Minority report

But the church’s former parishioners and their supporters have vowed to fight on and have welcomed the 3,000-word dissenting opinion of one judge that strongly backs their case.
“The committee is appealing and we are going to pursue this to the highest court,” committee chairman Ed Torres told the Echo.
The decision — supported by four of the five judges of the Supreme Court, Appellate Division, First Department — reaffirmed the opinion that the case is not about property rights but “whether, or to what extent the courts should intervene in the internal governance of a hierarchical church.”
The judges said they “specifically adhered to the long-standing and sensible prohibition against court involvement in the governance and administration of a hierarchical church.”
However, in the dissenting opinion, which is almost ten times the length of the decision in the defendants’ favor, Judge Kavanagh outlined the case for supporting the plaintiffs’ motion.
“In this case, the alleged motive of the Cardinal and the Archdiocese for seeking to demolish St. Brigid, one of the oldest Roman Catholic churches in the City, is to develop residential apartments on the site whereby the benefits from the property would inure to the benefit of the Archdiocese even though it is undisputed that the Archdiocese does not own the property.”
Continued Kavanagh: “The church, in Manhattan’s East Village, was built by Irish shipwrights in 1848, and funded by immigrants fleeing the famines in Ireland in that century. The church and the real property on which it sits was deeded to the Corporation of the Church of St. Brigid (formerly St. Bridget) by Cardinal John McCloskey, Archbishop of New York in 1885, 16 years after the incorporation of the church.”
Referring to an earlier stage in this long-running legal case, the judge said “the court noted, however, defendants’ [Cardinal Egan etc. et al] acknowledgment on the record that St. Brigid did not yet have a properly constituted board of trustees, and that no demolition could take place absent a duly-made decision by such a board.”
He went on: “The Board met on July 18, 2006, without any notice to plaintiffs [the Save St. Brigid’s Committee], and passed a resolution directing the demolition of the building and ratifying the action taken by Kevin Shaughnessy in obtaining a demolition permit.”
Judge Kavanagh noted that in February of this year, “the court dismissed the action in its entirety, ruling, inter alia, that parishioners are not members of the corporation of a hierarchical church like the Roman Catholic Church, and that no such rights are conferred on parishioners by St. Brigid’s certificate of incorporation or bylaws.”
The defendants were therefore not barred from therefore from authorizing the demolition of the building.
But the judge said that suggested a closer analysis of the section of the Religious Corporations Law governing the powers and duties of trustees.
“Case law is sparse,” wrote Kavanagh, “but the plain language of the statute indicates that the court erred in dismissing this complaint in its entirety.”
Kavanagh said: [W]hile the bylaws of the St. Brigid corporation do not provide for a membership class, neither do they specifically state that the members of the congregation are not members of the church corporation. To the contrary, a reference to the congregation’s role in the corporation’s business appears in section VI of the bylaws.”
He added: “As plaintiffs contend, the plain language of RCL _ 5 does not exempt hierarchical churches.”
Later Kavanagh said: “While this section, as defendants argue, confers ultimate authority and power on the bishop to dispose of parish properties, a plain reading establishes it as a limited power, and the title to the property, or consideration for same, must be apportioned between church corporations. Nowhere does it state that a bishop or archbishop has the power to divert those assets to the archdiocese.”
The dissenting judge added: “Plaintiffs assert that defendants’ claim of a hazardous condition and their statement that they have no other plans for the site are suspect, pointing to evidence in the record of the submitted plans for the conversion of the site to apartment buildings and a report of their engineering expert that contradicts defendants’ claims about the church’s condition and the cost of repairs.
“Therefore, the dispute essentially revolves around the issue of whether St. Brigid Church needs to be demolished for safety reasons, or whether it can be restored for less than what diocesan experts claim.
Consequently, the court erred in holding that the decision to demolish the church is a matter of ecclesiastical polity. Determination about the safety of the church structure does not concern internal governance or religious dogma, but rather can be made by applying neutral principles of law, and thus judicial review is permissible.”
“We are puzzled that only one judge can see our arguments,” said committee chairman Torres. “He saw it so clearly. He got it.”
“But we remain optimistic,” he continued. “We are asking the public to reach out to the cardinal to get him reconsider his decision to demolish St. Brigid’s.”
“We understand the cardinal has good intentions for the property,” said Torres. “But we believe that all sides can be satisfied.”
He said that taking the property’s air rights into consideration, “there’s enough land there.”