Shapiro v. Columbia Union Nat. Bank and Trust Co.

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; MORGAN; DONNELLY; SEILER, J., concurs in part and dissents in part and concurs with separate opinion of DONNELLY; JOSEPH J. SIMEONE; DONNELLY; JOSEPH J. SIMEONE
• Citation: Shapiro v. Columbia Union Nat. Bank and Trust Co., 576 S.W.2d 310 (Mo. 1978)
• Decision Date: 18 December 1978
• Docket Number: No. 60561,60561
• Parties: Marilyn SHAPIRO, Plaintiff-Appellant, v. COLUMBIA UNION NATIONAL BANK AND TRUST COMPANY et al., Defendants-Respondents.

Page 310

576 S.W.2d 310

Marilyn SHAPIRO, Plaintiff-Appellant, v. COLUMBIA UNION NATIONAL BANK AND TRUST COMPANY et al Defendants-Respondents.

No. 60561.

Supreme Court of Missouri, En Banc.

Dec. 18, 1978.

Rehearing Denied Feb. 13, 1979.

Ann Mesle Whittier, Steven J. Borel, Kansas City, for plaintiff-appellant.

John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, Guy A. Magruder, Jr., Kansas City, Jackson A. Wright, Columbia, Maurice O'Sullivan, Kansas City, for defendants-respondents.

PER CURIAM.

I.

This case is one of first impression in Missouri. It involves the administration of a private trust to provide scholarship funds for the benefit of "deserving Kansas City Missouri boys" to attend the University of Kansas City at the time of establishment of the trust a private university. After the establishment of the trust and subsequent to the settlor's death, the University became part of the University of Missouri. The trust excludes women.

The issue confronting us is whether the University is so entwined with the administration of the trust so as to rise to the level of "state action" thus constituting discrimination against women.

We hold under the unique circumstances of this case that by sifting all the facts and circumstances there is not significant "state action" involved so as to be violative of the Equal Protection clause of the Fourteenth Amendment or of the Civil Rights Act, 42 U.S.C.A., § 1983 and hence affirm the judgment of the trial court dismissing plaintiff's second amended petition. As to V., infra, we adopt portions of the opinion of Shangler, J., of the Kansas City District without quotation marks.

II.

This case involves an appeal from an order of the circuit court dismissing the second amended petition brought in two counts by plaintiff, Marilyn Shapiro, who was a law student at the University of Missouri at Kansas City. The second amended petition was filed by Ms. Shapiro against a number of defendants including Columbia Union National Bank and Trust Company (Trustee), the Board of Curators of the University of Missouri and the Attorney General alleging that she was denied the opportunity to apply for and be considered for financial aid from the charitable trust established by Mr. Victor Wilson to assist resident Kansas City "boys" who possess unusual ability or talent and who are financially unable to obtain a university education. Count I sought money damages for the loss of financial aid from the scholarship fund and Count II prayed the court to declare the exclusion of women from the benefits of the fund to be unconstitutional and to relieve the illegality by the application of the doctrine of cy pres.

The trial court dismissed the second amended petition for failure to state a claim. Plaintiff appealed to the Court of Appeals, Kansas City District which reversed and reinstated the petition as to all defendants except the Board of Curators of the University. We granted applications to transfer. We now decide the case as an original appeal pursuant to the provisions of Art. V, § 10, Mo.Const., and Rule 83.03. Our review of the dismissal of the petition allows the pleading its broadest intendment, we treat all facts alleged as true, construe the allegations favorably to the plaintiff and determine whether the averments invoke principles of substantive law. Sisters of St. Mary's v. Campbell, 511 S.W.2d 141, 145 (Mo.App.1974).

III.

On February 2, 1948, Mr. Victor Wilson, a wealthy unmarried man, made his last will and testament. Insofar as pertinent, Mr. Wilson's will provided in Article VIII:

"I give, devise and bequeath all the rest, residue and remainder of my property and estate of every kind and character, personal and mixed . . . belonging to me at the time of my death, . . . to Union National Bank of Kansas City, Missouri, its successor ¹ or successors, as Trustee. The Trustee shall have the sole legal and equitable title to all the property held by it in trust and shall have power to invest, reinvest, manage and control all the property to the best of its ability . . .. This trust fund is intended to be a Charitable Educational Fund for deserving Kansas City, Missouri boys to acquire a desired education in either Yale University ² Or the University of Kansas City, Missouri, and not as a benefit fund for either of the said universities. The Trustee shall be compensated for its services in accordance with its regular schedule of fees and after deducting the said Trustee fees and other necessary expenses incurred in the management of the Trust Fund, shall Use all of the rest of the net income derived from the property of the Trust Fund to assist one or more boys at the same time living in Kansas City, Missouri, who possess unusual ability or talent and who is financially unable to obtain a university education to attend Yale University or the University of Kansas City, Missouri, whichever is requested by the applicant. Such students shall be selected by judges appointed by the Yale Alumni of Kansas City, Missouri, and the University of Kansas City, Missouri, and approved by the Trustee of said Fund. The Trustees shall discontinue supporting any student failing to make satisfactory grades while attending either of said Universities . . .." (Emphasis added.)

A few days after making his will, on February 25, 1948, Mr. Wilson died. The will was admitted to probate March 29, 1948.

The market value of the assets comprising the principal of the Victor Wilson trust exceeded $4,000,000, and over 200 boys each year were given funds, many over $1,000.00 each for several years between 1970 and 1974.

Plaintiff-appellant, Marilyn Shapiro, first filed an original and then a first amended petition in one count. After the first amended petition was filed, the plaintiff forwarded a number of interrogatories to the Bank and to the Board of Curators. The Board's answers showed certain additional facts.

After the answers to the interrogatories were filed, the trustee and the Attorney General moved to dismiss. The trial court sustained the motions and the first amended petition was dismissed for failure to state a claim. ³ In its memorandum, the court noted that the trust instrument was amended by court order to substitute the University of Missouri at Kansas City. The trial court's memorandum concluded that "Mr. Wilson had a right to limit his charity to males. He did so. And it is clear that the court does not have the power or the right to arbitrarily thwart his intentions."

Plaintiff then filed a second amended petition on September 25, 1974. This petition is the subject of this controversy. The second amended petition was in two counts. The petition named as defendants the Columbia Union Bank, the President of the University of Missouri, the chancellor of the University of Missouri at Kansas City, the Board of Curators, two beneficiaries of the will and insofar as the second count is concerned the Attorney General.

Count I of the second amended petition after certain preliminary and formal matters alleged that (1) the Victor Wilson Trust is a "public charitable trust" which provides funds for a scholarship generally known as the "Victor Wilson Scholarship", (2) that in July, 1964, by order of the court the "University of Kansas City" when used in the Trust is to mean the "University of Missouri at Kansas City" with respect to the use of funds, "(t)hus, income from the principal of the Victor Wilson Trust is so used to provide financial assistance to 'individuals' who live in Kansas City, . . . ", (3) that Article VIII of the trust provides funds to assist "one or more boys" "who possess unusual ability or talent" and who are financially unable to obtain a University education and that such students shall be "selected" by judges appointed by alumni of the University of Kansas City and "approved" by the trustee, (4) that the Curators, President and Chancellor "have developed and continue to maintain with the support and acquiescence of the . . . Bank, a process and procedure through which women, including Plaintiff, are systematically screened out and excluded from consideration and approval" by the bank from the Victor Wilson Scholarship "solely on the basis of sex," (5) on April 1, 1972, plaintiff applied for financial assistance from the Trust from the Financial Aid Office at the University of Missouri and was informed that under the present system the Victor Wilson Scholarship is for men only so that she was denied assistance from the scholarship fund for the "sole reason" she is a woman; (6) that on April 1, 1972, she was a full-time student at the University of Missouri and was otherwise fully qualified to apply for and receive benefits from the scholarship, (7) denial to plaintiff of the opportunity to "apply for, be considered for, and be approved for financial aid" from the scholarship by the President of the University, the chancellor and the Board and their agents all agents of the State is done under "color of and by virtue of state law" and constitutes action by the state within the terms of the Fourteenth Amendment, (8) the refusal to permit plaintiff to apply for and be considered for, and approved for financial aid is a denial of her rights guaranteed under the Federal and State Constitutions ⁴ and by 42 U.S.C.A. § 1983 because she has been denied equal protection under the law and the privileges and immunities guaranteed to all citizens.

In Count I she prayed for $3,900.00 damages because she was forced to seek part-time employment. She also sought attorneys fees and costs.

In Count II, adding the Attorney General and the sole surviving heirs of Mr. Wilson as parties, she prayed that the "defendant's" (UMKC?) policy, custom, usage and practice" of denying her the right to apply for and recover benefits under the will solely on account of her sex is a denial of equal protection. She prayed the court to apply the doctrine of cy pres...