Caplan v. Town of Acton

• Decision Date: 09 March 2018
• Docket Number: SJC–12274
• Citation: 479 Mass. 69,92 N.E.3d 691
• Parties: George CAPLAN & others v. TOWN OF ACTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 69

92 N.E.3d 691

George CAPLAN & others¹

v.TOWN OF ACTON.

SJC–12274

Supreme Judicial Court of Massachusetts, Middlesex..

Argued September 7, 2017

Decided March 9, 2018

Douglas B. Mishkin, of the District of Columbia (Joshua Counts Cumby & Alex Luchenitser, of the District of Columbia, & Russell S. Chernin, Worcester, also present) for the plaintiffs.

Nina L. Pickering–Cook (Arthur P. Kreiger also present), Cambridge, for the defendant.

The following submitted briefs for amici curiae:

Daniel Mach, of the District of Columbia, Anthony M. Doniger, Kate R. Cook, & Sarah R. Wunsch, Boston, for American Civil Liberties Union & another.

Maura Healey, Attorney General, David C. Kravitz, Assistant State Solicitor, & Matthew P. Landry, Assistant Attorney General, for the Attorney General.

Eric C. Rassbach, of the District of Columbia, Joseph C. Davis, of Louisiana, Daniel D. Benson, of Utah, & Mark L. Rienzi for Becket Fund for Religious Liberty.

Thomas A. Mullen, Wakefield, for Massachusetts Municipal Law Association & another.

Thaddeus A. Heuer & Andrew London, Boston, for National Trust for Historic Preservation.

Ryan P. McManus & M. Patrick Moore, Boston, for Boston Preservation Alliance & others.

Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

Article 18 of the Amendments to the Massachusetts Constitution, as amended by arts. 46 and 103 of the Amendments, known as the "anti-aid amendment," prohibits in § 2, cl. 2, the "grant, appropriation or use of public money ... for the purpose of founding, maintaining or aiding any church, religious denomination or society." This case presents the question whether two grants of public funds to renovate an active church that has been identified as a "historic resource" under the Community Preservation Act (act), G. L. c. 44B, are categorically barred by the anti-aid amendment, or whether the constitutionality of such grants must be evaluated under the three-factor test we have applied under Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675, 417 N.E.2d 408 (1981) ( Springfield ), to payments made to other private institutions. Also presented is the follow-up question: if the three-factor test applies, do the grants satisfy its requirements?

We conclude that the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny. Because the judge applied this three-factor test incorrectly in denying the plaintiffs' motion for a preliminary injunction to prohibit disbursement of these grants, we vacate the order denying the motion. As to the grant to preserve the stained glass windows in the main church building, we remand the case to the Superior Court for entry of an order allowing the plaintiffs' motion for a preliminary injunction barring disbursement of the grant. As to the grant to fund a "Master Plan" to preserve all three of the buildings belonging to the church, we remand for further proceedings consistent with this opinion.²

Background. The Acton Congregational Church (church), an affiliate of the United Church of Christ, is an active church with a congregation of over 800 members. It describes its mission thusly:

"The mission of Acton Congregational Church ... is to preach and teach the good news of the salvation that was secured for us at great cost through the life, death, and resurrection of Jesus. The church encourages each individual to accept the gift of Christ and to respond to God's love by taking part in worship, ministry to one another, and the Christian nurture of people of all ages. With the guidance of the Holy Spirit, we are called as servants of Christ to live our faith in our daily lives and to reach out to people of this community and the world with love, care, and concern for both their physical and spiritual needs."

The church stands in the Acton Centre Historic District (historic district), an area that has served as a center of town life since the establishment of the town of Acton (town) in 1735. The church owns and maintains three adjacent buildings in the historic district: the main church building, the John Fletcher House, and the Abner Hosmer House. The main church building was built in 1846. Today, it is used for worship services and religious educational programs; it also houses a local day care center, meeting spaces for various community groups, and a thrift shop. The two houses, also built in the mid-Nineteenth Century, originally were private residences but were later acquired by the church and are now rented to local families.

The town is one of 172 municipalities in Massachusetts that have adopted the act, which establishes a mechanism for funding projects relating to open space, historic resources, and community housing.³ G. L. c. 44B. In 2015, the church submitted two grant applications to the town's Community Preservation Committee (committee), which makes recommendations in accordance with the act to the town meeting regarding "the acquisition, preservation, rehabilitation and restoration of historic resources."⁴ G. L. c. 44B, § 5 (b) (2). See G. L. c. 44B, § 7.

The church's first application was for a $49,500 grant to fund a "Master Plan for Historic Preservation" for all three of its buildings (the Master Plan grant). The church proposed to hire an architectural consultant to develop a plan for their renovation and preservation; the proposed work would include "a thorough assessment of the [c]hurch building envelope, including windows, doors, siding, roof, chimney, bell tower, skylights, and fire escapes." The church noted "[s]pecific areas of concern" for the building, including its bell tower and brass chandelier.

The church's second application was for a $51,237 grant to fund the restoration and preservation of the main church building's stained glass windows, which were installed in 1898 (the stained glass grant). According to the church's application, the "most prominent" of the windows depicts Jesus and a kneeling woman; another window features a cross and the hymnal phrase, "Rock of Ages Cleft for Me." The proposed work would include replacing parts of the glass, sealing the glass, and installing new glazing so that the windows—which currently have a "cloudy" exterior and "cannot be appreciated outside the church"—will be given "complete transparency."

The church explained in its applications that, due to declining membership and contributions, it lacked the funds necessary both to preserve its buildings and to fully serve the needs of its congregation without financial assistance from the town:

"As you may know, mainstream churches have not been growing for years, and the financial strain is significant. [The church] has weathered the storm better than many churches, but the reality is that we have had to cut programs and personnel. The cuts can further exacerbate the financial problem by not offering the congregation what draws them to their church. With that in mind, the long list of maintenance and capital improvement projects get[s] delayed before we cut programs, but there are many things that we've had to fix."

Consistent with the requirements of the act, the committee held a public hearing on the church's applications and voted unanimously to recommend the two grants. The town approved them both at a town meeting.

The town imposed several conditions on the grants. First, it required that the church convey to the town a "historic preservation restriction" in the buildings that would be "perpetual to the extent permitted by law." Second, it specified that no funds would be disbursed to the church except as reimbursements for specific expenses incurred in connection with the projects, and only after the town could verify, based on submitted invoices, that those expenses were "consistent with the project scope presented" in the church's applications.

The plaintiffs, a group of town taxpayers, commenced this action in the Superior Court under G. L. c. 40, § 53, which permits taxpayers to act "as private attorneys general" to enforce laws designed to prevent abuse of public funds by local governments. LeClair v. Norwell, 430 Mass. 328, 332, 719 N.E.2d 464 (1999). The plaintiffs sought a declaratory judgment that the grants to the church violate the anti-aid amendment, and requested injunctive relief to prevent their disbursement.⁵

In denying the plaintiffs' motion for a preliminary injunction, the judge relied on the three-factor test we first set forth in Springfield, 382 Mass. at 675, 417 N.E.2d 408. We applied the test in that case to determine whether a statute that authorized the public funding of special education placements of public school students in private schools violated the anti-aid amendment. Id. at 667, 417 N.E.2d 408. The three factors are: "(1) whether the purpose of the challenged statute is to aid private schools; (2) whether the statute does in fact substantially aid such schools; and (3) whether the statute avoids the political and economic abuses which prompted the passage of [the anti-aid amendment]." Id. at 675, 417 N.E.2d 408.⁶ We cautioned that these factors "are not ‘precise limits to the necessary constitutional inquiry,’ but are instead guidelines to a proper analysis." Id., quoting Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558, 392 N.E.2d 1195 (1979). We also recognized that each factor was "interrelated," and that any conclusion "results from a balancing" of the factors as applied to the facts of each case. Springfield, supra at 675, 417 N.E.2d 408.

The judge here determined that the plaintiffs bore a heavy...