IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 94 C 00927Judge Williams
MARTIN W. MYERS, Plaintiff, vs.
THOMAS C. BURNS,
HOITE C. CASTON,
K. RICHARD KEELER,
PATRICIA SADLER MUNDELIUS, Trustees of Urantia FOUNDATION, and
PHILIP A. ROLNICK, an individual represented to be a newly elected Trustee, Defendants.AMENDED COMPLAINT
COUNT I DECLARATORY JUDGMENT
NOW COMES the plaintiff,
MARTIN W. MYERS, by his attorney,
STANLEY H. JAKALA, and states as follows:1. Plaintiff, Martin W. Myers, is a resident of Evanston, Illinois.
2. Plaintiff, Martin W. Myers, was duly elected a Trustee of Urantia Foundation in 1973, and, significantly, prior to his election as Trustee, plaintiff had been invited in 1968 by Dr. William S. Sadler and Ms. E.L. Christensen, two individuals who had been instrumental in bringing forth The Urantia Book and establishing Urantia Foundation, to live with them at the Urantia Foundation headquarters building at 533 Diversey Parkway, Chicago, Illinois, where, subsequent to Dr. Sadler's death in 1969 and in association with three of the five founding Trustees, two, closely, Ms. E.L. Christensen for fourteen years, and Ms. Edith E. Cook for twenty-one years, plaintiff had become intensely involved in, and intimately knowledgeable of, the multifaceted affairs of Urantia Foundation, Urantia Brotherhood (a social and fraternal organization licensed at one time by the Foundation), and First Urantia Society (a group for the book's study affiliated with the then Urantia Brotherhood), and where plaintiff had learned first hand the founders' guiding principles and their practical application to Urantia Foundation's day-to-day operations, and where plaintiff had served Urantia Foundation in various capacities since at least as early as 1971, including its Vice Presidency and Presidency.
3. Urantia Foundation is a charitable Illinois not-for-profit common law trust in perpetuity located and doing business at 533 Diversey Parkway, Chicago, Illinois 60614, and its By-Laws require Trustee meetings at least four times a year, which meetings are usually held at the Foundation's principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
4. Defendant Thomas C. Burns was duly elected a Trustee of Urantia Foundation in August 1992, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois, 60614.
5. Defendant Hoite C. Caston was duly elected a Trustee of Urantia Foundation in June 1986, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
6. Defendant K. Richard Keeler was duly elected a Trustee of Urantia Foundation in July 1989, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
7. Defendant Patricia Sadler Mundelius was duly elected a Trustee of Urantia Foundation in March 1990, and since her election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
8. As a result of the many violations of the spirit and letter of the Declaration of Trust Creating Urantia Foundation by defendants as set forth in paragraphs 8 through 36 below, of this Amended Complaint, plaintiff brings this action to enforce the terms of the Declaration of Trust in accord with the intent and purposes of the creators of the Declaration of Trust and to ensure that the OBJECTS, as set out in Article II thereof, shall, in fact, be achieved through the enforcement of the high standards of fiduciary conduct imposed upon the Trustees of Urantia Foundation by the Declaration of Trust Creating Urantia Foundation and the law of the State of Illinois, for the faithful administration of their public trust.
9. On information and belief, on April 17, 1993, Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius elected defendant Philip A. Rolnick as a Trustee of Urantia Foundation in violation of the Declaration of Trust Creating Urantia Foundation, but defendant Philip A. Rolnick has, subsequent to the aforesaid election, acted as a Trustee of Urantia Foundation; he attended his first quarterly meeting of the Board of Trustees of Urantia Foundation on or about July 17, 1993, at the Foundation's principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
10. One of the longstanding principles of Urantia Foundation is the Principle of Proper Procedures, which the Trustees of Urantia Foundation have repeatedly and publicly committed themselves to rely upon in carrying out their fiduciary responsibilities in working toward the realization of the goals and purposes of Urantia Foundation. Further, the Trustees of Urantia Foundation have also required that its licensee organizations follow the Principle of Proper Procedures. Exhibits A and B, attached herein, are two excerpts from the April 1990 Special Report to the Readers of The Urantia Book, written and published by the Trustees of Urantia Foundation, wherein they publicly state their commitment to this Principle and wherein defendant Hoite C. Caston eloquently illuminates how this Principle is to be applied, and specifically, in Exhibit B, 19-3, last paragraph, emphasizes the requirement for evidence to support charges against any person in conjunction with the Principles of The Urantia Book about which he refers throughout that Exhibit.
11. On August 22, 1992, the then Trustees of Urantia Foundation, defendants Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius, commenced an action to remove the plaintiff, Martin W. Myers, as a Trustee of Urantia Foundation, wherein plaintiff read a written statement, a copy of which is attached herein as Exhibit C, wherein he stated "...[B]eing a Trustee of Urantia Foundation is a serious responsibility and my ability so to serve has now been brought into question. Because of this, rather than resign, I wish to proceed with the removal proceedings wherein we all shall have full opportunity to review my performance and your objections related to it."
12. In conjunction with the August 22, 1992, hearing for removal of Martin W. Myers, plaintiff, as a Trustee of Urantia Foundation, the plaintiff was unaware that he was to be confronted with numerous oral charges without being provided the opportunity to respond properly, and he advised the Trustees in the presence of Urantia Foundation legal counsel Quin R. Frazer that he did not comprehend the nature of those charges.
13. In that August 22, 1992 removal hearing, Martin W. Myers, plaintiff, requested that he be provided written charges in order to have the fair opportunity to respond to such charges.
14. On August 29, 1992, the plaintiff was provided the opportunity to present a statement to the Trustees of Urantia Foundation; a copy of said statement is marked Exhibit D and attached herein.
15. After plaintiff presented his written statement, the defendant, K. Richard Keeler, orally asked numerous questions of the plaintiff and orally accused the plaintiff of numerous infractions, which surprised the plaintiff, with an appropriate denial by the plaintiff.
16. After the oral inquisition of the plaintiff by the defendant, K. Richard Keeler, the Board of Trustees voted unanimously to remove the plaintiff, Martin W. Myers, as a Trustee of Urantia Foundation.
17. On September 28, 1992, the plaintiff addressed a letter to defendants Patricia Sadler Mundelius, Thomas C. Burns, Hoite C. Caston, and K. Richard Keeler, a copy of which correspondence is attached herein as Exhibit E, contesting the charges as being unfair. 18. In response to the correspondence of September 28, 1992, Urantia Foundation President, defendant Patricia Sadler Mundelius, directed a letter to the plaintiff, dated October 9, 1992, marked Exhibit F herein, in which she stated to the plaintiff that the Trustees had determined to remove the plaintiff from the Board of Trustees of Urantia Foundation.
19. On October 12, 1992, the plaintiff responded to Urantia Foundation President Mundelius' letter, stating that he did not fully understand the charges, and that it was only fair that "the Trustees provide written charges and an opportunity for me seriously to address your concerns." Said correspondence is marked Exhibit G and made part of this amended complaint.
20. Prior to October 12, 1992, Martin W. Myers, in a September 4, 1992 correspondence, addressed to the defendants a request for a written list of charges which was ignored; a copy of said letter is marked Exhibit H and attached hereto.
21. A written set of charges was never prepared.
22. In the October 17, 1992, Trustees' hearing, Hoite C. Caston orally read new charges to which the plaintiff was unprepared to respond and to which he could not reasonably have been expected to have been prepared to respond; nevertheless, plaintiff read his prepared statement, which is incorporated herein and attached as Exhibit I.
23. In that October 17, 1992 hearing, there was a vote taken by the Trustees unanimously voting to remove the plaintiff, Martin W. Myers, as a Trustee of Urantia Foundation.
24. On January 16, 1993, the Trustees met again for purposes of removing the plaintiff, and the plaintiff filed a written response, marked herein as Exhibit J, dated January 16, 1993, specifically indicating his objection to the continuation of the removal process as being biased.
25. In the January 16, 1993 statement, attached herein as Exhibit J, plaintiff referred to philosophical concepts and teachings from the Foundation's principal publication, The Urantia Book, which by the terms of the Declaration of Trust Creating Urantia Foundation, Article II, and the By-Laws of Urantia Foundation, Article II, Section 2.4, the Trustees are legally and morally bound to defend, to follow, to disseminate, and to not do or permit any act or thing which is inconsistent therewith or in degradation thereof, and which concepts and teachings establish a contractual due process property right requiring a fair and unbiased hearing. A copy of the Declaration of Trust Creating Urantia Foundation is attached herein as Exhibit K, and a copy of the By-Laws of Urantia Foundation is herein incorporated as Exhibit L.
26. In conjunction with the contractual due process concept requiring a fair and unbiased hearing, The Urantia Book, upon which Urantia Foundation was established, which governs the trustees in the administration of the government of Urantia Foundation, is replete with teachings advocating that fairness and justice be adhered to in all facets of human endeavor. For example, The Urantia Book provides at page 614:
There is no error greater than that species of self-deception which leads intelligent beings to crave the exercise of power over other beings for the purpose of depriving these persons of their natural liberties. The golden rule of human fairness cries out against all such fraud, unfairness, selfishness, and unrighteousness. Only true and genuine liberty is compatible with the reign of love and the ministry of mercy.
and The Urantia Book, page 1462:
"Meeting a poor man who had been falsely accused, Jesus went with him before the magistrate and, having been granted special permission to appear in his behalf, made that superb address in the course of which he said: "Justice makes a nation great, and the greater a nation the more solicitous will it be to see that injustice shall not befall even its most humble citizen. Woe upon any nation when only those who possess money and influence can secure ready justice before its courts! It is the sacred duty of a magistrate to acquit the innocent as well as to punish the guilty."
27. In the January 16, 1993 hearing, there was a vote taken by the Trustees unanimously voting to remove the plaintiff, Martin W. Myers, as a Trustee of Urantia Foundation, notwithstanding the contents of Exhibit J.
28. On February 16, 1993, defendant Hoite C. Caston, on behalf of the Trustees of Urantia Foundation, directed a letter, attached herein as Exhibit M, to plaintiff stating, among other things, that plaintiff could again present his position at the April 17, 1993 hearing, but further informing plaintiff that the trustees had unequivocally rejected plaintiff's position, including plaintiff's presentation of the facts, characterization of the Trustees' actions, and interpretation of the Trustees' motives in initiating and carrying out removal proceedings against plaintiff, without disclosing to plaintiff what the facts, actions, and motivations were, all of which denied plaintiff the opportunity not only to have a correct understanding of the pertinent facts, actions and motivations of the Trustees, including the charges against him, but also, rendered it impossible for plaintiff to engage in any meaningful communication on plaintiff's behalf concerning the Trustees' efforts to remove plaintiff as a Trustee of Urantia Foundation, thus foreclosing any consideration of the issues and defeating any possibility of a fair hearing.
29. On April 17, 1993, the Trustees again voted unanimously for the last time to remove the plaintiff as a Trustee of Urantia Foundation. 30. On May 13, 1993, the plaintiff received from Urantia Foundation a Certificate of Removal of Trustee that had been filed with the Cook County Clerk's office on April 20, 1993, which certificate states, among other things, notwithstanding the contents of Exhibit J, "...that after due deliberation and the exercise of fair and impartial judgment, by the unanimous vote of all Trustees present at said meetings Martin W. Myers was fully and permanently removed as a Trustee of Urantia Foundation, and a vacancy in the number of Trustees is declared to exist." (emphasis supplied). Said Certificate of Removal of Trustee was dated April 17, 1993, and was signed by defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius, and each of the signatures was notarized by Foundation legal counsel, Quin R. Frazer; a copy of the Certificate of Removal of Trustee and notarizations is attached herein as Exhibit N.
31. Under Article VII of the Declaration of Trust Creating Urantia Foundation, entitled Trustees and Government of Urantia Foundation, specifically Section 7.5, Removal of Trustee, the pertinent language is quoted: "Upon the execution and recordation of such certificate, a vacancy in the number of Trustees shall be deemed to exist."
32. Philip A. Rolnick was elected as a Trustee of Urantia Foundation on April 17, 1993, three days before April 20, 1993, with the recording of the Certificate of Removal of Trustee for the plaintiff as a Trustee of Urantia Foundation, with the result that the election of Philip A. Rolnick was invalid and there presently exists a vacancy.
33. The conduct of the hearings of October 17, 1992, January 16, 1993, and April 17, 1993, asking for the removal of the plaintiff as a Trustee of Urantia Foundation, violated the Declaration of Trust, the By-Laws, and The Urantia Book of Urantia Foundation, providing for contractual due process requiring a fair and unbiased hearing, as follows:
A. That such a contractual due process hearing exists is substantiated by the only prior removal proceedings in the Foundation's four decades of existence, in which the Trustees adhered to their practice of following the Principle of Proper Procedures and specifically and deliberately decided that written charges were deemed to be a part of the due process to be accorded the accused Trustee, including a step-by-step process whereby the accused Trustee had at least three separate opportunities specifically to answer each charge and to confront his accusers face-to-face, which process was embraced by the then trustees, significantly including two of the Foundations's original, founding trustees, Mr. William M. Hales and Ms. Edith E. Cook, who unanimously adopted and faithfully followed a written procedure including written charges, guaranteeing the accused full due process of law.
B. That written charges are required is supported by The Urantia Book, at 1990: Pilate, being keenly sensitive to the disrespectful manner of the approach of these Jews, was not willing to comply with their demands that Jesus be sentenced to death without a trial. When, therefore, he had waited a few moments for them to present their charges against this prisoner, he turned to them and said: "I will not sentence this man to death without a trial; neither will I consent to examine him until you have presented your charges against him in writing."
C. That, although the defendants do not administer the affairs of a public administrative agency subject to the requirements of due process under the Fifth and Fourteenth Amendments to the United States Constitution, nevertheless, under the Declaration of Trust, By-Laws, and The Urantia Book of Urantia Foundation, providing for contractual due process, such due process requires a fair trial and a fair tribunal, principles recognized in constitutional due process hearings governing public administrative agencies, Polk v. Board of Trustees of Police Pension Fund of City of Park Ridge, Illinois, First District, Sixth Division, September 10, 1993; a copy of said opinion is attached as Exhibit 0.
D. That, although the defendants do not administer the affairs of a public administrative agency, subject to the requirements of due process under the Fifth and Fourteenth Amendments to the United States Constitution, nevertheless, under the Declaration of Trust, By-Laws, and The Urantia Book, of Urantia Foundation, providing for contractual due process, such due process prohibits persons performing quasi-prosecutorial investigative functions from being members of a decision-making body, principles recognized in constitutional due process hearings governing public administrative agencies, Polk v. Board of Trustees of Police Pension Fund of City of Park Ridge, Illinois, marked Exhibit 0.
E. That the plaintiff was denied a due process hearing, in that the defendants performed quasi-prosecutorial or investigative functions while also being members of the decision-making body to terminate the plaintiff as a trustee, was stated by the plaintiff, in Exhibit J, page 1, paragraph 3:
One would expect that fiduciaries, such as the majority, would be eager to avoid even the appearance of these and other improprieties by insisting upon the highest standards of conduct and conscientiously adhering to basic principles of good faith behavior. This would seem especially so, since the majority sits as accuser, prosecutor, judge and jury, and would, therefore, want to take special precautions to insure fairness throughout the removal proceedings. But its actions have been to the contrary. By bringing false charges and failing to provide Martin with the basic protections of due process, the majority has repudiated fairness and equity and renounced its accountability to reasonable standards of conduct in its administration of the affairs of Urantia Foundation. In so doing, the majority has substituted license in the place of liberty, and has thus put itself in direct contravention of the teachings of The Urantia Book. Here, for the majority, the end justifies the means.
F. The conduct of the hearings of October 17, 1992, January 16, 1993, and April 17, 1993, was in violation of the fiduciary and other high administrative standards of conduct and behavior imposed upon and required of the defendants by the creators of the Declaration of Trust Creating Urantia Foundation, as exemplified in and by Article II, Objects, and Article VII, Trustees and Government of Urantia Foundation, in and by Article II of the By- Laws of Urantia Foundation, and in and by the teachings of The Urantia Book, for the fair, honest, and equitable administration of the affairs of Urantia Foundation.
G. That, under 187, j, of Restatement (Second) of the Law of Trusts, it provides that trustees' decisions are subject to the review of a court for dishonest action, bad faith, unreasonable and arbitrary exercise of judgment, or improper motive, and, thus, the defendants are to be held accountable by the court for their arbitrary and capricious exercise of discretion, bad faith, and their unreasonable judgment and improper motives in denying plaintiff a contractual due process hearing as required by the intent of the creators of the Declaration of Trust Creating Urantia Foundation as exemplified in and by Article II, Objects, and Article VII, Trustees and Government of Urantia Foundation, in and by Article II of the By-Laws of Urantia Foundation, and in and by the teachings of The Urantia Book.
34. The actions of the Trustees of Urantia Foundation of October 17, 1992, January 16, 1993, and April 17, 1993, to remove Martin W. Myers as a Trustee of Urantia Foundation, were a flagrant and wilful abuse of trust, being arbitrary, capricious, unreasonable, and biased when they denied the plaintiff a contractual due process property right hearing consisting of written charges and confrontation of witnesses for purposes of cross-examination, in accordance with contractual due process to which bias the plaintiff referred in Exhibit J, page 2, paragraph 1:
Not only does the majority proceed unfairly against Martin, impugning his character and dismissing his significant experience, but also, it does so hypocritically, knowingly harboring one of its own who has admitted actions in writing which show his unworthiness to continue to be a Trustee, especially his unworthiness to sit in judgement on Martin. Martin requested this Trustee's resignation immediately before the majority commenced to remove Martin, but this Trustee sat -- and still sits -- as one of Martin's accusers. And the actions and behavior of the remainder of the majority are also subject to criticism. With Martin's performance as a Trustee - - let alone his qualifications -- equal or superior to that of the majority, the majority's actions are all the more deceitful. It holds Martin to a higher standard of conduct and behavior than that which it has chosen to apply to itself. The plaintiff's reference to the bias relating to the unworthiness of one of the Trustees to continue sitting as a Trustee related to a certain document (the "Keeler document") given to plaintiff on August 21, 1992, in good faith, independently of its author Trustee Keeler, said document consisting of 22 typewritten pages containing information about Mr. Keeler, Mr. Keeler's 4-year old daughter, Liberty, his daughter's mother, Mr. Keeler's former wife and her daughter, and their relationships with one another, which document Urantia Foundation demanded plaintiff return; a copy of the written demand dated October 26, 1992, is marked Exhibit P and made part of this Complaint.
35. The plaintiff has refused to surrender the document, and has been sued in the Circuit Court of Cook County, Illinois, in the matter entitled K. Richard Keeler, Plaintiff, vs. Martin W. Myers and Diane G. Elder, Defendants, 93 CH 3484, a copy of Amended Complaint is marked Exhibit Q and made part of this Complaint.
36. The plaintiff questions that the document is a personal document and not of legitimate concern to the public, as reflected in plaintiff's Motion to Dismiss the Complaint for Preliminary Injunction and Other Relief, filed on May 24, 1993, a copy of which is marked Exhibit R and made part of this Complaint.
WHEREFORE, the plaintiff, MARTIN W. MYERS, prays:
A. That the Court declare that the plaintiff has a right to a due process hearing, pursuant to the legal and philosophical principles of the Declaration of Trust Creating Urantia Foundation, the By-Laws of Urantia Foundation, and the teachings of The Urantia Book.
B. That the Court declare that the plaintiff was removed improperly as a Trustee of Urantia Foundation in violation of the intent of the creators and the provisions of Declaration of Trust Creating Urantia Foundation, and in violation of the By-Laws of Urantia Foundation and the teachings of the Urantia Book.
C. That the Court declare that there presently exists a vacancy in the number of Trustees of Urantia Foundation and that plaintiff is entitled to such a vacancy upon the determination by this Court that the hearing process was in violation of his contractual due process right pursuant to the Trustees' Principle of Proper Procedures, in violation of the legal and philosophical principles of the Declaration of Trust Creating Urantia Foundation, and the By-Laws of Urantia Foundation, and in violation of the teachings of The Urantia Book, requiring contractual due process hearing.
D. That the Court declare that the hearing process of removal was arbitrary, capricious, unreasonable, and biased, contrary to the intent of the creators of the Declaration of Trust Creating Urantia Foundation.
E. That the Court declare that the plaintiff's attorney's fees and court costs be paid, and whatever other relief that this Court deems just and equitable.
COUNT II MANDAMUS
NOW COMES the plaintiff, MARTIN W. MYERS, by his attorney STANLEY H. JAKALA, for Count II, and states as follows:
1 - 36. That the plaintiff realleges and readopts all the allegations of paragraphs one through thirty-six in Count I of the Complaint for Declaratory Judgment as paragraphs fully set out in this Count II.
WHEREFORE, the plaintiff, MARTIN W. MYERS, prays:
A. That the Court mandate that the plaintiff's contractual due process property right was violated, based upon the Trustees' Principle of Proper Procedures, based upon the legal and philosophical principles of the Declaration of Trust Creating Urantia Foundation, and the By-Laws of Urantia Foundation, specifically in violation of Article II, Section 2.4, Removal of Trustees, of the By-Laws of Urantia Foundation, and based upon the teachings of The Urantia Book.
B. That the Court mandate that the plaintiff was removed improperly as a Trustee of Urantia Foundation in violation of the intent of the creators and the provisions of Declaration of Trust Creating Urantia Foundation, and in violation of the By-Laws of Urantia Foundation and the teachings of The Urantia Book.
C. That the Court mandate that there presently exists a vacancy in the number of Trustees of Urantia Foundation and that plaintiff is entitled to such a vacancy upon the determination by this Court that the hearing process was in violation of his property right interest for a contractual due process hearing as required by the legal and philosophical principles of the Declaration of Trust Creating Urantia Foundation, and specifically in violation of Article II, Section 2.4, Removal of Trustees, of the By-Laws of Urantia Foundation, and the teachings of The Urantia Book.
D. That the Court mandate that the terms of Declaration of Trust Creating Urantia Foundation and By-Laws of Urantia Foundation be enforced and mandate that the trustees improperly exercised their discretion in improperly denying plaintiff a contractual due process hearing, acting in an arbitrary, capricious, unreasonable and biased manner, all contrary to the intent of the creators of the Declaration of Trust Creating Urantia Foundation.
E. That the Court mandate that the plaintiff's attorney's fees and court costs be paid, and whatever other relief that this Court deems just and equitable.
MARTIN W. MYERS, Plaintiff
LIST OF EXHIBITS Amended Complaint
A. Special Report to the Readers of The Urantia Book authored by the Trustees of Urantia Foundation April, 1990
B. Special Report to the Readers of The Urantia Book authored by Hoite Caston April, 1990
C. Statement to the Trustees of Urantia Foundation by Martin Myers August 22, 1992
D. Statement to the Trustees of Urantia Foundation by Martin Myers August 29, 1992
E. Letter to Trustees from Martin Myers September 28, 1992
F. Letter to Martin Myers from Patricia MundeliusOctober 9, 1992
G. Letter to Trustees from Martin Myers October 12, 1992
H. Letter to Trustees from Martin Myers September 4, 1992
I. Statement to the Trustees by Martin Myers October 17, 1992
J. Statement Presented to the Majority of the Board of Trustees of Urantia Foundation by Martin MyersJanuary 16, 1993
K. Declaration of Trust creating Urantia Foundation (undated)
L. By-Laws of Urantia Foundation June, 1992
M. Letter to Martin Myers from Hoite Caston February 16, 1993
N. Letter to Martin Myers from Patricia Mundelius with attached Certificate of Removal of Trustee May 10, 1993
O. Justice Egan's Opinion on Polk v. Board of Trustees of Police Pension Board of Park Ridge September 10, 1993
P. Letter to Martin Myers from Patricia Mundelius, demanding return of the "Keeler document" October 26, 1992
Q. Amended Complaint, K. Richard Keeler, Plaintiff, vs. Martin W. Myers and Diane Myers, Defendants June 15, 1993
R. Motion to Dismiss the Complaint for Preliminary Injunction and Other Relief May 24, 1993
Exhibit A
SPECIAL REPORT TO THE READERS OF THE Urantia BOOK Urantia
Foundation Ends Its Relationship With The Former Urantia Brotherhood
April 1990Urantia FOUNDATION
533 DIVERSEY PARKWAY
CHICAGO, ILLINOIS 60614
Pages 3, 4, 5, and last paragraph of page 25.GUIDING PRINCIPLES In furthering the goals and purposes of Urantia Foundation, the Trustees have relied upon certain principles to govern the activities of the Foundation, the Brotherhood, and the dissemination of the teachings of the Urantia Book:
1. The Principle of Minimal Organization.
2. The Principle of Proper Procedures.
3. The Principle of Slow Growth.The Principle of Minimal Organization. This principle stemmed from a belief that a key purpose of organization is to prevent over- organization and that one vital purpose of government is to prevent governmental abuses. It accords with the following statement of a Melchizedek of Nebadon, which appears on page 803 of the Urantia Book:
That state is best which co-ordinates most while governing least.
The Brotherhood was thus conceived to be a "co-ordinator," rather than an "organizer," in order to minimize the human tendency to use an organization as a means of acquiring bureaucratic power and control. With a minimal Brotherhood as a support organization, the Trustees could encourage the worldwide development of thousands of informal study groups in which readers could develop satisfying friendships and enhance their individual spiritual growth by focusing their energies.
Exhibit B
SPECIAL REPORT TO THE READERS OF THE Urantia BOOK
Urantia Foundation Ends Its Relationship With The Former Urantia Brotherhood
April 1990
August 22, 1989 Letter from Hoite Caston to David Elders pages 19-1 through 19-8
Exhibit C
A STATEMENT TO THE TRUSTEES OF Urantia FOUNDATION
We are all judged and evaluated many times during our ascent to Paradise, and thus such things are nothing unusual. In addition, being a Trustee of Urantia Foundation is a serious responsibility and my ability so to serve has now been brought into question. Because of this, rather than resign, I wish to proceed with the removal proceeding wherein we all shall have full opportunity to review my performance and your objections related to it. In doing so, I hope that each of you will make your evaluations against the broader background of say, the past ten or fifteen years of my service, with a like number of years in mind for assessing the nature and possibility of my service as a Trustee in the future. Too, I would hope that this would be a positive, rather than a punitive, exercise, with each of us alert to ways in which understanding and reconciliation, rather than an open rift, may be had. Viewed as a problem solving project, the removal process can actually serve the resolution of differences, and the creation of a plan of action for the future. It is with this spirit that I ask to proceed with the removal process.
Martin W. Myers
August 22, 1992
Exhibit D
STATEMENT TO THE TRUSTEES OF Urantia FOUNDATION August 29, 1992
I wish to thank the Trustees for permitting me to be present at this meeting to vote once again on whether removal proceedings should be commenced to remove Martin W. Myers as a Trustee of Urantia Foundation. Before so voting, I wish once again to ask that we attempt to find a way to compose our differences. I have previously discussed at length my coming to grips with my anger problem and I believe that I satisfactorily answered your many questions a week ago in Chicago. You must know that losing my chance to be of direct service to Urantia Foundation has been a most sobering experience, and it has caused changes of major proportions in my inner life.
Last Saturday was the first time that we had an open and frank discussion of your concerns about my performance. Now that we have had this forthright discussion, the way is open to find how we may work together in the future. I would like to continue that discussion now, especially since we have a new Trustee who was not present last Saturday, and I would once again offer the following as a way to attempt a full reconciliation.
As I described last Saturday, I propose that we hold these proceedings in abeyance for six months during which time the Trustees will permit me to continue my service in the office as an administrator. I and my family would continue to live in the third floor apartment as I have done for some twenty-five years. I would also continue to function as a Trustee. This arrangement would permit you to see my performance in the laboratory of actual experience, at no risk to the Trustees as you control matters at both the office and Board levels.
I ask this in view of my long service to Urantia Foundation and for me personally, for this is something I long ago dedicated my life to. I believe that I still have significant benefits to offer Urantia Foundation, both as an administrator and as a Trustee. I ask again that I have one final opportunity to demonstrate that I indeed can deserve your confidence once again.
Exhibit E
Martin W. Myers
533 Diversey Parkway
Chicago, Illinois
60614September 28, 1992
The Trustees of Urantia Foundation:
Ms. Patricia Sadler Mundelius, President
Dr. Thomas C. Burns
Mr. Hoite C. Caston
Mr. Richard Keeler
533 Diversey Parkway
Chicago, Illinois 60614Dear Pat, Tom, Hoite, and Richard:
I was cheered by the willingness of the Board on August 29 to use the removal period for reconciliation. Genuine good will, sincere intent, and better facts, will lead us to compose our differences, thereafter permitting us to focus our energies on the accomplishment of the larger programs and purposes of Urantia Foundation.
In working toward that goal, I would like to give you the facts regarding the meeting which Diane and I attended at Bob Solone's invitation at his apartment on Wednesday evening, August 19. I do so because this meeting seemed to figure significantly in your minds in deciding whether to commence removal proceedings against me.
To begin with, it is important to recognize that not only I, but also, all the staff were stunned with your August 3 request for my resignation -- especially so in view of our office's productivity, smooth operation, significant accomplishments, and exciting promise for the future. They know from me and from Richard Keeler that you requested my resignation.
The August 19 gathering was certainly not to foment resistance or opposition to the Trustees as Richard intimated at our August 29 meeting. Indeed, my consistent position from the time I returned to Chicago after our August 3 meeting was actively to encourage the staff to continue to support the Trustees. Our sole purpose in going to the August 19 gathering was to see our friends, to have some moral support, and otherwise to enjoy a good evening. We thought this a special event and all the more reason to go because we had never been invited to Bob's apartment, though on more than one occasion we had had him, his daughter, and friends of his, as guests in our home.
We ordered Chinese food and we waited for some time for it to arrive. In the meantime, we had good conversation and enjoyed the company of one another. It is true that there were comments about the Board's action in requesting my resignation as Executive Director, and how some, with honest curiosity and amazement, candidly questioned this, wondering if there were anything they could do about it. But most important, nothing I said during the evening could in any way be characterized as an incitement, nor was I ever angry. Diane and I have lived in shock and disbelief, and deep sadness, since the August 3 meeting.
Please know that Diane and I went to the Wednesday evening get-together because we were lonely and discouraged; we wanted to be with friends. During the evening, there were many expressions of genuine sympathy and friendship as all knew that this was a difficult personal time for us. In answer to Richard's question: Why wasn't I invited?, one could reasonably conclude that his presence would have been inconsistent with the desire of our friends to provide us with encouragement and moral support during such a trying period.
It is true that as we waited for the food, and as we finally ate, we did not study the book, so we ultimately did not have a study group even though it had been our intent to do so. But there is nothing wrong with this, and it certainly does not mean that we had harmful intentions as Richard insinuated with his questions: Was this to be a study group? (Answer: Yes.) Did you open a book? (Answer: No.), just before the Trustees voted to commence proceedings to remove me as a Trustee of Urantia Foundation.
In the final analysis, our meeting was for social purposes; it had no sinister aims. Upon reflection, there are no reasonable grounds to believe that the meeting furthered harm to the Trustees, as Richard implied by asking: Did the people leave with a more positive feeling towards the Trustees than when they came? To the contrary, we had repeatedly reminded all there during the evening to support the Foundation, and so far as we know since then, the staff has continued to do its job as best possible on behalf of the Trustees.
Our get-together was innocent. It cannot in any sense be characterized as an attempt to undermine Richard in his capacity as Acting Executive Director, or the Trustees. Further, in its true context, this meeting does not support the conclusion that I did not act in a team spirit. To attempt to so depict it is to misconstrue the intent and conduct of the meeting and unfairly to question the aims and motives of those in attendance.
My attendance and conduct at the meeting scarcely support a motion to commence -- or to continue -- removal proceedings against me, and I am sorry that I was not given a fair opportunity to present my side of things before the vote was taken. Richard's suddenly confronting me with a series of previously prepared questions about this matter, which were presented in rapid fire sequence, and without my having an adequate opportunity to consider and respond to them in a reasoned fashion, only further frustrated the rational consideration of this entire matter. It is hard to understand how this method of questioning could possibly benefit the best interests of Urantia Foundation. But even then, at the conclusion of our August 29 meeting, Richard asked: As evidence of your team spirit, are you going to tell me where the stair hall light switches are? He said that I had previously refused to tell him. I explained that that was not so, and that I had told him that there were no switches. Earlier, Damian Bondi had, in fact, so informed Richard. (We understand that the city building code requires that the stair hall be adequately lighted at all times.)
This was an odd interchange -- to say the least, and hardly a basis for concluding that I did not show a team spirit. That it should constitute grounds for my removal as a Trustee is hard for me to understand.
I have always thought myself a team player, whether member or leader. If I am not a team player in your eyes, then I want better to know your concerns, what it is you expect of me, and I have already asked at our August 29 meeting that you give me specifics as to what standards you will measure my actions against during the reconciliation process. Any further comment you wish to make on this matter is sincerely welcome, but so far I have received none.
Hopefully, this discussion will put matters in a proper perspective, for my sole reason in writing this letter truly is to enhance mutual understanding. I look forward to dealing with the facts and the realities which we must recognize if Urantia Foundation is to fulfill its epochal responsibilities, and if we are to achieve a true and mutual reconciliation based on the higher necessities and calling of the task before us. I do want to continue to work with you as a fellow Trustee, and I earnestly want you to feel that you can do so with me. One of you has indicated that there are some very deep wounds we need to heal. I know we can, if we are willing to assume the work it requires and to dedicate ourselves to it, walking that extra mile or two miles -- even seven times seventy miles. That would truly demonstrate the spirit of The Urantia Book, and more, and be an example to all.
Sincerely, Martin W. Myers
Exhibit F
October 9, 1992
Mr Martin W. Myers
533 W Diversey Parkway
Third Floor
Chicago, Illinois 60614VIA FAX
RE: YOUR LETTER OF SEPTEMBER 28, 1992
Dear Martin:
The incidents you describe in your letter occurred after we had already decided to initiate removal proceedings against you at our meeting on August 22, 1992. You are engaging in the classical fallacy of logic, post hoc ergo propter hoc. The reasons for the removal action were communicated to you on August 22, 1992. The August 29 1992 meeting was a reaffirmation of our decision. This reaffirmation of our decision was related to you at that time. We held the second meeting on August 29, 1992 merely as an accommodation to you The Board's prior decision to initiate removal proceedings against you was not based on the fact that you met with certain staff members ac Bob Solone's house for whatever reason, social or otherwise
Several of your letters to us suggest that you believe the removal process to be a time of reconciliation. Obviously, conciliatory behavior in human relations is always a constructive element. We suggested to you at the August 22 meeting and again at the August 29 meeting that, at some time in the future, we might consider having you serve in a non-trustee capacity based on your co-operation and constructive support of Urantia Foundation. However, please be advised that our suggestion was not an indication of a weakening of the Board's resolve to remove you as a Trustee based on the reasons given to you on August 22, 1992 and again on August 29, 1992.
Sincerely,
Patricia S. Mundelius President,
Urantia Foundation
Exhibit G
October 12, 1992 Letter from Martin Myers to the Trustees:
Martin W. Myers
533 Diversey Parkway
Chicago, Illinois 60614
October 12, 1992
The Trustees of Urantia Foundation:
Ms. Patricia Sadler Mundelius, President
Dr. Thomas C. Burns
Mr. Hoite C. Caston
Mr. Richard Keeler
533 Diversey Parkway
Chicago, Illinois 60614Dear Pat, Tom, Hoite, and Richard:
I have addressed this letter to each of you since I assume that you each have approved and join in Pat's October 9 letter (copy enclosed). I am writing because my recollection of the August 29 meeting is different from that represented in the letter in a number of respects, and I believe it worthwhile to mention them.
During the meeting, Pat made it clear that the vote to commence removal proceedings against me was based on our discussion of that day, which was Tom's first Trustee meeting, and also on the August 22 discussion which Tom had not attended, but which Pat said had been described to him. The August 29 discussion consisted of my statement concerning reconciliation (copy enclosed) followed by Richard's questions about the August 19 meeting at Bob Solone's apartment which I and others had attended for a social occasion. The vote was taken immediately following the conclusion of his questioning. Richard's interrogation of me was obviously a part of the Trustees' consideration on August 29 and it was something which deserved a reply. Had it not been a legitimate part of the meeting, one would think that it would either not have been allowed, or it would have been specifically disclaimed during the August 29 meeting so as not to confuse matters.
Further, at the close of the meeting, Pat did refer to reconciliation and said that my behavior would be carefully watched. She went on to say that there was good reason for the By-Laws providing for the procedure it did (three successive meetings over a period of six months, each requiring the unanimous vote of the Trustees for my removal.) Pat even said that I need persuade only one Trustee to stop the removal process. Hoite said that I was suspended as to some matters but not others that I could help the Board with. The obvious conclusion is that reconciliation would be considered during the removal period. This was so evident that I wrote a letter (copy enclosed) asking that I be able to help the Board of Trustees with the constitution for Urantia Brotherhood Association, something which I am especially qualified and able to do. There was no reference to a non-trustee relationship during the August 29 meeting, although during our August 22 meeting Hoite had said that if I resigned, the Trustees after several years might-consider involving me in Foundation affairs as a non-Trustee.
We continue to differ whether I have been properly informed of the charges against me. I do not fully understand your concerns other than a vague charge that my behavior is objectionable. Because this is so indefinite, it is difficult to see how this should necessarily require my removal. Moreover, your being so obscure hinders me from making a meaningful response. All this frustrates purposeful communication between us. I cannot imagine that this would be your desire. It is only fair that the Trustees provide written charges and an opportunity for me seriously to address your concerns. Had this been done at the beginning, this exchange of letters would have been unnecessary.
I note that the Board stands firm in its resolve to remove me. I plan to address this further in our forthcoming meetings, consistent with, and as is contemplated by, our ByLaws.
Until then, despite our differences and the apparent strong emotion felt by some, I send my best wishes to each of you, and I truly hope that we may indeed reconcile our differences, moving ahead with the important work of the Foundation.
Sincerely,
Martin W. Myers
Exhibit H
September 4, 1992 Letter from Martin Myers to the Trustees:
Martin W. Myers
533 Diversey Parkway
Chicago, Illinois 60614September 4, 1992
The Trustees of Urantia Foundation:
Ms. Patricia Sadler Mundelius, President
Dr. Thomas C. Burns
Mr. Hoite C. Caston
Mr. Richard Keeler
533 Diversey Parkway
Chicago, Illinois 60614Dear Pat, Tom, Hoite, and Richard:
It was encouraging to have the assurance at the end of the August 29 meeting that there was good reason the By-Laws had been written the way they were and that we want carefully to take advantage of the time frames provided in them in order to consider the reasons for my removal as a Trustee of Urantia Foundation.
If we are truly to take advantage of these time frames, however, it is important that I know exactly what the specific charges are, and you will recall that I have asked for a bill of particulars at our last two meetings, August 22 and 29.
I wish respectfully to renew my request that you give me a written list of the reasons you believe require my removal as a Trustee. The absence of such a list suggests that the Trustees have not formally agreed on the charges by majority vote. As such, this puts the propriety of the removal process into question. Too, such a list will enable me to provide a meaningful response to your concerns. It will thus further understanding between us and give full effect to our efforts toward reconciliation. Of special importance, it will also ensure that I do not have to guess at what your concerns are, extracting them from the many observations and comments I have had from each of you over at least the last month or so, some of which were obviously based on the remarks or assertions of third parties not subject to examination in these proceedings. Further, having a written statement of the charges will mean that we will have all the charges before us as we begin the process, and I will not have to worry that at some later time additional charges will be forthcoming. For instance, for the first time, on August 29, I learned that being a team player was one of your specific concerns.
As I mentioned on August 22, basic fairness requires providing an accused with the charges, an opportunity to face one's accusers, reasonable time to consider the charges, and an opportunity to respond. This was carefully established as a part of the Foundation's practice when a prior Trustee, Thomas A. Kendall, was removed in 1984. I would like to have the same procedures accorded to me. Not doing so denies me the basic requirements of fairness and equity.
The Trustees sit in these proceedings as accusers, prosecutors, judges, and jury. As such, it is all the more important that all reasonable procedural requirements be met in order to minimize the unfair effects of rumor, hearsay, limited information, and matters taken out of context. Not doing so significantly threatens the integrity of the entire process. Since only an objective assessment of your concerns can bring about a lasting and meaningful reconciliation, receiving a list of the charges seems the least which could be done to enhance mutual understanding and an efficient consideration of the matters truly at issue.
Treating your concerns objectively makes good sense as we try to understand the facts and issues and work toward resolving our differences. I hope that you agree.
Sincerely,
Martin W. Myers
Exhibit I
October 17, 1992
Martin Myers' Statement to the Trustees:
A STATEMENT TO THE TRUSTEES OF Urantia FOUNDATION October 17, 1992 Re: Proceedings to Remove Martin W. Myers as a Trustee of Urantia Foundation
One of the reasons I had hoped that we could use the removal period for reconciliation was that I felt, for the first time, that we were beginning to have open, face-to-face communication, and, consistent with the teachings of the book, I felt that an attempt at healing promised more for the long term for each of us, personally and as Trustees, and for Urantia Foundation, than separation.
Whether this is to be, though, remains to be seen. There has been a good deal of emotion and a lot of rumor, all greatly confusing this entire matter. In addition, it seems that over the last year or two years, a lot of your concerns had apparently been bubbling under the surface, but were never fully disclosed to me nor wholly dealt with by the entire Board of Trustees. Even though we are all naturally people of good will, human communication is never easy. Often one hears of trouble in some business or organization because there were so-called communication problems. Because we know that our perceptions are often colored by our own predilections and human limitedness, we sometimes need to make a special effort to escape these very natural limitations. This is what I hope that we can do, for I believe communication can effect change, and change can bring about better, more productive relationships among those dedicated to this process.
As Trustees of Urantia Foundation, we bring all our finite humanness to our task, and we necessarily should expect difficulties in working through our attempts to understand one another. Experience teaches that communicating effectively requires constant effort, especially when we have five individuals trying to work together, often not communicating face-to-face, but over the telephone and by letter. The continual challenge is to keep things working positively even though there are constant problems, some of them quite serious, and sometimes too many of them. I think we each intend and want to make the process work, even in spite of hurt feelings, and maybe deep wounds. This is our challenge, and if we master successful methods early on, we will be all the more effective in the future.
As safekeepers and purveyors of the book, some might further believe that we need to give cooperation a heightened effort, if only because of the importance of our task. Additionally, we also have some great instruction within the book itself, and if any organization should be able to resolve its communications and operations problems, it should be Urantia Foundation.
With this in mind, I have spent considerable time in reviewing what I believe to be the Trustees' reasons underlying their concerns with my continuing as a Trustee of Urantia Foundation. This is how I have analyzed my personal situation and I would like to communicate it to you.
In early 1989 we were facing serious problems within the Board and we were trying to settle the CUBS litigation. With the resignation of three Trustees subsequent to the settlement of the CUBS case in June 1989, new Trustees had to be appointed, and during the process, the Board had to meet the former Brotherhood's concerted challenge to supplant Urantia Foundation's control over The Urantia Book In addition, numerous adjustments were required as a result of the delicensing of the former Brotherhood, and then considerable effort became necessary to protect our copyright and registered marks in the Maaherra case. Our book distribution policies were also put to the test and we had to undertake a review of our practices, later modifying them to meet the challenge of other organizations seeking to distribute the book in such a way as to confuse the general public as to what organization was the legitimate publisher. Further, we had to give careful attention to the tenth printing of The Urantia Book and to advancing the Spanish and Finnish translations, while trying to prepare an adequate official electronic version of The Urantia Book, and a printed Concordance of The Urantia Book.
These challenges required me to make a major change in my life direction, coming to work for the Foundation full time and to deal with problems I would rather have avoided. This period has already required numerous additional adjustments for me, and recent events have now forced me to stop and take stock of who I am, where I am, and where I see myself going. I now realize that further adjustments are necessary, especially if I am to meet the standards you require for my continued service as a Trustee of Urantia Foundation.
The last several months or so have been helpful to me, as I have used them for reflection, growth and redirection. In conjunction with this, I have been able to return to some of my favorite passages from The Urantia Book, and have found new inspiration and encouragement as I set about trying to understand my actions and others' perceptions of them. Diane has joined me in almost constant discussion about the events of the recent past, our earnest feeling of a place in furthering this important work, and what changes I need to make in order to help fulfill the expectations of the Trustees, the needs of the Foundation, and our own hopes.
One part of the book which I have often found helpful is Rodan's method of facing life's problems and dealing with them forthrightly. You will remember his statement: Failure is simply an educational episode -- a cultural experiment in the acquirement of wisdom -- in the experience of the God-seeking man who has embarked on the eternal adventure of the exploration of a universe. (p. 1780)
I know you can appreciate that your August 3 request for my resignation as Executive Director was truly a crushing blow, one which shocked me into a new appreciation of previously mentioned concerns about my temper.
In looking back, it is obvious that I too often relied on my friendships and personal relationships for support and understanding when I forcefully pushed for results or when I spoke frankly of my frustrations and difficulties in carrying through with what I sincerely thought best for Urantia Foundation. Even friendship has its limits, and my forcefulness, and my statements and actions were misunderstood as angry attacks rather than as expressions of frustration or personal disappointment. I can now see that that had unintended results, and I am sincerely sorry for the added burden that it brought to you, and for the misunderstandings that it has generated.
It is time that I identified and responded meaningfully to my shortcomings, including losing my temper and venting my frustration. Because I obviously am responsible for many of your concerns, I have tried to identify where I went wrong, and where I believe I can improve. In doing so, I have taken the following passage as my guide.
Successful living is nothing more or less than the art of the mastery of dependable techniques for solving common problems. The first step in the solution of any problem is to locate the difficulty, to isolate the problem, and frankly to recognize its nature and gravity. The great mistake is that, when life problems excite our profound fears, we refuse to recognize them. Likewise, when the acknowledgement of our difficulties entails the reduction of our long-cherished conceit, the admission of envy, or the abandonment of deep-seated prejudices, the average person prefers to cling to the old illusions of safety and to the long-cherished false feelings of security. Only a brave person is willing honestly to admit, and fearlessly to face, what a sincere and logical mind discovers.
In applying these principles, it appears that for the last year or so, the Trustees had become more and more concerned about being held hostage to my temper. You felt that a good decision making process was not operative among us, and further, that too much power resided in me. In addition, you concluded that you could not discuss matters with me because I might become angry or insistent, and you, therefore, as I have been told, took decisions among yourselves informally.
Having successfully weathered a number of challenges to the Foundation's integrity, its protecting the book, and its setting the stage for the eventual world wide dissemination of the book's teachings, I have been impressed with the need constantly to exercise vigilance over the Foundation's affairs, and to move resolutely to defend its interests when required. This method has sustained me -- and the Foundation -- over many difficult years and through many trying problems. Your recent actions have made me realize, however, that I have sometimes followed this approach too intently. I am finally appreciating that it has, in fact, been a cause of considerable concern to you. Moreover, whereas I have been emphasizing particular issues or ends, the means of obtaining them has now become your central concern. You do not like my temper or strong approach in seeking agreement on the issues and subsequent action.
This situation has been further aggravated over the last three years by our having to make numerous important decisions within relatively short time frames when you each had other weighty responsibilities and problems to contend with. This additional pressure surely compounded the problem. As a result, my approach got in the way, and it must be changed. I plan to deal with this need for change in at least three ways.
First, I recognize the need to consider the Foundation's affairs at arm's length, reducing the amount of internalization I have come to give them over the years.
Second, I am intent upon following the approach I successfully used in my professional career, of looking at matters less imperatively and more matter-of-factly.
Third, I will be more attentive to, and respectful of, the thoughts and feelings of my fellow Trustees.
I believe that these measures reach the heart of the concerns as I understand them. They could have been implemented before, had I recognized the seriousness of your concerns and had I better appreciated the full nature of my own shortcomings. Now that I do, I will meet your expectations.
One Trustee has said: Martin you will never change; in fact, you told me you could not. It is true that I said that, but it was in a context where I perceived that people were trying to manipulate me, rather than logically resolving the problems we had to consider. My natural pattern has been to fight for the logic of a position. This has even been my training. But I have now realized that it is better to proceed as I have outlined above. In addition, the events of the last several months or so have been so wrenching that I have had to make changes.
At one point in our previous discussions, I asked that I be accorded mercy in the resolution of our differences. I noted that there was some discomfort, as if I had asked for some sort of spiritual dispensation. What I was asking for was that I be accorded a certain amount of fairness in your considering my request to be restored to good standing. The kind of mercy I am talking about is discussed at page 38 in the book:
"Mercy is the natural and inevitable offspring of goodness and love. The good nature of a loving Father could not possibly withhold the wise ministry of mercy to each member of every group of his universe children. Eternal justice and divine mercy together constitute what in human experience would be called fairness."
Please consider the following in fairly assessing the justification for, and wisdom of, re moving me as a Trustee of Urantia Foundation.
First. To date, the Trustees have not provided a list of the charges that the Trustees formally certify represents their reasons justifying this removal action.
Something as serious as removing a Trustee of Urantia Foundation -- particularly one who has been meticulously trained over a period of fourteen years by the last living contact commissioner, in not only the content, but also the daily application of the Revelators' instructions, and one who has rendered a quarter century of consistent and effective service in effecting those instructions -- should certainly, at a minimum, require that the charges be specified in writing and attested to by or on behalf of the remaining Trustees. In addition, the charges should be significant and supportable.
Moreover, by specifying charges, one avoids being unconsciously influenced by the good amount of hearsay and rumor which have been visited upon the Trustees from many different directions and sources, some highly biased.
Nevertheless, even though I do not have written charges binding the Trustees to their allegations, and there are possibilities of bias, I have tried meaningfully to respond to your concerns as I have been able to understand them. If you feel that I have not answered your concerns, please understand that it may well be because I have not understood them clearly. I welcome your clarification of anything you believe that I have not understood properly so that I may make an appropriate response. If you feel that I have understood your concerns but have not properly responded to them, please let me know so that I may ultimately do so.
Second. Notwithstanding my long and effective service to Urantia Foundation through many difficult and prolonged challenges to the Foundation and to the book, including the recent problems with the former Brotherhood, the Trustees have embarked upon an extraordinarily aggressive action to disassociate me from Urantia Foundation in every way. You have done this at least in the following ways:
a) You have sought my resignation as Executive Director of Urantia Foundation without reasoned justification and apparently as a result, in part at least, of hearsay statements that I have not been allowed to consider or rebut. This is true even though before I went to the August 3 meeting, Hoite told Diane that obtaining my resignation was not the purpose of the meeting, but rather the meeting had been called to provide an opportunity for the Trustees to get everything out into the open. Imagine how shocked and hurt I felt when it was Hoite who told me that the Trustees wanted my resignation;
b) You now seek to remove Diane, Jamie and me from our apartment at 533 Diversey, using the rationale that my occupancy there was solely related to my being Executive Director. But this is not the case as I have occupied the premises since 1968, and it is only the free rent issue which is in question;
c) You presently seek to remove me as a Trustee of Urantia Foundation, for reasons you will not put into writing;
d) I have been extensively interrogated regarding my family's attendance at a social gathering of readers;
e) You have even forbidden the office staff to talk with me should I chance to see them on the first floor.
By any standard these are drastic actions. They suggest that I am guilty of far more serious faults than that of exhibiting an inability to control my temper. But nothing like this has been alleged, much less proved. You have not shown malfeasance, misfeasance, or moral turpitude. As such, the punishment you wish to impose on me goes way beyond the alleged wrongs you have made known to me, and charges of temper are not sufficient to support my removal as a Trustee. It seems that fairness would require you to reconsider your actions.
Third. Notwithstanding there have been some comments by individual Trustees regarding those times that I have lost my temper, never did the Board speak to me as a whole, nor did anyone officially, on behalf of the Board, warn me about its or their concerns and inform me of the possible consequences about certain aspects of my behavior, including being removed as a Trustee. Having known that you did in fact, consider my temper as a cause for removal, and realizing that this would materially affect the dynamics of our relationship, I would have had a fair chance to avoid this present situation. Richard has since told me that you were trying to contain me, but since that failed in your eyes, you had no alternative but to remove me. Had you told me this, I believe that we would have avoided this current serious problem. Indeed, a good part of our problem appears to be a disparity between your expectations and my understanding of them.
My views about this result, in part, from the fact that it was my management practice to communicate with my associates to avoid such misunderstandings when I worked at The Northern Trust Company and when I managed a small group of property managers where it proved to be worthwhile. Also, it worked effectively when, as a Vice President of Corporate Real Estate, I worked with real estate brokers and property managers nation wide, in major deals. Further, this was my custom within the Foundation office. For instance, it was a part of my approach with Vin Myers, who, despite his actions, was accorded every reasonable fairness in the resolution of his employment difficulties. I reviewed his performance with him, identifying ways in which over a period of a year he could achieve progressive changes in his approach so that he could continue as an employee. Unfortunately, he chose not to try. Pat and I subsequently worked together in resolving this issue of Vin's leaving. Our positive and productive office up to my resignation testifies to the effectiveness of such an approach. This kind of communication is essential to avoid or lessen our problems. Had this been done in a focused and straightforward manner with me, we would have avoided this situation.
Fourth. I have faithfully served Urantia Foundation for many years in significant ways, even while maintaining a full-time job. Because of this experience and tested dedication and judgement, I can predictably serve Urantia Foundation in meaningful ways for many more years. The Board should not overlook the considerable positives which I bring to the Foundation, more specifically, many years' training in the trust business at one of the best institutions in the industry, proved competency in a highly competitive business environment, a thorough knowledge of the Foundation's operational and strategic prospects acquired over many years, familiarity with the Foundation's historical roots and its reason for being, considerable experience in the legal arena at home and abroad in copyright, trademark, and other matters, and a significant experience in the operation of the former Brotherhood. The latter is especially meaningful as the Trustees grapple with the problems inherent in constitutionalizing and implementing the new Urantia Brotherhood Association.
Fifth. There should be fair recognition of the demanding circumstances of the last three years which I have endured in endeavoring to deal with our many incessant and difficult problems. This includes the complete reorganization of our office, dealing with the Maaherra lawsuit, and largely bringing to a close matters concerning our separation from the former Brotherhood. All this was accomplished even though there were heavy personal attacks and other efforts designed to destroy my self-respect and effectiveness among the Trustees, the office staff, the Foundation's legal counsel, and those who were looking to the Foundation for reliable leadership during the most difficult time of the Foundation's existence.
In furthering a fair consideration of whether I should continue as a Trustee of Urantia Foundation, my actions should not be judged in a vacuum. The Trustees had much to do under intense conditions over the last three years. As a result, memos were not read, and telephone calls became difficult. It was hard to complete reviews of newsletters or draft letters, including the solicitation letter, because of the schedule of the four other Trustees. In the meantime we had persistent pressure from people and groups who wanted to neutralize our efforts so they could gain control over the book and its distribution. Then, one Trustee became preoccupied with amending the By-Laws, and raising minute matters about the budget -- all of which promised little in moving important matters forward such as the completion of an acceptable Constitution of Urantia Brotherhood Association. The draft constitution for UBA languished for over a year because several Trustees, although already having decided that it was unacceptable, did not want to offend its Trustee-author, and so we repeatedly put off going forward with another approach. My becoming frustrated under these circumstances should certainly be understandable.
In an attempt to move the Foundation's business forward, and to avoid repeated frustration, I suggested ways to get past these delays. For instance, I suggested that we meet more often. I learned, though, that this suggestion was thought be some to be an intentional effort to harm the marriage of one of the Trustees. I suggested that we have preset time limits for responses to various letters that had to go out in a prompt fashion in order to be effective, but I was opposed as treading on the prerogative of the Trustees to act when they were ready to do so. Had we followed this procedure, we would have lessened the effort and time necessary to accomplish the Foundation's work.
I have always believed that if the Trustees acted prudently and consistently over the years, with a consistent fund raising program and a sound investment philosophy, that the funds would always be there when we needed them. The Perpetual Printing Fund is one example of proceeding in a practical fashion. Because of this, the delay in getting out our fund raiser was especially frustrating to me. The business plan that I proposed at Pat's request earlier this year includes an organized effort to raise funds and demonstrates my commitment to an organized approach to maintaining our financial health, especially during tough economic times. Any suggestion that I merely want to trust in Divine Providence for our financial well being is without any foundation.
Sixth. Certain psychological judgments have been made or suggested about me -- by Richard and others -- in negatively characterizing my mental makeup and function. Under the present circumstances, such cannot reliably indicate what my future effectiveness will be, and such comments should not figure in any decision about my fitness to continue to serve as a Trustee of Urantia Foundation. In the end, I am always pleased to compare my actual performance in the context of the then existing realities with these unsupported assertions.
Seventh. Several Trustees have mentioned their concern about continued funding of Urantia Foundation. Richard has even suggested that had I not been a member of the Board of Trustees these past three years, the Foundation would not have had problems in raising funds. Could it be that prior large donors have now indicated that they would recommence significant financial support of Urantia Foundation if I were removed as a Trustee of Urantia Foundation? If this is a reason for this action, it is certainly an unusual one for removing a Trustee. I assume that it is not so, or otherwise you would have told me. In any event, good judgment would avoid placing Board membership for sale, as it were.
I have had a long association with all but one of you. At times I know I have acted unwisely and that I may have hurt you, perhaps beyond repair. Some of you may believe that I cannot change, that I cannot grow. I can assure you that I have changed, that the events of the past several months have been particularly effective in helping me honestly to admit, and fearlessly to face, what a sincere and logical mind discovers as I have attempted to understand and to meet your requirements for continuing as a Trustee of Urantia Foundation. Urantia Foundation has accomplished a good deal over the last three years. We are on the brink of major advances in the wise dissemination of the teachings of The Urantia Book if we continue the course set during this period.
Contrary to the view that Urantia Foundation has taken steps backward, we are at the best place ever for establishing the book among dedicated readers who agree with the Foundation's slow growth approach and other principles. With loyal support groups from Finland to Australia, we have the basis for a loyal and supportive Urantia Brotherhood Association. But realizing all this will require both time and patience if we are to be successful. We are only at the beginning, and we know that over rapid growth is suicidal.
Past experience confirms that it is quality, not quantity, of readers that promises the most in trying to establish effective reader groups throughout the world. Within the last three years and more, we have had an ongoing, intensive effort of meeting with readers and establishing communication with loyal support groups throughout the world. Our successes from Finland to Australia confirm this. The establishment of Friends of Urantia Foundation was also a part of this effort to link up with readers supportive of the Foundation's goals and purposes and is the group from which we have drawn participants for our readers' meetings in Los Angeles, Chicago, and New York. For this reason, the statement that the Foundation must lower the draw bridge does not make sense. The Foundation has had its arms open, beckoning to loyal readers, especially in the last year or so.
Because of this, you can understand why I find it hard to understand the Board's action to remove me as a Trustee of Urantia Foundation. If you believe that I have not given the Board of Trustees proper guidance or advice, I would appreciate your telling me how I have failed in this respect.
In summary, things are going well. But more to the point, I have indeed made every effort to modify my behavior, and I have a clear plan for functioning productively with the Board, avoiding the temper problem. Since I have not been charged with malfeasance, misfeasance or moral turpitude, removing me as a Trustee for the reason you allege is a drastic action. This is especially true in view of my years of service and my broad range of experience. In view of this, I ask that the Trustees reconsider this matter, restoring me to good standing by immediately terminating the removal process, so that we may now go forward as a unified board.
Martin W. Myers
Exhibit JJanuary 16, 1993 Statement from Martin Myers to the Trustees:
STATEMENT Presented to the Majority of the Board of Trustees of Urantia Foundation on January 16, 1993
The majority of the Board of Trustees of Urantia Foundation has demanded Martin 's resignation as Executive Director, evicted Martin and his family from Martin's home of twenty five years, dismissed him as Vice President of Urantia Foundation, and now seeks to remove him as a Trustee of Urantia Foundation. Surely such egregious and far-reaching actions against the Senior Trustee, one specifically prepared by education, profession and training to help guide Urantia Foundation over the ensuing years, would have substantial justification. But the majority does not have it.
The majority has proceeded in an arbitrary and capricious manner, refusing to bring formal charges which evidence its explicit agreement to the grounds which it claims justify his removal. Instead, the majority has only made varying oral and unattested accusations. But even then, during the course of the removal proceedings the majority has subsequently disavowed certain of them. And the majority has knowingly gone so far as to bring false accusations against Martin. If not by refusing to provide Martin with a list of the charges, supporting information and the names of the people involved, then certainly by making false accusations, the majority demonstrates that it doubts the propriety of its own actions, that it cannot substantiate its charges, and that it is proceeding in bad faith. Martin is confident that he can rebut any and all the charges, as he did the objections the majority raised in the August 22 meeting to Martin continuing to serve as Executive Director and Trustee. Martin is also able to show that the majority has knowingly proceeded in clear disregard of Martin's rights and responsibilities as a Trustee, and that it has conspired to deprive him of a fair opportunity to defend himself against such unfounded actions.
One would expect that fiduciaries, such as the majority, would be eager to avoid even the appearance of these and other improprieties by insisting upon the highest standards of conduct and conscientiously adhering to basic principles of good faith behavior. This would seem especially so, since the majority sits as accuser, prosecutor, judge and jury, and would, therefore, want to take special precautions to insure fairness throughout the removal proceedings. But its actions have been to the contrary. By bringing false charges and failing to provide Martin with the basic protections of due process, the majority has repudiated fairness and equity and renounced its accountability to reasonable standards of conduct in its administration of the affairs of Urantia Foundation. In so doing, the majority has substituted license in the place of liberty, and has thus put itself in direct contravention of the teachings of the Urantia Book. Here, for the majority, the end justifies the means.
Not only does the majority proceed unfairly against Martin, impugning his character and dismissing his significant experience, but also, it does so hypocritically, knowingly harboring one of its own who has admitted actions in writing which show his unworthiness to continue to be a Trustee, especially his unworthiness to sit in judgement on Martin. Martin requested this Trustee's resignation immediately before the majority commenced to remove Martin, but this Trustee sat -- and still sits -- as one of Martin's accusers. And the actions and behavior of the remainder of the majority are also subject to criticism. With Martin's performance as a Trustee - - let alone his qualifications -- equal or superior to that of the majority, the majority's actions are all the more deceitful. It holds Martin to a higher standard of conduct and behavior than that which it has chosen to apply to itself.
The Urantia Book states at page 614:
"There is no greater error than that species of self- deception which leads intelligent beings to crave the exercise of power over other beings for the purpose of depriving these persons of their natural liberties. The golden rule of human fairness cries out against all such fraud, unfairness, selfishness, and unrighteousness. Only true and genuine liberty is compatible with the reign of love and the ministry of mercy.
"How dare the self-willed creature encroach upon the rights of his fellows in the name of personal liberty when the Supreme Rulers of the universe stand back in merciful respect for these prerogatives of will and potentials of personality! No being, in the exercise of his supposed personal liberty, has a right to deprive any other being of those privileges of existence conferred by the Creators and duly respected by all their loyal associates, subordinates, and subjects."
Likewise, no fiduciary, let alone a Trustee of Urantia Foundation, has the right unjustly to deprive a fellow Trustee of his fiduciary rights, privileges, and responsibilities once lawfully conferred on that Trustee for the benefit of the trust.
Just as our Planetary Mother and Father, the Adamic Revelation, were allowed to err in the execution of their epochal mission, so it always has been and is possible for the human Trustees to fail in the discharge of their trust. The leaders of the former Urantia Brotherhood, in attempting to assert their unbridled authority and control over The Urantia Book argued that the majority cannot be wrong, and that were it doing wrong, the planetary supervisors would intervene -- derivatives of the arguments put forth in support of the Lucifer Manifesto. Now this same mentality holds sway within the Foundation. The majority has substituted its own will -- apart from its own fiduciary responsibilities and established procedures, and in opposition to the teachings of The Urantia Book -- in proceeding against a fellow Trustee who indeed has challenged the joint and several authority of the majority, questioning with demonstrated reason, on occasion, certain of their judgments, approaches, and decisions.
The majority's actions in this matter are license masquerading in the habiliments of liberty. Consider some of the statements and attitudes expressed by the majority: This is the end of the era of Martin Myers. This is the dawning of a new age. We must let down the drawbridge. We will not be held hostage to the Maaherra litigation. Martin has the proper vision of the Foundation's future, but if he does not act the way we want, he must go; it will be Martin's fault if we do not take the steps he would have taken.
The Urantia Book states at pages 613 and 614:
"Of all the perplexing problems growing out of the Lucifer rebellion, none has occasioned more difficulty than the failure of immature evolutionary mortals to distinguish between true and false liberty.
"True liberty is the quest of the ages and the reward of evolutionary progress. False liberty is the subtle deception of the error of time and the evil of space. Enduring liberty is predicated on the reality of justice -- intelligence, maturity, fraternity, and equity.
"Liberty is a self-destroying technique of cosmic existence when its motivation is unintelligent, unconditioned, and uncontrolled. True liberty is progressively related to reality and is ever regardful of social equity, cosmic fairness, universe fraternity, and divine obligations."
Exhibit K
Declaration of Trust creating Urantia FOUNDATION
Exhibit L
BY-LAWS OF Urantia FOUNDATION With Amendments Through June, 1992
ARTICLE I SECTION 1. l. These By-Laws are adopted and promulgated by the Board of Trustees of Urantia Foundation pursuant to the authority and direction of Paragraph 7.6 of Article VII of the Declaration of Trust dated January 11, 1950, by William M. Hales, et al., Trustees, and filed for record January 26, 1950, in the Recorder's Office of Cook County, Illinois and recorded as Document Number 14722215 creating Urantia Foundation.
SECTION 1.2. PRIMARY FUNCTION OF BOARD OP TRUSTEES: The primary function of the Board of Trustees shall be the government of all the affairs and activities of Urantia Foundation and the determination of the policies for and principles pursuant to which the objects of Urantia FOUNDATION shall be effectuated. And for such purpose, the Board of Trustees shall elect officers, grant them authority and power to act, hold meetings, and record their actions in the manner hereinafter prescribed in these By-Laws.
SECTION 1.3. FORM FOR CONDUCT OF AFFAIRS: All affairs and activities shall be conducted under the name and style of Urantia FOUNDATION by its Officers, pursuant to and by authority of the Board of Trustees, as set forth in these By-Laws or by specific resolution adopted at a meeting of the Board of Trustees called and held or by and in a "Certificate of Action" as herein provided for.
SECTION 1.4. EXECUTION OF DOCUMENTS: All documents and instruments shall be signed in the name "Urantia FOUNDATION" by the President, or in his absence by a Vice-President, and the SEAL of Urantia FOUNDATION shall be affixed thereto and attested by the Secretary. Any document or instrument when so signed and executed shall be deemed for all purposes to be the act and deed of all Trustees of Urantia FOUNDATION for the uses and purposes set forth in said document or instrument, the same as if such document or instrument had been signed and sealed by each Trustee individually .
SECTION 1.5. MAJORITY ACTION: Except when otherwise specifically required by the Board of Trustees, the Board of Trustees shall act by a majority of their number which shall be evidenced and expressed by the minutes of a meeting of the Board of Trustees or by a "Certificate of Action."
ARTICLE II BOARD OF TRUSTEES
SECTION 2.1. MEMBERSHIP: The Board of Trustees shall be comprised of the Trustees of Urantia FOUNDATION as the same shall be from time to time composed. SECTION 2.2. VACANCIES: A vacancy in the Board of Trustees shall occur by the death, resignation, permanent disability, or removal of a Trustee of Urantia FOUNDATION. Whenever a vacancy shall occur, the remaining Trustees shall comprise the Board of Trustees until a successor Trustee shall have been duly elected and shall have qualified in the manner hereinafter prescribed; and the power and authority of the Board of Trustees shall not in any way be limited or abridged because or by reason of the existence of one or more vacancies in the Board of Trustees, but such remaining members of the Board of Trustees shall have full power and authority to do all things that may have been done should no vacancy or vacancies have existed.
SECTION 2.3. FILLING VACANCIES: (Footnote 1: Last Amended 1992). A vacancy in the Board of Trustees shall be filled by the election of a successor Trustee pursuant to Section 7.3 of the Declaration of Trust. Upon the occurrence of a vacancy the remaining Trustees shall establish a deadline by which a successor shall be elected. Said deadline shall be ninety (90) days after the occurrence of the vacancy, except that (i) if more than one vacancy shall occur on the same day, such vacancies shall be deemed to have occurred successively and (ii) if a deadline for filling a vacancy would be less than ninety (90) days after the deadline for filling the immediately preceding vacancy, the deadline for the subsequent vacancy shall be ninety (90) days after the deadline for filling the preceding vacancy. Each successor Trustee shall be elected at a meeting of the Board of Trustees called for the purpose of electing a successor. Said meeting shall continue in session until at least one successor shall have been agreed upon by a majority of the remaining Trustees. After the election of a successor Trustee at such a meeting, the successor shall fully participate in the remainder of the meeting, including voting on any other person under consideration for election to the Board of Trustees. Each meeting shall be in closed session, and no Trustee shall reveal the name of any person considered for the office of successor Trustee nor the reason for the acceptance or rejection of any person as a successor Trustee nor shall the vote for or against any individual to fill the office of successor Trustee be record in the minutes, but the conclusion of the Trustees shall be evidenced exclusively by a Certificate of Election of a successor Trustee to be completed immediately upon the election of each successor, in the following form:
CERTIFICATE OF ELECTION OF SUCCESSOR TRUSTEE
KNOW ALL MEN BY THESE PRESENTS, that whereas by a certain Declaration of Trust dated January 11, 1950, made and executed by William M. Hales, William S. Sadler, Jr., Wilfred C. Kellogg, Emma L. Christensen, and Edith E. Cook, Trustees, which said Declaration of Trust was filed for record January 26, 1950, in the Recorder's Office of Cook County, Illinois, and recorded as Document No. 14722215, creating a foundation known as Urantia FOUNDATION, under the terms and provisions of which Deed of Trust said William M. Hales, William S. Sadler. Jr., Wilfred C. Kellogg, Emma L. Christensen, and Edith E. Cook, and their successors in trust, were appointed Trustees of said Urantia FOUNDATION; and WHEREAS, under the terms and provisions of said Declaration of Trust whenever a vacancy should occur in the number of Trustees by death, resignation, permanent disability, or removal, the remaining Trustees are given power by a majority vote to elect a successor to fill such vacancy; and
WHEREAS, a vacancy in the number of said Trustees has occurred by reason of (reason for vacancy) of (name of Trustee) on (date when vacancy occurred)
Now, THEREFORE, the undersigned being all the presently qualified and acting Trustees of Urantia Foundation do hereby certify that pursuant to said Declaration of Trust a meeting of said Trustees was duly and legally held on (date of meeting) at which meeting the following Trustees were present, to-wit:
(Insert names of Trustees present);
that by (unanimous or majority) vote of all Trustees present at said meeting (name of successor Trustee) was duly elected Trustee to fill the vacancy in the number of Trustees caused by the (reason for vacancy) of (name of Trustee) and the undersigned do hereby certify that said (name of successor Trustee) is hereby duly elected and appointed as one of the Trustees of Urantia Foundation under said Declaration of Trust dated January 11, 1950.
IN WITNESS WHEREOF the undersigned Trustees have hereunto set their hands and seals this__ day of ____ , 19 _ (SEAL) (Appropriate acknowledgment for each Trustee)
ACCEPTANCE OF OFFICE The under signed duly elected successor Trustee to fill the vacancy in the number of Trustees of Urantia Foundation to which election certification is made by the foregoing instrument, hereby accepts said office as Trustee under said Declaration of Trust.
IN WITNESS WHEREOF said successor TrusTee has hereunTo affixed his hand and seal this _ day of______ , 19__. (SEAL ) (Appropriate acknowledgment for successor Trustee)
The Certificate of Election of Trustee shall be recorded in the manner prescribed under Section 9.1 of the Declaration of Trust and an executed copy thereof inserted in the Record of Proceedings of Urantia FOUNDATION.
SECTION 2.4. REMOVAL OF TRUSTEES: When, in the opinion of a majority of the Trustees, any Trustee has failed or refused to assume and perform his duties and responsibilities, or has done or permitted any act or thing which is inconsistent with or in degradation of the teaching of the Urantia BOOK, or by his acts or omissions has brought disrepute upon himself or Urantia FOUNDATION, then, the Trustees shall cast a ballot on the question of whether or not such Trustee should be removed. Such ballot shall be cast at the first regular quarterly meeting of the Board of Trustees next succeeding the meeting at which the determination aforesaid shall have been made. A ballot on the question of whether or not such Trustee shall be removed shall be cast again at each of the next two regular quarterly meetings at which all of the other Trustees shall be present. If all of the Trustees other than the Trustee whose removal is being considered shall cast a ballot at each successive meeting as aforesaid for the removal of such Trustee, then said other Trustees shall execute a Certificate of Removal certifying to the removal of such Trustee, which certificate shall be in the following form:
CERTIFICATE OF REMOVAL OF TRUSTEE KNOW ALL MEN BY THESE PRESENTS, that whereas by a certain Declaration of Trust dated January 11, 1950, made and executed by William M. Hales, William S. Sadler, Jr., Wilfred C. Kellogg, Emma L. Christensen, and Edith E Cook, Trustees, which said Declaration of Trust was filed for record January 26, 1950, in the Recorder's Office of Cook County, Illinois and recorded as Document No. 14722215, revealing a foundation known as Urantia Foundation, under the terms and provisions of which Deed of Trust said William M. Hales, William S. Sadler, Jr., Wilfred C. Kellogg, Emma L. Christensen, and Edith E. Cook, and their successors in trust, were appointed Trustees of said Urantia Foundation; and
WHEREAS, under the terms and provisions of said Declaration of Trust a Trustee may be removed by the unanimous vote in favor of such removal by all the remaining Trustees:
Now, THEREFORE, the undersigned being all the presently qualified and acting Trustees of Urantia Foundation, except the Trustee hereby removed, do hereby certify that pursuant to said Declaration of Trust a meeting of said Trustees was duly and legally held on (insert dates of meetings) and at which meetings the following Trustees were present, to-wit: (Insert names of Trustees present); that after due deliberation and the exercise of fair and impartial judgment, by the unanimous vote or all Trustees present at said meetings (name of Trustee removed) was fully and permanently removed as a Trustee of Urantia FOUNDATION, and a vacancy in the number of Trustees is declared to exist.
IN WITNESS WHEREOF the undersigned Trustees have hereunto set their hands and seals this day of _____ ,19__ (SEAL) (Appropriate acknowledgment for each Trustee)
The Certificate of Removal of Trustee shall be recorded in the manner prescribed under Section 9.1 of the Declaration of Trust and an executed copy thereof inserted in the Record of Proceedings of Urantia FOUNDATION. No part of the deliberation of the Trustees respecting this question shall be included or recorded in the minutes of the meetings of the Board of Trustees but the ballot cast at each meeting on the question of whether or not such Trustee is to be removed shall be recorded.
SECTION 2.5. QUALIFICATION FOR TRUSTEES: To qualify for the office of Trustee, a person must have read the Urantia BOOK, be familiar with the teachings thereof, and sincerely and truly advocate the dissemination of such teachings. He shall execute the certificate accepting the duties and responsibilities of Trustee as set forth in the Certificate of Election of Trustee, and shall subscribe to the acceptance of these By-Laws.
ARTICLE III MEETINGS AND PROCEEDINGS OF BOARD OF TRUSTEES
SECTION 3.1. REGULAR QUARTERLY MEETINGS: (Footnote 2: Amended 1966). Regular meetings of the Board of Trustees shall be held on the third Saturday of January, April, July, and October (unless such day is a legal holiday, in which event that such day is a holiday, then on the next succeeding Saturday) at the hour of 10:00 o'clock in the morning at the regular office of the Foundation. Notice of such meeting shall be given at least three days prior to the date thereof. The time and place of any regular meeting may be changed by agreement of all Trustees.
SECTION 3.2. ANNUAL MEETING: The annual meeting shall be the second quarterly meeting each year.
SECTION 3.3. SPECiAL MEETINGS: Special meetings of the Board of Trustees may be held at any time and place designated in the notice of such meeting; Notice of such meeting stating the purpose thereof shall be given not more than ten nor less than five days prior to the date thereof. Special meetings may be called by the President or by any two Trustees who shall designate the time and place and purpose of such meeting and notice of such meeting shall be issued by the Secretary promptly upon receipt of such call.
SECTION 3.4. QUORUM: A majority of the Trustees shall constitute a quorum at any Regular Meeting and a Special Meeting duly and legally called and held, but a lesser number may meet and adjourn.
SECTION 3.5. MINUTES: Minutes of all meetings of the Board of Trustees shall be kept and recorded in the "Record of Proceedings of Urantia FOUNDATION." Copies of reports of Trustees and Officers, statements, and other documents and instruments shall not be incorporated in detail or attached to the minutes of any meeting, but may be incorporated therein by reference only and filed by the Secretary when directed by the Board of Trustees. At the request of any Trustee, all Trustees whether or not present shall sign the minutes.
SECTION 3. 6. DISSENT: Any Trustee dissenting from any act or decision of a majority of the Trustees shall have the right to have his dissent noted in the minutes of the meeting when such action was taken, together with a brief and concise statement of the reason for his dissent, if he was present at such meeting, or if not present, by an addenda to the minutes of such meeting.
SECTION 3.7. NOTICE OF MEETINGS: Notice of meetings shall be given in writing by the Secretary. Such notice may be delivered in person or transmitted by mail or by telegraph addressed to each Trustee at his last known address.
SECTION 3.8. WAIVER OF NOTICE: Notice of any meeting may be waived by a waiver of notice signed by all the Trustees setting the time and place of such meeting. Notice of meeting may be waived by the unanimous consent of all Trustees when all Trustees are present at a meeting.
SECTION 3.9 CERTIFICATE OF ACTION: (Footnote 3: Amended 1989). At the option of all the Trustees, any action which the Board of Trustees desire or are required to take, except the election and removal of Trustees, may be taken and performed by the execution of a "Certificate of Action" which shall be an instrument signed by all the Trustees wherein the action of the Board of Trustees by resolution or otherwise is stated the same as if it were in minutes of a meeting. When so executed, the action therein taken shall for all purposes have the same force and effect as if the same had been taken at a meeting of the Board of Trustees duly called and held. The vote of each Trustee for or against such action shall be recorded on said "Certificate of Action," and a majority vote in favor thereof shall constitute the adoption of such action by the Board of Trustees, except where the unanimous vote of all Trustees is specifically required by the Board of Trustees. Such "Certificate of Action" shall be inserted in the "Record of Proceedings of Urantia FOUNDATION." A "Certificate of Action" may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. The form for such "Certificate of Action" is as follows:
Certificate of Action Pursuant to the authority of Section 3.9 of the By-Laws of Urantia FOUNDATION, the undersigned, being all the Trustees of Urantia FOUNDATION, jointly and severally make and execute this certificate of the action taken by the board of Trustees upon the following proposition, which requires a (majority or otherwise) vote for the adoption thereof, namely: (Here stale resolution or other proposition)
We do further certify that the above proposition shall be deemed have been adopted and to be the act of the Board of Trustees when this certificate shall have been signed by all of the Trustees and (a majority or otherwise) the Trustees shall have signed in the column below headed "For the Proposition."
Dated this __ day of __ ,19_
Against the Proposition:_____
For the Proposition:_____
SECTION 3.10. MEETING BY TELECOMMUNICATION: (Footnote 4: Amended to By-Laws 1989). Members of the Board of Trustees may participate in a meeting by means of conference telephone of similar communications equipment whereby all persons participating in the meeting can hear each other, and participation in such meeting in such manner shall constitute presence in person at such meeting.
ARTICLE IV OFFICERS
SECTION 4.1. NUMBER: The officers of Urantia FOUNDATION shall be a President, a Vice President, a Secretary, and a Treasurer, and such other officers as the Board of Trustees from time to time may find it desirable to elect or appoint.
SECTION 4.2. QUALIFICATION: No person shall be elected President or Vice President of Urantia FOUNDATION unless he shall be an active Trustee. All other offices may bc filled by such persons as the Board of Trustees shall elect or appoint, but it shall not be a requisite that any such person shall be an active Trustee to qualify for such offices.
SECTION 4.3. ELECTION AND TERM OF OFFICE: The officers of Urantia FOUNDATION shall be elected by the Board of Trustees at the annual meeting of the Board of Trustees, and shall hold office for a term of three (3) years and until their successors are duly elected and qualified.
SECTION 4.4. REMOVAL OF OFFICERS: Any officer may be removed for any reason from office by the action of a majority of the Board of Trustees taken at any regular or special meeting.
SECTION 4. 5. VACANCY: In the event that a vacancy occurs in any office for any reason, the vacancy may be filled by appointment of the Board of Trustees for the unexpired portion of the term of such office, or until a successor shall be duly elected and shall have qualified.
SECTION 4.6. POWERS AND DUTIES OF THE PRESIDENT: The President shall preside at all meetings of the Board of Trustees. He shall be the chief administrative officer in administering the affairs of Urantia FOUNDATION and shall be primarily responsible for carrying out the policies, decisions, and directions of the Board of Trustees. As President, he shall have power and authority to make contracts and agreements, to make and incur obligations, to grant powers of attorney, to convey, assign, lease, license, and otherwise transfer property of Urantia FOUNDATION, or any interest therein, for and on behalf of and in tile name of Urantia FOUNDATION, and to make, execute, acknowledge, and deliver any and all documents and instruments as may be necessary, appropriate, or desirable pursuant to tile exercise of such power and authority and in accordance with the provisions of Section 1.4; and any action so taken by the President and any documents so executed by the President pursuant to authority by the Board of Trustees shall be binding upon all of the Trustees and upon the Trust Estate.
SECTION 4.7. POWERS AND DUTIES OF VICE PRESIDENT: The Vice- President shall assist the President in the performance of his duties and in the exercise of the powers conferred upon him, and shall do and perform such things as he shall be authorized and requested so to do by the President or the Board of Trustees. In the absence of or in the event of the disability of the President, the Vice-President shall exercise all of the powers and duties of the President.
SECTION 4.8. POWERS AND DUTIES OF SECRETARY: The Secretary shall keep and preserve all records of Urantia FOUNDATION. He shall record and keep the minutes of the meetings of the Board of Trustees, which minutes shall bc recorded and kept in a book entitled "Record of the Proceedings of Urantia FOUNDATION." He shall also do and perform such other acts and things as he shall have been requested or authorized to do by the President or the Board of Trustees. He shall have custody of the seal of Urantia FOUNDATION and shall affix and attest the affixing of such seal to any document or instrument which shall have been executed by the President pursuant to authority of the ByLaws or resolution of the Board of Trustees. He shall have power to certify copies of any and all records kept and preserved by him as such Secretary.
SECTION 4.9. POWERS AND DUTIES OF TREASURER: The Treasurer shall be the principal financial officer of the company. He shall have custody of all monies and other properties of the Foundation and shall pay out, deliver, or otherwise deal with the properties of the Foundation as he may be directed by the President or by the Board of Trustees. He shall make annual reports of the monies and properties received and the monies and properties expended or otherwise disposed of during each fiscal year, and shall make such other and financial reports and statements as he may be requested so to do by the President or the Board of Trustees.
ARTICLE V FISCAL MATTERS
SECTION 5.1. FISCAL YEAR: The fiscal year of the Foundation shall be the calendar year.
SECTION 5.2. BANK ACCOUNTS: The Board of Trustees from time to time by resolution may designate one or more banks as depositary or depositaries for the funds of the Foundation and may authorize the withdrawal of such funds by any one or more officers or by any designated employee of the Foundation.
SECTION 5.3. FINANCIAL STATEMENTS: A financial statement of the assets and liabilities of the Foundation and of the receipts and disbursements of the Foundation since the beginning of the fiscal year shall be prepared by the Treasurer and presented at each regular quarterly meeting of the Board of Trustees.
SECTION 5.4. PRINCIPAL AND INTEREST: Unless otherwise specifically ordered by resolution of the Board of Trustees, there shall be no segregation of funds between principal and interest.
ARTICLE VI MISCELLANEOUS SECTION 6.1. SEAL: The Board of Trustees adopt as the seal of the Foundation three concentric circles, between the outer two of which is inscribed "Urantia Foundation -- Seal," an impression of which seal appears on the margin of this page.
ARTICLE VII AMENDMENTS
SECTION 7.1. METHOD OF AMENDMENT: These By-Laws may from time to time be amended by the unanimous vote of all the Trustees in favor of such amendment at any regular or special meeting.
SECTION 7.2. Whenever a vacancy occurs in the Board of Trustees, the By-Laws shall be retranscribed incorporating all amendments, and when so transcribed, the acceptance thereof shall be signed by all the Trustees including the Trustee who was elected and appointed to fill such vacancy.
We, the undersigned Trustees of Urantia FOUNDATION, do hereby adopt, agree to, and accept the above and foregoing By-Laws of Urantia FOUNDATION for the government of the Foundation and of the acts and procedures of the Trustees this eleventh day of February, 1950.
Emma L. Christensen,
Edith E. Cook,
William M. Hales,
Wilfred C. Kellogg,
William S. Sadler, Jr.
Exhibit M
February 16, 1993 Letter from Hoite Caston to Martin Myers
Dear Martin,
At the First Quarterly Meeting of the Trustees of Urantia Foundation on Saturday, January 16, 1993, at 533 Diversey Parkway, the second vote by the Trustees on the motion to remove Martin W. Myers as Trustee of Urantia Foundation passed unanimously.
The third and final vote will be taken at the Second Quarterly Meeting of the Board of Trustees on Saturday, April 17, 1993. At that time you will have the opportunity to resign or to again state your position, should you so wish, in person to the then assembled board of Trustees.
Please be informed that The Trustees unequivocally reject your October 17, 1992, and January 16, 1993, statements' presentation of the facts, your characterizations of our actions, and your interpretations of our motives in initiating and carrying out removal proceedings against you. Furthermore, please remember that you are under suspension as a Trustee. You are not entitled to represent Urantia Foundation or participate in Urantia Foundation's business except as noted above. Sincerely, Hoite C. Caston Vice President and Secretary Exhibit N May 10, 1993 Letter from Patricia Mundelius to Martin Myers
Dear Martin,
Please find enclosed a photocopy of the original "Certificate of Removal of Trustee" executed April 17, 1993, and filed of record in Cook County on April 20, 1993, as document number 93290459.
Pursuant to Article VII, Section 7.5 of the Declaration of Trust, your Trusteeship was terminated as of the date of the recording of the "Certificate of Removal of Trustee."
Each of the Trustees regrets the events which necessitated this action; nevertheless we each wish you well in the future.
Very truly yours, Urantia Foundation by Patricia S. Mundelius as its President
Exhibit O
September 10, 1993 Judge Egan's Opinion in the Polk vs. Board of Trustees of the Police Pension Fund Appeal (This document is 26 pages long and isn't about Urantia Foundation, but about a point of trust law; available upon request.)
Exhibit P
October 26, 1992 Letter from Patricia Mundelius to Martin Myers
Dear Martin:
All five Trustees were given a copy of a report authored by Richard Keeler concerning his relationship with his daughter, Liberty, and her mother, Anita. The Board of Trustees reviewed the report in depth and discussed it with Mr. Keeler. Mr. Keeler asked the Board of Trustees to return to him all copies of the report after the Board of Trustees completed its review. The Board of Trustees agreed to do so. For your information, the Foundation's legal counsel, at the Board's request and with Mr. Keeler's agreement, will keep a copy of the report in his files.
The Board of Trustees completed its review of the report. All the Trustees, except you, have returned all copies of the report to Mr. Keeler. The Board of Trustees requests that you return to Mr. Keeler any and all copies of the report which you may have.
Thank you for your immediate attention to this matter.
Sincerely, Patricia S. Mundelius President
Exhibit Q
June 15, 1993 Plaintiff's Motion to Amend Complaint
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION No. 93 CH 3484 Judge Edwin M. Berman
K. RICHARD KEELER, Plaintiff, v. MARTIN W. MYERS, Defendant.
PLAINTIFF'S MOTION TO AMEND COMPLAINT Plaintiff K. Richard Keeler, by his attorneys, moves this Court for leave to file a Verified Amended Complaint pursuant to Section 2-616 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-616. In support of his motion, Mr. Keeler states as follows:
1. On April 15, 1993, Mr. Keeler filed this action against defendant Martin W. Myers, seeking an injunction prohibiting Mr. Myers from publishing, using or conveying to third parties a private document and the information contained therein, which was drafted by, and belongs to, Mr. Keeler. The verified complaint also seeks an injunction requiring Mr. Myers to return to Mr. Keeler all copies of Mr. Keeler's private document.
2. On May 24, 1993, defendant Martin W. Myers filed a motion to dismiss the verified complaint pursuant to Section 2-615 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-6l5. However, Mr. Myers failed to notice the motion to dismiss for hearing.
3. Mr. Keeler has learned that Mr. Myers has disclosed the contents of Mr. Keeler's document to Mr. Myers' wife, Diane G. Elder. Mr. Keeler also has learned that Diane Elder has disclosed the contents of Mr. Keeler's document to at least one other person. Accordingly, Mr. Keeler moves to amend his complaint to add Diane G. elder as a defendant. A copy of the proposed verified Amended Complaint is attached hereto.
4. Because no answer has been filed and the parties have not yet appeared before the Court, permitting amendment at this early stage of the case will not prejudice Mr. Myers or Ms. Elder.
Wherefore, plaintiff K. Richard Keeler moves this Court for entry of an order granting Mr. Keeler leave to file a verified amended complaint pursuant to Section 2-616 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-616.
Respectfully submitted, K. Richard Keeler
By Charles B. Sklarsky, One of his Attorneys
IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS COUNTY DEPARTMENT,
CHANCERY DIVISION No. 93 CH 003484K. Richard Keeler Plaintiff, vs. MARTIN W. MYERS, Defendant.
NOTICE OF FILING TO:
Mr. Thomas P. Sullivan
Mr. Charles B. Sklarsky
Ms. Allison F. Glazov
Jenner & Block One
IBM Plaza Chicago, Ill. 60611PLEASE TAKE NOTICE that on May 24, 1993, I filed with the Clerk of the Circuit Court of Cook County, Illinois, County Department, Chancery Division, Defendant's Section 2-615 Motion to Dismiss, a copy of which is attached to this notice and which is served upon you herewith.
STANLEY H. Jakala Attorney for Defendant
3219 S. Maple Avenue
Berwyn, Illinois 60402
708-788-5733
AFFIDAVIT
Now comes Martin W. Myers, after first being duly sworn on oath, and deposes and states as follows:
1. That my complaint filed in the Circuit Court of Cook County, Count I for Declaratory Judgment, and Count II for Mandamus, does not state demands for damages.
2. That the only compensatory demand is for attorney's fees and court costs, which costs and fees are not included in the calculation of $50,000.00 jurisdiction amount, pursuant to 28 U.S.C. § 1332(a).
3. That, in my complaint, paragraph 24, I refer to the Fifth and Fourteenth Amendments of the United States Constitution requiring a due process hearing as coinciding with the Declaration of Trust Creating Urantia Foundation requiring such due process hearing without alleging that the Fifth and Fourteenth Amendments of the United States Constitution are applicable in my proceedings filed in the Circuit Court of Cook County, Illinois.
4. That my due process claim is not based upon the Fifth and Fourteenth Amendments of the United States Constitution as reflected in the prayers for relief in Count I, Declaratory Judgment, and Count II, Mandamus, wherein the relief is based upon due process pursuant to custom and practice, pursuant to legal and philosophical principles of the Declaration of Trust Creating Urantia Foundation, and the Bylaws of Urantia Foundation, and in accordance with due process of law requirements governing administrative agency under Illinois law, without any prayer for relief being based upon a violation of the Fifth and Fourteenth Amendments of the United States Constitution.
5. That, in addition to paragraph 2, 3, and 4 of this affidavit, the Fifth and Fourteenth Amendments of the United States Constitution are not applicable to this cause of action, since Urantia Foundation is not a governmental agency which would be governed by the Fifth and Fourteenth Amendments of the United States Constitution.
AFFIANT FURTHER SAYETH NOT.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CIVIL ACTION NO. 94 C 00927The Honorable Ann C. Williams, Presiding
MARTIN W. MYERS, Plaintiff,
V.
THOMAS C. BURNS,
HOITE C. CASTON,
K. RICHARD KEELER,
PATRICIA SADLER MUNDELIUS,
Trustees of the Urantia Foundation, and
PHILIP A. ROLNICK, an individual represented to be a newly elected Trustee, Defendants.DEFENDANTS' ANSWER TO AMENDED COMPLAINT
NOW COME defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, and Philip A. Rolnick, being all of the defendants in this action, by and through their attorneys, L. Dale Owens and Martin K. LaPointe, and answer the enumerated paragraphs of plaintiff's amended complaint as follows:
COUNT I
1. Plaintiff, Martin W. Myers, is a resident of Evanston, Illinois.
ANSWER: On information and belief, defendants admit the allegations set forth in paragraph 1 of the amended complaint.
2. Plaintiff, Martin W. Myers, was duly elected a Trustee of Urantia Foundation in 1973, and, significantly, prior to his election as Trustee, plaintiff had been invited in 1968 by Dr. William S. Sadler and Ms. E.L. Christensen, two individuals who had been instrumental in bringing forth The Urantia Book and establishing Urantia Foundation, to live with them at the Urantia Foundation headquarters building at 533 Diversey Parkway, Chicago, Illinois, where, subsequent to Dr. Sadler's death in 1969 and in association with three of the five founding Trustees, two, paragraph 3 of the amended complaint, Defendants admit that the Urantia Foundation is a charitable Illinois not-for-profit common law trust in perpetuity with offices at 533 Diversey Parkway, Chicago, Illinois 60614; defendants further admit that the By-Laws of the Urantia Foundation state that Trustee meetings shall be convened at least quarterly; defendants further admit that some (but not all) of these meetings have been held at 533 Diversey Parkway, Chicago, Illinois 60614.
4. Defendant Thomas C. Burns was duly elected a Trustee of Urantia Foundation in August 1992, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
ANSWER: Defendants deny that all of the quarterly meetings of the Board of Trustees of the Urantia Foundation attended by defendant Thomas C. Burns have been held at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614, and defendants otherwise admit the allegations set forth in paragraph 4 of the amended complaint.
5. Defendant Hoite C. Caston was duly elected a Trustee of Urantia Foundation in June 1986, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
ANSWER: Defendants deny that all of the quarterly meetings of the Board of Trustees of the Urantia Foundation attended by defendant Hoite C. Caston have been held at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614, and defendants otherwise admit the allegations set forth in paragraph 5 of the amended complaint.6. Defendant K. Richard Keeler was duly elected a Trustee of Urantia Foundation in July 1989, and since his election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
ANSWER: Defendants deny that all of the quarterly meetings of the Board of Trustees of the Urantia Foundation attended by defendant K. Richard Keeler have been held at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614, and defendants otherwise admit the allegations set forth in paragraph 6 of the amended complaint.
7. Defendant Patricia Sadler Mundelius was duly elected a Trustee of Urantia Foundation in March 1990, and since her election has regularly attended the quarterly meetings of the Board of Trustees of Urantia Foundation at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
ANSWER: Defendants deny that all of the quarterly meetings of the Board of Trustees of the Urantia Foundation attended by defendant Patricia Sadler Mundelius have been held at its principal offices at 533 Diversey Parkway, Chicago, Illinois 60614, and defendants otherwise admit the allegations set forth in paragraph 7 of the amended complaint.
8. As a result of the many violations of the spirit and letter of the Declaration of Trust Creating Urantia Foundation by defendants as set forth in paragraphs 8 through 36 below, of this Amended Complaint, plaintiff brings this action to enforce the terms of the Declaration of Trust in accord with the intent and purposes of the creators of the Declaration of Trust and to ensure that the OBJECTS, as set out in Article II thereof, shall, in fact, be achieved through the enforcement of the high standards of fiduciary conduct imposed upon the Trustees of Urantia Foundation by the Declaration of Trust Creating Urantia Foundation and the law of the State of Illinois, for the faithful administration of their public trust.
ANSWER: Defendants deny the allegations set forth in paragraph 8 of the amended complaint, and further state that plaintiff lacks standing to bring this action to enforce the terms of a charitable trust, and that the Attorney General of Illinois has exclusive authority to do so.
9. On information and belief, on April 17, 1993, Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius elected defendant Philip A. Rolnick as a Trustee of Urantia Foundation in violation of the Declaration of Trust Creating Urantia Foundation, but Defendant Philip A. Rolnick has, subsequent to the aforesaid election, acted as a Trustee of Urantia Foundation; he attended his first quarterly meeting of the Board of Trustee of Urantia Foundation on or about July 17, 1993, at the Foundation's principal offices at 533 Diversey Parkway, Chicago, Illinois 60614.
ANSWER: Defendants admit that Philip A. Rolnick was elected to be a Trustee of the Urantia Foundation, and that the vote to elect him as a Trustee was conducted at a regular quarterly meeting held on April 17, 1993; defendants further admit that defendant Philip A. Rolnick has, subsequent to his election, acted as a Trustee of the Urantia Foundation and that the next quarterly meeting he attended following the one at which he was elected to the Board of Trustees of the Urantia Foundation was held on or about July 17, 1993 in Chicago; and defendants otherwise deny the allegations set forth in paragraph 9 of the amended complaint.
10. One of the longstanding principles of Urantia Foundation is the Principle of Proper Procedures, which the Trustees of Urantia Foundation have repeatedly and publicly committed themselves to rely upon in carrying out their fiduciary responsibilities in working toward the realization of the goals and purposes of Urantia Foundation. Further, the Trustees of Urantia Foundation have also required that its licensee organizations follow the Principle of Proper Procedures. Exhibits A and B, attached herein, are two excerpts from the April 1990 Special Report to the Readers of The Urantia Book, written and published by the Trustees of Urantia Foundation wherein they publicly state their commitment to this Principle and wherein defendant Hoite C. Caston eloquently illuminates how this Principle is to be applied, and specifically, in Exhibit B, 19-3, last paragraph, emphasizes the requirement for evidence to support charges against any person in conjunction with the Principles of the Urantia Book about which he refers throughout that Exhibit.
ANSWER: In response to the allegations set forth in paragraph 10 of the amended complaint, defendants state that the documents attached as Exhibits A and B speak for themselves. Because of the extremely broad, vague and argumentative nature of the allegations in paragraph 10, defendants can respond only by saying that they are without knowledge as to the truth of those allegations or their application, if any, to the present dispute. Defendants further respond to paragraph 10 of the amended complaint by denying that any of the documents described therein create any right of "contractual due process" as alleged by plaintiff, and further state that the right of the Trustees to remove an individual Trustee from membership on the Board of Trustees is granted in and governed by the Declaration of Trust Creating Urantia Foundation.
11. On August 22, 1992, the then Trustees of Urantia Foundation, defendants Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius, commenced an action to remove the plaintiff, Martin W. Myers, as a Trustee of Urantia Foundation wherein plaintiff read a written statement, a copy of which is attached herein as Exhibit C, wherein he stated ". . .[B]eing a Trustee of Urantia Foundation is a serious responsibility and my ability so to serve has now been brought into question. Because of this, rather than resign, I wish to proceed with the removal proceedings wherein we all shall have full opportunity to review my performance and your objections related to it."
ANSWER: Defendants admit that on August 22, 1992, the Trustees of the Urantia Foundation, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius reaffirmed an August 3, 1992 vote to initiate the removal of plaintiff Martin Myers as a Trustee of the Urantia Foundation as they are expressly authorized to do by action of the Declaration of Trust Creating Urantia Foundation (attached to the amended complaint as Exhibit K); defendants further admit that plaintiff Myers made a statement at the August 22, 1992 meeting, a copy which was attached to the amended complaint as Exhibit C; defendants deny that Exhibit C is an accurate statement, and defendants state that the written statement in Exhibit C speaks for itself; and defendants otherwise deny the allegations set forth in paragraph 11 of the amended complaint.
12. In conjunction with the August 22, 1992, hearing for removal of Martin W. Myers, plaintiff, as a Trustee of Urantia Foundation, the plaintiff was unaware that he was to be confronted with numerous oral charges without being provided the opportunity to respond properly, and he advised the Trustees in the presence of Urantia Foundation legal counsel Quin R. Frazer that he did not comprehend the nature of those charges.
ANSWER: Defendants deny the allegations set forth in paragraph 12 of the amended complaint.
13. In that August 22, 1992 removal hearing, Martin W. Myers, plaintiff, requested that he be provided written charges in order to have the fair opportunity to respond to such charges.
ANSWER: Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 13 of the amended complaint.
14. On August 29, 1992, the plaintiff was provided the opportunity to present a statement to the Trustees of Urantia Foundation; a copy of said statement is marked Exhibit D and attached herein.
ANSWER: Defendants admit the allegations set forth in paragraph 14 of the amended complaint.
15. After plaintiff presented his written statement, the defendant, K. Richard Keeler, orally asked numerous questions of the plaintiff and orally accused the plaintiff of numerous infractions, which surprised the plaintiff, with an appropriate denial by the plaintiff.
(This document is 20 boring pages long; available upon request). (Page 21 of DEFENDANTS' ANSWER TO AMENDED COMPLAINT. This is the Urantia Foundation Trustee's Defense in the lawsuit in which the Trustees are being sued by Martin Myers. Note especially the THIRD DEFENSE:)
DEFENSES AND AFFIRMATIVE DEFENSES
FIRST DEFENSE The amended complaint fails to state a claim upon which relief can be granted.
SECOND DEFENSE Plaintiff Myers lacks standing to maintain this action; because the Urantia Foundation is a charitable trust, the sole entity with standing to enforce the trust or to seek judicial construction of the terms of the trust is the Attorney General. This Court therefore lacks subject-matter jurisdiction over plaintiff's claims.
THIRD DEFENSE Plaintiff purports to base his claim of a "contractual due process property right" on The Urantia Book, which identifies itself as a "religious revelation." A copy of pages 1007-1008 of The Urantia Book, describing that it is a "religious revelation," are attached to this Answer as Exhibit A. As shown in its Table of Contents, The Urantia Book consists of over 2,000 pages addressing a broad spectrum of spiritual and religious subjects, including discussions about God, Jesus, Paradise, angels, spiritual beings, and numerous matters and principles of spiritual faith. A copy of the Table of Contents of The Urantia Book is attached to this Answer as Exhibit B. The First Amendment to the United States Constitution precludes Plaintiff's claim that this Court should decide or interpret the correct meaning and application of The Urantia Book, and the First Amendment prohibits this Court from making any such determination.
FOURTH DEFENSE Plaintiff Myers has waived some or all of the claims set forth in the amended complaint.
FIFTH DEFENSE Plaintiff Myers is estopped to assert some or all of the claims set forth in the amended complaint.
SIXTH DEFENSE Some or all of the claims set forth in the amended complaint are barred by the statute of frauds. This _ day of_______, 1994.
Respectfully submitted,
One of the Attorneys for Defendants Dean Booth, Esq.
Georgia Bar No. 067900
L. Dale Owens, Esq.
Georgia Bar No. 557482
Scott A. Wharton, Esq.
Georgia Bar No. 750892
BOOTH, WADE & CAMPBELL
Cumberland Center II
3100 Cumberland Circle,
Suite 1500
Atlanta, Georgia 30339-5939
(404) 850-5000
Terrill E. Pierce, Esq.
Illinois State Bar No. 06181253
Martin K. LaPointe, Esq.
Illinois State Bar No. 06195827
ADLER, KAPLAN & BEGY
One First National Plaza
5lst Floor
Chicago, Illinois 60602
(312) 345-3000March 11, 1994
Docketed March 14, 1994
DEFENDANTS' STATEMENT OF MATERIAL FACTS AS TO WHICH DEFENDANTS CONTEND THERE IS NO GENUINE ISSUE
COME NOW Defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius and Philip A. Rolnick, by and through their attorneys, pursuant to General Rule 12(m), and submit the following statement of material facts as to which they contend that there is no genuine issue and that entitle them to entry of judgment as a matter of law. This statement is submitted in connection with Defendants~ Alternative Motion for Summary Judgment filed herewith.
PARTIES, JURISDICTION AND VENUE
1. Plaintiff Martin W. Myers is a resident of the State of Illinois. He formerly was a Trustee of the Urantia Foundation. Complaint, ¶ 1.
2. Defendant Thomas C. Burns is a resident of the State of Georgia. Notice of Removal, ¶ 1.
3. Defendant Hoite C. Caston is a resident of the State of California. Notice of Removal, ¶ 2.
4. Defendant K. Richard Keeler is a resident of the State of Wyoming. Notice of Removal, ¶ 3.
5. Defendant Patricia Sadler Mundelius is a resident of the State of California. Notice of Removal, ¶ 4.
6. Defendant Philip A. Rolnick is a resident of the State of North Carolina. Notice of Removal, ¶ 5.
7. Defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler and Patricia Sadler Mundelius were Trustees of the Urantia Foundation who voted to remove Plaintiff Martin W. Myers as a Trustee of the Urantia Foundation. Affidavit of Hoite C. Caston ("Caston Affidavit"), ¶¶ 16, 19-23; see also Complaint, ¶¶ 4-7, 22, 25, 27.
8. This case presents claims arising under the Constitution, laws or treaties of the United States within the meaning of 28 U.S.C. § 1331, because the Complaint asserts claims based on the procedural due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution, as applied by the courts of Illinois and the United States. Complaint, ¶¶ 24, 31, Exhibit N, pp. 25-26.
9. There is complete diversity of citizenship between Plaintiff and all of the Defendants, and the matter in controversy exceeds the value of $50,000.00, within the meaning of 28 U.S.C. § 1332.
10. Venue is proper in this district, because a substantial part of the events on which Plaintiff bases his claim occurred within this district. Specifically, the votes of the Defendants/Trustees (Burns, Caston, Keeler and Mundelius) to remove Plaintiff Myers as a Trustee were taken in Chicago, Illinois. Complaint, ¶¶ 3-7, 22, 25, and 27; Caston Affidavit, ¶¶ 15, 18-20, 22.
UNDISPUTED FACTS MATERIAL TO DEFENDANTS' ALTERNATIVE MOTION FOR SUMMARY JUDGMENT 11. The Trustees of the Urantia Foundation administer the trust created by the Declaration of Trust Creating Urantia Foundation. Caston Affidavit, ¶, Exhibit 1.
12. The Declaration of Trust Creating Urantia Foundation states the objects of the trust as follows:
2.1 PRINCIPAL OBJECT: The object for which this Foundation is created is the promotion, improvement, and expansion among the peoples of the world of the comprehension and understanding of Cosmology and the relation of the planet on which we live to the Universe, of the genesis and destiny of Man and his relation to God, and of the true teachings of Jesus Christ; and for the inculcation and encouragement of the realization and appreciation of the Fatherhood of God and the Brotherhood of Man -- in order to increase and enhance the comfort, happiness, and well being of Man, as an individual and as a member of society, through the fostering of a religion, a philosophy, and a cosmology which are commensurate with Man's intellectual and cultural development.
2.2 CONCORDANT OBJECTS: The concordant objects for which the Foundation is created are to perpetually preserve inviolate the text of THE Urantia BOOK and to disseminate the principles, teachings, an doctrines of THE Urantia BOOK.
Id., Exhibit 1.
13. The Declaration of Trust refers to a book entitled the Urantia Book; true and correct copies of the title page and the table of contents of the book are attached to the Affidavit of Hoite C. Caston as Exhibit 2. Caston Affidavit, ¶ 4, Exhibit 2.
14. The Declaration of Trust Creating Urantia Foundation states, at Section 7.5: 7.5 REMOVAL OF TRUSTEE: Any Trustee may be removed for any reason by a unanimous vote of the remaining Trustees. . . .
Caston Affidavit, ¶ 5, Exhibit 1; see also Complaint, Exhibit J.
15. The By-Laws of Urantia Foundation include a procedure for exercising the power of removal of Trustees that is set forth in Section 7.5 of the Declaration of Trust (quoted above). The By-Laws state, in pertinent part:
SECTION 2.4. REMOVAL OF TRUSTEES: When, in the opinion of a majority of the Trustees, any Trustee has failed or refused to assume and perform his duties and responsibilities, or has done or permitted any act or thing which is inconsistent with or in degradation of the teaching of The Urantia Book, or by his acts or omissions has brought disrepute upon himself or Urantia Foundation, then, the Trustees shall cast a ballot on the question of whether or not such Trustee should be removed. Such ballot shall be cast at the first regular quarterly meeting of the Board of Trustees next succeeding the meeting at which the determination aforesaid shall have been made. A ballot on the question of whether or not such Trustee shall be removed shall be cast again at each of the next two regular quarterly meetings at which all of the other Trustees shall be present. If all of the Trustees other than the Trustee whose removal is being considered shall cast a ballot at each successive meeting as aforesaid for the removal of such Trustee, then said other Trustees shall execute a Certificate of Removal certifying to the removal of such Trustee. . . . No part of the deliberation of the Trustees respecting this question shall be included or recorded in the minutes of the meetings of the Board of Trustees but the ballot cast at each meeting on the question of whether or not such Trustee is to be removed shall be recorded.
By-Laws of Urantia Foundation, Article II, Section 2.4. Caston Affidavit, ¶ 5, Exhibit 3; see also Complaint, Exhibit K.
16. At meetings of the Trustees of the Urantia Foundation held on August 3, 1992, August 22, 1992 and August 29, 1992, all of the Trustees other than Martin W. Myers decided to initiate a series of meetings and votes on whether or not to remove Martin W. Myers as Trustee of the Urantia Foundation because, in the opinion of these Trustees, Mr. Myers' acts and omissions had brought disrepute upon himself and the Urantia Foundation. Caston Affidavit, ¶¶ 6-11.
17. The Trustees (other than Mr. Myers) discussed whether there should be any written minutes or records specifying the details of their reasons for voting to remove Mr. Myers as Trustee. Caston Affidavit, ¶ 12. The Trustees considered Section 2.4 of the By-Laws of Urantia Foundation. Id.
18. Section 2.4 of the By-Laws of Urantia Foundation states (among other things) that "no part of the deliberation of the Trustees respecting this question [the removal of a Trustee] shall be included or recorded in the minutes of the meetings of the Board of Trustees but the ballot cast at each meeting on the question of whether or not such Trustee is to be removed shall be recorded." Id. and Exhibit 3.
19. The Trustees also were aware that on one previous occasion, when votes were taken to remove a prior Trustee, Martin Myers as Trustee had arranged for the question of removal to be considered by the Trustees in a certain way. Caston Affidavit, ¶ 13.
20. In considering how to address the question of removal of Mr. Myers, the Trustees (other than Mr. Myers) were of the opinion that the procedure Mr. Myers had arranged in the prior instance was unnecessarily formalistic, harsh and hostile, and created the risk of unnecessary embarrassment and harm to the reputation of the individual Trustee whose removal was being considered. Id.
21. After considering the portion of Section 2.4 of the BY-Laws quoted above, and after evaluating how best to reduce the risk of unnecessary potential hostility and acrimony, as well as embarrassment and harm to Mr. Myers' reputation, the Trustees decided that they would consider the question of removal in informal private discussions at the quarterly meetings (with Mr. Myers' participation if he chose to attend and participate). Caston Affidavit, ¶ 14.
22. At either the August 22, 1992 meeting or the August 29, 1992 meeting, Trustee Hoite C. Caston described to Mr. Myers the Trustees' reasons for believing that it was appropriate to begin the process of removing him as Trustee. Caston Affidavit, ¶ 15 and Exhibit 4.
23. On October 17 and 18, 1992, the Trustees held the next quarterly meeting of the Board of Trustees at the offices of the Urantia Foundation at 533 Diversey Parkway, Chicago, Illinois. Caston Affidavit, ¶ 16. The Trustees present were Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius and Martin W. Myers. Id.
24. At the October 17, 1992 meeting the Trustees considered and discussed the question of whether or not they would vote in favor of removing Martin Myers as Trustee. Caston Affidavit, ¶ 16.
25. At the October 17, 1992 meeting, in the presence of the other Trustees, Mr. Caston described to Mr. Myers the reasons that the Trustees believed that Mr. Myers should be removed as a Trustee of The Urantia Foundation. Caston Affidavit, ¶ 17; see also Complaint, ¶ 21.
26. At the October 17, 1992 meeting, Mr. Myers read a statement to the Trustees. Id.
27. The document attached to Mr. Caston's Affidavit as Exhibit 6 is a true and correct copy of the written version of the statement Mr. Myers read in the presence of the Trustees at the October 1992 meeting. Id., Exhibit 6.
28. After discussion among the Trustees as to whether or not to remove Mr. Myers as a Trustee, the Trustees other than Mr. Myers voted unanimously to remove him as a Trustee. Caston Affidavit, ¶ 19; see also Complaint, ¶ 22.
29. The next quarterly meeting of the Board of Trustees of the Urantia Foundation was held on January 16 and 17, 1993, at the Foundation offices at 533 Diversey Parkway, Chicago, Illinois. Caston Affidavit, ¶ 20; see also Complaint, ¶ 23. The Trustees present were Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius. Caston Affidavit, ¶ 20.
30. Mr. Myers did not attend the January 16 and 17, 1993 meeting even though Mr. Caston had sent advance written notice of the meeting to Mr. Myers and even though the Trustees' representative personally went to Mr. Myers' residence to request that Mr. Myers attend. Id., ¶ 20, Exhibit 7.
31. Mr. Myers sent to the Trustees a document entitled "A Statement Presented to the Majority of the Board of Trustees of Urantia Foundation." Id., Exhibit 8; see also Complaint, ¶ 24 and Exhibit I.
32. The Trustees read Mr. Myers' statement and gave further consideration to the question of whether or not to vote in favor of removing him as Trustee. Caston Affidavit, ¶ 21.
33. At the January 17, 1993 meeting, the Trustees voted unanimously to remove Mr. Myers as Trustee. Id.; see also Complaint, ¶ 25.
34. The next quarterly meeting of the Board of Trustees of the Urantia Foundation was held on April 17 and 18, 1993, at the Foundation offices at 533 Diversey Parkway, Chicago, Illinois. Caston Affidavit, ¶ 23. The Trustees present were Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, and Patricia Sadler Mundelius. Id.
35. Although Mr. Caston had sent to Mr. Myers advance written notice of the April 17 and 18, 1993 meeting, Mr. Myers did not attend or participate in that meeting. Id., ¶ 23 and Exhibit 10.
36. Mr. Myers also did not furnish to the Trustees any further information or written statement in connection with that April 1993 meeting. Id., ¶ 23.
37. The Trustees again deliberated on whether or not to remove Myers as a Trustee, and after considering the question the Trustees voted unanimously to remove Mr. Myers as a Trustee. Id., see also Complaint, ¶ 27.
38. Following that vote, the Trustees (Thomas C. Burns, Hoite C. Caston, Richard Keeler and Patricia Sadler Mundelius) all signed a certificate certifying the removal of Martin Myers as Trustee, as specified in Article VII, Section 7.5, of the Declaration of Trust Creating Urantia Foundation, and it was filed of record. Caston Affidavit, ¶ 23, Exhibit 11; see also Complaint, ¶ 28 and Exhibit M. Dated: March 11, 1994.
Respectfully submitted,
One of the Attorneys for Defendants Dean Booth, Esq.
Georgia Bar No. 067900
L. Dale Owens, Esq.
Georgia Bar No. 557482
Scott A. Wharton, Esq.
Georgia Bar No. 750892
BOOTH, WADE & CAMPBELL
Cumberland Center II
3100 Cumberland Circle,
Suite 1500
Atlanta, Georgia 30339-5939
(404) 850-5000
March 11, 1994
Docketed March 14, 1994
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION Defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius and Philip A. Rolnick have moved the Court to dismiss the Complaint in this action on the grounds that the Complaint fails to state a claim for alleged deprivation of procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution, and that Plaintiff Myers lacks standing to assert claims regarding a charitable trust. In the alternative to that Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, Defendants respectfully submit that the Court should grant their Alternative Motion for Summary Judgment for the reasons set forth herein.
In this action, Plaintiff Myers asks the Court to interfere with the decision of the other Trustees (Footnote 1: Defendant Philip A. Rolnick did not participate in any vote to remove Plaintiff, because Mr. Rolnick had not yet become a Trustee. References in this memorandum to "Trustees" in connection with the removal of Plaintiff therefore refer to Defendants Burns, Caston, Keeler and Mundelius.) of the Urantia Foundation to remove Plaintiff Myers as a Trustee. It is undisputed that the Declaration of Trust creating Urantia Foundation expressly authorizes the Trustees to remove an individual Trustee, stating "Any Trustee may be removed for any reason by a unanimous vote of the remaining Trustees. . . . n Exhibit J to the Declaration of Trust Creating Urantia Foundation, Article VII, Section 7.5. (Footnote 2: This case does not involve any claim for pay or compensation for services; the Declaration of Trust Creating Urantia Foundation specifies that "The Trustees shall serve without compensation." Declaration of Trust, Article VII, Section 7.2.) For the reasons set forth herein, Plaintiff Myers has not shown and cannot show any valid grounds for the Court to intervene in this internal decision of a private charitable trust. Where the creator of the trust grants to the trustees the power to remove a fellow trustee, (Footnote 3: The authorities cited herein sometimes refer to the creator of a trust as "settlor" or "trustor.") the only limits on that power are those that the creator of the trust sets forth in the trust instrument itself. It is the intent of the creator of the trust, not that of any trustee, that controls. The power that the creator of the trust grants to the remaining trustees cannot be limited by the alleged subsequent "custom and practice" of the trustees. Plaintiff has no personal right to force himself on the Urantia Foundation as a Trustee.
II. ARGUMENT As a matter of law, Plaintiff Myers cannot support any claim for judicial intervention against the exercise of the removal power set forth in the Declaration of Trust. The Declaration of Trust Creating Urantia Foundation expressly grants to the Trustees, acting together, the power to remove an individual Trustee:
7.5 REMOVAL OF TRUSTEE: Any Trustee may be removed for any reason by a unanimous vote of the remaining Trustees. . . .
Declaration of Trust Creating Urantia Foundation, Article VII, Section 7.5 (Exhibit J to the Complaint). It is black-letter trust law that a trustee can be removed by private action in any manner authorized by the terms of the trust instrument. As the Restatement (Second) of Trusts states:
§107 Removal of Trustee. A trustee can be removed * * * (b) By the person, if any, who by the terms of the trust is authorized to remove the trustee.
Restatement (Second) of Trusts, § 107 (1987). The principal treatises of trust law confirm this rule:
§ 107.2 Removal in Accordance With the Terms of the Trust. By the terms of the trust the settlor may confer . . . on a third person . . . power to remove the trustee. The trustee may be removed through the proper exercise of such a power. If by the terms of the trust the power is to be exercised only under certain circumstances, it can properly be exercised only under those circumstances. * * * Where the power of removal is conferred without limitation, it is unnecessary for the person exercising the power to show cause for the removal.
W. Flatcher, Scott on Trusts § 107.2 (4th ed. 1987) (emphasis added, footnotes omitted).
§ 520 Provisions in Trust Instrument Regarding Removal.
. . . By so stipulating in the trust instrument, the settlor may reserve the power to remove a trustee] to himself, or vest it in a beneficiary or in a co-trustee.
G.C. Bogert, The Law of Trusts and Trustees, § 520 (Rev. 2d ed. 1993) (footnotes omitted); see also 90 C.J.S. § 235 ("There is no rule of public policy invalidating a grant of the power of removal to beneficiaries and cotrustees.")
As the United States Supreme Court ruled in May v. May, 167 U.S. 309 (1897), where persons are exercising the right granted in the trust document to remove a trustee, they are not required to have "cause" for removal as would be required in order for a court to remove a trustee. May v. May, 167 U.S. at 320. Even though the trust document in that case created the power to remove a trustee "for good and sufficient cause," the Supreme Court emphasized that the merits of that decision were not to be determined by a court. Instead, the Supreme Court stated that persons in whom the trust document had vested the power of removal had the authority to decide whether "cause" existed. (Footnote 4: Although the reasons given by the Trustees for their votes to remove Plaintiff Myers are within their discretion, Defendants have supplied for the Court as background information a description of those reasons in the Affidavit of Defendant Hoite C. Caston. Defendant Caston's affidavit sets forth verbatim the description of those reasons that Mr. Caston stated to Plaintiff Myers at the October 17, 1992 meeting. Affidavit of Hoite C. Caston, ¶ 16.) Id.
Where, as here, the trust document vests in a board of trustees the power to remove an individual trustee "for any reason," there are only two limited grounds upon which a court has authority to disturb the vote of the trustees. In this case, neither of those grounds can be supported by evidence. First, a court may intervene if the trustees have violated any requirement specified in the trust document itself governing removal of a trustee; there is no such evidence in this case. Second, a court, may interfere with the trustees' decision if it is shown to injure the beneficiaries of the trust. The court's sole proper focus is upon the rights of the beneficiaries, and not on any purported personal right of the removed trustee. Plaintiff Myers' Complaint asserts only alleged personal rights. He would lack standing to assert any claims on behalf of the beneficiaries, and even if he had standing there is no evidence of any injury to the beneficiaries caused by the removal of Mr. Myers as a Trustee.
There Is No Evidence That The Trustees Violated Any Restriction Specified In The Declaration Of Trust Regarding Removal Of Trustees.
1. The Declaration of Trust is the exclusive source of any limits on the exercise of the Trustees' power to remove an individual Trustee.
Plaintiff Myers does not even purport to base his claim on the Declaration of Trust. The reason for this is obvious -- there is no evidence that the Trustees failed to follow the terms of the Declaration of Trust in removing him. The Declaration of Trust states only that "[a]ny Trustee may be removed for any reason by a unanimous vote of the remaining Trustees, . . . " Declaration of Trust, § 7.5. It does not contain any of the "procedural due process" restrictions he now asks this Court to engraft on the power of removal granted in that Declaration. His claim that this Court should engraft such additional requirements upon the Declaration of Trust is contrary to the law governing trusts.
In determining whether there are any restrictions on the exercise of the power of removal granted to the Trustees, as a matter of law the Court is limited by the intent of the creators of the trust as stated in the actual text of the Declaration of Trust. "It is axiomatic that the limits of a trustee's powers are determined by the instrument which creates the trust." Stuart v. Continental Ill. Nat. Bank & Trust, 68 I11.2d 502, 369 N.E.2d 1262, 1271 (1977); Ford v. Newman, 77 I11.2d 335, 396 N.E.2d 539, 540 (1979). If the trust instrument is clear and unambiguous, as in this case, the court must apply the trust instrument as written and must not look beyond its "four corners." Matter of Estate of Steward, 134 Ill.App.3d 412, 480 N.E.2d 201, 203 (1985); see also First National Bank of Chicago v. Canton Council, 426 N.E.2d 1188, 1201 (Ill. 1981); Storkan v. Ziska, 406 Ill. 259, 94 N.E.2d 185, 189 (Ill. 1950); Eiche v. Ill. Nat. Bank & Trust Co., 84 Ill.App.3d 535, 406 N.E.2d 210, 212 (1980). As the Illinois Appellate Court emphasized in Steward, " . . . it is not the function of a court to modify the document or create new terms. . . . " Id., 480 N.E.2d at 203.
The rule that only the trust document controls applies to trust provisions authorizing removal of trustees. For example, in Maletta v. Boczkowski, 93 A.D.2d 828, 461 N.Y.S.2d 42 (A.D. 2 Dept. 1983), the court rejected the argument that the removal of certain trustees "was improper as neither was given notice or an opportunity to be heard prior to his removal . . . , " because the trust document itself did not impose any such requirement. Maletta v. Boczkowski, 461 N.Y.S.2d at 43. The court stated:
"In the administration of a trust, the discovered intent of the trustor is of controlling importance, and the trust is to be administered in the manner laid down by him. Neither the court nor a beneficiary nor the legislature is competent to violate such intent and to substitute its discretion for that of the trustor" (61 NY Jur, Trusts, § 287). Therefore, in determining whether [the removed trustees] were entitled to notice and an opportunity to be heard, we must look to the "Agreement and Declaration of Trust".
Id. (emphasis added). Even though in that case the trust document specified that trustees could be removed "for cause" (a higher standard than the "any reason" language in the Declaration of Trust Creating Urantia Foundation), the court refused to impose any [- ment] that a trustee be given of notice and a hearing before removal:
There is no evidence of an intent to require notice and an opportunity to be heard prior to the dismissal of an Association Trustee for cause, and it is not for the court to rewrite the agreement so as to impose such a requirement.
Id.
Similarly, in In re. Lowe's Estate, 249 P. 128 (Utah 1926), the court rejected an argument that the power of removal created in the trust agreement could only be exercised "for cause." The court stated:
There is no question about the right of the testatrix to donate to Ms. Hampton an unconditional power to change the trustee. She had the right when she created the trust to name the trustee and to reserve to herself the power to remove it at will and without any cause or reason whatever other than her own desire to make the change, and, having that right, she might donate to another the power to remove the trustee named in the will and to appoint a successor at the discretion of the donee. It is admitted that in this will Ms. Lowe has donated to Ms. Hampton the power of removal and appointment. The only question in this case is as to the limitations and restrictions, if there be any, the donor has placed about the exercise of that power. The answer to that question depends upon the intention of the testatrix, for intention in regard to that matter, as the same can be discovered by an interpretation of the will, read in the light of the circumstances in which she wrote it, is binding upon the courts.
In re. Lowe's Estate, 249 P. at 130 (emphasis added, numerous citations of American and English authorities omitted). The court found that "the only conditions or limitations which she herself laid down in express language to guide the donee in the exercise of that power were that the successor must be named in writing and that the trustee must be a trust company." The court therefore refused to impose any additional limit on the exercise of that power or to require that it be exercised only "for cause." Id., 249 p. at 131.
Because the creators of the Declaration of Trust did not impose, in the Declaration's provisions regarding removal of Trustees, any of the alleged "procedural due process" requirements Plaintiff now argues, Plaintiff cannot properly ask this Court to add them.
2. The right of removal granted in the Declaration of Trust cannot be limited by any alleged "custom and practice."
The foregoing rules of law also foreclose any claim that the power of removal granted in the Declaration of Trust is limited by any alleged "custom and practice" of the Trustees as plaintiff claims at paragraph 31 of the Complaint. Even if there were any such "custom and practice" of the Trustees, as opposed to the single prior instance alleged in the Complaint (Footnote 5: The only allegation Plaintiff offers to support his claim of a "custom and practice" of the Trustees is a single prior instance. Complaint, paragraph 31.A. As a matter of law, a single prior instance would be insufficient to evidence a "custom and practice." Bean v. Norfolk & Western Ry. Co., 84 Ill.App.3d 395, 405 N.E.2d 418, 426 (1980). Moreover, evidence of "custom or practice," even if otherwise relevant, cannot be admitted when, as in this case, the provision at issue is clear and unambiguous. Id.), under Illinois law no such custom or practice could add any restriction or limitation that was not specified in the trust instrument itself. Gorin v. McFarland, 108 Ill.App.2d 348, 247 N.E.2d 620, 622 (1969). Finally, for a practice or custom to become part of an agreement, it must have existed at the time the agreement was made, and not arise after the fact as Myers alleges in this case. Id.)
In Gorin v. McFarland, the evidence showed that for a period of twenty- five years the trustees always had made decisions based on unanimous vote. Id. However, the trust instrument did not require a unanimous vote. Id. The Illinois Court of Appeals therefore held that the trustees' uninterrupted twenty-five year custom of acting by unanimous vote nevertheless could not create a requirement of unanimity that was not specified in the trust instrument. Id. The Court held "whatever may have been the belief or whatever may have been the practice, neither acquire immortality unless immortality is given them in the instrument creating the trust." Id., 247 N.E.2d at 622 (emphasis added); see also Steward 480 N.E.2d at 203 (the court cannot modify a trust document or create new terms).
The same rule of law laid down in Gorin and in the authorities set forth above also forecloses Plaintiff's claim that the Court should engraft onto the Declaration of Trust any additional limitations Plaintiff seeks to draw from "the longstanding principles of Urantia Foundation" such as "the Principle of Proper Procedures," (Complaint, ¶ 10), or the "philosophical concepts and teachings from the Foundation's principal publication, "the Urantia Book" (Complaint, ¶ 24). Whatever views the creators of the Declaration of Trust held about such principles or philosophies they did not specify, in the Declaration of Trust, whether or how any such principles or philosophies restrict the right of the Trustees to exercise the power of removal set forth in Section 7.5 of that Declaration of Trust. Because the Declaration of Trust itself does not so specify, the law of trusts makes it unnecessary for a civil Court even to reach the question of whether it properly could adjudicate the meaning or application of the "philosophical teachings" of The Urantia Book. (Footnote 6)
Footnote 6: In any case, the First Amendment would forbid Plaintiff's attempt to use a secular or civil court to adjudicate or apply the "philosophical teachings" of The Urantia Book. As shown in its table of contents, The Urantia Book consists of over 2,000 pages addressing a broad spectrum of spiritual and religious subjects, and includes discussions about God, Jesus, Paradise, angels, spiritual beings, and numerous matters and principles of spiritual faith. See Affidavit of Hoite C. Caston, Exhibit 2. The Supreme Court has explained that the First Amendment prohibits civil courts from adjudicating disputes over the meaning or application of spiritual or religious rules or principles, or matters of faith:
"Such a determination frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts . . . to decide . . . religious law . . . would violate the First Amendment in much the same manner as civil determination of religious doctrine."
Serbian Eastern Orthodox Diocese v. Milivonevich, 426 U.S. 696, 708-709, 49 L.Ed.2d 151, 162, 96 S.Ct. 2372, 2380 (1976) (citation omitted). The Court need only review the table of contents to The Urantia Book to see that the First Amendment precludes any clair that a civil court should interpret or apply the "philosophical teachings" of The Urantia Book.
(End of Footnote 6).
B. The Complaint Presents No Cognizable Claim Asserting Any Rights Of The Beneficiaries, And Plaintiff Has No Personal Right To Be A Trustee.
The false premise of Plaintiff's claim is that he possesses some personal right to be a Trustee. He has no such personal right as Trustee under the law of trusts. To the contrary, the sole concern of a court of equity interviewing administration or trust is the interest of the beneficiaries -- the trust exists for the benefit of the beneficiaries, not for the personal benefit of any individual trustee. As explained in Bogert, The Law of Trusts and Trustees, although a court of equity always has authority to [____] to prevent abuse of the co-trustees' power to remove an individual trustee, the concern of the court is for the beneficiaries and not for the removed trustee: If the power [to remove a trustee] is reserved to the settlor or given to co-trustees, the court of equity will intervene to prevent an abuse of the power. Here the question on which the court must pass, however, is not whether there was cause for removal, but whether any beneficiaries have been injured.
G.C. Bogert, The Law of Trusts and Trustees, § 520 at p. 29 (emphasis added). Similarly, Scott on Trusts specifies that the proper function of a court, in reviewing the exercise of the power to remove a trustee, is to "prevent its exercise in such a manner as to prejudice the rights of the beneficiaries." W. Flatcher, Scott on Trusts, § 107.2, p. 124 (emphasis added). This rule was applied in Florida Nat. Blda. Corp. v. Miami Beach First Nat. Bank, 9 So.2d 563 (Fla. 1942) (en banc). In that case, a county bond trust agreement authorized a majority of the bondholders to remove the trustee, but the trustee sought to enjoin them from exercising the power of removal. The court ruled that the trustee had no right to prevent that removal, because:
It is not shown that the removal of the trustee in this case is such an arbitrary exercise or abuse of the authority conferred as has caused or will cause injury or harmful results to the county or to any bondholders whose interests are the subject of the contract. * * * The law implies that the specifically conferred authority to remove the trustee shall not be so exercised or abused as to unduly injure the rights of the county or of any bondholders for whose benefit the trust agreement was created; but the law also intends and contemplates that the expressly conferred authority to remove the trustee may be exercised `at any time' as provided in the trust contract. Such trustee has no fixed tenure or term of office as trustee, . . .
Florida Nat. Blda. Corp. v. Miami Beach First Nat. Bank, 9 So.2d 564 (emphasis added). Thus, Plaintiff Myers cannot create a justiciable claim merely by labelling the Trustees' decision "arbitrary" -- the only cognizable issue would be whether their decision harmed the beneficiaries, not an individual trustee.
Even in cases involving judicial removal of a trustee (rather than removal pursuant to the trust document by other trustees or the beneficiaries), the court's focus is solely on the rights of beneficiaries; the claimed "innocence" of the trustee is not determinative. As the Supreme Court observed in May v. May:
The power of a court of equity to remove a trustee, and to substitute another in its place, is incidental to its paramount duty to see that trusts are properly executed; and may be properly exercised whenever such a state of mutual ill-feeling, growing out of his behavior, exists between the trustees, or between the trustee in question and the beneficiaries, that his continuancy in office would be detrimental to the execution of the trust, even if for no other reason than that human infirmity would prevent the co-trustees or the beneficiaries from working in harmony with him, and although charges of misconduct against him are either not made out or are greatly exaggerated.
May v. May, 167 U.S. at 320. Thus, even in that context a trustee has no "personal right" to withstand removal until he is "proven guilty" of some personal wrongdoing. This principle has been adopted in Illinois decisional law. Steger v. Northen, 229 Ill. App. 529 (1 Dist. 1923).
Moreover, as recognized in May v. May and in Steger v. Northen, equity courts historically have viewed with suspicion and [____] any effort by a trustee to force himself upon the trust. And the United States Supreme Court and the Illinois Court of Appeals have cited with approval an early decision of an English Lord Chancellor expressing that view. The Illinois Court of Appeals, describing the Supreme Court's opinion in May v. May, stated:
And the court mentioned the case of Uvedale v. Ettrick, 2 Cha. Cas. 130, decided by Lord Chancellor Nottingham in 1682, where it appeared that Ettrick (a trustee appointed under a will and whose removal was sought) insisted on continuing in office as trustee, and quoted from the Lord Chancellor: "I like not that a man should be ambitious of a trust, when he can get nothing but trouble by it," and who "declared that, without any reflection on Ettrick, he should meddle no farther in the trust, etc." Steqer v. Northen, 229 Ill. App. at 541.
In summary, while a court in equity has authority in a proper case to review trustee action to prevent injury to the beneficiaries, Plaintiff Myers does not properly raise any such claim. Plaintiff's allegations about alleged personal rights are invalid for the reasons set forth above, and the Complaint does not even allege any harm to the beneficiaries. Moreover, as set forth more fully in the Motion for Judgment on the Pleadings filed contemporaneously herewith, Plaintiff Myers would lack standing to assert any claims on behalf of the beneficiaries even if there were evidence to support any such claim.
III. CONCLUSION In view of the foregoing reasons, and in the alternative to Defendants' Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, Defendants respectfully request the Court to enter summary judgment dismissing this action with prejudice. Dated: March 11, 1994
Respectfully submitted,
One of the Attorneys for Defendants Dean Booth, Esq., etc.March 11, 1994
DEFENDANTS' MOTION TO STAY DISCOVERY PENDING DECISION ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, FOR FAILURE TO STATE A CLAIM AND FOR LACK OF STANDING
COME NOW Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, and Philip A. Rolnick ("Defendants"), by and through their attorneys, pursuant to Rule 26 of the Federal Rules of Civil Procedure and Rule 12 of the Rules of the United States District Court for the Northern District of Illinois, and hereby move to stay discovery pending decision on Defendants' Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, and show the Court the following:
1. On March 11, 1994, Defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed with the Court their Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing.
2. Defendants submit that all discovery, including the mandatory conference and disclosures required by Rule 26(a) of the Federal Rules of Civil Procedure should be stayed pending the decision on Defendants' Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, in order to avoid the unnecessary burden and expense of conducting discovery in a case that is subject to dismissal.
3. In support of their motion, Defendants rely on their Memorandum of Law in support of this motion which is submitted herewith.
Wherefore Defendants respectfully request that the Court enter an order staying all discovery in this action, including deferral of the mandatory conference and disclosure requirements of Rule 26 (a) of the Federal Rules of Civil Procedure, pending the Court's ruling on Defendants' Motion for Judgment on the Pleadings. Dated March 11, 1994 Respectfully submitted, One of the Attorneys for Defendants Dean Booth, Esq., etc. Docketed March 15, 1994 DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO STAY DISCOVERY PENDING DECISION ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, FOR FAILURE TO STATE A CLAIM AND FOR LACK OF STANDING
I. INTRODUCTION
Defendants have filed with the Court, pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure, their Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing. As shown in that motion, Plaintiff Myers fails to state a claim for alleged deprivation of procedural due process under the Fifth and Fourteenth Amendments. He also lacks standing to challenge the actions of the Trustees of a charitable trust such as the Urantia Foundation because the Attorney General of Illinois has exclusive authority to seek judicial review of any matters involving the administration, construction or enforcement of a charitable trust. As shown in Defendants' Memorandum of Law in Support of their Motion for Judgment on the Pleadings, the issue of whether a party states an actionable due process claim and whether a party has standing to bring an action are threshold issues -- if the plaintiff does not challenge government action as the basis for a due process claim or has no standing to bring the action, the court is without authority to consider the merits of the action and must dismiss it. When a motion to dismiss has been filed it is appropriate for the district court to stay discovery pending the outcome of the motion in order to eliminate burdensome and unnecessary discovery at a premature stage of the proceedings.
Defendants therefore ask the Court to enter an order staying all discovery pending its decision on Defendants' Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, and deferring the parties' obligations with respect to the mandatory discovery procedures set forth in Rule 26(a) and (f) of the Federal Rules of Civil Procedure.
II. ARGUMENT AND CITATION OF AUTHORITIES The district court has broad discretion with respect to discovery matters, including discretion to stay all discovery pending resolution of a dispositive motion. Fed. R. Civ. P. 26; Indianapolis Colts v. Mayor & City Council, 775 F.2d 177, 183 (7th Cir. 1985); United States v. Bartesch, 110 F.R.D. 128, 129 (N.D. Ill. 1986); Ohio-Sealy Mattress Mfq. Co. v. Duncan, 95 F.R.D. 99, 100 (N.D. Ill. 1982); see also Patterson v. U.S. Postal Service, 901 F.2d 927, 929 (llth Cir. 1990) (it is appropriate for a district court to stay all discovery pending resolution of a dispositive motion). This is especially true of motions dealing with the threshold issues of whether the Complaint states an actionable due process claim and whether the plaintiff has standing to bring the action because, if the plaintiff does not challenge government action or lacks standing, the court is without authority to consider the merits of the action. Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); Freedom From Religion Foundation, Inc. v. Ziekle, 845 F.2d 1463, 1467 (7th Cir. 1988). Moreover, discovery is not necessary for the Court to analyze whether the Complaint states a claim or whether Plaintiff has standing, because these issues relate solely to the allegations of the Complaint and the status of the parties. Ziekle, 845 F.2d at 1467; Foster v. Center Township of LaPorte Countv, 798 F.2d 237, 241 (7th Cir. 1986). As shown in Defendants' Motion for Judgment on the Pleadings,, Plaintiff cannot state a valid constitutional claim against private persons, and Plaintiff lacks standing to challenge the actions of the trustees of a charitable trust. There is no need to conduct discovery before the Court decides these issues.
A motion to dismiss under Rule 12 for lack of standing ". . . involves an examination of the face of the complaint, which does not depend upon discovery." Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987). Indeed, in Haase v. Sessions the Court of Appeals for the District of Columbia Circuit held that a plaintiff has no right to discovery in opposing a Rule 12 motion to dismiss for lack of standing. Id. The Haase Court emphasized that disallowing discovery pending the outcome of a motion to dismiss for lack of standing ". . . protects both plaintiff and defendant from burdensome and unnecessary discovery at a premature stage of the proceedings." Id.
With the recent amendments to Rule 36 of the Federal Rules of Civil Procedure establishing mandatory discovery requirements, the district court's stay of all discovery pending resolution of a standing or other threshold issues is essential. The revised Rule 26 of the Federal Rules requires the parties to hold a mandatory conference as soon as practicable to discuss, inter alia, a discovery plan and to voluntarily exchange certain kinds of the information and documents. If the Court lacks authority to hear the action, these procedures are unnecessary and only serve to unduly burden the parties and to cause unnecessary trouble and expense. When a motion to dismiss for lack of standing is pending, a stay of discovery is necessary to fulfill the fundamental purpose of the Federal Rules -- "the just, speedy and inexpensive determination of every action." Rule 1, Fed.R. Civ. P.
III. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court enter an order staying all discovery in this action and deferring the parties' obligations under Rule 26 (a) and (f) of the Federal Rules of Civil Procedure, pending the Court's decision on Defendants' Motion for Judgment on the Pleadings. Docketed March 16, 1994 DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO REMAND
I. INTRODUCTION Defendants Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, and Philip A. Rolnick, by and through their attorneys, submit this memorandum in opposition to Plaintiff's Motion to Remand. For the reasons set forth herein, Defendants were entitled to remove this case to this Court on either of two alternative grounds, and Plaintiff has failed to show that this Court lacks removal jurisdiction. This Court has both diversity and federal question removal jurisdiction over this case.
First, whether viewed from Plaintiff Myers' perspective or from Defendants' perspective, the value of the matter in dispute far exceeds the $50,000 requirement for diversity jurisdiction. Because Plaintiff Myers cannot establish to a legal certainty that the value of the matter in dispute is less than $50,000, Defendants are entitled to have the case decided in this Court under diversity jurisdiction. Second, Plaintiff Myers' Complaint asserts claims or rights arising under the Fifth and Fourteenth Amendments to the United States Constitution, and the "Illinois case law" to which he refers applies federal constitutional law. He cannot sidestep federal question removal jurisdiction by the transparent stratagem of citing state decisions that apply federal law. Defendants therefore respectfully request that this Court deny the motion to remand.
A. THE COURT HAS DIVERSITY REMOVAL JURISDICTION BECAUSE THERE IS COMPLETE DIVERSITY AND THE VALUE OF THE OBJECT OF THIS LITIGATION EXCEEDS $50 000.
1. There Is Complete Diversity Of Citizenship Between The Parties.
In his Motion to Remand, Plaintiff Myers acknowledges that there is complete diversity of citizenship between the parties. Thus, with respect to the question of whether the Court has diversity jurisdiction for purposes of removal, the only issue presented by Plaintiff Myers' Motion to Remand is whether the value of the object of this litigation exceeds $50,000. As explained below, the Court possesses diversity jurisdiction over this action because, although Plaintiff Myers seeks only declaratory and equitable relief, the value of the matter in dispute exceeds the $50,000 jurisdictional threshold.
2. The Object Of This Litigation Is Plaintiff Myers' Alleged Right To Be Reinstated As A Trustee Of The Urantia Foundation, A Charitable Trust With Assets Valued In Excess Of $2,000,000; That Right Has A Value Of At Least $50.000.
In his Motion to Remand, Plaintiff Myers apparently contends that all a plaintiff must do to avoid a federal district court's diversity jurisdiction is to assert that he does not seek monetary relief. However, Plaintiff Myers' position is contrary to governing law. As shown below, whether viewed from Plaintiff Myers' perspective or from Defendants' perspective, the value of the alleged matter in issue in this case exceeds $50,000.
The fact that the plaintiff does not seek monetary damages does not mean that the "amount in controversy" requirement cannot be met. "In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383, 396 (1977) (action seeking to enjoin enforcement of a North Carolina statute, no monetary relief requested); see also Mississippi & Missouri R.R. Co. v. Ward, 67 U.S. 485, 17 L. Ed. 311 (1862) (individual damage does not govern the amount in controversy in equity cases, but rather the value of the object of the litigation).
In McCarty v. Amoco Pipeline Co., 595 F.2d 389, 391-395 (7th Cir. 1979), the Seventh Circuit adopted the "either viewpoint" rule and held that in assessing the "amount in controversy" issue, a district court should find that jurisdiction exists if the amount in controversy appears to exceed the jurisdictional amount when viewed from the perspective of either party. As shown below, when this action is viewed from either Plaintiff Myers' or Defendants' perspective, the value of the object of this litigation exceeds the $50,000 jurisdictional threshold.
The object of Plaintiff Myers' Complaint is to have this Court reinstate Myers as a Trustee of the Urantia Foundation, so that he can participate in controlling the Foundation and its assets. Complaint, pp. 11-13, Prayer for Relief; see also Complaint, Exhibit J, pp. 8-19. As shown in the Exhibits attached to the Affidavit of Joan E. Bondi (filed herewith), the Urantia Foundation is a charitable trust which holds assets valued in excess of $2,600,000 as of December 31, 1992 the date of the Foundation's most recent audited financial statements), and which received more than $900,000 in contributions during 1991 and more than $600,000 in contributions during 1992. Bondi Affidavit, Exhibit A (Urantia Foundation Financial Statements as of December 31, 1991 and 1992) and Exhibit B (Charitable Organization Supplement Form filed with the Illinois Attorney General). Thus, the interest asserted by Plaintiff Myers in this action is an alleged right to participate in the control of a charitable trust worth over $2,600,000 and which receives far more in contributions annually than the $50,000. Although it is difficult to calculate precisely the dollar value of the rights which Myers alleges in his Complaint, in economic terms the only objective basis on which to do so is to look at the value of the Urantia Foundation. From Defendants' perspective, Defendants are charged as Trustees with the duty to protect the interests of the Foundation and to manage the Foundation's assets. Complaint, Exhibit J, pp. 8-19.
In situations similar to this case, federal courts have valued an alleged right to hold membership or office in a private organization to have sufficient "value" to satisfy the amount in controversy requirement for purposes of diversity jurisdiction. In Hirsch v. Jewish War Veterans of United States, the plaintiffs brought an action in a state court seeking an injunction to prohibit their discharge from a private veterans organization known as the "Jewish War Veterans of the United States of America." Hirsch v. Jewish War Veterans of United States, 537 F. Supp. 242 (E.D. Pa. 1982). After the state court entered a preliminary injunction, the defendants removed the case to a federal district court. Id. at 242-243. The plaintiffs then moved to have the case remanded. Like Plaintiff Myers, the plaintiffs in that case argued that the amount in controversy did not exceed the jurisdictional amount (at that time $10,000) because they were not seeking monetary relief but an injunction against their removal from the organization. (Footnote 1: The plaintiffs had requested punitive damages, but the district court specifically held that it possessed diversity jurisdiction " . . . without relying upon their respective claims for punitive damages." Hirsch, 537 F. Supp. at 244, n. 3.) Id. at 243.
The Hirsch Court rejected the plaintiffs' argument and held that,
[w]here, as here, injunctive relief is sought, the amount in controversy is measured by the value of the interest to be protected by the equitable relief requested. . . . Absolute certainty in valuation is not required.
537 F. Supp. at 243 (citations omitted). Because the court could not say with certainty that the value of the plaintiffs' right to membership in the Jewish War Veterans organization was less than the jurisdictional amount, it denied the plaintiffs' motion to remand. Id. Although the plaintiffs' interest in their membership was difficult to value in money, the court also emphasized that " . . . such difficulty does not preclude a finding that the protected interest satisfies the amount in controversy requirement." Id.
Another federal court arrived at the same conclusion in applying the "amount in controversy" standard to a dispute over an alleged right to serve as a director of a corporation. In Wilder v. Brace, the plaintiffs brought an action for a declaration recognizing them as directors of a corporation. Wilder v. Brace, 218 F. Supp. 860 (D. Me. 1963). The defendants claimed that the necessary amount in controversy was absent because the complaint sought only declaratory relief. The court looked to the value of the corporation over which plaintiffs sought to exercise control as directors and held:
The defendants' assertion that the jurisdictional amount is not present in this action is equally without merit. The sole basis for this suggestion appears to be that the amount in controversy 'may well be measured by the emolument of the office,' which is concededly nominal. Unlike cases involving the right to public employment, . . . the fundamental matter in controversy here is the right to control a multi-million dollar corporation.
Wilder, 218 F. Supp. at 865 (citations omitted). On this basis, the court found the amount in controversy requirement to be satisfied and denied the defendants' motion to dismiss for lack of jurisdiction. Id., see also Corwin Jeep Sales v. American Motors Sales. Inc., 670 F. Supp. 591 (M.D. Pa. 1986) (in action seeking declaratory relief regarding automobile dealer's rights under franchise agreement, value of the dealership's assets used to value the object of the litigation).
When considering the former "amount in controversy" requirement for federal question jurisdiction, federal courts repeatedly have held that alleged intangible or non-economic injuries which are not readily capable of monetary valuation nevertheless can be substantial enough to meet the amount in controversy requirement. For example, the Supreme Court has held that the value of the State of Illinois' interest in purity of Lake Michigan's waters satisfied the amount in controversy requirement. City of Milwaukee v. Illinois, 406 U.S. 91, 98, 92 S. Ct. 1385, 31 L. Ed. 2d 712, 720 (1972) ("The considerable interest involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided in § 1331(a)"). The Third Circuit Court of Appeals has held that a plaintiff's alleged right to distribute political pamphlets on a military base was valuable enough to satisfy the amount in controversy requirement. Spock v. David, 469 F.2d 1047 (3rd Cir.) rev'd on other grounds sub nom. Greer v. Spock, 424 U.S. 828, 96 S. Ct. 1211, 47 L. Ed. 2d 505 (197S). In Hall County Historical Soc. v. Ga. Dept. of Transportation, 447 F. Supp. 741 (N.D. Ga. 1978), the court found that a historical society's "allegations of threatened non-economic injuries of an aesthetic or environmental character not readily capable of dollar valuation" satisfied the amount in controversy requirement. Hall County, 447 F. Supp. at 748. These cases make it clear that there simply is no requirement that the plaintiff seek monetary relief or that the plaintiffs' claim even be susceptible of specific monetary valuation in order to satisfy the "amount in controversy" requirement.
In this case, an objective basis for valuing Plaintiff Myers' alleged right to be reinstated as a Trustee is the value of the trust. As shown above, the Urantia Foundation has assets worth millions of dollars and receives in annual contributions far more than the jurisdictional minimum of $50,000. The fact that it may be difficult or impossible to evaluate in monetary terms the right to participate in controlling the Foundation and its assets does not preclude a finding that the amount in controversy requirement is met in this case. When viewed from Defendants' perspective, the value of the "object" of this litigation exceeds $50,000.
3. Plaintiff Myers Cannot Show To A Legal Certainty That The Value Of His Alleged Right To Be Reinstated As A Trustee Does Not Exceed $50.000.
The Supreme Court has long held that unless it appears to a legal certainty that the value of the dispute at issue is less than the jurisdictional amount, the "amount in controversy" requirement is deemed satisfied. St. Paul Mercury Indemnity Company v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938); Matter of Shell Oil Co., 966 F.2d 1130, 1131 (7th Cir. 1992); see also Ferrostal Metals Corp. v. Berlin Metals. Inc., 815 F. Supp. 263, 265 (N.D. Ill. 1993); Bryfoqle v. Carvel Corp., 666 F. Supp. 730, 732 (E.D. Pa. 1987). Thus, if there are any doubts regarding the value of the object of the litigation, those doubts must be resolved in favor of a finding that the value of the matter in controversy is sufficient.
As shown above, Plaintiff Myers cannot show to a legal certainty that the value of this case is worth less than $50,000. Indeed, as in the Wilder case cited above, the objective basis for valuing plaintiff's alleged right to be reinstated as a Trustee of the Urantia Foundation is to look to the value of the Foundation's assets and its annual contributions. As shown above, the Foundation's assets are valued in excess of $2,600,000 and the contributions it receives each year are far more than the minimum "amount in controversy." Affidavit of Joan E. Bondi, Exhibits A and B. Because Plaintiff Myers cannot show to a legal certainty that his alleged right to participate in the control of a multimillion dollar foundation is worth less than $50,000, his Motion to Remand for lack of diversity jurisdiction should be denied.
B. DEFENDANTS WERE ENTITLED TO REMOVE THIS ACTION ON THE GROUNDS THAT PLAINTIFF'S COMPLAINT ALLEGES CLAIMS ARISING UNDER THE CONSTITUTION OF THE UNITED STATES.
As an independent alternative ground, Defendants' removal was proper on the grounds that Plaintiff's action is "founded on a claim or right arising under the Constitution . . . of the United States. . . . " 28 U.S.C. § 1441(b). Plaintiff's Complaint alleges that he was entitled to a "due process hearing" and that he possessed a "due process property right." Complaint, ¶¶ 24, 31. Plaintiff has chosen to define the rights he alleges by the requirements of "the Fifth and Fourteenth Amendments to the United States Constitution requiring a fair and unbiased hearing." Id., s 24. The Illinois Court of Appeals decision which he cites and appends to his Complaint applies the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution, as they are defined by decisions of the U.S. Supreme Court. Complaint, Exhibit N, p. 25. The fact that the Plaintiff points to a decision of a state court that applies the federal Constitution (as state courts are bound to do under the Supremacy Clause: Footnote 2: The Supremacy Clause states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2 (emphasis added). End of Footnote 2) does not change the fact that the "claim or right" to due process being enforced by the state courts "aris[es] under the Constitution . . . of the United States." 28 U.S.C. § 1442.
A case is one "arising under" federal law "where the vindication of a right under state law necessarily turned on some construction of federal law." Franchise Tax Bd. v. Const. Laborers Vac. Trust, 463 U.S. 1, 9, 103 S. Ct. 2841, 2846, 77 L. Ed. 2d 420 (1983), citing Smith v. Kansas City Title & Trust Co., 255 U.S. 11180, 199, 41 S. Ct. 243, 6S L. Ed. 577, 585 (1921) and Hopkins v. Walker, 244 U.s. 486, 490-491, 37 S. Ct. 711, 61 L. Ed. 1270, 1275 (1917). Because Plaintiff has chosen to measure his claimed rights by the Fifth and Fourteenth Amendments, defendants are entitled to have the claim decided in federal court.
Plaintiff's claim that his Complaint rests on "Illinois case law" (Footnote 3: Polk v. Bd. of Trustees of the Police Pension Fund of the City of Park Ridge Illinois and the City of Park Ridge. Illinois, No. 91-3100, attached to the Complaint as Exhibit N.) cannot sidestep the fact that this case law applies federal constitutional law. Specifically, in Polk v. Bd. of Trustees of Police Pension Fund, the court's holding regarding due process rests on two U.S. Supreme Court decisions applying the U.S. Constitution, In re: Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625 (1955), and Withrow v. Larkin, 421 U.S. 35, 46, 43 L. Ed. 2d 712, 723, 95 S. Ct. 1456, 1464 (1975), and on Illinois decisions which in turn apply U.S. Supreme Court decisions applying the United States Constitution. Polk cites Scott v. Dept. of Commerce and Community Affairs, 84 Ill. 2d 42, 416 N.E.2d 1082 (1981), which applied decisions of the U.S. Supreme Court applying the due process requirements of the Fifth and Fourteenth Amendments of the U.S. Constitution. Scott v. Dest. of Commerce and Community Affairs, 84 I11.2d at 51-52, 54-55, citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902, 47 L. Ed. 2d 1833 (1975); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972) and Withrow v. Larkin, 421 U.S. at 46, 43 L. Ed. 2d at 723, 95 S. Ct. at 1464. (Footnote 4: Scott v. Dept. of Commerce and Community Affairs also cites Brown v. Air Pollution Control Board, 37 I11.2d 450, 454, 227 N.E.2d 754 (1967); Brown in turn applies decisions of the United States Supreme Court and the United States Court of Appeals for the Seventh Circuit applying federal constitutional law. Brown v. Air Pollution Control Board, 37 I11.2d at 454, 227 N.E.2d at 756, citing Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L. Ed. 2d 754 (1961); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L. Ed. 158, 170 (1932); and Yiannopoulos v. Robinson, 247 F.2d 655, 657 (7th Cir. 1957). (End of Footnote 4). Polk also cites Waste Management of Illinois Inc. v. Pollution Control Board, 175 Ill. App. 3d 1023, 530 N.E.2d 682 (1988), in which the Illinois Court of Appeals cited Scott v. Dept. of Commerce and Community Affairs, which was in turn based on the foregoing U.S. Supreme Court decisions applying the United States Constitution.
Having chosen to define his claimed rights by the Fifth and Fourteenth Amendments' "due process" requirements, Plaintiff cannot transform these into "state law" claims merely by citing a state court case that applies that federal constitutional law. The fact that state courts have occasion to apply federal law (and indeed are bound to do so under the Supremacy Clause of the U.S. Constitution) does not transform federal law into state law. Plaintiff's choice of federal constitutional principles is clear; his complaint does not even mention the Illinois Constitution, which also contains a "due process" provision. Ill. Const. 1970, art. I, § 2. Of course, Plaintiff's Complaint would not have stated a claim under the due process clause of the Illinois Constitution either, because that clause applies only to governmental action and Plaintiff admits that the "Urantia Foundation is not a governmental agency. . . . " Affidavit of Martin W. Myers, ¶ 5, filed March 9, 1994; U.S.A. I Lehndorff Vermoeqensverwaltunq GmbH & Cie v. Cousin's Club. Inc., 64 Ill. 2d 11, 20, 348 N.E 2d 831, 835 (1976), quoting 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1496 ("Now one thing I think we should make clear, although it's hard for me to believe anybody would not realize this, due process only has application to actions by the state in relationship to individuals."); Methodist Medical Center of Illinois v. Taylor, 140 Ill. App. 3d 713, 717, 489 N.E.2d 351, 354 (1986) ("Both clauses under both constitutions stand as a prohibition against governmental action, not action by private individuals.").
Because Plaintiff expressly alleges that the "due process" rights he claims are defined by the Fifth and Fourteenth Amendments to the United States Constitution (Complaint, ¶ 24) and because the "Illinois case law" he cites applies federal constitutional law (as interpreted by the U.S. Supreme Court), Defendants are entitled to have this federal Court decide the merits of his "due process" claim.
III. CONCLUSION For all of the foregoing reasons, the Court possesses both diversity and federal question removal jurisdiction in this case. Defendants therefore respectfully ask the Court to deny Plaintiff's Motion to Remand this action to the Circuit Court of Cook County.
March 11, 1994
DEFENDANTS' ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
COME NOW Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, and Philip A. Rolnick ("Defendants"), by and through their attorneys, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 12 of the Rules of the United States District Court for the Northern District of Illinois, and hereby move in the alternative for summary judgment, and show the Court the following:
1. Regarding Plaintiff's Complaint, there is no material issue of fact to be resolved by the Court and Defendants are entitled to judgment in their favor as a matter of law.
2. In support of their motion, Defendants rely on the Affidavit of Hoite C. Caston, the pleadings and all else on file in this action, and their Memorandum of Law in support this motion which is submitted herewith.
3. In accordance with Rule 12 M of the Rules of the United States District Court for the Northern District of Illinois, Defendants submit with their motion a Statement of Material Facts as to Which There is no Genuine Issue.
WHEREFORE, in the event that the Court does not enter judgment on the pleadings as requested in Defendants' Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, Defendants respectfully request that the Court enter summary judgment dismissing the Complaint with prejudice. March 11, 1994 Respectfully submitted, One of the Attorneys for Defendants Dean Booth, Esq., etc. March 11, 1994 DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, FOR FAILURE TO STATE A CLAIM AND FOR LACK OF STANDING
COME NOW Thomas C. Burns, Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, and Philip A. Rolnick ("Defendants"), by and through their attorneys, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and Rule 12 of the Rules of the United States District Court for the Northern District of Illinois, and hereby move for judgment on the pleadings, and show the Court the following:
1. Plaintiff's Complaint fails to state a claim for alleged deprivation of procedural due process under the Fifth and Fourteenth Amendments because he does not allege that state action or governmental action is at issue in the case.
2. The Attorney General of the State of Illinois has exclusive authority to seek judicial review of the administration of a charitable trust. Plaintiff therefore lacks standing to bring this action.
3. In support of their motion, Defendants rely on the pleadings and their Memorandum of Law in support this motion which is submitted herewith.
WHEREFORE, Defendants respectfully request that the Court grant their Motion for Judgment on the Pleadings, for Failure to State a Claim and for Lack of Standing, and dismiss this action. Dated: March 11, 1994
Respectfully submitted,
One of the Attorneys for Defendants Dean Booth, Esq., etc.April 26, 1994
DEFENDANTS' MOTION FOR LEAVE TO FILE AFFIDAVITS
NOW COME Defendants, by and through their attorneys, and move this Court for Leave to File the attached Affidavits of Hoite C. Caston, K. Richard Keeler, Patricia Sadler Mundelius, Thomas C. Burns and Philip A. Rolnick, in opposition to Plaintiff's Motion to Remand. In support of their Motion for Leave to File, Defendants state as follows:
1. Presently pending before the Court is Plaintiff's Motion to Remand. Defendants filed their opposition to Plaintiff's Motion on March 15, 1994, prior to the original hearing on Plaintiff's Motion on March 18, 1994. During the hearing, the Court struck Plaintiff's Motion to Remand, along with the motions that Defendants had filed.
2. A status conference was conducted on April 15, 1994, during which the Court advised that Plaintiff's Motion to Remand would be reinstated, and that Plaintiff would have until April 29, 1994 to file his Reply Memorandum. Minute Orders were issued regarding these matters on April 15 and 20, 1994.
3. The attached affidavits provide further proof of the amount in controversy in this matter, specifically that the amount in controversy exceeds $50,000. These affidavits simply confirm the factual recitations in Defendants' opposition to Plaintiff's Motion to Remand.
4. On April 19, 1994, counsel for Defendants furnished to Plaintiff's counsel the text of the proposed affidavits. Counsel for the respective parties have conferred regarding this Motion for Leave, and counsel for Plaintiff has advised that Plaintiff does not oppose this Motion.
Accordingly, Defendants respectfully request that the Court grant the Defendants leave to file the attached affidavits, in opposition to Plaintiff's Motion to Remand. DATED: April 27, 1994 Martin K. LaPointe One of the Attorneys for Defendants Dean Booth, Esq. AFFIDAVIT OF EACH OF THE TRUSTEES: THOMAS C. BURNS, PH.D., HOITE C. CASTON, RICHARD REELER, PHILIP A. ROLNICK, PH.D., PATRICIA SADLER MUNDELIUS
[NAME], being duly sworn, deposes and states:
1. My name is [NAME]. I am a Trustee of the Urantia Foundation. I am familiar with the dispute Martin Myers has raised in this lawsuit, in which he challenges the actions and votes of the Trustees removing Mr. Myers as a Trustee of the Urantia Foundation.
4. The value of the ability of the Trustees to exercise the power granted to them in the Declaration of Trust to remove an individual Trustee is more valuable than $50,000. The value of the Trustees' right to reject the procedure demanded by Mr. Myers, which the Trustees determined was inconsistent with the By-Laws of Urantia Foundation, is more valuable than the value of $50,000.
FURTHER SWEARING, AFFIANT SAYETH NAUGHT.
April 18, 1994
Letter from Dale Owens (Trustees' lawyer) to Stanley Jakala (Martin Myers' lawyer).
Dear Stanley:
On behalf of the defendants, we will file this week a memorandum in opposition to the plaintiff's motion to remand. It will be the same as the brief we previously filed, with two additions:
1. It will add a reference to Jandron v. Zuendel, 139 F. Supp. 887 (N.D. Ohio 1955), on the question of jurisdictional amount.
2. It will add reference to affidavit testimony from one or more of the Trustees stating that the value of the object of this litigation (whether the decision of the Trustees removing Mr. Myers can be overturned) is in excess of $50,000. It presumably is no surprise to you or to Mr. Myers that the Trustees believe that the issue has a value greater than $50,000,
I will forward these materials to you as soon as they are ready for filing, but I am sending you this letter to give you early notice on these two points.
Best regards.
Sincerely yours,
Dale Owens
Docketed May 2, 1994
REPLY TO DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO REMAND
In Defendants' Memorandum in Opposition to Plaintiff's Motion to Remand, the defendants maintain that the jurisdictional amount exceeds $50,000, on the basis that the corpus of the charitable trust exceeds over $2,600,000, and the trust also receives annual contributions of more than $50,000.
Because of the aforesaid assets, on page 10 of the defendants' memorandum, the defendants state:
Because Plaintiff Myers cannot show to a legal certainty that his alleged right to participate in the control of a multi-million dollar foundation is worth less than $50,000, his Motion to Remand for lack of diversity jurisdiction should be denied.
To support the above defendants' argument, and upon the assumption that the court has granted the defendants' motion to file affidavits of defendant trustees in support of that argument, said motion being filed before this court for disposition on April 29, 1994, and this reply being due on the same date, attached herein are the affidavits of the defendant trustees, marked Group Exhibit A, which state:
The value of the ability of the Trustees to exercise the power granted to them in the Declaration of Trust to remove an individual Trustee is more valuable than $50,000. The value of the Trustees' right to reject the procedure demanded by Mr. Myers, which the Trustees determined was inconsistent with the By-Laws of the Urantia Foundation, is more valuable than the value of $50,000.
Replying to the defendants' contention that the plaintiff cannot show to a legal certainty that his alleged right to participate in the control of a multi-million dollar foundation is worth less than $50,000 and that the value of the trustees' right to remove the plaintiff is more valuable than $50,000, an examination of the plaintiff's Complaint for Declaratory Judgment and Mandamus reveals that monetary considerations are not the object of the litigation, since the plaintiff is not entitled to any compensation as a trustee pursuant to the Declaration of Trust Creating Urantia Foundation, specifically Article VII, Section 7.2, attached to plaintiff's complaint for declaratory judgment, Exhibit J, page 20 of exhibit, which provides "the trustee shall serve without compensation."
But, the object of the litigation as expressed in the plaintiff's Complaint for Declaratory Judgment and Mandamus is that he be provided a due process hearing for purposes of reinstatement as trustee on the basis of contractual due process claim.
At the same time, there is no economic loss to the defendants that can be valued in excess of $50,000, since the defendants are not liable to pay any damages in the event of the reinstatement of the plaintiff as trustee; if the plaintiff were successful in being reinstated as trustee, his participation in controlling a multi-million foundation would be subject to the control of the defendant trustees, who constitute the majority of the trustee vote, thereby nullifying the plaintiff's control over the foundation to zero.
Consequently, on the basis of the plaintiff's analysis, the plaintiff shall refer this Court to numerous case law which has supported motions to remand.
In Stemmons v Toyota Tsusho America, Inc., 802 F.Supp. 195 (N.D. 1992), at page 197, the United States District Court observed that "Questions on removal are accordingly strictly construed against federal jurisdiction."
Further, on page 197 of the Stemmons opinion, the United States District Court stated that "federal court should remand if doubt exists as to right of removal. And ambiguities are resolved against removal when doubt exists as to jurisdiction." See Navarro v. Subaru of America Operations Corp., 802 F.Supp. 191 (N.D. Ill. 1992).
In conjunction with the above observations of the United States District Court for the Northern District, in Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992), at 565, the Court asserts: "Strong presumption against removal jurisdiction means that defendant always has burden of establishing that removal is proper."
Relative to that statement, the Gaus Court noted that if the damages are unclear, then the defendant has the burden of actually proving the facts that support the jurisdiction, including jurisdictional amount.
Ordinarily, the damages stated in a complaint will establish the jurisdictional amount, pursuant to Krider Pharmacy v. Medi-Care Data Systems, 791 F.Supp. 221 (E.D. Wis. 1992), at 224.
However, in Krider Pharmacy, the Court did observe that, in certain situations, the ad damnum in a complaint will not be the method available for determining the jurisdictional amount; for example, in tort actions, under Wisconsin law, the plaintiff is forbidden for alleging quantitatively the amount of damages sought.
Consequently, the jurisdictional amount for purposes of removal is controlled by the allegations of plaintiff's complaint which existed at the time of the filing of the complaint, as substantiated by Hicks v. Universal Housinq, Inc., 792 F.Supp. 482 (S.D.W.Va. 1992), at 484.
Applying the stated case law to this matter, in the plaintiff's complaint, not only does the complaint state no damages which would be the initial factor to consider if there were grounds for removal, but the allegations of the complaint do not support any damages whatsoever, since pursuant to the Declaration of Trust Creating Urantia Foundation, Article VII, Section 7.2, attached as Exhibit J to the plaintiff's complaint, as a trustee, the plaintiff is not entitled to any compensation.
For purposes of emphasis,the thrust of the plaintiff's complaint is that he is seeking a hearing for reinstatement as trustee, with no monetary gain to him, and certainly no monetary loss to the defendants.
Based upon the above analysis, the plaintiff shall address the cited cases of the defendants as found in their Memorandum in Opposition to Plaintiff's Motion to Remand.
On page 4 of the defendants' memorandum, the defendants cite Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), for the proposition that, although no monetary relief had been requested, the Court found that there was federal jurisdiction based upon the value of the object of the litigation.
In Hunt, the litigation concerned the interstate commerce clause, wherein the Court observed that the State of Washington's failure to label different grades of apples involving two million dollars of sales of apples to North Carolina was a constitutional burden on interstate commerce, since those were substantial annual sales, and certainly met the jurisdictional requirement amount.
In this matter, there is no involvement of the interstate commerce clause concerning sales of any kind of any merchandise.
On page 6, the defendants cite Hirsch v. Jewish War Veterans of United States, 537 F.Supp. 242 (E.D. Pa. 1982) for the proposition that the irreparable harm to the reputations of the Jewish veterans, based upon dishonorable discharges, fines, forfeiture of rank, and removal from the organization was considered by the court as meeting the jurisdictional requirement of $10,000, since the court grouped each of the plaintiff's interest from a collective standpoint to determine a finding of a jurisdictional amount in excess of $10,000.
However, in this instance, the plaintiff does not allege complete removal from the Urantia Foundation as a member, but contests his removal as a trustee. Furthermore, he is only one plaintiff, as distinguished from being grouped collectively with other plaintiffs for the purpose of finding a jurisdictional amount in excess of $10,000.
At the same time, on page 7 of the defendants' memorandum, the citation of Wilder v. Brace, 218 F.Supp. 860 (D. Me. 1963), is readily distinguishable, since in Wilder, the action dealt with a for-profit corporation, rather than a not-for-profit, and concerned actions by shareholders, who had aspirations of becoming members of the Board of Directors of the corporation, litigating to unseat sitting members of the Board of Directors. Further, the shareholders in Wilder, with the exception of one Horwitz, each had stock valued over $10,000. Certainly, the Wilder case is distinguishable from that of the plaintiff herein, in that the plaintiff cannot hold any stock in a nonprofit corporation. Furthermore, he is not a shareholder seeking to unseat the current directors; nor is the corporation one for profit.
Likewise, on page 8 of their memorandum, the defendants cite Corwin Jeep Sales v. American Motors Sales, Inc., 670 F. Supp. 591 (M.D. Pa. 1986), wherein there was litigation concerning a franchise agreement. In his complaint, Corwin, as a plaintiff, did not demand any money damages, and contended that, because of the lack of such a demand, the jurisdictional amount was absent, thus denying the federal court jurisdiction.
However, in its opinion, at page 596, the U.S. District Court stated that although the plaintiff did not seek damages, he could not avoid federal jurisdiction by alleging equitable claims rather than damages. Nevertheless, the U.S. District Court's Corwin decision does not diminish this plaintiff's position for motion to remand, since Corwin's claim was based upon wrongful termination of an automobile franchise, which certainly involved monetary considerations, as contrasted with the plaintiff's claim herein in seeking reinstatement as a trustee, without any monetary considerations being involved.
Also, on page 8 of the defendants' memorandum, the defendants' reliance upon City of Milwaukee v. Illinois, 406 U.S. 91, 98, 92 S.Ct. 1385, 31 L.Ed. 712, 720 (1972), and Hall County Historical Soc. v. Ga. Dept. of Transportation, 447 F.Supp. 741 (N.D. Ga. 1978), for denying plaintiff's motion to remand, is also inapplicable.
In the City of Milwaukee matter, the defendant was polluting Lake Michigan water, which certainly would have a significant monetary impact on the plaintiff to maintain Lake Michigan water free of pollution, and therefore jurisdiction was found.
As for Hall County Historical Soc., the plaintiff filed an injunctive suit praying that the defendant be restrained from constructing a highway, which would have an adverse impact, both aesthetically and environmentally, upon the value of the plaintiff's adjoining property, which facts are distinguishable from that of the plaintiff herein, since there is no aesthetic or environmental issue involved in this plaintiff's particular set of circumstances.
In addition, on page 9, the defendants also maintain that the plaintiff cannot show with any legal certainty that the value of his alleged right to be reinstated as a trustee does not exceed $50,000, with the consequence that the motion to remand should be denied.
In conjunction with the defendants' position that, if the plaintiff cannot show with any legal certainty that the value of his alleged right to be reinstated as trustee does not exceed $50,000, the motion to remand should be denied, on page 10, the defendants cite Ferrostal Metals Corp. v. Berlin Metals, Inc., 815 F.Supp. 263, 265 (N.D. Ill. 1993).
In Ferrostal, there was a contract for a total price of $328,896 for the purchase of 90 coils; the defendant received 19 coils and paid $67,104, but the defendant refused to accept the remaining 71 coils, and refused to pay $261,792.
Based upon the demands of the claims and counterclaims, the court found that there was jurisdiction in excess of $50,000, and observed as follows, at 265:
Nevertheless, long settled federal precedent holds that the amount in controversy claimed by a plaintiff in good faith will be determinative on the issue of jurisdictional amount, unless it appears "to a legal certainty that the plaintiff's claim is for less than the jurisdictional amount." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Risse v. Woodard, 491 F.2d 1170, 1173 (7th Cir. 1974); Lichter, Paine, Webber, Jackson & Curtis, Inc., 570 F.Supp. 533(N.D.Ill. 1983). The actual burden of proof always lies with the party invoking federal jurisdiction, which must support its jurisdictional allegations by "competent proof." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979), citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936) ("the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.")
In this matter, since the plaintiff's claim is one for reinstatement as a trustee, for which he receives no compensation, as stated in the Declaration of Trust, there is a legal certainty that the plaintiff's claim is far less than the jurisdictional amount of $50,000; in fact, the claim is zero.
In addition, on page 10 of the defendants' memorandum, their reliance upon Bryfogle v. Carvel Corp., 666 F.Supp. 730, 732 (E.D. Pa. 1987), is misplaced because the Bryfoqle pleadings indicated damages in excess of 6 million dollars, wherein the pleadings, herein, indicate no monetary damages since damages are prohibited relative to compensating the plaintiff as a trustee.
Likewise, on page 10 of their memorandum, the defendants cite In the Matter of Shell Oil Co., 966 F.2d 1130, 1131 (7th Cir. 1992). In that matter, the plaintiff filed a complaint praying for a judgment exceeding $15,000, but less than $50,000, although his salary was $70,000 per year. On the motion to remand, the plaintiff filed a written stipulation that he would not seek any sum beyond $50,000 exclusive of interest and costs.
On the basis of that stipulation, the court remanded the matter to the state court. On appeal of the motion to remand, the U.S. Court of Appeals directed the District Court to explain the reason for the remand.
As was noted in the U.S. Court of Appeals opinion, page 1132, a motion to remand can be granted without explanation if the District Court believes that there is no jurisdiction from the outset, as such a District Court decision would block any review, even though the Appellate Court might disagree with that decision.
Comparing this matter to Shell, the plaintiff's factual situation supports a motion to remand, based upon the pleadings. Unlike in Shell, wherein the plaintiff earned a salary of $70,000 but was willing to stipulate to receiving $50,000, the complaint of the plaintiff herein specifically prays for no damages. This fact is not only supported by the affidavit attached to the motion to remand, but is also acknowledged by reference to the Declaration of Trust, which provides no compensation for trustees; therefore, plaintiff's claim for reinstatement as a trustee involves no claim for damages.
Reviewing the case law of the plaintiff and the defendants in this matter, the defendants' reliance upon McCarty v. Amoco Pipeline, 595 F.2d 389 (1979), concerning "either viewpoint rule," to support the defendants' argument that the assets of the Urantia Foundation of approximately $2,600,000 would be a basis for providing federal jurisdiction, it is the position of the plaintiff that, in McCarty, McCarty had asked the court to enjoin Amoco from using the McCarty land for Amoco's pipeline. The cost of removal of that pipeline, as well as the monetary loss to the defendant that would result from such removal, clearly demonstrated that the jurisdictional amount of $10,000 would be exceeded.
In order for the defendants, herein, to prevail on the basis of "either viewpoint" rule, the defendants are required to establish that the plaintiff had acted in bad faith in understating his claim. Kliebert v. Upjohn Co., 915 F.2d 142 (5th Cir. 1990).
On page 146 of the Kliebert opinion, the Court states:
To establish plaintiff's bad faith and sustain federal court jurisdiction in this case we hold, therefore, that the defendants were required to establish that the plaintiff would, if successful, recover at least the minimum jurisdictional amount.
In this instance, the defendants cannot establish that the plaintiff acted in bad faith in understating his claim by showing that the plaintiff would, if successful,recover at least the minimum jurisdictional amount, since the plaintiff is not claiming damages because he is not entitled to any damages.
As a result, the defendants' affidavits contending that the amount in controversy exceeds $50,000 are mere speculation and unsubstantiated personal beliefs which are not competent proof to establish a jurisdictional amount, Shumpert v. Amoco Oil Co., 782 F.Supp. 77 (E.D.Wis. 1991), at 79.
On the other hand, the plaintiff's affidavit, marked Exhibit B, is not mere speculation, nor is it an unsubstantiated personal belief that the federal jurisdictional amount does not exceed $50,000 because, as the plaintiff states in paragraph 1 of his affidavit, Count I for Declaratory Judgment, and Count II for Mandamus, he makes no demands for damages, and that statement is based upon the Declaration of Trust, as heretofore referred, which provides no compensation for a trustee.
Lastly, on April 18, 1994, counsel for the defendants contacted plaintiff's counsel to advise that defendants would also rely upon Jandron v. Zuendel, 139 F.Supp. 887 (N.D. Ohio 1955), in support of the arguments as expressed in the defendants' memorandum, said citation being referred in April 18, 1994, correspondence marked herein as Exhibit C.
From the outset, the Jandron decision is very distinguishable from the plaintiff's allegations in his complaint for declaratory judgment and mandamus in that in Jandron, the plaintiffs were directors and trustees of the First Church of Christ, Scientist, of Boston, Massachusetts, who were attempting to enjoin defendants who were members of the Third Church of Christ, Scientist, in Akron, Ohio, from using the term "Church of Christ, Scientist" or any variance thereof.
It should be noted with much significance that the Urantia Foundation is not a church; secondly, the plaintiff is seeking reinstatement as trustee without compensation, and his action is postured upon a violation of contractual due process and in no form or fashion or shape is his action subject to any injunction for the misapplication or misuse of the Urantia Foundation's name.
For reasons stated herein, the plaintiff's motion to remand should be granted relative to the jurisdictional amount issue.
With reference to the defendants' contention that the plaintiff has alleged Fifth and Fourteenth Amendment violations to the United States Constitution thereby invoking federal jurisdiction, the plaintiff and defendants do not disagree that, under Methodist Medical Center of Illinois v. Taylor, 140 Ill.App. 3d 713, 717 (1986), that the Fifth and Fourteenth Amendments to the United States Constitution stand as a prohibition against governmental action, not action by private individuals.
In this matter, the defendants are private individuals, and therefore motion to remand is appropriate, since there is no federal jurisdiction, based upon a violation of due process of the Fifth and Fourteenth Amendments pertaining to a governmental action.
For purposes of emphasis, plaintiff's complaint is not based upon a constitutional due process claim, but a contractual due process claim, and such claims are recognized in Duldulao v St Mary of Nazareth Hospital, 150 I11.2d 482 (1987), and by The Seventh Circuit of the U.S. Court of Appeals, in Hill v. Norfolk and Western R . Co., 814 F.2d 1192 (7th Cir. 1987), at 1198.
For reasons stated herein, plaintiff's motion to remand should be granted, since there is no federal jurisdiction based upon Fifth and Fourteenth Amendments violations under the United States Constitution which would invoke federal jurisdiction.
Respectfully submitted,Stanley H. Jakala
May 24, 1994
MEMORANDUM OPINION AND ORDER
Ann Claire Williams, JudgePlaintiff Martin W. Myers seeks a declaration that he was improperly removed as a Trustee of the Urantia Foundation and a court order in effect reinstating him as a trustee of the Foundation. The Urantia Foundation is a charitable Illinois not- for-profit common law trust created in large part to disseminate the principles, teachings, and doctrines of the Urantia Book. Defendants are the current trustees of the Urantia Foundation.
This matter is before the court on plaintiff's Motion to Remand the case to state court. While conceding diversity of citizenship, plaintiff asserts that the matter in controversy in this case is less than the $50,000 required under 28 U.S.C. § 1332. For the reasons outlined below, the court finds otherwise, and denies plaintiff's Motion to Remand.
In determining the amount in controversy, this circuit applies the "either viewpoint" rule. McCarty v. Amoco Pipeline Co., 595 F.2d 389, 395 (7th Cir. 1979). Under this rule, the court looks to the effect of the suit on either party to the litigation. Id. at 394. The mere fact that plaintiff does not seek damages is not dispositive. Courts have regularly found the amount in controversy requirement of the diversity jurisdiction statute to be satisfied where the value of the object of the suit in equity exceeds the jurisdictional limit. See. e.g., Hunt v. Washington State Apple Advertising Com., 432 U.S. 333 ( 1977). See also Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3708 and cases cited therein. Though the burden of proof on the jurisdictional issue always lies with the party invoking federal jurisdiction, jurisdiction will not be defeated unless it appears to "a legal certainty" that the value of the suit is less than the jurisdictional minimum. Ferrostaal Metals Corp. v. Berlin Metals. Inc., 815 F. Supp. 263, 965 (N.D. 111. 1993).3
In opposition to plaintiff's motion to remand, defendants point out that what really is at issue in this case is the right to control a multi-million dollar trust that receives annual contributions well in excess of $550,000. Although he would receive no direct compensation for his work as a trustee, if plaintiff were reinstated he would be one of only five directors of a charitable trust worth more than $2.6 million -- a trust which received more than $900,000 in contributions in 1991 and more than $600,000 in contributions in 1992. In this respect, the instant case is somewhat analogous to Wilder v. Brace, 218 F. Supp. 860 (D. Me. 1963). There, plaintiffs sought a declaratory judgment recognizing them as directors of a multimillion dollar corporation. Although the positions were unpaid and one of the plaintiffs owned no stock in the corporation, the court found that the jurisdictional amount was satisfied where the value of the property to be protected exceeded the jurisdictional limit. Id. at 865.
While it is admittedly difficult to place a precise dollar value on the parties' controversy here, the right to participate in the control and direction of a multi-million charitable organization is clearly an item of considerable value. Because the court cannot find with legal certainty that the matter in controversy is worth less than $50,000, the court denies plaintiff's motion to remand this case to state court for lack of jurisdiction.
E N T E R:
Ann Claire Williams, Judge
United States District CourtDated: MAY 24, 1994
June 3, 1993
IN THE CIRCUIT COURT OF
COOK COUNTY,
ILLINOIS COUNTY DEPARTMENT,
CHANCERY DIVISION
No. 93 CH 3484
Judge Edwin M. BermanK. RICHARD KEELER, Plaintiff, v. MARTIN W. MYERS and DIANE G. ELDER, Defendants.
VERIFIED AMENDED COMPLAINT FOR INJUNCTION
Plaintiff K. Richard Keeler, for his amended complaint for injunctive relief against defendants Martin W. Myers and Diane G. Elder states as follows:
1. Plaintiff K. Richard Keeler is a permanent resident of Evanston, Wyoming. Currently, Mr. Keeler is temporarily living in Chicago, Illinois.
2. Defendants Martin W. Myers and Diane G. Elder are husband and wife and reside in Evanston, Illinois.
3. Mr. Myers and Ms. Elder currently possess a copy or copies of a personal document ("the document") drafted by, and belonging to, Mr. Keeler. The document consists of 22 typewritten pages containing private information about Mr. Keeler, Mr. Keeler's 4-year old daughter, his daughter's mother, Mr. Keeler's former wife and her daughter, and their relationships with one another. The information contained in the document is not of legitimate concern to the public. When Mr. Keeler drafted the document, he did not intend that the information it contained or the document itself would be disclosed to the public at large.
4. Due to the private nature of the information contained in the document, Mr. Keeler has not attached a copy of the document to this Amended Complaint. Doing so would undermine the purpose of the lawsuit, for it would have the effect of making the document a matter of public record. In order to maintain the private nature of the information contained in the document, Mr. Keeler will present a copy of the document for the Court's inspection in camera during the hearing on Mr. Keeler's motion for a preliminary injunction, which is set to be heard on June 15, 1993.
5. On August 22, 1992, Mr. Myers was given, without Mr. Keeler's permission, one copy of the document. Despite repeated demands by Mr. Keeler and Mr. Keeler's counsel, Mr. Myers refuses to deliver to Mr. Keeler copies of the document which he retains in his possession.
6. On more than one occasion during the last six months, Mr. Myers has made veiled threats to disclose to third parties the information contained in the document. Mr. Myers already has disclosed the contents of the document to Mr. Myers' wife, Diane Elder, and to Diane Elder's mother, Dorothy Elder. Diane Elder also has disclosed the contents of the document to at least one other person, Helen Carlson.
7. Defendants' prior disclosures of the contents of the document and Mr. Myers' threatened publication to third parties of the private information contained in the document is highly offensive to reasonable persons in society, and constitutes an invasion of privacy.
8. If Mr. Myers or Ms. Elder publishes the contents of the document, as Mr. Myers has threatened to do, and as defendants have already done, even to a limited number of people, Mr. Keeler, Mr. Keeler's 4-year old daughter, his daughter's mother, Mr. Keeler's former wife and her daughter will suffer irreparable harm, for which there is no adequate remedy at law.
WHEREFORE, plaintiff K. Richard Keeler respectfully and urgently requests this court to enter an order: (a) preliminarily and permanently enjoining Mr. Myers and Ms. Elder from publishing, using or conveying to third parties the document and the information contained therein, (b) requiring Mr. Myers and Ms. Elder to return to Mr. Keeler all copies of the document, (c) awarding Mr. Keeler the costs incurred in this action, and (d) awarding Mr. Keeler such other relief as the Court deems just and proper.
Respectfully submitted,
K. RICHARD KEELER
By:
Charles B. Sklarsky One of His Attorneys
Dated: June 3, 1993
Thomas P. Sullivan
Charles B. Sklarsky
Alison F. Glazov
Jenner & Block (#05003)
One IBM Plaza
Chicago, IL 60611
(312) 222-9350
IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS COUNTY DEPARTMENT,
CHANCERY DIVISION No. 93 CH 003484K. RICHARD KEELER, Plaintiff, vs. MARTIN W. MYERS, Defendant.
DEFENDANT'S SECTION 2-615
MOTION TO DISMISS
Defendant, MARTIN W. MYERS, by his attorney, STANLEY H. JAKALA, moves pursuant to Section 2-615 of the Illinois Code of Civil Procedure, Illinois Revised Statutes, Chapter 110, Section 2-615, that the court dismiss plaintiff's complaint.
In support of this motion, defendant states as follows:
1. That plaintiff has filed a Verified Complaint for Injunction.
2. That the Verified Complaint for Injunction fails to state a cause of action pursuant to Allstate Amusement Co. of Ill., Inc. v. Pasinato, 96 Ill.App.3d 306 (lst Dist. 5th Div. 1981), 308, because:
Injunctive relief is such an extraordinary remedy that plaintiff must plead facts which clearly establish that the remedy is necessary. (Betts v. of Revenue (1979), 78 Ill.App.3d 102, 396 N.E.2d 1150.) Allegations of mere opinion, conclusion, or belief are not sufficient to show a need for injunctive relief. (Betts.) "[T]o establish a cause of action for injunctive relief plaintiffs must allege facts necessary to establish that their legal remedy is inadequate and that irreparable injury will result should injunctive relief not be granted. Consequently, allegations in a complaint that are conclusory in those respects are insufficient."
3. That paragraph 3 of the Verified Complaint for Injunction, alleging that the documents consisting of 22 typewritten pages containing private information about Mr. Keeler, Mr. Keeler's 4-year-old daughter, his daughter's mother, Mr. Keeler's former wife and her daughter, and their relationships with one another, are personal documents and are not of legitimate concern to the public, is an allegation that is conclusory without stating specifically the content of that information for the court's determination if, in fact, such documentation is or is not of public concern.
4. That paragraph 4 of the Verified Complaint for Injunction, alleging that the defendant secured the plaintiff's document without plaintiff's permission, is conclusory without specifically stating under what circumstance the defendant secured the plaintiff's document without his permission.
5. That paragraph 5 of the Verified Complaint for Injunction, alleging that the defendant has made veiled threats to disclose to third parties the information contained in the plaintiff's personal documents, is conclusory without stating when those veiled threats were made, and how many times those threats were made, and without disclosing specifically the names of the third parties to whom disclosures were threatened.
6. That paragraph 6 of the Verified Complaint for Injunction, alleging that the defendant's threatened publication to third parties of private information contained in the personal documents is highly offensive to reasonable persons in society and constitutes an invasion of privacy, is conclusory without stating specifically what that private information is, without stating specifically when that threatened publication was made, without stating specifically how it was made, and without stating specifically to whom it was made.
7. That the allegation that if the defendant publishes the contents of the plaintiff's personal documents that he has allegedly threatened to do, that such publication will result in the plaintiff and his family suffering irreparable harm with no adequate remedy at law is conclusory in that the court must determine if such publication is in fact of private or public concern and that allegation does not specify the contents for the court to determine that fact.
8. Additionally, if the defendant were to publish the documentation, the plaintiff would have an adequate remedy at law in that he could sue the defendant for slander, libel, invasion of privacy, subject to the defenses of truth and first amendment right to disseminate material of legitimate public concern relating to a public figure.
WHEREFORE, the defendant, MARTIN W. MYERS, requests that this court dismiss the plaintiff's Complaint with prejudice.
MARTIN W. MYERS
By: Stanley Jakala One of his Attorneys
STANLEY H. JAKALA
3219 S. Maple Ave.
Berwyn, Ill. 60402
708-788-5733
Attorney #00405