-: SJC13326, Church of the Holy Spirit of Wayland and others,
v. Mary J. Wilson and others.
-: Okay, Attorney Gramer.
-: Good morning.
May it please the court,
William Gramer on behalf of the families who are here today
seeking that this court uphold the Appeals Court's decision,
which protected the sanctity of a burial ground
located on property formally owned
by the Episcopal Diocese in Wayland, Massachusetts.
Your Honors, this case is about whether or not
the rights afforded to burial grounds in the Commonwealth
continue to exist upon the sale of property.
This case, although the property was owned by a church
and sold to a church,
is not about the church's right to close that parish,
it's not about the decision to sell that property
for financial gain,
and it's not about interference with any religious beliefs
of either the Episcopal Diocese or the purchasing church,
the Coptic Church in this case.
The common law in the Commonwealth
and throughout the United States is clear
that once land is devoted to use as a burial ground
it's fundamentally transformed.
It's said to be then held in trust
for the benefit of the heirs
and of the deceased to their final resting place.
There's a right that's created,
and case law calls this right in the nature of an easement
or an irrevocable license.
Justice Kafker: Are the cases you're-
Justice Cypher: What about the statute?
The statute that covers burial grounds?
-: So Massachusetts has a statute
that makes it a crime to disinter remains,
but there's no Massachusetts statute
specifically about disinterment.
-: Does the statute address anything
about when a burial ground ceases to become a burial ground?
-: No, Massachusetts does not have a statute like that.
I'll talk about this perhaps more in a moment.
-: But the cases you rely on
tend to be private burial grounds.
They're not church cases, which are much more complicated,
particularly a church case
that says that the operation of the burial ground
is subject to regulation, right?
-: They do.
Most of the cases talk about either family burial grounds
or other privately held grounds,
but there's no distinction drawn.
-: In any case that involves a church burial ground
that adopts the approach that you do,
that it's not subject to regulation,
and the point you began with,
which is it doesn't in interfere with religious practices
because it seems to me much more complicated here.
The purchaser doesn't believe in cremation
and does not want cremated remains on their property.
That raises their First Amendment free exercise issue.
The seller wants to sell the property
because they want to close down the church.
That implicates, I'm not saying it's dispositive,
but it implicates their First Amendment rights
to close their church to be able to sell it.
So I don't see it as simple as you just posed it.
Attorney Gramer: On the facts here, Your Honor,
you have to remember that this burial ground
was existing before the purchase and sale was signed.
In fact, it was a condition in the P&S
to remove the burial ground.
So the purchaser here, the Coptic Church,
took with full knowledge of the existence
of that burial ground.
-: [Justice Wendlant] And that it would be removed.
-: And was a condition of sale that it be removed.
What they didn't recognize, though,
was the common law right
that required there to be certain conditions existing
in order to allow that removal,
and that's what the Hines case and other cases talk about.
It's not just the sale.
There has to be a finding.
In the Tennessee statute,
which my brother and sisters say
supersedes Tennessee common law,
that statute also recognizes three fundamental conditions.
-: But before we move to Tennessee,
what if the regulation here had said
the church remains free to close the burial ground
and ask you to remove the urns?
Then I take it your common law right
would have no application, right?
-: Correct, and the Appeals Court addressed that issue,
and they said in this particular situation,
the churchyard regulations and the certificate of internment
contained no such language.
Justice Kafker: So that's the issue,
is whether the regulations,
whether the Appeals Court or the trial judge
correctly interpreted the regulations.
-: Correct, and the case law all talks about
reading the contract in a reasonable manner
and the amendment to the regulation that Your Honor cited
to whether that was done in a reasonable manner
and implemented reasonably.
Now here, the property was sold in January of 2016.
Six months later in June of 2016,
the Episcopal Diocese decides to amend the regulations
after the property's been sold
and after they realize they're bound to meet this condition
in the purchase and sale
or be subject to damages from the buyer.
-: Right, so why is this case actually that complicated
that we have to travel down
the common law in the 19th century and go to Tennessee
and all of that?
Why isn't it just, well, the contract provided
that the church could change the regulations?
Was the post-sale regulation
a change contemplated by the contract that can be enforced?
Attorney Gramer: Because here the contract,
I submit does not contemplate disinterment.
When the buyer or parishioner here purchases a burial lot
and when they go through the process
of burying their loved one,
there's an expectation that that's final.
There's nothing in the certificate of internment,
there's nothing in the churchyard regulations
that even hints at the notion that someday we may sell,
in which case the bodies or the urns
will have to be removed.
That's just not contemplated.
Justice Georges: Counsel, could I ask you a question?
Procedurally, we're here because of the motion to dismiss,
right?
Attorney Gramer: And motions for summary judgment.
-: Okay, well, if I go back to what you said
a few minutes ago,
is this that we need a trial here,
not that you win,
and I say specifically that
because your point about the fact
that six months post consummation of the deal
was when they tried to amend the rules and regulations
to say, hey, now we get to decide,
and we're deciding because we've got to meet this condition.
Isn't it the reasonableness of doing that
that's an issue there, and doesn't that deserve a trial?
-: I think that the trial court could decide that
as a matter of law on its fact.
Justice Georges: How?
-: The fact that that it was done after the sale
for the specific purpose of attempting to comply
with the purchase and sale agreement in this case.
In fact, when they authorized the sale,
there was a specific notation
in the meeting minutes of the vestry
that all efforts be taken to protect the memorial garden.
They asserted that they exhausted those efforts
and then after the fact, after the sale,
after there was objection by families,
they decided to amend the regulations
to give themselves the very power that they didn't have
in either the certificate of internment
or under the churchyard regulations.
-: To Justice Georges' point,
you're assuming that the church didn't have that power
because you're saying it was unreasonable
to amend six months after the deal
to meet the conditions of the deal?
Attorney Gramer: Correct.
-: As a matter of law?
Attorney Gramer: Yes, that attempt to amend-
-: But why?
Why is that unreasonable to meet the conditions
of the only deal they could get
or the best deal they could get post the deal?
-: Because when you apply neutral principles of law
to this question,
you look at the expectations of the parties,
and again, somebody purchasing
a certificate of internment in the memorial garden
did not have an expectation of future disinterment,
and so-
-: Did they have an expectation that it would continue
as a churchyard?
-: The certificate of internment and the regulations
both talk about perpetual care.
That is expressly in the contract terms.
Justice Cypher: And is it defined?
Is that defined?
-: It is defined.
Perpetual by definition is lasting forever,
but there is some language in it
that talks about maintenance of the memorial garden
in terms of landscaping, removal of branches and debris
and so forth and maintaining it
as a recognizable burial ground.
-: [Justice Wendlant] And so who now has that obligation
under your theory?
-: So we think that the common law right of access
includes with it the right to maintain and beautify
and make repairs.
And so that would be on the families in the first instance.
Families who come to that memorial garden could rake leaves,
they could pick up branches,
if the fence was knocked over, they could fix it.
-: [Justice Wendlant] So I guess that brings me back
to sort of what you dismissed as not relevant to this case,
which was the First Amendment issue.
Now the Coptic Church owns this land,
including the churchyard, including the memorial gardens,
and your position is that these certificates
give the families the right to continue to go onto
the new owner's land,
who, on genuine religious reasons,
believes that his beliefs are against cremation.
Why doesn't that implicate the First Amendment?
-: It doesn't implicate because
there's no affirmative action
that the Coptic Church needs to take.
They simply-
-: Is that the only thing?
Is that the only First Amendment right
that churches have,
that they not be forced to do something,
that they need to tolerate on their land
something that is offensive to their religious beliefs?
That's okay,
but as long as they're not required to do something?
-: Yes, in this case,
because they purchased with full knowledge
of the existence of that burial ground.
-: [Justice Wendlant] And that it would be removed.
Attorney Gramer: They were wrong about that
is our position,
and so the common law-
-: That's my question is-
Attorney Gramer: Is trying to balance.
-: Yeah.
-: But then you're imposing the obligation
on the other church
'cause we're stuck between two churches, right,
and also, burial practices,
which is sort of an important religious activity.
And you subtly seem to avoid the way the-
The regulation reads
they have a perpetual obligation, right,
but now you're saying not really
'cause I take it you're worried about
their First Amendment problem,
which is they can close their church, right?
-: They have the right to close their church.
Justice Kafker: So then, if they have the right
to close their church,
that perpetual maintenance
can't mean that they have an obligation
to perpetually maintain it, right?
Attorney Gramer: Well, I think they might,
and that issue was actually remanded.
-: But then we're telling the church
that they not only can't close,
but they have to keep operating a burial ground.
Doesn't that get First Amendment-y?
-: No, Your Honor.
So there's no challenge to their right to close.
We've never argued that they must stay open.
That's not at issue before the court.
In terms of maintenance, I'll just say that-
-: Isn't isn't that why church burial grounds
are different than private burial grounds?
'Cause, I mean, we understand there's tremendous sensitivity
to disinterring.
-: I think here, in some of the case law,
like the Trinity case,
where perhaps there are tombs beneath the church building,
it's a different situation.
Here, we have a memorial garden set off apart
in the corner of the lot.
this particular area of land was purchased by the church
specifically to create this memorial garden.
They added another acre or so of land.
There's a map in the record,
and you can see the boundary lines
and then the entirety of the lot.
-: [Justice Wendlant] So why does the geography,
whether it's in the actual structure of the church
or on the church's land,
change the First Amendment implications?
-: Well, two things.
One, it changes the analysis of whether or not
there's justification for disinterment,
which I started to talk about at the beginning,
which was is the property abandoned or neglected,
or is there some other condition that makes it unsuitable
to continue as a burial ground?
The First Amendment issue-
Justice Kafker: But isn't the answer to that
the church sold the property,
and it's no longer a church burial ground
because the church has closed this?
-: And that's, Your Honor, that's what the trial court found,
that it was no longer in use,
and the Appeals Court agreed with us
that that's not the test.
It's not whether or not there are additional internments
or whether it's used by an operating church.
The test is whether or not the area has been abandoned.
Is it neglected?
Justice Kafker: Well, that may be
a misinterpretation of the law
that may diminish the First Amendment rights
of both churches.
-: The First Amendment would be implicated
if this court was weighing in
on an internal church decision,
and that's not the case.
Just because the property-
Justice Kafker: We're weighing in.
You're asking us to weigh in on two church decisions:
one, closing one,
and two, requiring another to maintain a burial ground
that includes cremation,
which is against their religious principles.
I just don't-
Attorney Gramer: Your Honor, respectfully,
we're not asking you to weigh in
on the closure of the church.
There's no dispute on that issue.
We agree that the church has a right to close.
It doesn't have to operate any longer.
Justice Kafker: And they don't have to maintain
the garden then, right?
-: Well, we think that,
and this was what was remanded back to the Superior Court,
we think the common law allows the families
the right of basic maintenance of the area,
removal of brush and debris, and repairs.
We think that the contract here-
-: Yeah, but you're asking us to enforce that obligation
on the church.
You're asking this court to say
the church has to maintain that ground, right?
Attorney Gramer: Not the case
that's before this court today.
-: [Justice Wendlant] That's the next case.
-: You don't have to decide that issues.
-: [Justice Wendlant] That's the next case.
-: That's the next case.
-: And where would that next case lead?
-: So I think the trial court
would have to look at the churchyard regulations
and the certificate of internment
and decide whether or not the Episcopal Diocese
has an obligation to pay for the ongoing maintenance,
and they could do that through contracting
with a third party.
And remember, if you see the church-
-: [Justice Wendlant] Could they not do it?
Attorney Gramer: I'm sorry?
-: Could they just not do that?
-: We would submit they may be in breach
and subject to those cost, but-
-: But how is that the Episcopal Church
exercising its right to sell?
Because, you know, you keep parsing this out,
this part about the maintenance of the garden,
and if you are saying
you're not challenging their right to sell,
they're selling everything.
Their intention was to sell everything,
including any responsibility for the garden.
And by your definition,
if you are reserved the right that's remanded,
and you could go now back and say,
you just said that they may potentially be in breach,
how are we not squarely in the Hobson's choice
that Justice Kafker just keeps going back to,
but you seem to disagree with?
-: This was a parish of a larger diocese,
and although the parish closed,
the diocese itself continues to exist,
and they've generated $1.8 million from this sale,
which we think would enable them
to continue to maintain this site.
But again, that's an issue for another day.
That's not what this court's being asked to decide
at the moment.
And I also don't think that implicates the First Amendment
because you would be enforcing
their contractual obligations.
This court, civil courts can apply neutral principles
to enforce contract obligations
even when a church is a party.
-: Okay, but the contract, again, included the fact
that the remains would be disinterred, so but-
Attorney Gramer: The purchase and sale included that,
but the underlying certificate of internment
in the churchyard regulations did not.
Justice Budd: Okay, thank you.
Attorney Gramer: Thank you.
-: Attorney Miller.
-: Good morning, Your Honors, and may it please the court,
Jennifer Grace Miller here today on behalf
of the Episcopal parties.
Your Honors, no one wants or expects
to close a beloved neighborhood church,
certainly not the diocese, certainly not the parish,
certainly not the parishioners.
But when that difficult decision is made,
then burial certificates like the ones issued
by Holy Spirit to its members
entitle the holders of those certificates
to respectful removal of the remains.
Justice Kafker: Well, that's not what the-
It talks about perpetual maintenance, right?
There's nothing in the regs that talk about
respectful disinterment, right?
Attorney Miller: Right, but the case is due, Your Honor,
and the burial certificates themselves
were written with the background of those cases,
which used roughly the same language
to discuss the burial right.
Justice Georges: How about the regulations?
Could you speak to counsel's point
about the vast majority of the folks
who had cremated remains agreed to this, right?
So you have a small number that said,
no, this isn't okay,
and now, unable to get a hundred percent yield
six months after the date of consummation,
these rules in regs are changed.
What is reasonable about,
or if you listen to your brother saying,
you can't do this after the fact?
You couldn't get it beforehand,
so now ex post facto kind of, you know, you go back,
and you undo it after the fact?
-: So I'll start my response, Your Honor, with a query
about whether or not it is within this court
or any court's jurisdiction to unpack
the reasonableness of a church's decision
about its internal governance.
-: I don't say that we can.
I posed the question about the whether or not
that's a trial issue.
Attorney Miller: Right.
So, Your Honor, I don't think it's a trial issue,
and let me back up.
I think it's not because there is an issue of law here
that is on all fours with all of the agreed facts.
So I don't think we need to go back
because it is a question of law.
And what I'd like to go back and do
is to talk about the cases themselves
against which these burial certificates were drafted.
So the parties have been skirmishing to some extent
about two allegedly different lines of cases
that have developed,
but important, in fact, you can rationalize them.
In the Hines and Sanford and Trefry cases,
you had a circumstance where,
because the property was on family burial ground
or former family land,
there was no affirmative act by an appropriate authority
to close that burial ground.
So without any statutory guidance or support,
the court was left to decide,
ah, does it continue to be a burial ground,
because the baseline rule is essentially
the remains should not be disturbed
so long as it remains a burial ground.
Now, here's the difference of course.
In the Trinity cases and in Kincaid and in Partridge
and in Richards and all the other cases
that are cited in our brief,
you have a different set of circumstances.
You have affirmative decision by an appropriate authority,
whether it's a church exercising
its ecclesiastical authority
or a legislature exercising its police powers
or a court exercising its equitable powers,
some appropriate authority
had ordered the burial ground closed.
And that instance, in what the cases say,
which is supported by both the Massachusetts statute
and the words of the burial certificates,
what the cases say is that there was a license to be buried
that is revocable when it is closed
by an appropriate authority.
And therefore, once the decision is made to close,
and, again, my brother does not contest that
that was a legitimate decision to close.
Once the decision is to close,
then it is a license that has been revoked,
and what you are entitled to
is exactly what the Episcopal church provided.
Justice Kafker: And your rule sounds attractive
in sense of appropriate authority,
but it seems to me it's a First Amendment rule
because I mean if this were a corporation,
some burial corporation, right,
and they had entered into something that said
we're gonna perpetually maintain
your burial ground, your plot, we wouldn't be here, right?
It's that that authority is limited.
That authority can be limited by its own terms.
Here we're just reluctant to limit it
because it's gonna run right into
the First Amendment, right?
-: Well, I think there are two responses to that, Your Honor.
Justice Kafker: Not just that it's an authority;
it's an ecclesiastical authority
with religious rights, right?
-: It is, and I'm not diminishing that at all,
but I'm also making the point, Your Honor, that,
I'm going to use the example of the Quabbin River Reservoir.
So we cited that in our brief
to build the Quabbin River Reservoir,
7,000 graves had to be removed
under the legislature's power of eminent domain,
assuming that there were internments in public cemeteries.
Nowhere in the burial certificate,
even if it did promise perpetual care,
which is a pretty usual term, obviously the-
Justice Kafker: I don't know.
If this were-
Let's use your example,
but government takes property, it has to compensate people.
We might be compensating for emotional distress
and all kinds of other things
if this were a governmental taking, right?
-: Right, but the cases actually address
what they're entitled to with respect to compensation
in the burial certificate instance, Your Honor.
And I just wanna back up one sec.
-: Your regulations don't do that at all.
They, if anything, sort of leave the impression
that this is gonna be perpetual.
Attorney Miller: Well, it's perpetual in the sense,
Your Honor, that it wasn't for a day, a year,
or for a specific term.
The perpetual care would continue
for as long as it remained a burial ground,
and once the license is revoked,
because it is no longer a burial ground-
Justice Kafker: Words ever appear in this?
Perpetual as long as it remain a burial ground,
I don't remember reading that.
-: No, of course not, Your Honor,
but in the cases that we cite,
they use very similar language where the burial site
or the certificate was subject to the regulation
of the church or some other authority,
and that's the difference.
When you use that language,
you're not writing on a blank slate.
You are writing in full knowledge of the fact
that other courts for decades, for hundreds of years,
have interpreted that language
to give the holder of the burial certificate
after a burial ground closure
the right to, again, respectful removal and reinterment.
-: What about just contract interpretation
and the fact that the regulation was after the sale?
-: Well, again, Your Honor, I think the critical point
is that there was a decision
to terminate of the burial ground
whenever that was made.
So I'm not sure the timing makes a difference
with respect to what the obligations
of the Episcopal church were, but-
-: I'm getting at the reasonableness of the contract,
the meeting of the minds,
the question Justice Georges asked about whether or not
we've got a factual dispute on reasonableness.
Attorney Miller: Right, so, Your Honor,
there's no question that the burial certificates themselves
left control of the property
entirely in the hands of church officials.
As we've all noted,
there is this enormously broad caveat,
which says that it is subject to the regulations,
and not just subject to the regulations,
but subject to them as they might change.
And the churchyard was subject to the regulations,
the regulations were subject
to the authority of church officials,
and they could change at any point in time.
So it is unreasonable to look at a contract,
that is otherwise extremely simple,
if you look at a contract that, as its primary term,
contains this enormous caveat.
To read that as providing a perpetual right of internment
that survives the sale of property
and survives the decision to close,
Your Honor, we would argue
that that is entirely unreasonable.
-: Do do you even accept this reasonableness?
'Cause, I mean, we don't normally question
reasonable belief in the religious context.
Attorney Miller: Right.
-: Are we running into trouble if we subject-
Do these regulations have to be reasonable,
or do these regulations,
they're the church regulations, and we stay out of it?
-: Correct, that would certainly be the church's position.
If we were to go back to trial,
one would expect that the issues would be
what were the expectations of the party,
and that would be all about what church doctrine is
and church authority is,
and that is just simply an inappropriate place.
-: Why wouldn't it just be basic contract?
-: Because, of course, this is a contract
between a church and its congregant.
-: Sure, but I mean, it's a contract for this license
that you keep talking about, right?
-: And as long as we interpret it
with respect to the cases that have gone before,
interpreting the same language,
then that is a neutral principle, and that is fine,
but the moment we get into whether or not
the church decision to close was reasonable,
what the church chose to close,
whether it's the church or the churchyard,
whether that was reasonable, that's an inappropriate thing.
This is all about internal church governance,
which this court has been chary of wading into
in this sort of context of the church closure,
which, of course, unfortunately we are seeing
more and more of.
-: Counsel, could you help me understand one thing, though?
The regulations were changed after the sale,
and included in the sale was the area
where the remains were.
Can you help me understand?
I just don't see the standing issue.
Can you help me with that?
How was it after the fact
that they get to- Attorney Miller: Right.
Well, I think the hope was likely
that all of the parishioners would agree.
Once there was a clear objections
and once the closing was upon them
or the extension period to resolve this issue was up,
this is not in the record,
then presumably what the church was doing
was giving some confidence to the purchasing church
that this was well and truly closed,
that the church had made the decision that this was closed.
Justice Georges: Thank you.
-: Thank you, Your Honor.
-: Thank you.
Attorney Botros.
-: Good morning.
Justice Budd: Good morning.
-: If it pleases the court,
my name is Attorney Audrey Botros,
and I represent Saint Philopater
and Saint Mina Coptic Orthodox Church.
I'm here today not only as an attorney,
but also as a member of the Coptic Orthodox Church,
and I believe my sister addressed a lot of the issues
that we, of course, are on the same page as them.
The main issue that concerns us
with the decision from the appellate court
was the addressing of the Coptic Orthodox Church's
implications on a decision to maintain this garden.
The Appeals Court says,
"We fail to see how a judicial order
preventing the Coptic Church removing the remains
would constitute government interference
with the church's free exercise in religion rights."
And they don't see how there would be
any affirmative involvement in the Coptic Orthodox Church
with maintaining this garden.
This ongoing issue has gone on for seven years now
and has greatly impacted the Coptic Orthodox Church.
This church was purchased, as the record shows,
to expand the existing church,
to expand a Sunday school building from the church.
The church has been unable to do that for seven years.
They have completely outgrown the small parish
on this property.
They can't build anything.
They can't design.
They can't move forward.
There's a case that was cited,
Society of Jesus versus Boston Landmark,
with I find very similar issues.
The Appeals Court distinguished this case,
but I really see identical issues in both cases.
That case, they wanted to designate and altar as a landmark,
and the court found that preventing the Jesuits
from altering their church
for the purpose of their religious
was a constitutional violation.
In our case, the Coptic Orthodox Church,
I don't know if any of you've ever been
in an Orthodox church, has very particular design.
Every church we have purchased,
and thank God we have a growing congregation,
was changed architecturally to suit
the Coptic Orthodox style of service,
including an iconostasis that runs across
the front of the church.
So we purchased several Catholic churches.
We purchased Episcopal churches.
Every church has been transformed
because that design implicates the way our service is done,
our liturgy is done,
and one of our most important liturgies
on the Feast of Resurrection or Easter,
that has a functional purpose.
If you walk into that church in Wayland,
you will not see that iconostasis, you know.
You won't see important parts of our religious-
-: Can you, I mean, you're engaging in a purchase.
That's the thing that, you know,
you're buying with a certain level of risk
associated with it.
I mean, like, say you bought prop-
I mean, you're buying from another church.
-: Yes.
-: What if that other church insisted
that you maintain something
because it was important to their religion?
If they insist that you do that,
then we have competing religious rights,
and you can avoid it by not purchasing the property, right?
Attorney Botros: Yes.
Justice Kafker: So would they be allowed to do that?
Say the church wanted to keep this memorial ground
because it was important to their religion?
-: Yeah, I'll tell You Honor,
we've purchased several churches,
and I've been involved.
Our office does a lot of pro bono work.
Justice Kafker: Yeah, I'm not-
-: We haven't come across that situation
is what I'm saying to you.
If it's something that greatly disagreed,
like pretend they asked our church
to have a marijuana dispensary-
Justice Kafker: Well, no.
-: If it greatly disagreed with our beliefs-
-: But my question's a little more particular.
It's a little more particular.
It's, as a purchaser of property,
I mean, I just don't know how far your religious rights go
because you are buying at your own risk.
It's not like we're telling you how to operate.
We're telling you that your purchase
may be subject to certain conditions.
-: Yes, it would depend on the conditions, as I mentioned.
I mean, our church, you know, dates back to 42 AD,
one of the very first Christian churches.
We're very particular in our style and what we believe,
and, you know, we've kept that
through years of persecution in Egypt,
but this garden has greatly impacted us,
and it's continued to.
The land has a lot of areas that are not buildable.
You know, for us to expand and do what we want
to serve our church, our community,
we haven't been able to,
and we do respect the wishes of the people,
but we also have a congregation to serve as well.