Niemann v. Vaughn Community Church

Armstrong, J.

(Dissenting)

Because the trial court erred in ruling that RCW 49.60.224 prevents this kind of charitable gift to a church and also erred in applying equitable principles to effectively dissolve the trust, I dissent.

The trial court ruled that the trust provisions of the deed violate RCW 49.60.224, apparently reasoning that the perpetual gift language was intended as a discriminatory restriction on transfer of the property to “individuals of a specified .. . creed.” RCW 49.60.224. The court, accordingly, struck the deed language that Vaughn Community Church (VCC) held the property “for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn.” Ex. 1. This language, however, does not restrict transfer on the basis of creed. Rather, the language creates a perpetual gift to a group of churches in the Vaughn community. Thus, the language prevents any transfer that deprives the church group of the perpetual use of the property. And this would include a transfer to any protestant evangelical church outside the Vaughn community. Because the deed language prevents any transfer of the property, it does not discriminate against persons who do not share the protestant evangelical creed. For the same reasons, this charitable gift in perpetuity does not violate the principles of Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), as the trial court ruled.

Moreover, if we read RCW 49.60.224 to prevent this kind of gift, no parishioner can make a gift of real property in perpetuity to a church of his or her choosing because, according to the trial court and majority, any real property gift to a particular church discriminates against other churches and nonbelievers. RCW 49.60.224 was never in*843tended to so restrict a parishioner’s right to support his or her church.6

I also disagree with the majority that RCW 49.60.224 applies retroactively. We presume that statutes operate prospectively. Bayless v. Cmty. Coll. Dist. No. XIX, 84 Wn. App. 309, 312, 927 P.2d 254 (1996). Statutes can operate retroactively if they are remedial and retroactive application would further the remedial purpose. Bayless, 84 Wn. App. at 312. A statute is remedial if it relates to “ ‘practice, procedure or remedies, and does not affect a substantive or vested right.’ ” Bayless, 84 Wn. App. at 312 (quoting In re F.D. Processing, Inc., 119 Wn.2d 452, 462-63, 832 P.2d 1303 (1992)). Here, the statute deals with substantive rights, not practice or procedure. RCW 49.60.224 does not apply retroactively to this deed.

Finally, I disagree with the trial court’s cy pres and equitable deviation analysis. In essence, the trial court found that the trust property was no longer suitable for VCC because it was not large enough to meet the congregation’s expansion goals. The court then found that the grantor, Emmanuel Congregational Church of Vaughn, had a general charitable intent to benefit evangelical protestant churches and that allowing VCC to sell the property and move to a larger location would fit within the grantor’s general intent.

But the court never found the trust purpose impossible to fulfill. Indeed, the court could not find impossibility because the trust property has been used by one congregation or another for 100 years. And VCC continues to use it for *844worship services. Further, the trust provision requires only that the property be used by the protestant evangelical churches of Vaughn. It does not state that the use must be limited to worship services. VCC has not shown that the property is impracticable for use as a children’s camp, retreat facility, or its current use as a worship facility of limited size. In short, VCC has shown only that the property does not fit into their plans to expand. It has not shown that the property cannot be used in some meaningful way by the protestant evangelical churches of the community of Vaughn.7

More importantly, the trial court misapplied both cy pres and equitable deviation. Cy pres allows the court to alter a trust if the trust purpose becomes impossible, impracticable, or illegal to carry out. Restatement (Second) of Trusts § 399 (1959); Puget Sound Nat’l Bank of Tacoma v. Easterday, 56 Wn.2d 937, 350 P.2d 444 (1960). Thus, if the court finds the purpose impracticable or impossible and that the settlor evidenced a general charitable intent, “the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” Restatement, supra, § 399 (emphasis added). Cy pres does not authorize the court to terminate a trust.

Similarly, equitable deviation allows the trustee to “deviate from a term of the trust if. . . compliance is impossible or illegal, or . . . compliance would defeat or substantially impair the accomplishment of the purposes of the trust.” Restatement, supra, § 381 (emphasis added); In re Booker, 37 Wn. App. 708, 714-15, 682 P.2d 320 (1984). Equitable deviation also does not authorize the court to terminate a trust.

*845And although the trial court purported to continue the trust by concluding that VCC must use the sale proceeds to provide a new church to serve the protestant evangelicals of Vaughn, it lacked the power to do so. The trust arose only because of the restrictive language in the deed. Once the court ruled that the language was void and struck it, the trust ceased to exist. Indeed, the trust never existed because the restrictive language was void, according to the trial court’s reasoning, when the old congregation deeded the property to VCC in 1956. The court explains neither the basis of this new trust nor its terms. Assuming that VCC remains as trustee, what obligations does it have? And what rights do other protestant evangelical churches of Vaughn have in the new facility? Is VCC free to sell the new facility to any congregation or only protestant evangelical churches of Key Peninsula? If not, how does this court-ordered restraint escape the provisions of RCW 49.60.224? This new trust is clearly a legal impossibility. Absent the deed’s trust language, VCC takes both the legal and beneficial ownership of the property without restriction. And without the trust language, the court had no authority or power to impose a trust on the sale proceeds.

The court may terminate a trust if its purpose becomes impossible to accomplish. Townsend v. Charles Schalkenbach Home for Boys, 33 Wn.2d 255, 262-64, 205 P.2d 345 (1949); 54 Am. Jur. Trusts § 86, at 85; 3 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 991c, at 950 (5th ed. 1941). The court may also terminate if the trust purpose becomes illegal. 3 Pomeroy, supra, § 991c, at 950. But the court may not terminate a trust if the decree “will defeat the intention of the settlor and deprive remote beneficiaries of their interests under the trust.” 3 Pomeroy, supra, § 991c, at 950.

Here, the trial court defeated the settlor’s intent to preserve the property for the perpetual use of protestant evangelical churches in Vaughn. The court also deprived the other Vaughn churches — remote beneficiaries — of their interests.

Niemann argues that her First Amendment freedom of religion rights are infringed by the trial court’s ruling. Because I would hold that RCW 49.60.224 does not apply, I do not address these concerns. The majority dismisses Niemann’s claim, reasoning that merely moving the church will not affect her right to worship as she pleases. The problem is more fundamental. If the State can restrict a church’s means of support, it can restrict the church’s activities or even destroy the church. I agree with Justice Burger’s comment that: “I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause[,] however grave an ‘evil’ Congress thought the limits would cure .... To limit either contributions or expenditures as to churches would plainly restrict ‘the free exercise’ of religion.” Buckley v. Valeo, 424 U.S. 1, 256, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (Burger, C.J., dissenting in part).

The current congregation bolstered its impracticability argument by explaining its unsuccessful attempts to sell the property to other churches, apparently unaware that the property was not its to sell. In any event, the church’s inability to sell the property is not persuasive. The question is whether either the present congregation or another beneficiary can make some meaningful use of the property. And the current congregation has no right as trustee to require other beneficiaries to buy the property in order to use it.