .
But I disagree with the fact that the defense has presented a proper claim .
. . for the Court not to dismiss the case."
(J) "Thank you very much."
(R) "Thank you, your Honor."
(J) "Mr. Dinsmoor, you want to respond . . . ?"
(C) "Yes, your Honor, I'll be brief . . ."
"Just let me say . . . I understand that the . . . merits of this
matter appear to go to the issue of whether or not it is appropriate to have
a 4 man board under Mrs. Eddy's Trust, or a 5 man board under the church
by-laws."
"I would point out, however, with regard to the standing issue, which
is the only issue before your Honor this morning, that in Dittemore vs.
Dickey, which we sited in our Memo . . . but the cite is 749 Mass., 95,
specified at page 108 . . . the SJC addressed this very issue of 4 man board
vs. 5 man board, . . . ruled that the 5 man board is the governing body of
the church."
"Significantly, though, the Dittemore case involved a
controversy between the directors of the church. In other words, you had
parties who were claiming the position of director on the board who were
involved in the lawsuit, and as such, the SJC was willing to recognize their
standing for purposes . . . "
|
Am I understand this correctly? The defense agrees that the charges have
merit, but might not apply as the plaintiff lacks standing before the court
and that prior judgements overrule the merit, which is an item that remains
for the judge to decide.
Not a world is said about universal constitutional principles, the
protection of individuals, society, and religion, or the specific nature of
the Pastor Emeritus that the case aims to diminish to the status of a person
now diseased.
Who is defending the rights of Mary Baker Eddy represented by the Pastor
Emeritus as an institution designed to carry her 'voice' for all times to
come? And so, one of the most far-reaching cases in American religious
history, if not the history of civilization boils down to an issue of the
plaintiff's standing.
It is an interesting
defense that certainly reflects the quality of modern thinking and the
greater tragedies of our time and our world. |
(J) "To determine who were . . ."
(C) "Yes, to determine who were actually claiming a position on the
Board . . . The SJC acknowledged their standing to, if you will, pursue
their interests in that particular case."
"But Mr. Robinson stands on a very different ground . . . he is not a
member of the directors, he is not a trustee under the will . . . As I
pointed out earlier, he is not even a member of the church, and therefore it
is our position that he simply lacks standing to pursue any of his
claims."
"And I would also highlight, for you Honor's information, that we had a
somewhat, similar case a couple of years ago, here in the Probate Court, by
Miss. Cassell, who Mr. Robinson mentioned."
(J) "The case he just referred to."
(C) "Yes . . . The case he just referred to, and that was heard by your
colleague, Judge Smoot, and he rendered the opinion on a similar 12(b)1 rule
in which he ruled that Miss. Cassell did not have standing to sue the board,
and we have attached . . . although that's an unpublished opinion . . . For
your Honor's benefit we attached it to our reply."
(J) "There is an explanation in the . . . "
(C) "So your Honor can refer to that . . . "
"So, in any event, your Honor, our position is quite simple . . . that
Mr. Robinson simply lacks standing to pursue this matter . . . and
therefore, it is not justiciable for this court."
"Thank you, your Honor."
(J) "Thank you. Yes, sir?"
(R) "May I speak again?"
(J) "Go ahead . . ."
(R) "The defense has mentioned Dickey vs. Dittemore claiming
that there is no distinction between the 5 man board of directors and the 4
man board of trustees . . . however . . . there was a precedent, years
before that, . . . in what they call the Literature Litigation of 1919-1921,
. . . where the decision of the Chief Justice does say, in there,
specifically, that he recognized the true board functions as one fiduciary .
. . meaning the 4 man board under the deeds of trust . . . and
ecclesiastical . . . meaning the 5 man board of what they refer to as the
Mother Church, under the manual . . . and so that is a precedent that may
not have been presented and recognized in the case of Dickey vs.
Dittemore . . . which was years later."
(J) "I.ll take a look at the case . . . I'm going to take it under
advisement. It will be awhile before (. . . background noise . . .) because
there's a lot of reading here (. . . background noise . . .)
(R) " . . . and I have explained these points in my Exhibits."
(J) "Thank you very much."
(C) "Thank you, your Honor."
(R) "Thank you, your Honor."
Source: CSCourtCase.info, 96 Maine Street #108, Brunswick, Maine
04011
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