the apostolate: is a new public juridic person next?

Transcription

1 the apostolate: is a new public juridic person next? Melanie DiPietro, SC, JD, JCL INTRODUCTION Many religious institutions (Institute) are beginning to consider the Institute s continuing ability to fulfill its canonical responsibility for a specific expression of the proper works (the Apostolate) of the Institute. In the context of these considerations, questions arise concerning a new public juridic person as the canonical successor to assume responsibility for a specific institutionalized expression of the proper works of the Institute such as health, education and social services. Many of these works are now carried on in American corporations 1 originally incorporated by the major superiors of the Institute through actions taken in accord with the Institute s constitutions and American law. The goal of this essay is to suggest the consideration of the public juridic person as the canonical successor to the Institute for its Apostolate. In the Church legal system, as in most legal systems, a legal entity can be created which can carry on business, own property and have rights, duties and privileges very similar to those of natural persons. Sometimes, these juridic entities are referred to as artificial persons. In American law, such an entity is called a corporation. Though not exactly the same as the corporation in American law, the juridic person is the canonical term used for a canonical entity that has characteristics and functions that are in many ways similar to the American corporation. In canon law, there are two kinds of juridic persons, private and public. The public juridic person has a special status and privilege to participate formally in the public apostolate of the Church. The Institute is a type of public juridic person. Therefore, the focus of this essay is on the public juridic person as a canonical successor to the Institute for its Apostolate because of the similarity between the status and function of the Institute and other public juridic persons in the exercise of the apostolate of the Church which is entrusted to them. Melanie DiPietro is a Seton Hill Sister of Charity and is both a civil and canon lawyer. She concentrates on religiously affiliated corporations. Her practice area includes tax-exempt health, social service and education corporations and has served as Associate Counsel to the Diocese of Pittsburgh. She has served as a consultant to religious congregations on matters concerning management, governance and legal issues for religiously affiliated corporations. 1 Apostolate as used in this essay refers to one expression of a proper work. It is assumed that the expression is a sizable institution such as a school, hospital or social service agency. It is also assumed that the activities of the work occur in a corporation with substantial assets. It may be that an elementary school or a high school is not separately incorporated from the corporation that carries on the business activities of the religious institute. In this short article it is not possible to address all variations of the facts. The precise nature of the work, its legal structure and its funding structure will control the options available to the Institute. This essay only discusses general principles of canon law. The term proper work is a technical term in the code. It means the work of the founder and those general works approved in the constitutions. An institution or a corporation is an expression of the proper works. The word Apostolate as used in this essay refers to one institution or corporation, one specific expression of the proper works. Number 75 The Legal Bulletin Page 3

2 The catalysts for the Institute s interest in a canonical successor for an Apostolate may be the demographics of the Institute which results in fewer religious working in the institution or the corporation. The governance responsibilities for these corporations often fall upon the major superiors and councils because they become Members or trustees in the corporations as a result of their office in the Institute. These responsibilities are often perceived as a disproportionate burden on leadership. If this is the catalyst for the question, it is important for leadership to differentiate two separate canonical questions. Leadership needs to identify which of these two questions it is addressing. The first is the question of the modification of one expression of the proper works of the Institute which may mean leaving a certain institutional expression of an Apostolate such as a hospital or a high school. This is a question of the form and means to carry out the Apostolate. The second is the question of the abandonment of a proper work entirely. This means that the Institute no longer engages in a stable or committed manner, in any kind of works elected by the founders or introduced in the course of time by way of sound traditions. 2 In juridic terms, the works of the founders are called proper works. Either one of these decisions is a serious act of governance authority in the Institute. Its proper works are formal ecclesial activity. Either one of these questions are governance actions that require the approval by the next level of authority as indicated in the Institute s constitutions and the 1983 Code of Canon Law (the code). The following discussion addresses the first question. It assumes that the Institute is now considering terminating its relationship to an institution with substantial assets that may be a separate corporation controlled by the Institute. Since the activities of the proper works are carried on in a corporation, the Institute, if it terminates its control of the corporation, is making a decision which has irrevocable consequences in terms of the potential loss of legal control of assets dedicated to the Apostolate in the corporation. This decision affects both the Institute and the local Church. It is important for the major superiors and councils who are ultimately responsible for the decision to reflect on the total ecclesial significance of their decision. Therefore, the suggested approach to the analysis of this decision includes three parts. First, it is important to reflect on the theological and canonical significance of proper works of an Institute. Second, it is important to reflect upon the interrelationships of the Apostolate of the Institute to the hierarchical structure of the Church and the ecclesiology of the mission of the Church in the modern world, especially in its institutional presence in the service sector in the United States. Third, it is important to understand how a successor public juridic person assuming canonical responsibility for an Apostolate of the Institute provides continuity in the ecclesial community for the public expression of apostolate of the Church. PART T ONE: THE PROPER WORKS OF THE INSTITUTE Though the term ministry is often used, Apostolate is used in this essay to refer to the proper works of the Institute because these two terms, proper works and apostolate, are used in 2 Richard Hill, S.J., The Apostolate of the Institute:Canons , in A Handbook on Canons ,Jordan Hite, T.O.R., Sharon Holland,I.H.M.and Daniel Ward,O.S.B.,eds. (Collegeville, Minnesota:Liturgical Press, 1985), 204. Page 4 The Legal Bulletin Number 75

3 the 1983 Code of Canon Law. 3 The Apostolate of the Institute has two dimensions which are described in canons 673 to The apostolate of all religious institutes is the witness of consecrated life. This witness is then expressed in one way in contemplative institutes and in another way in institutes dedicated to external works of the apostolate. The proper works of the Institute are the works that are identified in the Institute s founding and stated in the constitutions of the Institute. The juridic significance of proper work means that these are the authorized apostolic engagements of the Institute. Canon 675 identifies the apostolate as part of the nature of an Institute dedicated to apostolic actions. The authority to engage in these works as a right comes from the approval by the Congregation of Institutes of Consecrated Life and Societies of Apostolic Life (CICLSAL) of the constitutions of the Institute. Because the proper works are of the nature of the Institute, the human and material resources of the Institute are dedicated and committed in a stable manner to the proper works. The form that is used to express the proper works may change according to the needs of the time. However, the changes must be within the limits of the authorized proper works. For example, education is a proper work. One expression, a high school may close or the Institute may consider separating it from the Institute s canonical responsibility. But, the Institute cannot, without approval of CICLSAL, withdraw the Institute s commitment to education because it cannot 3 Ibid., Hill has a succinct summary of the distinction among these terms and the use in the 1917 Code of Canon Law and the present code CIC c.673: The apostolate of all religious consists first of all in the witness of their consecrated life, which they are bound to foster by prayer and penance. 83 CIC c. 675: 1. Apostolic action belongs to the very nature of institutes dedicated to works of the apostolate. Accordingly, the whole life of the members is to be imbued with an apostolic spirit; indeed the whole apostolic action is to be informed by a religious spirit. 2. Apostolic action is to proceed always from an intimate union with God and is to confirm and foster this union. 3 Apostolic action, to be exercised in the name and by the mandate of the Church, is to be carried out in the communion of the Church. The apostolate of all religious institutes is the witness of consecrated life. This witness is then expressed in one way in contemplative institutes and in another way in institutes dedicated to external works of the apostolate.... change its proper works. This is the meaning of canon 677 which balances necessary renewal with enduring faithfulness to mission and works proper to the Institute. 5 The major superior and council, as well as the members of the Institute, need to appreciate the significance and stability of proper works. Proper works cannot be treated in the same manner as apostolic works of individual sisters or more recent charitable undertakings of the Institute that are not a part of the Institute s proper works. The significance here is that the focus on the Institute s proper work 6 means that it is a formal and official public part of the apostolate of the Church. Therefore, there is a juridic status of the work itself in the Church CIC c.677: 1. Superiors and members are to retain faithfully the mission and works proper to the institute. Nevertheless, attentive to the necessities of times and places, they are to accommodate them prudently, even employing new and opportune means. 2. Moreover, if they have associations of the Christian faithful joined to them, institutes are to assist them with special care so that they are imbued with the genuine spirit of their family. 6 A proper work is also distinguished from the work that is entrusted to an Institute by the local Church. An entrusted work is usually within the proper work of an Institute. For example, the bishop may entrust a parish school to a religious institute whose proper work is education. In this situation, the religious institute collaborates with the diocese in theits apostolic work of the diocese. Number 75 The Legal Bulletin Page 5

4 A study of canons 577, 578, 675 and 677 is helpful to appreciate the significance of decisions affecting historical expressions of proper works to the life of the Institute. Several themes emerge from these canons. First, a proper work is part of the patrimony of the Institute because it is part of its nature and purpose. 7 Second, the proper work is not merely a philanthropic work or an act of charity in the secular sense. It is work, grounded in grace and sacrament, that is incarnating Christ praying, announcing the kingdom or doing good in the fulfillment of the will of the Father. Apostolic action means that it is rooted in the spiritual life and animated by union with God. The Apostolate of the Institute is exercised in the name of the Church by the mandate (here the constitutions of the Institute), and it is carried out in communion of the Church. This last phrase, communion of the Church is the rich theological basis for the understanding of the place in the visible society of the Church of the Apostolate of the Institute. This Church is a visible society through which Christ communicates truth and grace. The Church claims charitable works as its own mission and right. 8 The exercise of the governance authority of the Institute in matters of 7 83 CIC c. 577: In the Church there are a great many institutes of consecrated life which have different gifts according to the grace which has been given them: they more closely follow Christ who prays, or announces the kingdom of God, or does good to people, or lives with people in the world, yet who always does the will of the Father. 83 CIC c. 578: All must observe faithfully the mind and designs of the founders regarding the nature, purpose, spirit, and character of an institute, which have been sanctioned by competent ecclesiastical authority, and its sound traditions, all of which constitute the patrimony of the same institute. 83 CIC c. 675: 1. Apostolic action belongs to the very nature of institutes dedicated to works of the apostolate. Accordingly, the whole life of the members is to be imbued with an apostolic spirit; indeed the whole apostolic action is to be informed by a religious spirit. 2. Apostolic action is to proceed always from an intimate union with God and is to confirm and foster this union. 3 Apostolic action, to be exercised in the name and by the mandate of the Church, is to be carried out in the communion of the Church. 8 Lumen gentium 8; Apostolicam actuositatem 8; Gravissimus educationis, 8, Gaudium et spes. 8 the Apostolate requires an understanding of the theological and counciliar values underlying the juridic scheme described in these canons and the ecclesiological significance of the Institute s decisions which affect the Church s institutional means to carry out its mission. These works and the means to carry them out are part of the patrimony of the Institute. Consequently, the assets dedicated to the Apostolate are subject to the code because they are considered as Church property and the Apostolate is part of the public apostolate of the Church. Institutes and their proper works are in a broad sense part of the patrimony of the Church. The reading of these canons as part of the preparatory work of the major superior and councils in addressing the future of their proper works requires a study of the documents of the Second Vatican Council underlying these canons. These documents cannot be discussed in this brief introductory essay. However, the canons cannot guide the analysis and fidelity to canonical norms is impossible without an understanding, appreciation and implementation of the underlying theology. The Constitutions on the Church and the Church in the Modern World provide the explanation of the ecclesial reality of the Church which is at once a spiritual and visible society, and an exposition of its practical role in modern life to heal, educate and relieve human need. The reading of the Decree on the Renewal of Religious Life with the Decree on the Laity provides the theological understanding of the difference between the participation of the Institute in the public apostolate of the Church and the participation by individual baptized persons and private associations of the faithful. 9 It further provides an 9 83 CIC c.298: In the Church there are associations distinct from institutes of consecrated life and societies of apostolic life; in these assocaitons the Christian fiathful, whether clerics, lay persons, or clerics and lay persons, or clerics and lay persons together, strive in a common endeavor to foster a more perfect life, to promote public worship or Christian doctrine, or to exercise other works of the apostolate such as initiatives of evangelization, works of piety or charity, and htose which animate the temporal order with a Christian Spirit. Private associations act in their own name for purposes Page 6 The Legal Bulletin Number 75

5 understanding of each one s place and function in the hierarchical structure of the ecclesial society. This theology and the principles in the identified canons reveal the two characteristics that are intrinsic to proper works: they are essentially religious, and they are an integrated part of the public mission of the Church. Therefore, they are in relationship to the hierarchical structure of the Church. The interrelationship of the proper works of the Institute to the hierarchical structure of the Church, particularly to the local church, is an important value theologically and practically to the effectiveness of the Church as an actor in society contributing to the common good. PART TWO: O: THE RELATIONSHIP OF THE INSTITUTE S DECISION TO THE LOCAL CHURCH The Institute has the autonomy to decide how and in what manner it performs its proper works. This includes the autonomy to decide when to withdraw from a specific expression of one of its proper works. When an Institute is invited into a diocese and establishes a religious house it has the right to engage in its proper works. 10 However, the bishop is responsible for the apostolate of the local Church and for coordinating the apostolate that they decide and for the time of involvement that they determine. For a succinct comparison between public juridic persons and private juridic persons see Jordan Hite, T.O.R., A Primer on Public and Private Juridic Persons, (St. Louis: Catholic Health Association, 2000) CIC c. 616: 1. The supreme moderator can suppress a legitimately erected religious house according to the norm of the constitutions, after the diocesan bishop has been consulted. The proper law of the institute is to make provision for the goods of the suppressed house, without prejudice to the intentions of the founders or donors or to legitimately acquired rights. 2. The suppression of the only house of an institute belongs to the Holy See, to which the decision regarding the goods in that case is also reserved. 3. To suppress the autonomous house mentioned in can. 613 belongs to the general chapter, unless the constitutions state otherwise. 4. To suppress an autonomous monastery of nuns belongs to the Apostolic See, with due regard to the prescripts of the constitutions concerning its goods.) in the local Church. 11 Canon describes the dual authority of the Institute and of the local bishop and the expected collaboration of the Institute and the bishop in the organization of the works of the Apostolate of the Institute in the local Church. The relevance in this reference to the collaboration assumed between the Institute and the bishop for the coordination of the works of the apostolate in his diocese is the promotion of the common good of the Church. The scope and strength of the system of hospitals, colleges, schools and social service agencies existing in the United States, many of which were initiated by religious institutes in response to requests from the local bishop, is testimony of the value to the Church of the stability of Institutes who act in the name of the Church and in communion with the Church. While the local Church can always invite individuals and groups of the faithful to collaborate in a formal way in the public apostolate of the Church, the status of a public juridic person provides a greater identifiable potential for stability and growth of the public apostolate of the Church established by the works of religious institutes. The assumption in canon 394 is that the bishop not only coordinates the various apostolates controlled by the diocese but that he can rely on the collaboration of existing religious CIC c. 394: 1 The Bishop is to foster various forms of the apostolate in his diocese and is to ensure that throughout the entire diocese, or in its particular districts, all works of the apostolate are coordinated under his direction, with due regard for the character of each. 2 He is to insist on the duty that binds the faithful to exercise the apostolate according to each one s condition and ability and is to exhort them to participate in or assist various works of the apostolate according to the needs of place and time CIC c. 678: 1. Religious are subject to the power of bishops whom they are bound to follow with devoted submission and reverence in those matters which regard the care of souls, the public exercise of divine worship, and other works of the apostolate. 2. In exercising an external apostolate, religious are also subject to their proper superiors and must remain faithful to the discipline of the institute. The bishops themselves are not to fail to urge this obligation if the case warrants it. 3. In organizing the works of the apostolate of religious, diocesan bishops and religious superiors must proceed through mutual consultation. Number 75 The Legal Bulletin Page 7

6 institutes. The current issue for Institutes is whether a decision to withdraw from its institutional expression of the Apostolate affects a loss to the Church of this network of formal, public participation in the apostolate of the Church or whether the system of institutions built by religious institutes can continue to function and grow in the name of the Church. Transfer of the canonical responsibility of the Apostolate and of the assets dedicated to these works to a successor public juridic person is an alternative that may best continue this formal, public relationship of the Apostolate to the Church. The Institute has two canonical options if it wishes to see the work continue with an affiliation to the Catholic Church. PART THREE: THE ROLE OF A PUBLIC JURIDIC PERSON IN THE PUBLIC APOSTOLA OLATE TE OF THE CHURCH An Institute is not bound to maintain every institutional expression of its proper works. Theoretically, the Institute has several canonical options. Following the procedures outlined in its constitutions, and if a sale of property is involved, following the canonical procedures for alienation, it can close the institution entirely. It sells the assets and dissolves the corporation. The work ceases. Its access and use of the proceeds from the sale of assets depends on the nature of the institution and the laws which apply to the sale proceeds. If the Institute wants to provide for the continuation of the work, it follows the appropriate canonical procedures, and takes legal measures to transfer control of the work and the assets to another legal entity that will continue to operate the work. That entity can be a secular entity with no affiliation to the Church. For example, the assets of a hospital may be sold to another nonprofit or for profit corporation. The sale proceeds are titled in the selling corporation, e.g. the hospital or high school. American law will be applied to the future use of these sale proceeds and it will apply differently to a hospital than a high school. The Institute has two canonical options if it wishes to see the work continue with an affiliation to the Catholic Church. It can transfer the control of the work and the assets to a group of Catholic laypersons who undertake the work in their own name. In canon law, groups of laypersons can function, juridically, as a private association or a private juridic person. 13 Examples of a private association or private juridic persons are the Ladies of Charity or the St. Vincent DePaul Society. This type of canonical successor changes the Apostolate to a private activity, praised by the Church but it does not operate in the name of the Church nor is it integrated into the hierarchical structure of the Church. Since the activity is private, it does not have the same presumption of stability and participation in the mission of the local Church as described above for the Institute. The option that is closest to the structured relationship in the hierarchical structure of the Church and to the public and formal participation in the mission of the Church of the Institute is the public juridic person. If the Institute wants to continue the ecclesiological function and the counciliar values of its proper works as outlined in Parts One and Two, the public juridic person is the most appropriate alternative. The parallel participation in the public apostolate of the Church between the religious institute and the new public juridic person is evident in the canons that define each one s apostolate. Canon 675 defines apostolic action as belong- 13 See note 15 for a definition of juridic persons (c.114) and public juridic persons (c.116). Private juridic persons are defined as not public which means that they do not operate in the name of the Church and a work is not entrusted to them by the Church. They choose it. Page 8 The Legal Bulletin Number 75

7 The legal issue is how control of assets of a public benefit charitable corporation such as a hospital, college or social service agency can be transferred. ing to the very nature of institutes dedicated to works of the apostolate. In paragraph 3, this canon, apostolic action is to be exercised in the name and by the mandate of the Church, is to be carried out in the communion of the Church. 14 Canon indicates that public juridic persons within the purposes set out for them, fulfill in the name of the Church the proper function entrusted to them Canon 114 indicates that these purposes of a 14 See footnote CIC c. 114: 1. Juridic persons are constituted either by the prescript of law or by special grant of competent authority given through a decree. They are aggregates of persons (universitates personarum) or of things (universitates rerum) ordered for a purpose which is in keeping with the mission of the Church and which transcends the purpose of the individuals. 2. The purposes mentioned in 1 are understood as those which pertain to works of piety, of the apostolate, or of charity, whether spiritual or temporal. 3. The competent authority of the Church is not to confer juridic personality except on those aggregates of persons (universitates personarum) or things (universitates rerum) which pursue a truly useful purpose and, all things considered, possess the means which are foreseen to be sufficient to achieve their designated purpose. 83 CIC c. 116: 1. Public juridic persons are aggregates of persons (universitates personarum) or of things (universitates rerum) which are constituted by competent ecclesiastical authority so that, within the purposes set out for them, they fulfill in the name of the Church, according to the norm of the prescripts of the law, the proper function entrusted to them in view of the public good; other juridic persons are private. 2. Public juridic juridic person are the works of piety, of the apostolate, or of charity. 15 TECHNICAL AND FACTU CTUAL INFORMATION RELEVANT TO THE CONSTITUTION OF A SUCCESSOR PUBLIC JURIDIC PERSON Assuming that the Institute prefers a public juridic person to succeed to the canonical responsibility for its Apostolate, the institute needs to determine how the facts and circumstances surrounding the Institution or corporation involved in this Apostolate affect the constitution of a public juridic person and the transfer of ownership or control of the assets presently used for the Apostolate. The Institute usually petitions CICLSAL to constitute a successor public juridic person. The Institute will need to consult a canonist for this analysis because of the variation in the facts and the American law that is relevant to the specific legal structure in which the activities of the Apostolate are conducted. There are two separate canonical issues and at least one significant legal issue in this initial examination. The two canonical issues are (1) the factual basis for the constitution of a new public juridic person and (2) the alienation process that may be involved in the transfer of ownership or control of assets presently used for the Apostolate to the new public juridic person. The legal issue is how control of assets of a public benefit charitable corporation such as a hospital, college or social service agency can be transferred. 16 Secondary and elementary schools are treated differently persons are given this personality either by the law itself or by a special decree of competent authority expressly granting it. Private juridic persons are given this personality only through a special decree of competent authority expressly granting it. 16 There are many ways to transfer control in a corporation. Since the major superior and council are often Members of a corporation, one common way to transfer control is by a membership substitution. The representatives of the public juridic person replace the major superior and council as Members with reserved powers in the corporation. Number 75 The Legal Bulletin Page 9

8 legally than hospitals, colleges or social service corporations. If a public juridic person is constituted to succeed to the Apostolate of the Institute, it is assumed that the petitioner Institute also transfers control or ownership of the resources and assets necessary to carry on the activities of the Apostolate to the new public juridic person. Canon 114 requires that the public juridic person has access to the means (human and financial) to carry on the apostolate. Canonically, such a transfer may need to be treated as an alienation. 17 There may be a question of whether there is any fair market value exchange between the Institute and the new public juridic person for the transfer of control or ownership of assets dedicated to the Apostolate. This question requires both a canonical and American law analysis of the facts. This is beyond the scope of this brief introductory essay. It is enough at this point simply to identify that the actual transfer of ownership or control of assets currently used for the Apostolate requires separate canonical and legal analysis. The elements of a public juridic person are found in canons 114, 115 and 116. If the Institute transfers the Apostolate to an existing public juridic person, the Institute needs only to address the alienation questions from a canonical, legal and business perspective. 18 If the constitution of a CIC c The permission of the authority competent according to the norm of law is required for the valid alienation of goods which constitute by legitimate designation the stable patrimony of a public juridic person and whose value exceeds the sum defined by law. 83 CIC c.1290: The general and particular provisions which the civil law in a territory has established for contracts and their disposition are to be observed with the same effects in canon law insofar as the matters are subject to the powers of governance of the Church unless the provisions are contrary to divine law or canon law provides otherwise, and without prejudice to the prescript of can new public juridic person is contemplated, the Institute s task is more complicated. A canonist should guide the Institute in its analysis of this option. The public juridic person is a legal fiction in canon law just like the corporation is a legal fiction in American law. However, there must be some group of persons or some assets that, in fact, constitute its underlying reality. Legally and canonically, the corporation or the public juridic person is a separate entity from the Members or trustees in a corporation or the persons or things that are the underlying reality of public juridic person. In the code, a public juridic person is an aggregate of persons or things. It, like a corporation, is a distinct legal actor. 19 One may, for the introductory purposes of this essay, compare the public juridic person constituted as an aggregate of things to an American foundation. In the code, the aggregate of things constituted as a public juridic person is called an autonomous foundation. Basically, in an autonomous foundation (or a foundation in American law) assets generate revenues and the revenues are used to support the charitable purpose. 20 This fund is managed by persons. The fund is perma- 18 The Institute needs to examine all of the legal possibilities for compensation both presently and in the future, especially upon a sale or transfer of control of the assets in a corporation. The code requires that the public juridic person has secure and stable access to sufficient assets to carry on the Apostolate entrusted to it. The analysis of this codal requirement overlaps with the issue of alienation and whether any fair market value exchange occurs between the Institute and the new public juridic person. This issue is a separate issue from the identity of assets as the aggregate of things that can be constituted as a new public juridic person. The two issues need to be analyzed separately. 19 The public juridic person, like a corporation acts through authorized persons, but the action is that of the artificial person, which is the legal actor CIC c.1303: 1. In law, the term pious foundations includes: 1 autonomous pious foundations, that is, aggregates of things (universitates rerum) destined for the purposes mentioned in can. 114, 2 and erected as a juridic person by competent ecclesiastical authority. 2 non-autonomous pious foundations, that is, temporal goods given in some way to a public juridic person with the obligation for a long time, to be determined by Page 10 The Legal Bulletin Number 75

9 nent or at least stable, but managers change. In the foundation approach, whether in canon or American law, it is assumed that the assets generate sufficient revenue to support the purpose of the public juridic person. Therefore, if an aggregate of things, called an autonomous foundation in canon law, is to be constituted the new public juridic person, it is necessary to (a) define the aggregate of property; (b) determine its sufficiency and stability to support the purpose long term; and (c) determine whether the authority of The public juridic person is a legal fiction in canon law just like the corporation is a legal fiction in American law. competent canonical authority in constituting the aggregate of things as a public juridic person, is protected by the operation of American law. This requires an examination of the legal rights in the ownership of the property itself not just in the legal right to control the property. This, again, is a complex canonical and legal issue beyond this introductory essay. It is sufficient here to identify the issue as part of the initial examination. In contrast to things, an aggregate of people can be the underlying reality of the public juridic person. For example, persons are the underlying reality of an Institute. An aggregate of person constituted as a public juridic person must have at least three persons. 21 This structure is similar to particular law, of celebrating Masses and performing other specified ecclesiastical functions or of otherwise pursuing the purposes mentioned in can. 114, 2, from the annual revenues. 2. If the goods of a non-autonomous pious foundation have been entrusted to a juridic person subject to a diocesan bishop, they must be remanded to the institute mentioned in can. 1274, 1 when the time is completed unless some other intention of the founder had been expressly manifested; otherwise, they accrue to the juridic person itself. an American operating corporation. In the United States, most hospitals, schools, colleges and social services are organized as operating corporations, not foundations. The material and financial resources in an operating corporation, in the ordinary course of business, change precisely because of the nature of the services and the need for flexibility in carrying out the programs and activities of healthcare, education and social services. Usually, the American corporation is not a canonical entity. Canonically, the Institute, whose underlying reality is an aggregate of persons, is a public juridic person which uses one or more American operating corporations to carry on its Apostolate. Since the Institute may be replaced by a new public juridic person, it is necessary to determine whether an aggregate of persons or things is constituted as a new public juridic person. In this second option, American law is not relevant to the juridical relationship between the competent authority in the Church and persons who may constitute the aggregate of persons constituted as a public juridic person. In this option, it is only necessary to identify the canonical criteria of membership in the new public juridic person. Thus, the Institute, with canonical counsel will need to examine which option, an aggregate of persons or an aggregate of things, is available in the specific facts and circumstances of its Apostolate. After these fundamental questions are addressed, the Institute, as a petitioner and the CIC c. 115: 1. Juridic persons in the Church are either aggregates of persons (universitates personarum) or aggregates of things (universitates rerum). 2. An aggregate of persons (universitates personarum), which can be constituted only with at least three persons, is collegial if the members determine its action through participation in rendering decisions, whether by equal right or not, according to the norm of law and the statutes; otherwise it is non-collegial. 3. An aggregate of things (universitas rerum), or an autonomous foundation, consists of goods or things, whether spiritual or material, and either one or more physical persons or a college directs it according to the norm of law and the statutes. Number 75 The Legal Bulletin Page 11

10 members of the proposed public juridic person, assuming it is constituted as an aggregate of persons, need to develop rules and procedures for members and the internal organizational order of the public juridic person. This plan, similar to the constitutions and directives of the Institute, is in the statutes of the public juridic person. The statutes must be approved by the canonically competent authority, constituting the public juridic person. 22 The statutes contain provisions for the fundamental matters of a public juridic person such as the following: its purpose; procedures for how it will govern itself and conduct its activities; criteria for membership and removal from membership; rights and duties of members; administration and alienation of its property which is Church property; its relationship to the hierarchical competent authority constituting the public juridic person; the procedure for changes and hierarchical approval for changes of the statutes; and procedures for dissolution. If an aggregate of things is constituted the new public juridic person, the provisions on members is not relevant. Rather, the provisions will address appointment and removal of managers and representatives. The content and function of the statutes are similar to the constitutions of the Institute and the Articles of Incorporation of an American corporation. The secondary document, which is more detailed, is similar to the bylaws of an American corporation. The competent authority, after reviewing the CIC c. 117 No aggregate of persons (universitas personarum) or of things (universitas rerum), intending to obtain juridic personality, is able to acquire it unless competent authority has approved its statutes. 83 CIC c. 118: Representing a public juridic person and acting in its name are those whose competence is acknowledged by universal or particular law or by its own statutes. Representing a private juridic person are those whose competence is granted by statute. petition and its supporting data and the statutes, issues a Decree constituting the new public juridic person and approving its statutes. When the Decree is issued and the canonical and legal transactions necessary to transfer ownership or control of the assets dedicated to the Apostolate have been completed, the Institute terminates its canonical responsibility for this specific expression of its proper work. Individuals, members of the institute including superiors, may be a member of a new public juridic person and may even have rights to appoint members in the new public juridic person. The Institute can continue to participate in the life of the new public juridic person. However, the Institute needs to differentiate its former canonical responsibility for a former proper work and its participation as a member of another public juridic person for its newly entrusted work. The new public juridic person is now in charge. CONCLUSIONS The issues addressed in this essay do not exhaust the matters that need to be considered in the ultimate decision of an Institute to withdraw from an Apostolate. This essay has addressed the initial issues that need to be considered. Part One and Two of this essay identified the context for favoring and focusing on a public juridic person as the canonical successor to the Apostolate of an Institute: it is to preserve the Page 12 The Legal Bulletin Number 75

11 religious character and the official status of this Apostolate in the hierarchical structure of the Church. It is, in this author s judgment, the best juridic structure to continue the size and scope of the Church s institutional base in the United States. While there are fundamental elements in the cited canons that are relevant to every public juridic person, there is also room for creativity to tailor the statutes of the public juridic person to the specific facts and circumstances in which it is constituted and in which it must work. Public juridic persons offer a way for religious and laity to collaborate in the transition from a system controlled by religious institutes to a system of institutions with substantial lay control. These structures provide future leadership with benefits of the richness of the spiritual and apostolic patrimony of religious institutes. New expertise can develop while remaining in the hierarchical structure of the Church. There are, however, more complicated legal and financial issues for the Institute that require sophisticated and creative canonical and legal analysis. Some of these issues are the following: If the new public juridic person has no assets and succeeds to the Institute s control in an existing corporation, is there any legal way to provide any monetary value to the Institute? If, in the future, the assets of the corporation are sold and the proceeds of the sale are subject to a court proceeding that results in the creation of a resulting foundation, is there any possibility of the Institute retaining an interest in the purposes or control of that foundation? These are second generation questions. These events are not expected to occur in the immediate future. However, it may be prudent to think about their occurrence at the time of the succession to a new public juridic person. Though they are beyond the scope of this present article, these questions should be part of the initial brainstorming and planning of the Institute. Number 75 The Legal Bulletin Page 13

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