Petition — Clifford v. Grutka
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¢ Office Supreme Court, US.
TLE D
No. NOV 1 1983
‘icc XANDTR L STEVAS,
IN THE Sem amr
Supreme Court of the United States
October Term, 1983
LEO J. CLIFFORD, JOSEPH CLIFFORD, CLARENCE F LITTER,
CLARENCE AILES, EDWARD GANNON, Individually And
As Members of The Board Of Lay Trustees Of St. Paul’s
Cemetery Association, Valparaiso, Indiana, ST. PAUL’s
CEMETERY ASSOCIATION, VALPARAISO, INDIANA, AND ST.
PAUL’S CEMETERY ENDOWMENT ASSOCIATION, INC., An
Indiana Not-for-Profit Corporation,
Petitioners
vs.
ANDREW G. GRUTKA, AS BISHOP OF THE ROMAN
CATHOLIC DIOCESE OF GARY, INDIANA,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE INDIANA COURT OF APPEALS,
THIRD DISTRICT
William M. Evans
John G. Deckard
BosE MCKINNEY & EVANS
1100 First Indiana Building
Indianapolis, Indiana 46204
(317) 637-5353
Central Publishing Company, Inc., Indianapolis, IN 46206
QUESTIONS PRESENTED FOR REVIEW
1. Whether the Indiana Court of Appeals, in conformity
with the free exercise of religion clause of the First
Amendment to the United States Constitution, had the
authority to determine that a Bishop of the Roman Catholic
Church, relying on Canon Law and the religious doctrines
of the Church, could demand that the funds in an
irrevocable trust held for the perpetual care of a parish
cemetery be turned over to him or his designee?
2. Whether the Indiana Court of Appeals erroneously
applied the “Neutral Principles of Law” analysis in
determining that a Bishop in the Roman Catholic Church
had the authority to dissolve an irrevocable trust
maintained for the perpetual care of a parish cemetery, and
order the funds therein to be delivered to him or his
designee?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ...... i
eee GY MUS TIPOMITING . 2... 0 ccccccccceccces iii, iv
SPUD ck akc css cosncedcccsacavess 2
EERE I oi AR OP ea 2
CONSTITUTIONAL PROVISIONS INVOLVED... 4
STATEMENT OF THE CASE ...............00: 4
WHY THE WRIT SHOULD BE GRANTED ...... 8
1. The opinion below erroneously determines that
the Indiana Court of Appeals has the authority to
resolve an intra-church dispute turning on the
doctrine, polity and ecclesiastical governance of
the Roman Catholic Church ................55: 8
2. The “Neutral Principles of Law” analysis applied
by the court below is erroneous in form and
es acdc veagiebssteresasea 12
PE oases eubioes<cariovsseocessekis 15
TABLE OF AUTHORITIES
Cases: Page
Construction Laborers v. Curry, 317 U.S. 542 (1963) 4
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). 4
Jones v. Wolf, 443 U.S. 595 (1979) ............ 12, 13, 14
Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94
SOE kv seeds a ceninugisieec'sacdescakddenanenrn 11
SIGE oS ERs Tccabeusavcdervineva pee beaensaeree 11
Maryland and Virginia Eldership of the Churches of
God v. Church of God at Sharpsburg, Inc., 396 U.S.
TE nik rais0e tenwe's ang Gu woul ena sees th hae 11
Presbyterian Church in the United States v. Mary
Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S. 440 (1969) ...........0c cee ees i)
Serbian Eastern Orthodox Diocese v. Milivojevich, 426
ERI 5.5). Co i'n va cieeee tue paodeaaate 9,14
Waston v. Jones, 80 U.S. (13 Wall.) 679
NNEC s cb Uikidnveessceceavdteciens 4, 9, 10, 11, 15
Constitutional Provisions
U.S. CONSTITUTION, FIRST and FOURTEENTH
AMENDMENTS ................ 3, 6, APPENDIX
Indiana rules of Court
Rule 11(A) of the Indiana Rules of Appellate
I thn sine Fob bives eves ninenuneeCnueen 2
Rule 11(B)(4) of the Indiana Rules of Appellate
ee cyber i vee ane ba 4 cad Gabe ee eoate 2,3
Rule 56, of the Indiana Rules of Trial Procedure.... 6
TABLE OF AUTHORITIES
Page
Other
Code of Canon Law of the Roman Catholic Church,
(Codex Juris Canonici), Canon 1516(4)......... 7, 10
A Practical Commentary on the Code of Canon Law,
Revised and Enlarged Edition of Combined
Volumes I and II, November, 1957; published by
Joseph F. Wagner, Inc., New York City (1957) . 10
iv
No.
IN THE
Supreme Court of the United States
October Term, 1983
LEO J. CLIFFORD, JOSEPH CLIFFORD, CLARENCE F LITTER,
CLARENCE AILES, EDWARD GANNON, Individually And
As Members of The Board Of Lay Trustees Of St. Paul’s
Cemetery Association, Valparaiso, Indiana, ST. PAUL’s
CEMETERY ASSOCIATION, VALPARAISO, INDIANA, AND ST.
PAUL’S CEMETERY ENDOWMENT ASSOCIATION, INC., An
Indiana Not-for-Profit Corporation,
Petitioners
vs.
ANDREW G. GRUTKA, AS BISHOP OF THE ROMAN
CATHOLIC DIOCESE OF GARY, INDIANA,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE INDIANA COURT OF APPEALS,
THIRD DISTRICT
PETITION FOR WRIT OF CERTIORARI
TO THE INDIANA COURT OF APPEALS,
THIRD DISTRICT
Petitioners pray that a writ of certiorari issue to review
the judgment and opinion of the Indiana Court of Appeals,
1
Third District, entered February 24, 1983, as amended by
that Court’s opinion denying the petition for rehearing
entered May 6, 1983.
OPINIONS BELOW
The opinion of the Indiana Court of Appeals, Third
District, entered February 24, 1983, is reported at 445
N.E.2d 1015 (Ind. App. 1983). The notice of the Indiana
Court of Appeals denying the petition for rehearing,
entered May 6, 1983, is unpublished. The notice from the
Indiana Supreme Court denying transfer, entered August
3, 1983, is unpublished. A copy of the Indiana Court of
Appeals opinion is set out in the Appendix at A3. The
notices denying rehearing and denying transfer are set out
in the Appendix at A2 and Al, respectively.
JURISDICTION
The judgment of the Indiana Court of Appeals was
entered February 24, 1983. A petition for rehearing in that
Court was filed on March 14, 1983, within the twenty-day
time limit prescribed by Rule 11(A) of the Indiana Rules of
Appellate Procedure. The petition for rehearing was
denied by the Indiana Court of Appeals on May 6, 1983. A
petition for transfer to the Indiana Supreme Court was
filed on May 25, 1983, within the twenty-day limit
prescribed by Rule 11(B)(4) of the Indiana Rules of
Appellate Procedure. The Indiana Supreme Court denied
transfer on August 3, 1983, with no opinion being issued by
that Court.
This action was commenced in the Porter Superior
Court, as Cause No. 80-PSC-1381, by the filing of a
complaint by Andrew G. Grutka, as Bishop of the Roman
Catholic Diocese of Gary, Indiana. The complaint named as
defendants certain sub-organizations of the St. Paul’s
parish of Valparaiso, Indiana, together with individual
members thereof, which organizations existed for the
purpose of managing the St. Paul’s cemetery. The Bishop
2
sought in his complaint the dissolution of an irrevocable
trust created and maintained for the perpetual care of the
St. Paul’s cemetery, and a turnover of the endowment funds
held in the trust.! The defendants moved for summary
judgment on the grounds that (1) the dispute turned on
ecclesiastical and doctrinal tenets of the Roman Catholic
Church, and (2) that the First and Fourteenth
Amendments to the U.S. Constitution barred the Porter
Superior Court from exercising jurisdiction over the
dispute. Further, the defendants maintained the perpetual
care fund was required by Canon Law. The trial court
granted the defendants’ motion for summary judgment by
minute entry dated June 15, 1981. The Bishop appealed and
the Indiana Court of Appeals reversed, holding that the
Court of Appeals, and the Porter Superior Court had
authority to resolve the dispute. The defendants’ timely
petitions for rehearing and for transfer to the Indiana
Supreme Court were denied.
The judgment of the Indiana Court of Appeals is a final
judgment within the meaning of 28 U.S.C. §1257 in that the
judgment determined the federal issue of whether the First
and Fourteenth Amendments to the United States
Constitution barred the Indiana Court of Appeals or the
trial court from exercising jurisdiction of the Bishops’
complaint. The denial of transfer by the Indiana Supreme
Court, although not signifying that Courts’ approval of the
Court of Appeals’ reasoning, has the legal effect of
terminating that portion of the litigation relative to the
federal issue. Rule 11(B)(4) of the Indiana Rules of
Appellate Procedure. Although the Court of Appeals’.
judgment remanded the case to the trial court for the
determination of one factual issue, the federal issue of the
Courts’ authority to hear the case has been finally
determined and is not subject to further review. Cases
' The complaint also named as a defendant the First National Bank of
Valparaiso, Indiana, which bank is the trustee of the perpetual care
endowment trust. The First National Bank of Valparaiso, Indiana is
not a party to this Petition.
3
ae ys
which support the finality of the judgment, and the
jurisdiction of this Court, are Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975), Construction Laborers v. Curry,
317 U.S. 542 (1963), and Watson v. Jones, 80 U.S. (13 Wall.)
679 (1871).
This case presents the substantial federal question of
whether civil courts have t'ie authority to resolve intra-
church disputes over the management of church affairs
when the resolution of the dispute turns on ecclesiastical
issues relating to the doctrine, administration, law, polity
and procedure of a hierarchial church.
CONSTITUTIONAL PROVISIONS INVOLVED
The Constitutional provisions involved are the First and
Fourteenth Amendments, which are set out in the
Appendix at A-39.
STATEMENT OF THE CASE
St. Paul’s Cemetery Association (the “Association”) was
organized in 1903 by the St. Paul’s parish of the Roman
Catholic Church (the “Parish”) located in Valparaiso,
Indiana. The Association was formed to provide for the
care and maintenance of the parish cemetery, and is
governed by a Board of Lay Trustees (the “Trustees”) which
includes the pastor of the parish.
In 1903, the Association established, and has since
maintained, an endowment fund into which the proceeds
from the sale of grave lots are deposited. The interest from
the endowment fund, and annual payments from lot
purchasers, have been applied to the costs of care and
maintenance of the cemetery, with the principal of the
endowment fund remaining irreducibly intact.
In 1958, the Diocese of Gary, Indiana, was established by
the Roman Catholic Church and St. Paul’s Parish became
one of the parishes of the newly-created Diocese, of which
Andrew G. Grutka (the “Bishop”) was appointed Bishop.
4
In 1959, by the unanimous vote of all of the then Trustees
of the Association, including Trustee Monsignor W.
Edward Sweigart, the administrator of St. Paul’s Parish at
the time, the Association adopted written rules and
regulations by which the Association would be operated
(the “Rules and Regulations”). The new Rules and
Regulations continued the former practices of the
Association and continued to require the maintenance of
the endowment fund for the perpetual care of the cemetery.
The perpetual care fund has been maintained to the present
under and according to the Rules of the Association as
promulgated in 1959, a copy of which Rules and
Regulations are set out in the Appendix at A-27. Inter alia,
Section 17 of the Rules requires that the principal of the
endowment fund shall be invested by the Asseciation and
shall stand forever.
In 1966, the Association formed the St. Paul’s Cemetery
Endowment Association, Inc. (the “Corporation”) for the
purpose of managing and investing the perpetual care
endowment fund. The Trustees of the Association and the
pastor of St. Paul’s Parish constitute the Board of Directors
of the Corporation, a!] with voting power.
In 1974, the Corporation established an irrevocabie trust
for the perpetual care funds, named the First National
Bank of Valparaiso, Indiana (the “Bank”) as Trustee
thereof, and placed the endowment funds of the Association
into the trust. The Bank, as Trustee, has annually paid the
income from the trust to the Association, and such proceeds
have been applied annually to the payment of the costs for
care and maintenance of St. Paul’s Cemetery as had been
the Association’s prior practice.
In 1980, in his capacity as Bishop of the Gary, Indiana
diocese, the Bishop filed a complaint in the Porter Superior
Court demanding that the trust be dissolved and that the
endowment fund be turned over to the pastor of St. Paul’s
Parish.
The Association and the Corporation, pursuant to Rule
56, Indiana Rules of Trial Procedure, moved for summary
judgment on the grounds that the First and Fourteenth
Amendments to the U.S. Constitution prohibited the Court
from adjudicating the controversy inasmuch as the
resolution thereof was a matter of ecclesiastical doctrine,
law and polity outside the scope of secular review. Further,
the defendants maintained that the preservation of the
perpetual care endowment fund was required by Canon
Law and the Second Council of Baltimore. The Court
granted the motion for summary judgment on June 15,
1981, and the Bishop appealed to the Indiana Court of
Appeals. Applying the “Neutral Principles of Law”
approach, and a “Polity Analysis”, the Court of Appeals
reversed the trial courts’ dismissal of the complaint and
remanded the case for a determination of whether the
Bishop consented to the formation of the trust.
In its opinion, the Court of Appeals stated:
The Association and the Corporation assert that the
determination of Bishop Grutka’s authority over St.
Paul’s Cemetery is an ecclesiastical matter outside the
scope of secular review pursuant to the first
amendment of the United States Constitution.
Application of the Neutral Principles of Law
Approach and the Polity Analysis indicates a contrary
result. Because each theory reveals that the
determination of Bishop Grutka’s authority over St.
Paul’s Cemetery requires no interpretation of
ecclesiastical matters, the first amendment does not
proscribe our resolution of this church property
dispute. Jones v. Wolf (1978), 443 U.S. 595, 604.
Therefore, we will first use the Neutral Principle of
Law Approach to determine whether the trial court
can dissolve the Corporation’s trust. Second,
application of the Polity Analysis will determine
whether the trial court must require the Association
and the Corporation to transfer to Pastor Charlebois
their control over St. Paul's Cemetery.
In applying the Neutral! Principles of Law analysis to the
issue of whether the trust could be dissolved, the Court of
Appeals made several findings. First, the Court found that
Article 5 of the Association’s Rules and Regulations vested
' fina] authority over disputes in the Bishop. Article 5 reads:
“In case of, major controversy, the decision of the
Most Reverend Bishop of the Diocese of Gary, Indiana,
or his delegate, shall be final, and no appeal from any
such decision may be taken to the civil courts.”
Rules and Regulations, at Appendix A-28.?
Secondly, the Court of Appeals determined that the
Bishop’s consent is required for church investments, citing
Canon 1516(4) which states in pertinent part:
“1516. As the administrators [pastors] are bound to
fulfill their office with the solicitude of a good father of
a family, they shall:...
“(4) invest the surplus revenue of a church, with
the consent of the Ordinary [Bishop] to the benefit of
the church;...”
Code of Canon Law of the Roman Catholic
Church (Codex Juris Canonici), Canon
1516(4).
The Court concluded:
Thus, civil law and church documents make it clear
that the Corporation could have created a valid second
trust only if it had first acquired Bishop Grutka’s
consent. We do not know whether Bishop Grutka
consented to the Corporation’s trust; this is a question
for the trier of fact.
[footnotes omitted]
In resolving the second issue of whether the trial court
must enforce the Bishops’ orders, the Court stated:
*As the dissenting opinion in the Court of Appeals noted, Article 5,
giving the Bishop “final authority”, appears to relate to authority over
questions of interment of individuals.
7
The first step that must be made in the analysis is
whether the Catholic Church is hierarchial or
congregational. Because there is no dispute that St.
Paul’s Catholic Church is part of a hierarchial
denomination, we can go to the second and third steps
of this analysis. The second step is for us to determine
whether St. Paul’s Catholic Church and its
organizations are subject to the direction of the
hierarchy. Articles 2, 3, 4, 5, and 22of the Association’s
rules and regulations clearly establish, without
interpretation, that Bishop Grutka’s decisions are
final. The third step under this Polity Analysis is
determining the legitimate source of control over the
Association and the Corporation. In addition to the
above-mentioned articles, Canon 1516(4) of the Roman
Catholic Church establishes Bishop Grutka as the
legitimate source of control over St. Paul’s Cemetery.
Thus, the Polity Analysis requires the trial court to
enforce Bishop Grutka’s orders because he is the
hierarchial authority. Therefore, if the trier of fact
finds that Bishop Grutka did not consent to the
Corporation’s trust, the trial court must enforce his
orders to dissolve the Corporation’s trust and to
transfer control to Pastor Charlebois.
(footnotes, citations omitted)
The defendants sought transfer of this case to the Indiana
Supreme Court by petition dated May 25, 1983. On August
3, 1983, transfer was denied. The case is now pending
before the Porter Superior Court, with a trial on the issue of
the Bishops’ consent likely to be completed by December,
1°83.
WHY THE WRIT SHOULD BE GRANTED
1. The opinion below erroneously determines that the
Indiana Court of Appeals has the authority to
resolve an intra-church dispute turning on the
doctrine, polity and ecclesiastical governance of the
Roman Catholic Church.
8
The application of the Neutral Principles of Law analysis
by a civil court presumes that the issue before the Court is
strictly a property dispute, and not a dispute involving
fundamentally doctrinal matters. Watson v. Jones, 80 U.S.
(138 Wall.) 679 (1871); Presbyterian Church v. Mary
Elizabeth Blue Hull, 393 U.S. 440 (1969). Civil courts can
not circumvent the proscriptions of the First and
Fourteenth Amendments merely by asserting that
tangential or incidental property rights are affected by
their deision to intervene in religious disputes. Serbian
Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). A
touchstone of the First Amendment’s freedom of exercise of
religion clause is that religious disputes are appropriately
left to ecclesiastical and not civil tribunals.
In the case at bar, the Indiana Court of Appeals
mistakenly perceives the dispute between the Bishop and
the cemetery organizations as predominantly a dispute
over property. In fact, there is no dispute over the cemetery
property, nor any church property, but rather a dispute
over the purported authority of the Bishop to mandate the
Association and the Corporation to do that which they
believe Canon Law, church doctrine and the practice of the
Roman Catholic Church prohibit: dissolve the cemetery
perpetual care endowment fund. This dispute is not a
property dispute, and is properly left to resolution by the
appropriate ecclesiastical tribunal.
The Court of Appeals recognizes that the Roman Catholic
Church is governed under a system of Canon Law, and,
indeed, the Court cites one provision thereof in support of
its finding that the Bishop has control over the investment
of church surplus funds. The Court makes no mention of the
remaining provisions of Canon Law relating to the general
authority of the Bishop vis a vis local parishes, nor the
provisions relating to the establishment of tribunals for the
resolution of church disputes. There is no mention of Canon
Law relating to the care and upkeep of cemeteries, and the
requirement that the proceeds of lot sales be applied
thereto. Finally, there is no mention that the temporal
9
goods of the church are to be administered by boards.’ This
wholesale omission is entirely appropriate, inasmuch as the
interpretation and application of Canon Law is properly
left to tnose members of the Church entrusted therewith,
and properly taking place in the church forums provided
therefor. The dispute before the Indiana Court of Appeals
was one for which the Roman Catholic Church has provided
definitive avenues of resolution and strict provisions of law,
and none of the avenues or provisions of law involve the civil
courts.
The Court of Appeals imputes validity and complete
secularity to its resolution of the case at bar by finding that
Canon 1516(4), and the Rules of the Association, confer
sufficient authority on the Bishop to demand the turnover
of the endowment fund. While not sufficient to constitute a
foundation for its holding, the Court’s cursory analysis
indicates that the dispute between the Bishop and the
cemetery organizations turns on the polity and
ecclesiastical governance of the Church. Analysis of the
polity and governance of the Roman Catholic Church is no
uncomplicated matter. Finite determinations with regard
to the loci of authority in the Church, and their allegiance to
Canon Law, entails a comprehensive analysis of the Church
itself. As this Court succinctly stated in Watson v. Jones,
supra:
But it is easy to see that if the civil courts are to
inquire into all these matters, the subject of the
doctrine theology, and usages and customs, the
written laws, and fundamental organization of every
religious denomination may, and must, be examined
into with minuteness and care, for they would become,
in almost every case, the criteria by which the validity
of the ecclesiastical decree would be determined in the
civil court. This principle would deprive these bodies
‘See “A Practical Commentary to the Code of Canon Law”, Reverend
Stanislaus Woywood, O.F.M., J.C.L., Joseph F. Wagner, Inc., New
York City (1957) at 202.
10
of the right of construing their own church laws,
would open the way to all the evils which we have
depicted as attendant upon the doctrine of Lord Eldon,
and would, in effect, transfer to the civil courts where
property rights were concerned the decision of all
ecclesiastical questions.
13 Wall., at 733-4.
In Maryland and Virginia Eldership of the Churches of
God v. Church of God at Sharpsburg, this Court again had
occasion to address the propriety of civil courts resolving
issues of polity and ecclesiastical governance. As
mentioned by Mr. Justice Brennan in a separate
concurring opinion joined by Justices Douglas and
Marshall:
To permit civil courts to probe deeply enough into the
allocation of power within a church so as to decide
where religious law places control over the use of church
property would violate the First Amendment in much
the same manner as civil determination of religious
doctrine. Similarly, where the identity of the
governing body or bodies that exercise general
authority within a church is a matter of substantial
controversy, civil courts are not to make the inquiry
into religious law and usage that would be essential to
the resolution of the controversy. In other words, the
use of the Watson approach is consonant with the
prohibitions of the First Amendment only if the
appropriate church governing body can be determined
without the resolution of doctrinal questions and
without extensive inquiry into religious polity.
396 U.S. at 369, 370
(emphasis supplied).
See also Kreshik v. Saint Nicholas Cathedral, 363 U.S.
190 (1960), and Kedroff v. Saint Nicholas Cathedral, 344
U.S. 94 (1952).
The Bishop of the Diocese of Gary, Indiana has demanded
that the cemetery associations turn over the endowment
11
funds held in an irrevocable trust for the perpetual care of
the St. Paul’s cemetery. Enforcement of such a demand
must turn upon a comprehensive examination of Canon
Law, the polity, practices, custom, governance, and very
doctrine of the Roman Catholic Church. These matters
have no residency in the secular civil courts.
2. The “Neutral Principles of Law” analysis applied
by the court below is erroneous in form and
application.
The Court of Appeals places primary reliance on Jones v.
Wolf, 443 U.S. 595 (1979) in holding that it has the avthority
to hear the “property dispute” evidenced by the Bishop’s
complaint. Moreover, the Court purportedly follows the
Neutral Principles of Law analysis allowed by Jones,
supra, in holding that the Bishop is the final authority with
regard to the disputed property. Even assuming that the
controversy before the Court of Appeals is a property
dispute, the Court erroneously applies the Neutral
Principles of Law approach.
First, the application of the Neutral Principles of Law
approach is not without qualification:
In undertaking such an examination, a civil court
must take special care to scrutinize the document in
purely secular terms, and not to rely on religious
precepts in determining whether the document
indicates that the parties have intended to create a
trust. In addition, there may be cases where the deed,
the corporate charter, or the constitution of the
general church incorporates religious concepts in the
provisions relating to the ownership of property. If in
such a case the interpretation of the instruments of
ownership would require the civil court to resolve a
religious controversy, then the court must defer to the
resolution of the doctrinal issue by the authoritative
ecclesiastical body.
443 U.S. at 604.
12
The opinion of the Court of Appeals, and the findings
therein, are fraught with both explicit and implicit
reliance on religious precepts. The Court makes the
following comments:
The record reveals that St. Paul’s Catholic Church of
Valparaiso, Indiana, is part of the Roman Catholic
Diocese of Gary, Indiana headed by Bishop Grutka.
*_ * *
Bishop Grutka contends on appeal that his position
as head of the Gary Diocese gives him the authority to
require the Association and the Corporation to
dissolve the Corporation’s trust.
*+_ * *
All parties agree that as the head of the Gary
Diocese, Bishop Grutka is the legal title holder and
trustee of St. Paul’s Cemetery.
ee
All parties agree that Bishop Grutka as the current
head of the Gary Diocese is the trustee of St. Paul’s
Cemetery. Therefore, the trust that was later created
by the Corporation is a second trust of St. Paul’s
Cemetery.
The Courts’ references to Bishop Grutka as “trustee” and
as “head” of the Gary Diocese implicate not only religious
precepts, but the very hierarchial/doctrinal nature of the
Roman Catholic Church. If the Bishop is “trustee” of the
cemetery, presumably the Roman Catholic Church is the
beneficiary. Or perhaps the Bishop holds the cemetery in
trust for St. Paul’s Parish. As trustee in either scenario, the
Bishop has obligations to the beneficiaries of the trust. Are
the Bishop’s obligations as trustee determined by the
doctrine, beliefs and Canon Law of the Roman Catholic
Church, or is the Bishop bound only by the obligations
imposed by Indiana trust law? The former is more likely
than the latter, but only the determination of canonical and
ecclesiastical matters can answer this question. Could the
13
Bishop, as trustee of the cemetery and as head of the Gary
Diocese, order the cemetery razed? Perhaps, but these are
matters the determination of which requires an exhaustive
analysis of the Bishop’s authority in the Roman Catholic
Church. Such an analysis can only be undertaken with the
aid of, and dependence on, the most fundamental of
religious precepts. Indeed the very status of the Bishop as
the Plaintiff in this lawsuit requires frontal reliance on
religious precepts.
A determination of the Bishop’s authority demands “a
searching and therefore impermissible inquiry into church
polity.” Serbian Orthodox Diocese, supra, 426 U.S. at 723.
Were the Court of Appeals correct in applying the Neutral
Principles of Law approach, it would have “obviate[d]
entirely the need for an analysis or examination of
ecclesiastical polity or doctrine in settling” this dispute.
Jones, supra, at — 5.
Finally, this Court notes in Jones, supra at 604, citing
Presbyterian Church I, 393 U.S. at 449:
These problems, in addition, should be gradually
eliminated as recognition is given to the obligation of
“States, religious organizations, and individuals [to]
structure relationships involving church property so
as not to require the civil courts to resolve
ecclesiastical questions.”
The St. Paul’s Cemetery Association and the previous
pastor of St. Paul’s did not try to “gradually” eliminate civil
intervention, as Jones, supra anticipated. Rather, the
express and unequivocal desire of the Association and the
pastor in 1959 was that secular civil courts should have no
place whatsoever in the operation of the cemetery.
Article 3 of the Rules and Regulations of St. Paul’s
Cemetery Association states:
Civil law shall have no right to interfere with the
operation of this cemetery association especially with
14
regard to the interment of a person who is not entitled
to Christian burial.
(Emphasis supplied.)
CONCLUSION
In contravention of the First and Fourteenth
Amendments to the U.S. Constitution, the Indiana Court of
Appeals erroneously decided that it had the authority to
determine a religious dispute turning on the doctrine,
polity, law and ecclesiastical governance of the Roman
Catholic Church. Thereafter, the Court erroneously
applied the Neutral Principles of Law approach to the
religious dispute. The writ should issue to reaffirm that the
civil courts have no authority to resolve religious disputes
involving the ecclesiastical issues emanating from the
doctrine and polity of a religious organization. Further, the
writ should issue to prevent the unwarranted extensions of
Jones, supra, which would allow secular civil courts to
preempt the just adjudication of religious disputes in
preordained religious forums.
Respectfully submitted,
William M. Evans
John G. Deckard
BOSE MCKINNEY & EVANS
1100 First Indiana Building
Indianapolis, Indiana 46204
(317) 637-5353
Attorneys for Petitioners
15
Appendix
Al
APPENDIX
OPINIONS BELOW
IN THE SUPREME COURT OF INDIANA
No. 3-483A76
Andrew G. Grutka et al. v. Leo J. Clifford et al.
You are hereby notified that the Supreme Court of
Indiana has on this day: Appellees Petition For Transfer is
hereby DENIED.
Please acknowledge receipt of this notice in order that
our records may show that you have been notified of this
action.
WITNESS my name and the seal of said Court, this 3rd
day of August, 1983.
Marjorie H. O’Laughlin
Clerk Supreme Court and Court of Appeals
A2
APPENDIX
OPINIONS BE] OW
IN THE INDIANA COURT OF APPEALS,
Third District
No. 3-483A76
Andrew G. Grutka et al. v. Leo J. Clifford et al.
You are hereby notified that the Court of Appeals has on
this day: Appellee petition for Rehearing Denied.
Buchanan, C. J. Garrard, J. votes to Grant Petition for
Rehearing.
Please acknowledge receipt of this notice in order that
our records may show that you have been notified of this
action.
WITNESS my name and the seal of said Court, this 6th
day of May, 1983.
Marjorie H. O’Laughlin
Clerk Supreme Court and Court of Appeals
IN THE
COURT OF APPEALS OF INDIANA
THIRD DISTRICT
ANEREW G. GRUTKA, as Bishop of
the Roman Catholic Diocese of
Gary, Indiana,
Appellant (Plaintiff Below),
v.
LEO J. CLIFFORD,
JOSEPH CLIFFORD,
CLARENCE F LITTER,
CLARENCE AILES,
EDWARD GANNON, individually and
as members of the Board of Lay
Trustees of St. Paul’s Cemetery
Association, Valparaiso, Indiana,
ST. PAUL’s CEMETERY ENDOWMENT
ASSOCIATION, INC., an Indiana
not-for-profit Corporation,
THE FIRST NATIONAL BANK OF
VALPARAISO, INDIANA, a
national banking corporation,
Appellees (Defendants Below).
me me ee ee ee ee ee ee ee ce ee eee ee ee eee ee”
NO. 3-482 A 76
APPEAL FROM PORTER SUPERIOR COURT
Honorable Jack R. Allen, Judge
80-PSC-1381
A-3
STATON, J.
Bishop Grutka of the Roman Catholic Diocese of Gary,
Indiana, sought to dissolve an irrevocable trust established
by St. Paul’s Catholic Church of Valparaiso, Indiana for the
care of its cemetery. The trial court granted summary
judgment in favor of the defendants, St. Paul’s Cemetery
Association (Association) and St. Paul’s Cemetery
Endowment Association (Corporation). Bishop Grutka
contends that the trust is invalid because it was estabished
without his consent. He raises three issues on appeal which
we have consolidated into the determination of whether the
irial court erred in granting the summary judgment and in
refusing to dissolve the trust and transfer the trust funds
back to St. Paul’s Cemetery Association and to Pastor
Charlebois, Pastor of St. Paul’s Catholic Church.
We reverse and remand tothe trial court for a determina-
tion of whether Bishor Grutka consented to the creation of
the Corporation’s trust and for further determinations
consistent with this opinion.
Trial courts grant summary judgments pursuant to Ind.
Rules of Procedure, Trial Rule 56, to terminate cases
without factual dispute and which may be determined as a
matter of law. Although TR. 56 helps expose spurious cases
and eliminate undue burdens on litigants, the courts must
exercise caution to ensure a party of his right to a fair
determination of a genuine issue. Improbability of
recovery by one party does not justify summary judgment
for the opposition. Bassett v. Glock (1977), 174 Ind. App.
439, 368 N.E.2d 18, 20-21.
Summary judgments result when the court applies the
law to undisputed facts. It may consider affidavits,
depositions, admissions, interrogatories, and testimony.
Bassett, supra. In addition, the court must consider as true
the facts set forth in the opposition’s affidavits and liberally
construe the discovery in his favor. Poxon v. General Motors
Acceptance Corp. (1980), ___. Ind. App. ___., — _, 407
N.E.2d 1181, 1184.
A-4
On review of a grant of summary judgment this Court
must determine if there exists any genuine issue of
material fact and whether the law was correctly applied.
Hale v. Peabody Coal Co. (1976), 168 Ind. App. 336, 343
N.E.2d 316, 320. Any doubt about the existence of a
genuine issue of material! fact must be resolved against the
moving party. Moreover, even if the facts are undisputed,
summary judgments are inappropriate when the evidence
before the court reveals a good faith dispute as to the
inferences to be drawn from those facts. Jd.
The record reveals that St. Paul’s Catholic Church of
Valparaiso, Indiana, is part of the Roman Catholic Diocese
of Gary, Indiana headed by Bishop Grutka. St. Paul’s
Catholic Church created the Cemetery Association in 1903
to care for its cemetery. The Association transferred its
responsibility over St. Paul’s Cemetery to the Corporation
which it establshed in 1966. It supplied the Corporation
with part of the Association’s funds. Pastor Charlebois and
the Association’s trustees constitute the Corporation’s
board of directors. In 1974, the Corporation presented to
Bishop Grutka a draft of a trust agreement between the
Corporation and the First National Bank of Valparaiso,
indiana (trustee bank). Bishop Grutka requested several
modifications to the trust agreement. However, he
stipulated that even if the Corporation adopted the
requested modifications, he would not guarantee his
consent to the trust as required by Indiana trust law and
Canon 1516(4) of the Roman Catholic Church. On May 30,
1974, after the Corporation made modifications to the trust,
it established an irrevocable trust with trustee bank to
derive investment income for the care of St. Paul’s
cemetery.
Pastor Charlebois protested the creation of the
Corporation’s trust for the care of St. Paul’s Cemetery.
. After failure to compel access to the trust records and to
participate in the control of St. Paul’s Cemetery, he asked
Bishop Grutka to resolve the matter because Bishop
A-5
Grutka was legal title holder of St. Paul’s Cemetery and
head of the Gary Diocese. Bishop Grutka sought at trial to
dissolve the Corporation’s trust, to require the trustee bank
to deliver to Pastor Charlebois and the Association the trust
principal and income, and to require the Association and
the Corporation to transfer to Pastor Charlebois their
control over St. Paul’s Cemetery.
In their joint affidavit accompanying their motion for
summary judgment, the Association and the Corporation
made three contentions. First, they asserted that the
question of control over church property is an ecclesiastica!
matter outside secular court jurisdiction pursuant to the
First Amendment of the United States Constitution.”
Second, they asserted that no genuine issues of material
fact existed. Third, they asserted that the Indiana General
Cemetery Act prevented any transfer of funds from the
Corporation’s trust.2 The trial court granted summary
judgment for the Association and the Corporation.
Bishop Grutka contends on appeal and his position as
head of the Gary Diocese gives him the authority to require
the Association and the Corporation to dissolve the
Corporation’s trust. All parties agree that as the head of the
Gary Diocese, Bishop Grutka is the legal title holder and
trustee of St. Paul’s Cemetery. Bishop Grutka contends
that his status as legal title holder of St. Paul’s Cemetery
requires the Corporation to obtain his consent for the valid
creation of an irrevocable trust for the care of St. Paul’s
Cemetery. Under these two theories, he urged the trial
court to dissolve the Corporation's trust and to require the
Corporation and the Association to transfer to Pastor
“Religious, and political freedom.—Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.”
U.S. Const. amend. I.
? IC 1974, 23-14-1-1-25) (Burns Code Ed.).
A-6
Charlebois control over St. Paul’s Cemetery. He asserted
that these two theories establish him as the hierachial
authority over the Corporation and the Association. These
theories are commonly known as the Neutral Principles of
Law Approach and the Polity Analysis.
The Association and the Corporation assert that the
determination of Bishop Grutka’s authority over St. Paul’s
Cemetery is an ecclesiastical matter outside the scope of
secular review pursuant to the First Amendment of the
United States Constitution. Application of the Neutral
Principles of Law Approach and the Polity Analysis
indicates a contrary result. Because each theory reveals
that the determination of Bishop Grutka’s authority over
St. Paul’s Cemetery requires no interpretation of
ecclesiastical matters, the First Amendment does not
proscribe our resolution of this church property dispute.
Jones v. Wolf (1978), 443 U.S. 595, 604. Therefore, we will
first use the Neutral Principles of Law Approach to
determine whether the trial court can dissolve the
Corporation’s trust. Second, application of the Polity
Anaiysis will deter- mine whether the trial court must
require the Association and the Corporation to transfer to
Pastor Charlebois their control over St. Paul’s Cemetery.
The State has a legitimate interest in providing civil
forums for resolution of church property disputes. Jones,
supra at 602; Presbyterian Church of the United States v.
Mary Elizabeth Blue Hull Memorial Presbyterian Church
(1969), 393 U.S. 440, 445; Marich v. Kragulac (1981), _—
Ind. App. ___, 415 N.E.2d 91, 96. The First Amendment of
the United States Constitution only proscirbes secular
resolution of those church property disputes which
necessitate interpretation of ecclesiastical matters. Jones,
supra at 602; Hull Memorial, supra at 449; Marich, supra
at 96; United Methodist Church v. St. Louis Crossing
Independent Methodist Church (1971), 150 Ind. App. 574,
580-81, 276 N.E.2d 916, 920. Indiana defines ecclesiastical
matters as those matters which concern
A-7
“doctrine, creed, or form of worship of the church, or
the adoption and enforcement within a religious
association of needful laws and regulations for the
government of membership, and the power of
excluding from such associations those deemed
unworthy of membership by the legally constituted
authorities of the church.”
St. Louis Crossing, supra at 920, citing Olear v. Haniak
(1939), 235 Mo. App. 249, 1381S.W.2d 375, 380-381; Western
Conf. of Original Free Will Baptists v. Miles (1963), 259
N.C. 1, 129 S.E.2d 600, 606. However, the First
Amendment allows the courts freedom of analytical
approach when a church matter is properly before them.
Hull Memorial, supra at 449; Marich, supra at 98;
St. Louis Crossing, supra at 921.
Recently, this Court applied the Neutral Principles of
Law Approach to resolve church property disputes.
Marich, supra; Draskovich v. Pasalich (1972), 151 Ind.
App. 397, 411-414, 280 N.E.2d 69, 77-79. The policy of the
Neutral Principles of Law Approach is to allow secular
courts to resolve church property disputes without
violating the First Amendment's prohibition of interpreting
religious documents.’ The Neutral Princples of Law
* “The primary advantages of the neutral-principles approach are that it
is completely secular in operation, and yet flexible enough to
accommodate al! forms of religious organization and polity. The
method relies exclusively on objective, well- established concepts of
trust and property law familiar to lawyers and judges. It thereby
promises to free civil courts completely from entanglement in
questions of religious doctrine, polity, and practice. Furthermore, the
neutral-principles analysis shares the peculiar genius of private-law
systems in general flexibility in ordering private rights and obliga-
tions to reflect the intentions of the parties. Through appropriate
reversionary clauses and trust provisions, religious societies can
specify what is to happen tochurch property in the event of a particular
contingency, or what religious body will determine the ownership in
the event of a schism or doctrinal controversy. In this manner, a
religious organization can ensure that a dispute over the ownership of
— property will be resolved in accord with the desires of the
members.”
Jones v. Wolf (1978), 443 U.S. 595, 603.
A-8
Approach requires courts to examine certain documents
for language of a trust in favor of the General Church.
Jones, supra at 604-605; Marich, supra at 101; St. Louis
Crossing, supra at 921. The documents to be examined
include civil statutes, the express language of deeds, local
church charters, and general church constitutions. Jones,
supra; Marich, supra; St. Louis Crossing, supra. The
United States Supreme Court has outlined how closely
courts may examine these religious documents:
“In undertaking such an examination, a civil court
must take special care to scrutinize the document in
purely secular terms, and not to rely on religious
precepts in determining whether the document
indicates that the parties have intended to create a
trust. In addition, there may be cases where the deed,
the corporate charter, or the constitution of the
general church incorporates religious concepts in the
provisions relating to the ownership of property. If in
such a case the interpretation of the instruments of
ownership would require the civil court to resolve a
religious controversy, then the court must defer to the
resolution of the doctrinal issue by the authoritative
ecclesiastical body.”
Jones, supra at 604; Serbian Orthodox Diocese v.
Milivojevich (1976), 426 U.S. 696, 709.
The Association and the Corporation rely on Draskovich,
supra, to support their contention that the trial court
lacked jurisdiction over this church property dispute. We
fail to see how Draskovich supports the Association and the
Corporation in this case. In Draskovich, a local church
congregation, split over loyalties between the Mother
Church and a defrocked Bishop, litigated a dispute over the
control of the local church property. This Court held that
“{religious] beliefs as to the proper method for achurch
to own property are frequently bound up with and
intermingled in the religious rites, doctrines, polity
and practices of the church.
A-9
In this case the parts of the constitution of the
Mother Church and the United States and Canada
Diocese relating to the ownership of property are
clearly interspersed and interrelated with the other
provisions relating to religious rites, doctrines, polity
and practices.”
Id. at 78-79. Because the terms in the church constitutions
regarding property ownership were intermingled with
religious concepts, this Court found that the trial court had
to “probe deeply” into church documents to determine who
controlled the church property. Jd. at 77 and 79. Clearly,
the First Amendment prohibits this. Jd. The prohibition
against “probing deeply” into church documents means
that courts cannot interpret ecclesiastical matters within
church documents when determining control of church
property. Jd. We see no difference between “probing
deeply” and “interpretation.” Jd.; See Jones, supra at 604.
Therefore, Draskovich does not alter the general rule that
we can examine church documents to determine who has
control of church property as long as we do not interpret
ecclesiastical matters. Jones, supra at 604; Draskovich,
supra at 77.
The Neutral Principles of Law Approach can be applied
to determine whether the Corporation made a valid trust.
All parties agree that Bishop Grutka as the current head of
the Gary Diocese is the trustee of St. Paul’s Cemetery.
Therefore, the trust that was later created by the
Corporation is a second trust of St. Paul’s Cemetery.
Whether the second trust created by the Corporation is a
valid trust does not require any interpretation of
ecclesiastical matters.
There are two ways to create a valid second trust. Either
all of the beneficiaries of the initial trust can make a second
trust of their equitable interest, or the trustee of the initial
trust may consent to the creation of a second trust. Buhl v.
Kavanagh {6th Cir. 1941), 118 F.2d 315, 320; Hord v.
Bradbury (1901), 156 Ind. 20, 59 N.E.27; Rottger v. First
A-10
Merchants National Bank of Lafayette (1933), 98 Ind. App.
139, 184 N.E. 267. The Corporation must have used one of
these methods to create a valid second trust over St. Paul’s
Cemetery.
A valid second trust of the equitable interest in the initial
trust over St. Paul’s Cemetery can be made only by all of
the beneficiaries of the initial trust. Buhl, supra. Thus, we
must determine the beneficiaries of the initial trust over
St. Paul’s Cemetery. Although we have never applied the
Neutral Principles of Law Approach to determine the
beneficiaries of a trust, we do so here because such
application does not circumvent its policy as long as we
refrain from interpreting ecclesiastical matters within the
church documents.‘ The Association’s rules and
regulations are among the church documents which we can
examine to resolve this church property dispute.’ Article
12 of the Association’s rules and regulations clearly states,
without interpretation, that the beneficiaries of St. Paul’s
Cemetery are all Catholics who desire and are granted a
‘ See supra note 3. This Court has consistently applied the Neutral
Principles of Law Approach to find language evidencing an implied
trust in favor of the General Church. Marich, supra; Draskovich,
supra; St. Louis Crossing, supra. Here, the pleadings make it
unnecessary for us to search for such trust language. In their answer,
the Corporation and the Association stated that Bishop Grutka holds
St. Paul’s Cemetery in trust.
5 In fact, the Indiana Supreme Court stated that:
“It is the law in this state and in this country generally that the
ecclesiastical rules and regulations of any church organization shall
be controlling upon the members of the organization, and will be
given full effect by the civil courts so long as they are reasonable and
not inconsistent with, or repugnant to, the civil laws.”
Kompier v. Thegza (1938), 213 Ind. 542, 13 N.E.2d 229, 231.
A-11
burial plot therein.* Because St. Paul’s members may not
be the exclusive beneficiaries of the St. Paul Cemetery
plots held in trust by Bishop Grutka, their local
Corporation cannot create a second trust under Indiana
trust law. Jd.
Having found that all of the beneficiaries could not have
created a second trust in their equitable interest, the
Corporation could only create a second valid trust over
St. Paul’s Cemetery through the consent of Bishop Grutka,
trustee of the initial trust. It is undisputed that Bishop
Grutka is legal title holder and trustee of St. Paul’s
Cemetery. As trustee of St. Paul’s Cemetery, Bishop
Grutka is responsible to provide a well-maintained
cemetery to ensure that the Association and the
Corporation do not limit the cemetery plots to only St.
Paul’s members and that only true Catholics are buried
therein.’ In addition to the Association’s rules and
regulations which set forth these responsibilities for
Bishop Grutka, Canon 1516(4) of the Roman Catholic
* St. Paul’s Catholic Church Cemetery Association’s rules and
regulations, art. 12:
“Article 12
“The facilities of St. Paul's Cemetery are principally intended for
Catholics living in the Valparaiso, Indiana, area. If, for reasons of
sentiment, nonresidents desire to purchase burial space, they may
tender their application in writing to the association and said
association reserves the right to accept or reject the same. The term
‘Valparaiso, Indiana, area’ is intended to mean the area within the
jurisdiction of the Reverend Pastor or Administrator of St. Paul's
Catholic Church of Valparaiso, Indiana.”
7 St. Paul's Catholic Church Cemetery Association’s rules and
regulations, art. 2, 3, 4, 5 and 22:
“Article 2
“This association exists for the purpose of operating St. Paul's
Cemetery in a most satisfactory manner and with respect and
reverence with such hallowed ground requires. Said cemetery is
situated on old State Road 49 southeast of the City of Valparaiso,
Indiana, consisting of 10 1/2 acres located in Section 30, Township
35, Range 5 West, the title of which is in the name of the Bishopof the
Diocese of Gary, Indiana.
A-12
Church stipulates that Bishop Grutka’s consent is required
for church investments.* Thus, civil law and church
documents make it clear that the Corporation could have
created a valid second trust only if it had first acquired
Bishop Grutka’s consent. We do not know whether Bishop
Grutka consented to the Corporation’s trust;? this is a
7 (continued)
“Article 3
“Civil law shall have no right to interfere with the operation of this
cemetery association especially with regard to the interment of a
person who is not entitled to Christian burial.
“Article 4
“No interment shall be made contrary to the regulations of the
Roman Catholic Diocese of Gary, Indiana, and no interment shall be
made without the approval of a Roman Catholic Priest.
“Article 5
“In case of major controversy, the decision of the Most Reverend
Bishop of the Diocese of Gary, Indiana, or his delegate, shall be final,
and no appeal from any such decision may be taken to the civil
courts.”
x
“Article 22
“Purchasers of property in St. Paul’s Cemetery shall, at the time
the purchase price is paid in full, receive a certificate of ownership
entitling them to the perpetual holding and use of said property for
the burial of the dead, subject to the rules and regulations of the
cemetery, the discipline of the Catholic church, and the laws of the
Diocese of Gary, Indiana, now in force or that may hereafter be
adopted;...”
8 See supra note 6; Code of Canon Law of the Roman Catholic Church
(Codex Juris Canonici), Canon 1516(4):
“1516. As the administrators are bound to fulfill their office
with the solicitude of a good father of a family, they shall:. ..
“(4) invest the surplus revenue of a church, with the consent of
the Ordinary, to the benefit of the church;...”
The “Ordinary” referred to in Canon 1516(4) above is another name for
the Bishop of the Diocese.
* Even if Bishop Grutka had expressly delegated to the Corporation his
power over St. Paul’s Cemetery, the Corporation would not have the
power to create a second valid trust without his consent. Hord +.
Bradbury (1900), 156 Ind. 20, 59 N.E. 27.
A-13
question for the trier of fact.'”
Because the trial court can dissolve the Corporation’s
trust if Bishop Grutka did not consent, we apply the Polity
Analysis to determine whether the trial court must enforce
Bishop Grutka’s order which requires the transfer of
control over St. Paul's Cemetery to Pastor Charlebois. We
have previously applied this analysis in cases where we can
determine the proper church-governing body without
interpretation of ecclesiastical matters. Marich, supra at
98; Draskovich, supra at 77. The Polity Analysis requires
three steps to determine who controls St. Paul’s Cemetery.
Marich, supra at 98; Bernson v. Koch (1975), 35 Colo. App.
257, 534 P.2d 334.
The first step that must be made in the analysis is
whether the Catholic Church is hierarchial or congregational.
Because there is no dispute that St. Paul’s Catholic Church
is part of a hierarchial denomination, we can go to the
second and third steps of this analysis. The second step is
for us to determine whether St. Paul’s Catholic Church
and its organizations are subject to the direction of the
hierarchy. Articles 2, 3, 4,5 and 22 of the Association’s rules
and regulations clearly establish, without interpretation,
‘ If Bishop Grutka consented to the created of the Corporation’s trust,
and if the trust is otherwise valid under [ndiana trust !aw, it still may
be revocable. For a valid trust to be revocable, the settlor must have
inserted a revocation clause. IC 1974, 30-1-9-17 (Burns Code Ed., 1982
Supp.); Hinds v. McNair (1980), Ind. __, 413 N.E.2d 586, 594;
Rottger, supra, Terre Haute Trust Co. v. Scott (1932), 94 Ind. App. 461,
181 N.E. 369. However, equity allows reformation of the trust to insert
a revocation clause if it was fraudulently or mistakenly omitted by the
person preparing the trust for the settlor. Colbo v. Buyer (1956), 234
Ind. 518, 134 N.E.2d 45, 50-51. Bishop Grutka did request that several
moc ifications be made to the trust. The Corporation made several
changes which did not include the insertion of a revocation clause. If
the Bishop operated under mistake as to the law which requires sucha
clause, equity allows its insertion. Jd. However, acting upon advice of
counsel does not permit the insertion of a revocation clause. Jd.
Therefore, the trial court may or may not be able to dissolve the
Corporation’s trust.
A-14
that Bishop Grutka’s decisions are final.'' The third step
under this Polity Analysis is determining the legitimate
source of control over the Association and the Corporation.
In addition to the above-mentioned articles, Canon 1516(4)
of the Roman Catholic Church establishes Bishop Grutka
as the legitimate source of control over St. Paul’s
Cemetery.'* Thus, the Polity Analysis requires the trial
court to enforce Bishop Grutka’s orders Lecause he is the
hierarchial authority. Marich, supra at 98. Therefore, if
the trier of fact finds that Bishop Grutka did not consent to
the Corporation’s trust, the trial court must enforce his
orders to dissolve the Corporation’s trust and to transfer
control to Pastor Charlebois. /d.; see also Jones, supra at
604-605.
The last basis upon which the trial court could have
granted summary judgment is the Indiana General
Cemetery Act (Cemetery Act). IC 1974, 23-14-1-(1-25)
(Burns Code Ed.). In their affidavit in support of their
motion for summary judgment, the Association and the
Corporation asserted that pursuant to section 12 of the
Cemetery Act, Bishop Grutka must set up and maintain a
perpetual trust fund for the benefit of St. Paul’s Cemetery.
The pertinent part of section 12 requires cemetery owners
to ensure cemetery maintenance by setting up a perpetual
trust fund:
“The owner of every cemetery shall provide for the
creation and establishment of an irrevocable
perpetual care fund, the principal of which shall
permanently remain intact except as hereinafter
provided and the income only thereof shall be devoted
to the perpetual care of said cemetery and which
principal shall be known as the ‘perpetual care fund’
or ‘endowment care fund’ of such cemetery.”
IC 1974, 23-14-1-12 (Burns Code Ed.). The Association and
the Corporation further asserted that because the
'! See supra, notes 7 and 8.
'2 See supra, note 8.
A-15
Corporation created its trust to comply with section 12, the
trial court cannot dissolve the Corporation’s trust or
require the trustee bank to deliver to Pastor Charlebois and
the Association the trust principa! and income.
Bishop Grutka contends that section 2 of the Cemetery
Act exempts St. Paul’s Cemetery from the section 12
perpetual trust fund requirements. We agree. Section 2
reads in its entirety:
“23-14-1-2 [21-1002]. Exceptions.—The provisions of
this act [23-14-1-1 — 23-14-1-29] shall apply to all
cemeteries, community or public mausoleums and
columbaria within the state of Indiana except as
hereinafter provided. Cemeteries owned by a
municipal corporation, or other governmental unit,
religious cemeteries and cemeteries of ten[10] acres or
less in size which are owned and operated entirely and
exclusively by existing nonprofit mutual associations
and in which burials have heretofore taken place, shall
be exempt from section [sections] 12 to 17 [23-14-1-12
— 23-14-1-19], inclusive, of this act; Provided,
however, That whenever any such cemetery owned
and operated by a non-profit mutual association,
directly or indirectly, constructs or permits to be
constructed any structure, above or below ground,
interment rights in which are offered for sale to the
general public, and/or acquires additional land, or an
interest therein, causing said cemetery with said
addition to exceed ten [10] acres in size, the provisions
of this act shall then and thereafter apply to the whole
of said cemetery. [Acts 1939, ch. 142, §2, p. 679; 1953,
ch. 68, §2, p. 216; 1955, ch. 143, §1, p. 286; 1965,
ch. 335, §2, p. 970.]”
IC 1974, 23-14-1-2 (Burns Code Ed.). This section exempts
religious cemeteries from the perpetual trust fund
requirements in sections 12-17.'* Because religious
's “23-14-1-12[21-1012]. Perpetual care or endowment care fund.—The
owner of every cemetery shall provide for the creation and
establishment of an irrevocable perpetual care fund, the principal of
A-16
cemeteries like St. Paul’s are exempt, the allegations of the
Association and the Corporation are without merit.
'§ (continued):
which shall permanertly remain intact except as hereinafter provided
and the income only thereof shall be devoted to the perpetual! care of
said cemetery and which principal shall be known as the ‘perpetual
care fund’ or ‘endowment care fund’ of such cemetery. This fund shall
be created and established as follows:
“(a) In respect to a cemetery for earth burials, by the application
and payment thereto of an amount equivalent toa minimum of fiftecn
per cent [15%] of the sale price, of forty cents [40] per square foot, of
ground interment rights sold, whichever is greater:
“(b) In respect to a community or public mausoleum by the
application and payment thereto of an amount equivalent to a
minimum of eight per cent [8%] of the sale price or fifty dollars[$50.00)
per crypt sold, whichever ‘s greater;
“(c) In respect to a community columbarium, by the application
and payment thereto, of an amount equivalent to a minimum of ten
dollars [$10.00] per niche sold.
“From the sale price, or any payment thereon, said owner shall pay
an amount in proportion to the foregoing requirements, to the said care
fund, which said payment shall be in cash and shall be deposited with
the custodian or trustee of said fund not later than thirty [30] days after
the close of the month in which payments on said sale are received.
“In addition to the above, any cemetery organized after the effective
date of this amendment, whether it be by incorporation, association,
individually or by any other means, or having its first burial after the
effective date [August 18, 1953] of this amendment, shall, before
disposing of any burial lot or right or making any sale thereof, and/or
making its first burial, cause to be deposited ina bank, a bank and trust
company, trust company, or national bank having and maintaining a
principal place of business within the state of Indiana, and having
fiduciary powers, the sum of twenty-five thousand dollars [$25,000] in
cash in the perpetual! care fund or endowment care fund established as
required by paragraph | of this section, for the maintenance of said
cemetery and shall designate such banking institution as trustee of
such fund. Said banking institution shal! execute an affidavit stating
that it has accepted the trusteeship of said fund and that said twenty-
five thousand dollars {$25,000} has been deposited as provided therein.
Said affidavit shall be exhibited in the principal office of said cemetery
and shall at all times be available for examination, and be recorded in
the miscellaneous records in the office of the county recorder in the
county where such cemetery is located.
“Whenever the cemetery shal! have deposited in the perpetual care
fund or endowment care fund, as required by this section, a sum
amounting to fifty thousand dollars [$50,000] it shall submit proof of
such fact to its said trustee and it shall be the duty of said trustee to
A-17
Reversed and remanded for a determination of whether
Bishop Grutka consented to the creation of the
' (continued):
thereupon pay over to said cemetery the amount of twenty-five
— dollars [$25,000] so originally deposited by it in the said care
und.
“Such perpetual! care or endowment care funds may be increased by
adding thereto surplus money or property received by will, deed, gift or
otherwise.
“The custodian of the perpetual care of endowment care funds of
every cemetery to which the provisions of this act are applicable, shall
on or before March 31 of each calendar year, prepare and file with the
owner of the cemetery a detailed accounting and report of such funds
for the calendar year ending the preceding December 31, which shall
include, among other things, properly itemized, the securities in which
the same are then invested, which accounting and report shall be at all
times available to inspection and copy by any owner of a burial right in
the cemetery at the usual! place for transacting the regular business of
the cemetery.
“Within sixty [60] days after the receipt of such accounting and
report the owner of the cemetery shall file a certified copy thereof with
the clerk of the circuit court of the county in which said cemetery is
located, and which report shal! be open to inspection of any person
interested therein.
“Each geographic location snall constitute a separate and distinct
cemetery for the purpose of interpretation and application of this
section. [Acts 1939, ch. 142, ff12, p. 679; 1953, ch. 68, ffi5, p. 216; 1959,
ch. 298, ffil, p. 753; 1965, ch. 335, ff6, p. 970.”
“23-14-1-13 [21-1029]. Installation of commodities—Rules and
regulations—Service charge.—All cemetery owners shall have the
right to establish reasonable rules and regulations regarding the type,
material, design, composition, and finish of any and all cornmodities to
be used or installed in the cemetery. No cemetery owner shall have the
right to prevent the use of or installation of any commodity purchased
from any source, provided it meets these rules; and the charges for
services in connection with the installation or use of these commodities
shal! be the same to al! regardless of who furnishes them, however the
cemetery owner may hold to himself the exclusive right to furnish these
services in said cemetery. Al] cemetery owners shall have a full and
complete schedule of all charges for services plainly printed or
typewritten and maintained subject to inspection and copy at the usual
place for transacting the regular business of the cemetery. [Acts 1939,
ch. en §12B, as added by Acts 1959, ch. 298, fi2, p. 753.]” (Annotations
omitted.)
“23-14-1-14 [21-1030]. Proceeds from sale of vaults or memorials
placed in escrow or trust.—Al! proceeds received by anyone selling
vaults, memorials of all types, floral tributes, or services to be installed
in or provided in a cemetery which said merchandise and services are
A-18
Corporation’s trust and for further determinations
consistent with this opinion.
HOFFMAN, P. J., Concurs;
GARRARD, J., Concurs and Dissents with Opinion.
'8 (continued):
not to be delivered or provided until the death of the person or persons
for whom it is to be used or provided, shall be placed in escrow or trust
in a separate account. Said proceeds shall be held in escrow or trust for
the specific purpose intended until the time of burial or completion of
the services. The proceeds from the sales of burial spaces are
specifically exempt fom this provisions. [Acts 1939, ch. 142, §12C, as
added by Acts 1959, ch. 298, §4, p. 753.]”
“23-14-1-15 (21-1015). Perpetual care fund—Donations to—
Legalizing.—The accumulation and holding of the funds as authorized
by sections 12 ([23-14-1-12] and 18 [23-14-1-20] of this act, or
contributions thereto, are and each thereof is hereby expressly
permitted and shall be and be deemed to be for a charitable and
eleemosynary purpose. Such fu;neis and contribution shall be deemed to
be a provision for the discharge of a duty due from the person or persons
contributing thereto to the person or persons interred in the cemetery
and to the persons whose remains wi!! be interred therein, and likewise
a provision for the benefit and protection of the public by preserving,
beautifying and keeping cemeteries from becoming places of reproach
and desolation in the communities in which they are situated. No
payment, gift, grant, bequest or other contribution for such purpose
shall be or be deemed to be invalid by reason of any indefiniteness or
uncertainty of the persons designed as beneficiaries inthe intruments .
creating said fund, nor shal! said fund or any contribution thereto be or
be deemed to be invalid as violating any law against perpetuities or the
suspension of the power of alienation of title to property. [Acts 1939,
ch. 142, §13, p. 679.]"
“23-14-1-16 [21-1014]. Exception from Trustees’ Accounting Act.—
In the event any gift, grant, bequest, donation or other property held by
the owner of any cemetery for cemetery purposes shall be so held by
such owner as a trust of any kind, or in the event the owner of any
cemetery is a beneficiary of any trust estate for cemetery purposes,
then the trustee of each such trust is hereby relieved of the duties
otherwise imposed upon the trustee by the Uniform Trustees’
enT Act of the state of Indiana. [Acts 1989, ch. 142, §14,
p. 679.
“23-14-1-17 [21-1015]. False and fraudulent representations.—
Penalty.—A person who makes any false or fraudulent representation
as to the existence, amount, investment, control, or condition of any
perpetual care fund of any cemetery, for the purpose of inducing
another to purchase any burial right, commits a class C infraction.
[Acts 1939, ch. 142, §15, p. 679; 1978, P.L. 2, §2312, p. 2.]”
A-19
IN THE
COURT OF APPEALS OF INDIANA
THIRD DISTRICT
ANEREW G. GRUTKA, as Bishop of
the Roman Catholic Diocese of
Gary, Indiana,
Appellant (Plaintiff Below),
Vv.
Leo J. CLIFFORD,
JOSEPH CLIFFORD,
CLARENCE F LITTER,
CLARENCE AILES,
EDWARD GANNON, individually and
as members of the Board of Lay
Trustees of St. Paul’s Cemetery
Association, Valparaiso, Indiana,
St. PAUL’S CEMETERY ENDOWMENT
ASSOCIATION, INC., an Indiana
not-for-profit Corporation,
THE FIRST NATIONAL BANK OF
VALPARAISO, INDIANA, a
national banking corporation,
Appellees (Defendants Below).
mee ee ee ee ee ee ee ee ee eee eee ee ee”
NO. 3-482 A 76
OPINION CONCURRING IN PART
AND DISSENTING IN PART
A-20
GARRARD, J.
I agree with the majority's determination that the
operation of the cemetery is exempt from the requirements
of IC 23-14-1-12.
I do not agree, however, with the majority’s general
statement that a “second” trust can be created merely upon
or by the consent of the trustee, nor do I believe the cases
relied upon may be fair!y read to stand for that proposition.
It is admitted that the Bishop holds legal title and that he
does so as trustee. It appears under canon law that his
consent is required to permit such a trust as that created
here. It separately appears that there is a requirement that
funds belonging to the church may only be invested in a
certain manner. The materia!s before the court appear to
establish that the Bishop agreed to “tolerate” the trust if
certain conditions were met. It is manifest from the very
initiation of this lawsuit that the Bishop was, in any event,
attempting to revoke any permission theretofore granted
or implied.
The resolution of these questions requires proper
interpretation of the authority of the Bishop under the
circumstances I believe that such authority cannot be
resolved without delving into ecclesiastical questions to an
extent prohibited by the First and Fourteenth Amendments
according to Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct.
3020, 61 L.Ed.2d 775.
The Bishop seeks to avoid the consequences of that
conclusion by asserting that the rules of the association,
itself, require it to be bound by his determinations. Neither
the trust agreement with the bank nor the articles of
incorporation of St. Paul’s Cemetery Endowment
Association, Inc. contain any such requirement. The rules
and regulations of the association provide in part that “In
case of major controversy, the decision of the Most
Reverend Bishop...shall be final,....” but taken in
context the provision appears to refer to questions
A-21
concerning interment of individuals.
It therefore appears to me that resolution of the questions
posed requires the interpretation and application of
ecclesiastical law and we may not through the use of
neutral principles of law decide the case.
I would therefore affirm the dismissal of the action.
A-22
STATE OF INDIANA )
=
COUNTY OF PORTER _)
IN THE PORTER SUPERIOR COURT
ANEREW G. GRUTKA, as Bishop of
the Roman Catholic Diocese of
Gary, Indiana,
Plaintiff
-Vs-
LEo J. CLIFFORD,
JOSEPH CLIFFORD,
CLARENCE FLITTER,
CLARENCE AILES,
EDWARD GANNON, individually and
as members of the Board of Lay
Trustees of ST. PAUL’S CEMETERY
ASSOCIATION, Valparaiso, Indiana,
St. PAUL’S CEMETERY ENDOWMENT
ASSOCIATION, INC., an Indiana
not-for-profit Corporation,
THE FIRST NATIONAL BANK OF
VALPARAISO, INDIANA, a
national banking corporation,
Nm me ee ee ee ee ee ee ee ee eee ee” ee ee”
Defendants
COMPLAINT
Comes now Plaintiff Andrew G. Grutka, as Bishop of the
Roman Catholic Diocese of Gary, Indiana, and for his claim
against defendants alleges and says:
1. That Plaintiff is the fee owner of the real estate
constituting the property of St. Paul’s Cemetery,
A-23
Valparaiso, Indiana. That said cemetery was organized to
be operated by an unincorporated association named St.
Paul’s Cemetery Association under the auspices of the
Bishop of the Roman Catholic Diocese of Gary, Indiana,
under certain Rules and Regulations adopted May 25,
1959, a true and exact copy of which Rules and Regulations
are marked Exhibit A, attached hereto and made a part
hereof.
2. That the defendants, Leo J. Clifford, Joseph Clifford,
Clarence F litter, Clarence Ailes and Edward Gannon
claim to be members of the Board of Lay Trustees of said
Cemetery Association. That major controversies have
arisen concerning the ownership and control of said
cemetery and its funds. That said major controversies have
been submitted to Plaintiff for his final decision. That said
defendants, other than defendant Bank, have failed and
refused to follow said final decisions, in this, to-wit:
a) To follow the orders or directions of the Pastor of
St. Paul’s Catholic Church, Valparaiso, Indiana,
with respect to appointment of members of said
Church to the Board of Lay Trustees of said
Association.
b) To turn over all records of the cemetery to the
Pastor of St. Paul’s Church for safekeeping and
for use in the operation of said cemetery.
c) To turn over all perpetual care funds and
operating funds of said Cemetery Association to
the Association.
d) To permit the Pastor of St. Paul’s Church to
participate in the operation of the cemetery.
3. That said defendant Leo J. Clifford and others,
without the knowledge or approval of plaintiff, formed an
Indiana Not For Profit Corporation in or about the year
1966 named St. Paul’s Cemetery Endowment Association,
Inc., and thereafter transferred to said corporation
personal property of St. Paul’s Cemetery Association
A-24
consisting of U. S. Government Bonds, and Building and
Loan and Bank Accounts in the approximate sum of
$25,000.00. That Plaintiff believes that said Corporation
has since its inception received additional funds of St.
Paul’s Cemetery Association. That said transfer of the
funds of St. Paul’s Cemetery Association was unlawful in
that it was contrary to the rules and regulations of said
Association and without the knowledge or consent of
plaintiff, or of the Pastor of St. Paul’s Church.
4. That thereafter, on or about June, 1974, said
defendants St. Paul’s Cemetery Endowment Association,
Inc., at the instance of defendant, Leo J. Clifford, entered
into a trust
agreement with Defendant, First National Bank of
Valparaiso, Indiana, as Trustee, whereby funds of St.
Paul’s Cemetery Association previously confiscated by said
St. Paul’s Endowment Association, Inc. were placed in
trust with said Bank. That the total value of said funds
transferred at said time was $49,927.21. That the transfer
of said funds was unlawful and without the knowledge or
consent of plaintiff, or of the Pastor of St. Paul’s Church.
5. That the defendants, other than St. Paul’s Cemetery
Association, and defendant Bank, by their aforesaid action
wrongfully and unlawfully converted the real estate and
funds of plaintiff, and have confiscated the records of St.
Paul Cemetery Association, and have effectively taken over
the control and operation of said cemetery from plaintiff
and from the Pastor of St. Paul’s Church.
6. That Plaintiff has been and is being irreparably
harmed and has no other adequate remedy at law.
WHEREFORE, Plaintiff prays the Court for a
mandatory injunction
1) Ordering Defendants Leo J. Clifford, Joseph
Clifford, Clarence Flitter, Clarence Ailes and Edward
Gannon to deliver instanter the records of St. Paul
_ Cemetery Association to Msgr. John J. Charlebois, Pastor,
A-25
St. Paul’s Church, Valparaiso, Indiana, to render an
accounting of all funds of St. Paul’s Cemetery Association,
and to deliver all funds in their hands or under their
control, including all bank accounts in the name of St. Paul
Cemetery Association, to said Pastor; and further ordering
said defendant from in any way interfering with the
ownership, control or operation of St. Paul’s Cemetery and
St. Paul’s Cemetery Association.
2) Ordering Defendant, St. Paul’s Cemetery Endow-
ment Association, Inc. to deliver instanter to said Pastor of
St. Paul’s Church, Valparaiso, Indiana, for the use and
benefit of St. Paul’s Cemetery Association, all funds, bank
accounts, or other property of said Corporation.
3) Ordering the trust created by Defendants St. Paul
Cemetery Endowment Association, Inc. and The First
National Bank of Valparaiso, Indiana, terminated and
ordering said Bank to deliver the principal and income of
said trust to the Pastor of St. Paul’s Church, Valparaiso,
Indiana, for the use and benefit of St. Paul’s Cemetery
Association, and for the costs of this action, and for all other
just and proper relief in the premises.
/s/
William J. O’Connor
Attorney for Plaintiff
I affirm under the penalties for perjury that the
foregoing representations are true.
/s/
William J. O’Connor
Of Counsel:
O’CONNOR & WEIGLE
5272 Hohman Avenue
Hammond, Indiana 46320
(219) 937-0500
A-26
RULES AND REGULATIONS
Adopted May 25, 1959
ST. PAUL’S CEMETERY ASSOCIATION
RULES
AND
REGULATIONS
OF
ST. PAUL'S
CEMETERY
ASSOCIATION
VALPARAISO, INDIANA
MANAGEMENT
Article 1
This association shall consist of:
The Reverend Pastor or Administrator of St. Paul’s
Catholic Church of the city of Valparaiso, Indiana, and a
Board of Lay Trustees appointed by the Reverend Pastor or
administrator and the Officers of the Board. Said Board of
Lay Trustees shal! consist of not more than six (6) members
of the parish to serve indefinitely on said board unless there
be a good cause for resignation or dismissal. The Board of
Lay Trustees shall annually select from among themselves
the following officers: President, Vice-President,
Secretary and Treasurer. The Treasurer shall be bonded
and such expense be paid by the association.
PURPOSE
Article 2
This Association exists for the purpose of operating St.
Paul’s Cemetery in a most satisfactory manner and with
respect to reverence which such hallowed ground requires.
A-27
Said cemetery is situated on old State Road 49 southeast of
the City of Valparaiso, indiana, consisting of 10-1/2 acres
located in Section 30, Township 35, Range 5 West, the title
of which is in the name of the Bishop of the Diocese of Gary,
Indiana.
LEGAL INTERVENTION
Article 3
Civil lav. shall have no right to interfere with the
operation of this cemetery association especially with
regard to the interment of a person who is not entitled to
Christian burial.
Article 4
No interment shall be made contrary to the regulations of
the Roman Catholic Diocese of Gary, Indiana, and no
interment shall be made without the approval of a Roman
Catholic Priest.
Article 5
In case of major controversy, the decision of the Most
Reverend Bishop of the Diocese of Gary, Indiana, or his
delegate, shall be final, and no appeal from any such
decision may be taken to the civil courts.
Article 6
If a plot-holder fails to comply with these regulations, he
shall forfeit all rights previously granted him in this
cemetery including any and all monies paid for property
herein located.
SUPERVISION
Article 7
Subject to the authority of the said Cemetery Association
and in keeping with the orders and limitations determined
by said association, the sexton shall have charge of St.
Paul’s Cemetery and is specifically authorizec to do the
following:
A-28
(a)
(b)
(c)
(d)
(e)
(f)
(g)
To care for, maintain and insure the physical
condition and appearance of the cemetery.
To personally perform, or when conditions
require to supervise all work involving the
opening and closing of graves; to supervise the
placing of all foundations for markers or
monuments.
To supervise or at least approve all work which lot
owners and interested parties choose to volunteer,
either in the matter of funeral service or as it
concerns the maintenance and decoration of
specific cemetery areas.
To refuse admission of any and all materials for
work which have not been approved by an officer
of said association.
To refuse admission to all contractors, local or
otherwise, who have not previously consulted
with him and have therefor not been authorized to
perform any services within the cemetery.
To maintain good order and expel suspicious
characters or loiterers or persons bent on doing
damage or persons violating any of the
regulations contained in these by-laws. Likewise,
to restrict any form of advertisement within the
confines of the cemetery.
To exercise the powers granted to him as a peace
officer by the Acts of 1939, Chapter 23, page 679
of the Acts of the General Assembly of the State of
Indiana for the purpose of maintaining order and
enforcing the rules and regulations of the
Cernetery Association, and the laws of the State of
Indiana, and he shall be charged with the
enforcement thereof within such cemetery and
within such radius of the same as shall be
necessary to protect the property thereof. (Section
21-2023, Burns Indiana Statutes annotated, 1933,
1950 replacement, Volume 5, Part 2).
A-29
(h) All funeral processions entering the cemetery
shall be under his personal control and
supervision.
BURIAL PLOTS
Article 8
Since burial plots are not transferable, no plot owner is
permitted to sell the whole or part of his plot except to said
Cemetery Association and then only at the price originally
paid therefore.
Article 9
Upon the death of a plot owner, the title to said plot shall
descend to his or her heirs in equal undivided shares in
accordance with the laws of the State of Indiana, unless
said owner has disposed of his or her interest therein by
will. However, in no event shall the spouse of said plot
owner be deprived of his or her right to be interred in said
lot providing he or she is entitled to Christian burial.
Article 10
Burial rights in said cemetery will not be regarded as
sold until fully paid for and no certificate of burial rights
will be issued until that time.
Article 11
When lot or grave space is contracted for, no interment
therein shall be permitted until an amount equal to the
fractional part which one grave bears to the total number of
graves in said plot has been paid, and no additional
interments therein shall be made until an equal amount has
been paid. In any event the total contract price shall be paid
in three (3) years.
Failure to conform to this regulation invalidates the
contract and the Association reserves the right to dispose of
the plot or at least the unused portion thereof.
Furthermore, the management may retain all payments
made on such a plot as reimbursement for trouble and
expense entailed.
A-30
Article 12
The facilities of St. Paul’s Cemetery are principally
intended for Catholics living in the Valparaiso, Indiana,
area. If, for reasons of sentiment, non-residents desire to
purchase burial space, they may tender their application in
writing to the association and said association reserves the
right to accept or reject the same. The term “Valparaiso,
Indiana, area” is intended to mean the area within the
jurisdiction of the Reverend Pastor or Administrator of St.
Paul’s Catholic Church of Valparaiso, Indiana.
Article 13
In cases where no provision for burial expense has been
provided for, the poor and the indigent will be interred ina
single grave area free-of-charge providing there is no
lavish expenditure for other needs.
Article 14
All ordinary work in the case of lots will be done by said
management. Extra work will be perforrned by the sexton
at the expense of the lot owners and payable to said
association. When such work is ordered, payment must be
made in advance to said association.
SALE OF LOTS AND GRAVES
Article 15
Lot and grave space shall be sold solely by the
management since said management alone is authorized to
issue and sign certificates of ownership.
Article 16
The cost of both lots and single graves shall be
determined by the schedule of prices currently on file in the
office of the management and as amended from time to
time thereafter.
Article 17
The schedule of prices for burial space in St. Paul’s
A-31
_
Cemetery shall henceforth take into account an endowment
factor. All monies accruing to the said association for the
perpetual care of any lot or graves shall be deposited ina
separate account under the name of said Cemetery
Association. Only the interest resulting from this fund may
be drawn for the care and improvement of the cemetery.
The principal of this account is to stand forever. It being
permissable, however, for said association to invest said
principal sum in such forms of investment as will be safe
and return the greatest benefits to said association.
RETROACTIVE CARE PROVISIONS :
Article 18
Lot or grave owners who acquired property prior to
June 1, 1958, will be required to pay an annual fee of $5.00
per owner for the care and improvement of said cemetery,
unless, however, said lot or grave owner has paid prior to
said date the perpetual care fund in full.
Article 19
When a grave in a plot of three (3) or more graves is
opened in said cemetery acquired prior to June 1, 1958,
and upon which no perpetual care fund has been paid, a
perpetual care payment of $100.00 shall be made before
interment therein shall be permitted. Upon payment
thereof, the annual care fee mentioned in Article 18 shall
cease to bind with respect to that particular lot. It shall be
the policy of the association to encourage al! lot or grave
owners having acquired burial rights prior to June 1,
1958, to pay the perpetual care.
Article 20
No interment may henceforth be made or monument
erected on any lot or single grave where the perpetual care
fund has not been paid or any arrearage of the annual fee
exists.
A-32
Article 21
When payment for the care of any lot has been neglected
for ten (10) years, the association reserves the right to sell
any unused portion of said lots. The date from which these
penalties are to be computed is January 1, 1960.
DEEDS
Article 22
Purchasers of property in St. Paul’s Cemetery shall, at
the time the purchase price is paid in full, receive a
certificate of ownership entitling them to the perpetual
holding and use of said property for the burial of the dead,
subject to the rules and regulations of the cemetery, and
discipline of the Catholic church, and the laws of the
Diocese of Gary, Indiana, now in force or that may
hereafter be adopted.
Article 23
This deed or certificate does not constitute or give an
absolute right to the property in question but only the right
to burial on said ground providing in every case that the
deceased is entitled to Christian burial.
INTERMENTS
Article 24
No interment wil! be permitted or body received unless a
proper certificate is furnished by the undertaker giving the
name and residence of the deceased together with the time,
place and cause of death.
Article 25
No interment of a non-resident of the Valparaiso.
Indiana area will be allowed unless the proper pastor
attests that the person is entitled to Christian burial.
Article 26
Only aduly authorized priest or someone approved by the
association may officiate at a burial service.
Article 27
Only Catholic services shall be permitted in this
cemetery except the supplemental services performed by
military organizations. All religious and ritualistic
services of any kind excepting approved fraternal
organizations are strictly prohibited within the boundaries
of the cemetery.
Article 28
No interment shall be made on any lot without the
written consent of the owner and no lot owner shall be
compensated for an interment on his lot.
Article 29
Only one interment shall be made in a grave except that
of a mother and her baby. or smal! babies resting in one and
same casket, or two babies in one grave space.
Article 30
It is desirable that vaults be used for all burials.
Article 31
Non-Catholics lawfully married to a Catholic by the
church may be buried in this cemetery, providing the party
in question has lived up to his or her marriage agreements.
Article 32
No interment shall be made on Sundays or Holy Days of
Obligations unless there is a special necessity shown.
Article 33
For the opening of a grave, sixteen hours of actual
daylight notice must be given based on an eight-hour
working day.
DISINTERMENT
Article 34
Disinterments will never be permitted without the
written permission of the association and the lot owner or
the next of kin, and in every case both civil and ecclestical
regulations must be observed.
Article 35
If and when the need of disinterment arises, it shall be
permitted only during favorable weather conditions and
there must be reasonable assurance that no damage will
occur to adjoining graves or to the general appearance of
the grounds.
Article 36
A disinterment shall be made under the direction of the
sexton and a proper fee shall be paid to him in advance for
his services.
Article 37
If the disinterment is made from a single grave, the
grave plot shall revert to the cemetery association.
MONUMENTS AND MARKERS
Article 38
All memorials placed in St. Paul’s Cemetery must be
made of stone or bronze. No compositions will be permitted.
Article 39
A family monument (upright marker) will be permitted
on plots consisting of at least two graves. However, large or
pretentious monuments are not encouraged on plots of less
than four graves. Head stone of appropriate size will be
permitted on all graves. All monuments and head stones
shall be installed upon concrete bases, which said bases
shall extend below the frost line and level with the ground.
All bases for monuments and head stones shall exceed the
dimensions of the monument or head stone by six inches on
all sides.
A-35
Article 40
No monuments or markers are to be erected in St. Paul’s
Cemetery until the material, style and description are
approved in writing by the management. Further, no
monuments or markers shall be erected without having
first obtained the approval of the management of the size,
depth and construction of the concrete base for said
monument or marker.
Article 41
The association encourages the placing of the cross, a
symbol of our faith, in a prominent place on every
monument or marker. All epitaphs and designs must be in
harmony with the doctrines of the Catholic church.
Article 42
All dirt remaining from the excavation for foundations,
markers or monuments, as well as all debris caused by the
construction and erection of said monuments or markers,
shall be forthwith removed from the burial plot and placed
by the monument dealer at a place or places designated and
under the direction of the sexton. All damages caused to the
cemetery, either at the point of erection of the monumentor
marker or at any other place within the bounds of the
cemetery, shall be the liability of the plot or lot owner and
said plot or lot owner shall respond in damages to the
cemetery association therefor. In this regard the lot or plot
owner is encouraged to see that no damage has been caused
to the cemetery by the monument dealer before payment is
made to said dealer.
Article 43
No monuments or markers may be erected either on plots
or on single graves which are not fully paid for. This
includes not only the payment of the plot cost but also the
payment of any amounts which may be due to the perpetual
care fund.
A-36
PLANTING, DECORATIONS, ETC.
Article 44
No enclosure of any description, such as a fence, hedge,
embankment, fill, ditch or depression of any kind, will be
permitted on or around any burial lot or grave. Lot number
markers are provided by the association and must not be
altered or removed.
Article 45
Planting of flowers, shrubs, bushes or trees is forbidden
except under the direction of the management, and when
permitted the burden and cost of maintenance shall be
upon the plot owner. No myrtle, ivy or vines of any kind will
ever be permitted since such items add to the burden of
maintenance and distract from the uniformity of
appearance so desirable in a cemetery.
Article 46
Permanent vases and urns will be tolerated but subject to
the approval of the management in every instance and then.
only if installed on approved bases.
Article 47
Lot owners may place flowers which are potted or cut
flowers on graves of their respective plots but never under
any circumstances may glass jars be used and in no case is it
permitted to remove sod from the top of the grave for
plantings or otherwise.
Article 48
When wreaths or sprays are laid on the tops of graves,
they are subject to removal if they detract from the
appearance of or interfere with the maintenance of the
property.
Article 49
The management reserves the right to remove any
architectural ornaments, fences or railings, flowers, trees,
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shrubs or bushes, if they become detrimental to adjacent
lots or cause serious inconvenience to cemetery employees.
AMENDMEN [8S
Should necessity or expediency sc require, the members
of St. Paul’s Cemetery Association reserve unto themselves
the right to make amendments to the above rules and
regulations.
The above rules and regulations were approved and
adopted at a duly called meeting of the Trustees of St.
Paul’s Cemetery Association held on the 25th day of May,
1959, at St. Paul’s Rectory, in Valparaiso, Indiana, at 8:20
p.m.
ST. PAUL’S CEMETERY
ASSOCIATION
BOARD OF TRUSTEES
Monsignor
W. Edward Sweigart
Administrator
George Woodruff
Leo J. Clifford
Della Stokes
Loretta Harrold
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FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress
of grievances.
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.