Steeneck v. University of Bridgeport

BERDON, J.,

dissenting. The plaintiff Ruth Steinkraus Cohen, a lifetime trustee of the defendant University of Bridgeport (university), has standing to bring this claim challenging the alleged ultra vires agreement between the university and the Professors World Peace Academy (academy). Her standing is based upon both the Nonstock Corporation Act (act); General Statutes § 33-419 et seq.; and the common law.

It is clear that the determination of whether Cohen has standing must be viewed in the context of the allegations of the complaint. Chief Justice Peters, writing for a unanimous court, pointed out in Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981), that standing “requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate ‘arguably’ protected interests. Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971); see also Assn. of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).” (Emphasis in original.) We, therefore, must review this issue within the context of the allegations of the complaint.

On May 5, 1927, the state of Connecticut granted the university a charter requiring that it be operated as a *590nonsectarian educational institution. Cohen alleges that the agreement entered into between the academy and the university constitutes an ultra vires act in part because it renders the university a sectarian institution. The academy was founded by the Reverend Sun Myung Moon to further the goals of the Unification Church, which are to create a worldwide theocracy and to abolish the separation of church and state. Moreover, it is alleged that the $50,500,000 loan given by the academy to the university under the terms of the agreement was financed by the Unification Church. In return for the loan, the agreement, among other things, empowers the academy to select in perpetuity 60 percent of the seats on the board of trustees of the university. In addition to violating the university’s charter, Cohen’s complaint avers that the validity of the agreement is marred by conflicts of interest. Among the conflicts alleged, Cohen asserts that the trustees of the university “had personal financial interests in enforcing the agreement with the [academy] and the Unification Church in that said agreement reheves the trustees individually for liability stemming from their use of restricted endowment and scholarship funds.” Due to these alleged improprieties and ultra vires acts, Cohen seeks, among other things, a judgment declaring the agreement to be void.

Although absent from the majority’s opinion, the analysis of whether Cohen has standing should begin with our time honored rule that “[standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, *591556 A.2d 1020, on remand, 19 Conn. App. 539, 563 A.2d 314, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989). Standing, therefore, is not to be a review of the merits. United States v. Williams, U.S. , 115 S. Ct. 1611, 1615 n.2, 131 L. Ed. 2d 608 (1995) (“[t]he sole issue in this case, however, is whether one in [the plaintiffs] situation has standing to sue . . . and to that issue the strength of [the plaintiffs] case on the merits is not relevant”). Rather standing is merely a preliminary inquiry. Indeed, it should be remembered that an individual may have standing to bring a meritless claim.

I

As the majority notes, the bylaws of the university create a board of trustees comprised of three distinct positions that constitute the institution’s governance: “term trustees,” “life trustees” and “honorary trustees.” Life trustees are vested, under the bylaws, with “all the privileges of a Trustee,” but may not “vote or hold any office or standing committee chair, or be a member of the Executive Committee, nor be counted in determining a quorum.” In this case, Cohen was made a life trustee in 1988.

The parties agreed that the university is subject to the act. Under the act, standing is granted to both “directors” and “members”1 of a nonstock corporation to bring an action to enjoin the corporation from performing ultra vires acts. General Statutes § 33-429. The university’s bylaws, however, do not employ the term “director.” Nevertheless, the majority concedes, and the parties agree, that the “term trustees” of the university are the functional equivalent of “directors” for purposes of the act. It must therefore be determined whether a “life trustee” may also be considered a “director” for the puiposes of standing under the act. If stand*592ing is not to be employed as a technical bar, then the statute permitting standing in order to challenge an ultra vires act should be broadly construed.

Although “director” is not defined in the act, “board of directors” is defined as “the group of persons vested with the management of the affairs of a corporation . . . .” General Statutes § 33-421 (b). Today, this court has decided to define “director” as one who has a “significant managerial role in the corporation’s affairs.” This definition was not advanced by either party, nor is any authority cited in its support. Nevertheless, Cohen, in her capacity as a life trustee, has a “significant managerial role” within the board of trustees, the body charged with managing the affairs of the university. Despite the fact that life trustees do not have the same responsibilities as term trustees,2 including the right to vote, Cohen, nevertheless actively exercised her right to participate in the board of trustees’ deliberations and served on the board’s important academic affairs committee.3 Furthermore, her input was critical when the board of trustees first rejected the agreement that was eventually entered into with the academy.

It is also clear that, in granting standing to a mere “member” of a nonstock corporation who has no role in the management of the affairs of the corporation; *593see Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 535, 450 A.2d 369 (1982); the legislature could not have intended to deny a nonvoting trustee statutory standing under the act. Statutory construction requires us “to construe a statute in a manner that will not thwart its intended purposes or lead to absurd results.” Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). In light of the fact that a mere “member” has standing to enjoin ultra vires acts, it is absurd for this court to require that a life trustee must have “significant managerial” powers or the right to vote before her standing will be recognized.4 See Skokie Valley Professional Building v. Skokie Valley Community Hospital, 74 Ill. App. 3d 569, 573, 393 N.E.2d 510 (1979) (right to vote is not a litmus test for a “member” to have standing).

Notwithstanding the broad scope of § 33-429 and the fact that our policy for finding standing should be liberally exercised, the majority concludes, without citation to any authority, that because Cohen serves as a nonvoting trustee, she is not a party authorized to bring suit. I disagree.

II

In addition to her statutory standing under the act, 1 also conclude that Cohen has standing under the common law by virtue of her position as a trustee. The law is restated as follows: “A suit can be maintained for the enforcement of a charitable trust by the Attorney General or other public officer, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable trust . . . .” (Emphasis added.) 2 Restatement (Second), Trusts § 391 (1959). This rule of trustee standing has equal application to the trustee of a charitable corporation. “ ‘The cotrustee is also in *594the best position to learn about breaches of trust and to bring the relevant facts to a court’s attention.’ ” Holt v. College of Osteopathic Physicians & Surgeons, 61 Cal. 2d 750, 756, 394 P.2d 932, 40 Cal. Rptr. 244 (1964), quoting K. Karst, “The Efficiency of the Charitable Dollar: An Unfulfilled State Responsibility,” 73 Harv. L. Rev. 433, 444 (1960) (minority member of board of trustees of university has standing to bring suit to enforce charitable purpose); see Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 645, 4 S. Ct. 526, 4 L. Ed. 629 (1819). Similarly in this case, Cohen served as a trustee of the university, a charitable corporation, and as such was in an optimal position to detect whether the corporation was acting in an impermissible manner. Therefore, Cohen should be granted the same standing as would be accorded a cotrustee of a charitable trust.

When Cohen accepted the position of life trustee she was bestowed with certain privileges and in return she bore certain responsibilities, one of which was to ensure that the university, through its board of trustees, acted in an appropriate and beneficial manner. Cohen alleges that the term trustees, who allegedly have serious conflicts of interest, voted to enter into an agreement that directly contradicts the university’s charter, which mandates that the institution remain nonsectarian. Indeed, the agreement allegedly places the university under the control of the academy whose mission is to advance the goals of the Unification Church.

The majority holds that, as a life trustee, Cohen is powerless to access the machinery of the court in order to prevent the university from engaging in ultra vires conduct. This cannot be the case. In the context of this case, any difference between a “life trustee” and a “cotrustee” is merely semantical. Therefore, I believe that Cohen has both statutory standing as a “director” *595and common law standing as a trustee to maintain the action.

Accordingly, I respectfully dissent.

Cohen does not claim that she is a “member,” for as she indicates, the university has no “members.”

Article II, § 3, of the university’s bylaws provides: “There is hereby created a category of Life Trustee. A Life Trustee shall have all the privileges of a Trustee, except that such Life Trustee may not vote or hold any office or standing committee chair, or be a member of the Executive Committee, nor be counted in determining a quorum.”

Article VI, § 3, of the university’s bylaws provides: “The Academic Affairs Committee shall be responsible for all matters of general policy relating to the educational program. This Trustee committee’s concerns shall include general educational philosophy (especially as it relates to long-range goals), the academic structure of the total institution, administration-faculty relationships, the development of new or phasing out of old academic programs, and national educational trends which might or should impact on the University. The Committee shall also recommend candidates for honorary degrees to the Board of Trustees.”

Although the court, in footnote 18 of the majority opinion, states that the right to vote is not an essential attribute of a “director,” it certainly appears that Cohen’s nonvoting status was dispositive in this case.