Lockwood v. Killian

• Decision Date: 08 March 1977
• Citation: 375 A.2d 998,172 Conn. 496
• Parties: Theodore D. LOCKWOOD et al. v. Robert K. KILLIAN, Attorney General of the State of Connecticut, et al.
• Court: Connecticut Supreme Court

Page 998

375 A.2d 998

172 Conn. 496

Theodore D. LOCKWOOD et al. v. Robert K. KILLIAN, Attorney General of the State of Connecticut, et al.

Supreme Court of Connecticut.

Argued Nov. 16, 1976.

Decided March 8, 1977.

Richard J. Lynch, Asst. Atty. Gen., with whom, on the brief, was Bernard F. McGovern, Jr., Asst. Atty. Gen., for appellant (named defendant).

William G. DeLana, Hartford, with whom, on the brief, was Paul C. Remus, West Hartford, for appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The plaintiffs, members of the special selection committee of the Fuller Scholarship Fund, instituted this action for instructions from the Superior Court, claiming to be unable to perform their duties in the administration of the trust fund without the advice of the court. The plaintiffs allege that they had been unable to choose a sufficient number of beneficiaries to expend all the annual income of the Fuller Scholarship Fund because of racial, sexual or religious restrictions on beneficiaries of the fund. To avoid imposition of federal taxes under § 4942 of the Internal Revenue Code, the plaintiffs sought the removal of the racial and sexual restrictions on beneficiaries, asking the court to decide whether such restrictions were impracticable and whether they were illegal. The attorney general, the only defendant to appear, filed a counterclaim requesting that the religious restriction be removed as well. The plaintiffs and the attorney general stipulated and agreed to the facts which they considered relevant.

Frank Boswell Fuller died a resident of West Hartford on March 1, 1957, leaving a will dated January 4, 1957, which was duly admitted to probate. Article X of the will establishes a charitable trust to grant college scholarships from the income of the fund to beneficiaries chosen by the special selection committee created for that purpose. The will designates the group from which beneficiaries may be chosen as "needy, deserving boys from the graduating classes of the preceding month of June from the high schools of the County of Hartford and State of Connecticut, whose high school marks for their individual and respective entire high school course shall have been at least an average of seventy (70) points out of a possible one hundred (100) points or better, who are members of the Caucasian race and who have severally, specifically professed themselves to be of the Protestant Congregational Faith." The will provides further that the special selection committee may choose only those applicants who meet the racial, sexual and religious restrictions set forth in article X. In every year from 1971 through 1973, the committee chose as beneficiaries all the applicants who met the qualifications set forth in article X of the will, but the committee has not been able to choose a sufficient number of beneficiaries to expend on scholarships for beneficiaries all the income of the fund. The plaintiffs rely on churches, colleges and universities to publicize the availability of scholarships from the Fuller Scholarship Fund, but many of those institutions have refused to publicize the availability of such scholarships because of the racial, sexual or religious restrictions on the beneficiaries. The parties agreed that if the racial, sexual or religious restrictions are removed, the plaintiffs will be able to choose a sufficient number of beneficiaries for the trustees of the Fuller Scholarship Fund to expend all the annual income on scholarships for beneficiaries. The trial court applied the doctrine of cy pres or approximation to remove the racial and sexual restrictions on the beneficiaries of the scholarship fund. The court found, however that the continued imposition of the religious restriction would not involve state action and therefore, would not violate the fifth or fourteenth amendments of the constitution of the United States or the constitution of Connecticut, article first, § 20. The court further found that the removal of the racial and sexual restrictions on beneficiaries of the Fuller Scholarship Fund would allow the fund to attract a sufficient number of beneficiaries to award as scholarships all the fund's annual income, which was the general charitable intent of the testator, and that the continued imposition of the religious restriction would not impede this charitable intent. The court finally concluded that the religious restriction, being neither illegal nor impracticable, could not be removed through the application of the doctrine of cy pres or approximation. The defendant appealed from the judgment of the trial court and assigns as error the court's failure to remove the religious restriction on beneficiaries of the Fuller Scholarship Fund.

On appeal, the defendant argues that the judicial removal of the gender restriction and the concurrent judicial preservation of the religious restriction constitute state discriminatory action which is illegal.

I

A trust for the advancement of education is charitable, and the beneficiaries of a charitable trust to provide scholarships generally may be limited to persons of a particular religion. Restatement (Second) 2 Trusts § 370, comment j; 4 Scott, Trusts (3d Ed.) § 370.6. "Indeed, the advancement of religion is one of the principal divisions of charitable trusts." 15 Am.Jur. 2d, Charities (Rev.1976), § 39. See General Statutes § 47-2. As a charitable trust the Fuller Scholarship Fund must be construed so as to uphold it, if it is reasonably possible to do so. Connor v. Hart, 157 Conn. 265, 275, 253 A.2d 9; Waterbury Trust Co. v. Porter, 131 Conn. 206, 214-15, 38 A.2d 598; General Statutes § 45-79.

For the purposes of this case, the constitution of Connecticut, article first, § 20, ¹ is the state counterpart of the equal protection clause of the fourteenth amendment to the constitution of the United States. These provisions of the federal and state constitutions "have the same meaning and impose similar constitutional limitations." Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845, 849. Both provisions therefore may be considered together. See Page v. Welfare Commissioner, 170 Conn. 258, 264, 365 A.2d 1118; Tough v. Ives, 162 Conn. 274, 292, 294 A.2d 67; Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621. The defendant correctly notes in his brief that while the fifth amendment of the United States constitution contains no equal protection clause, it has been held to forbid discrimination that is so unjustifiable as to be a violation of due process. Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218. "The approach to equal protection claims under the fifth or fourteenth amendments has always been precisely the same. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 43 L.Ed.2d 514." Page v. Welfare Commissioner, supra, 259 n.1, 365 A.2d 1118. The defendant's brief, however, discusses only state, not federal, activity which might constitute "state action."

It has long been established that private conduct abridging individual rights does not violate the equal protection clause of the fourteenth amendment to the constitution of the United States. See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The equal protection clauses of our state and federal constitutions are designed as a safeguard against acts of the state and do not limit the private conduct of individuals or persons. 16 Am.Jur.2d, Constitutional Law, § 491. There is an "essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, 'however discriminatory or wrongful,' against which that clause 'erects no shield,' Shelley v. Kraemer, 334 U.S. 1, 13 (1948) 68 S.Ct. 836, 92 L.Ed. 1161." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Thus, private discriminatory action is not constitutionally proscribed, and for the defendant's appeal to be sustained the trial court must have erred in concluding that the defendant had not shown any significant state involvement in either the creation, implementation or enforcement of the restrictive provisions of the Fuller Scholarship Fund. We are not persuaded that the trial court did so err.

In deciding whether the conduct under attack is governmental or private in nature, the United States Supreme Court has never adopted a precise, rigid test but has relied on a case-by-case approach. See, generally, note, "State Action and the Burger Court," 60 U.Va.L.Rev. 840; see also note, "State Action: Theories for Applying Constitutional Restrictions to Private Activity," 74 Col.L.Rev. 656. In a case involving the distribution of religious literature by a Jehovah's Witness on the sidewalk of a company-owned town, the court used a balancing approach when the company invoked the state trespass laws to prevent an activity that a municipal government could not impede without abridging the first amendment: "When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion . . . we remain mindful of the fact that the latter occupy a preferred position." Marsh v. Alabama, 326 U.S. 501, 509, 66 S.Ct. 276, 280, 90 L.Ed. 265. More recently, the court has again recognized the distinction between private and state activity and has offered further guidance: "(P)rivate conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it. . . . (T) o fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' Kotch v. Pilot Comm'rs., 330 U.S. 552,...