Shapiro v. Columbia Union National Bank & Trust Co.

JOSEPH J. SIMEONE, Special Judge,

concurring and dissenting.

I concur in part and dissent in part. As to the principal issue — state action — I respectfully dissent. The thrust of the majority opinion is that the University of Missouri at Kansas City is not so entwined with the administration of the Victor Wilson Trust so as to constitute state action within the meaning of the Constitution or federal law. I disagree.

The majority opinion correctly traces the law and history of state action. But I believe that the involvement of the University now a public institution is of such a prevailing nature so as to constitute that type of governmental entwinement with the administration of the trust which calls into play the doctrine of state action.

While Mr. Wilson established a private trust for the benefit of deserving boys with private funds and appointed a private trustee, the actual administration of the trust by the University of Missouri as it has been operated over the years involves, in my opinion, the University and its agents to such an extent that I believe state action is involved. For all practical purposes the University through its agents “selects” the males who are to receive the scholarship funds thus engaging in state action. Although the private trustee has the power of “approval” under the trust there is no indication in all recent years of its operation that the University has disapproved any male applicant. The University accepts the applications, makes a tentative award and in effect “selects” the male applicants who are to receive the benefit of the scholarship fund. The acts of the University are more than ministerial. The trust as it has been administered by the University has shed its purely private character and has become a public one. The involvement of the public University is, in my opinion, of such a prevailing nature so that there is governmental entwinement constituting state action.

Under the facts and the authorities I would conclude that the administration of the Victor Wilson Trust by a public institution involves state action which, if proved upon hearing, would be violative of constitutional and statutory principles. I believe therefore that the petition states a claim.

Appellant also alleges a right under 42 U.S.C. § 1983 . The “under color of law” provision is equivalent to the state action requirement under the Fourteenth Amendment. Parks v. “Mr. Ford”, 556 F.2d 132, 135, note 5 (3rd Cir. 1977). Because I believe that the petition alleges significant “entwinement” by the University and find “state action”, I believe plaintiff also states a claim under § 1983. That section is intended to encompass conduct supported by state action. Adickes v. S. H. Kress and Company, 398 U.S. 144 , 90 S.Ct. 1598, 1611-1614 , 26 L.Ed.2d 142 (1970).

II.

I agree with the majority opinion in its holding that the state court is vested with concurrent original jurisdiction of actions brought under § 1983.

III.

Although I believe state action is involved under the facts here and would reverse and remand the cause for further proceedings, I would not, as appellant prays, apply the doctrine of cy pres to construe the Trust by substituting the word “students” or “individuals” for the word “boys” in Article VIII.

The doctrine of cy pres alters the purpose of the trust, whereas the doctrine of devia *324 tion only amends the method of administration of the trust. See Reed v. Eagleton, 384 S.W.2d 578, 585 (Mo.1964).

I would apply the principle of deviation. The remedy prayed for in my opinion is too drastic — to displace one trust purpose for another. Any constitutional infirmity is in the administration of the trust and not in its purpose. The trust can be insulated from governmental action by the removal of the University of Missouri from the selection process of the beneficiaries.

IV.

I believe that the petition states a claim and would reverse and remand. I therefore respectfully dissent in part.