This matter is before the court on the return date of plaintiffs' order to show cause why certain temporary restraints imposed by this court on September 30, 1977 should not be continued. Plaintiffs have filed a motion for the imposition of certain additional restraints. Defendants have moved for summary judgment or in the alternative for an order vacating the temporary restraints.
Plaintiffs are the New Jersey Diocese of the Protestant Episcopal Church (the Church), the Trustees of the Church Property of the Diocese and the Right Reverend Albert W. Van Duzer, Bishop of the Diocese, and therefore its chief
ecclesiastical authority. Defendants are the Parish of St. Stephen's (St. Stephen's) in Plainfield, New Jersey, and the rector, wardens and vestrymen thereof. Defendant Reverend Stanwood E. Graves is, or was, the rector of St. Stephen's.
Certain facts are not in dispute. St. Stephen's was incorporated in accordance with the then existing New Jersey statutes on January 11, 1895, describing itself as "a religious society worshipping according to the customs and usages of the Protestant Episcopal Church." Defendants state that St. Stephen's was not incorporated under the 1901 statute specifically governing parishes of the Protestant Episcopal Church, N.J.S.A. 16:12-1 et seq. , but rather under the statute governing religious societies in general, and that St. Stephen's never reincorporated under the 1901 statute.
St. Stephen's initially owned no real property. In 1935 St. Stephen's purchased a chapel. Two additional buildings were purchased as the parish hall and church school building in 1967 and 1970. In all cases the purchases were made and the buildings maintained solely out of the funds of St. Stephen's; there is no evidence of any financial contribution by the Diocese. The deeds were in all cases made out to St. Stephen's, and defendants assert that they contain no words of trust or reverter.
There is no dispute that until the controversy which is the basis of this suit St. Stephen's operated as an integral part of the Diocese and the Church. Defendants state that St. Stephen's at all times adhered to the "long established" customs and usages of the Church, and, until 1976, considered itself affiliated with the Diocese.
Plaintiffs assert that St. Stephen's has not only adhered to the "long established" customs of the Church, but that it also accepted all changes in the Church, including a change in the prayer book in 1928 and several "marked" changes in the Church Canons. Plaintiffs state that when St. Stephen's sought to sell its old rectory and place a mortgage
on a new one in 1973, it sought and obtained Diocese approval through the Bishop. In no instance, plaintiffs contend, did St. Stephen's ever act to determine any aspect of doctrine, discipline and/or worship in a congregational manner. Rather, plaintiffs continue, St. Stephen's consistently acted in accordance with what plaintiffs contend is the hierarchical structure of the Church.
Beginning sometime in 1975 strong doctrinal controversy began to manifest itself in the Church, in particular with regard to the ordination of women. In September 1976 the General Convention of the Church took certain positions regarding the ordination of women and other matters. On September 30, 1976 St. Stephen's sent the Right Reverend Mr. Van Duzer a letter stating that the members believed the actions of the General Convention to be "heretical"; that St. Stephen's would not accept these "new doctrines," and that St. Stephen's had therefore decided to "suspend its active fellowship with the Diocese of New Jersey." Defendants' position was, and apparently still is, that it was the General Convention, not defendants, that had actually left the Church.
On April 24, 1977 St. Stephen's voted at a special parish meeting to sever its relationship with the Diocese. On June 1, 1977 the Right Reverend Mr. Van Duzer inhibited Rev. Stanwood E. Graves "from the performance of any priestly function in the Diocese of New Jersey." Bishop Van Duzer stated that this action was taken "with the advice and consent of the Standing Committee of the Diocese of New Jersey" pursuant to Title IV, Canon 10 of the Canons of the Episcopal Church. This Canon provides in part:
Sec. 1. If any Presbyter or Deacon shall, without availing himself of the provisions of Canon IV.8, abandon the communion of this Church, by an open renunciation of the Doctrine, Discipline, or Worship of this Church, * * * it shall be the duty of the Standing Committee of the Diocese in which the said Presbyter or Deacon is canonically resident, to certify the fact to the Bishop * * *; and the said Bishop shall then inhibit the said Minister from officiating in said Diocese for six months. Notice shall be given by the Bishop
to the Minister so inhibited that, unless he shall, within six months, transmit to the Bishop a retraction of such acts, or make declaration that the facts alleged in said certificate are false, he will be deposed from the Ministry.
Sec. 2. If such retraction or declaration be not made within six months, as aforesaid, it shall be the duty of the Bishop to depose the said Minister from the Ministry, and to pronounce and record, in the presence of two or more Presbyters, that he has been so deposed.
In an affidavit Bishop Van Duzer explains that a priest, while inhibited, remains rector of his parish and is still entitled to receive his income, although expressly forbidden to perform priestly duties or acts. Once a priest is deposed, however, all his rights are cut off and he is no longer rector of his parish. He would therefore have no right to collect income as rector, to call or preside at parish meetings or to reside in the rectory.
On July 14, 1977 Bishop Van Duzer wrote to Mrs. Edward Lorincz, Jr., junior warden of St. Stephen's, stating that he sought reconciliation; that Rev. Graves had been inhibited, and that a supply priest would be furnished to conduct services on Sunday, July 24. Dr. Donald Moore, warden of St. Stephen's, replied in a letter dated July 20, 1977 iterating the parish's earlier position.
Plaintiffs contend, and defendants do not dispute, that Rev. Graves continued to conduct services at St. Stephen's and that the supply priest was denied permission to officiate. Plaintiffs then instituted this lawsuit. On September 30, 1977 this court, relying chiefly on the authority of Kelly v. McIntire , 123 N.J. Eq. 351 (Ch. 1938), entered an order temporarily restraining defendants from diverting any parish property to any use not sanctioned by plaintiffs, and restraining Rev. Graves from preaching or conducting services in St. Stephen's until such time as his inhibition was removed. The return date of said order has been adjourned and the restraints continued until today by consent of all parties.
On November 28, 1977, several days before the six-month period expired, Rev. Graves sent Bishop Van Duzer a letter stating, "I hereby declare that the facts alleged by you as
being grounds for said inhibition are false." Bishop Van Duzer responded in a letter dated November 29, 1977 stating that Rev. Graves' declaration was insufficient since the inhibited minister "must state what facts are false" and "should declare what the true facts are." In Rev. Graves' case, the letter continued, it had been alleged that he had "abandoned the communion of this Church by open renunciation of its discipline," so that Rev. Graves should submit a statement that
No response from Rev. Graves was forthcoming, and he was deposed on December 1, 1977.
It appears from the affidavits that Bishop Van Duzer assigned the Reverend Canon J. Perry Cox to serve as priest for St. Stephen's. Rev. Cox states that the average attendance at Sunday services is 15 or 16 people, including members of at least seven families from the original parish. This statement is supported by the affidavit of Carlton R. Annis, a member of St. Stephen's, who states that his family, as well as at least eight others, were forced to worship elsewhere by the actions taken by Rev. Graves and the other defendants. Defendants have responded with an affidavit to the effect that average attendance has been only two at the 8 A.M. mass and six at the 10 a.m. mass, most of those persons not parish members.
It is, in any event, clear that the overwhelming majority of the original membership of St. Stephen's agree with defendants' position. It appears that approximately 200 persons attend the services conducted by Rev. Graves in
another building, and defendants provide the affidavits of numerous parishioners to the effect that they support Rev. Graves and cannot in good conscience attend the services currently being conducted by Rev. Cox at St. Stephen's.
Plaintiffs' complaint demands declaratory judgment that all of St. Stephen's property is impressed with a trust in favor of the Diocese, that all members who have elected to withdraw from the Diocese have no interest in the real and personal property of the parish, and that all property is to be used solely in accordance with the Constitution and Canons of the Church and the Diocese. The complaint also seeks a temporary injunction restraining defendants from the use of, entry into, removal of or transfer of any parish property, real or personal.
Plaintiffs' motion today seeks preliminary injunctive relief placing all parish property under the control of the Trustees of Church Property of the Diocese, removing Rev. Graves from the rectory of St. Stephen's and prohibiting him from entering St. Stephen's Church or parish house except to attend religious services or other events approved by the Diocese. Plaintiffs also seek to add Charles Curtis and Arnold Gardner, two additional vestrymen of St. Stephen's, as defendants. There being no opposition, that application will be granted. In their brief, plaintiffs make it clear that they are also asking in the alternative for summary judgment. Although this should have been sought by notice of motion, there is no prejudice to defendants in the court's consideration of the matter at this time, and, in the interests of justice, the court will treat the matter as if the motion had been properly made.
Defendants have moved for an order dismissing the complaint or alternatively for summary judgment. Since the motion to dismiss relies on matters outside the pleadings, including numerous affidavits, it must be dealt with as a motion for summary judgment. R. 4:6-2(e). Defendants move in the alternative for a vacation of restraints.
Since the grant of summary judgment to either party would render consideration of preliminary injunctive relief unnecessary, the court will consider these applications first.
R. 4:46 governs all motions for summary judgment. R. 4:46-2 states:
The motion for summary judgment shall be served with briefs and with or without supporting affidavits. The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. The court shall find the facts and state its conclusions in accordance with R. 1:7-4. A summary judgment or order interlocutory in character may be rendered on any issue in the action (including the issue of liability) although there is a genuine factual dispute as to any other issue (including any issue as to the amount of damages). Subject to the provisions of R. 4:42-2 (judgment upon multiple claims), a summary judgment final in character may be rendered in respect of any portion of the damages claimed.
Summary judgment is appropriate where "a discriminating search of the merits in the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion clearly shows not to present any genuine issue of material fact requiring disposition at a trial." Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74 (1954). The moving party must sustain the burden of showing the absence of "any reasonable doubt as to the existence of any genuine issue of material fact." Id.
Summary judgment is "granted with extreme caution. The moving papers and pleadings are to be considered most favorably to the party opposing the motion. All doubts are to be resolved against the movant." Ruvolo v. American Cas. Co. , 39 N.J. 490, 499 (1963); see Seltzer v. Isaacson , 147 N.J. Super. 308, 312-313 (App. Div. 1977). "The papers supporting the motions are closely scrutinized and the opposing papers indulgently treated." Judson, supra 17 N.J. at 75.
If, however, "the opposing party offers no affidavits or matter in opposition, or only facts which are immaterial or of insubstantial nature, a mere scintilla, * * * 'fanciful, frivolous, gauzy or merely suspicious,'" summary judgment is appropriate. Id. While it is desirable to afford every litigant with a bona fide cause of action an opportunity for full exposure of his case, there is a countervailing consideration that "protection is to be afforded against groundless claims and frivolous defenses." United Rental Equip. Co. v. Aetna Life & Cas. Ins. Co. , 74 N.J. 92, 99 (1977); Robbins v. Jersey City , 23 N.J. 229, 240-241 (1957). If a party shows by affidavit, however, that for specific reasons he cannot present essential facts in opposition, the court may deny the motion, order a continuance to permit additional discovery, or make such other order as may be proper. R. 4:46-5(a).
The court should be especially cautious in granting summary judgment where the opposing party is "heavily dependent upon the production by his adversary of evidence and factual data pertinent to his claim or position," Joseph v. Lesnevich , 56 N.J. Super. 340, 351 (App. Div. 1959), or "where the subjective elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party." ...