FILED: NEW YORK COUNTY CLERK 02/11/2013

NYSCEF DOC. NO. 2

INDEX NO. 650452/2013 RECEIVED NYSCEF: 02/11/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------- x : JEREMY BATES, : : Plaintiff, : : -against: : THE RECTOR, CHURCH: WARDENS, AND VESTRYMEN : OF TRINITY CHURCH, IN THE : CITY OF NEW-YORK, : : Defendant. : : -------------------------------- x

Index No. _______________ - 2013 COMPLAINT

Pro se Plaintiff Jeremy Bates, for his Complaint against Defendant The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the city of New-York, alleges as follows: NATURE OF THE CASE 1. 2. This action tests whether a church is accountable to its members. Specifically, this case asks whether, at the churchs annual vestry election,

a member may vote against nomineesand whether such no votes must be counted. 3. The church in question is Defendant The Rector, Church-Wardens, and

Vestrymen of Trinity Church, in the city of New-York (also known as Trinity Wall Street). 4. Trinity Wall Streets Charter, granted in 1697, provides that the churchs

wardens and vestrymen shall be elected by the majority of votes. 5. At the churchs last election, on April 10, 2012, Plaintiff Jeremy Bates

voted no as tothat is, he voted againstall the nominees for warden and vestryman. 6. On information and belief, the ballot that Bates cast was not counted.

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At the 2012 election, on information and belief, other members of Trinity

Wall Street also cast no votesand their no votes were not counted either. 8. Later, when Bates asked whether members no votes had been counted,

the Rector of Trinity Wall Street failed to answer the question directly. 9. When Bates then asked whether each nominee received the majority of

votes under the 1697 Charter, Trinity Wall Street took the view that a plurality rule applies. 10. So Bates seeks a declaration that (i) to be elected warden or vestryman of

Trinity Wall Street, one must receive the majority of votes, as the 1697 Charter commands. 11. Bates also seeks declarations that (ii) Trinity Wall Streets ballot must

include boxes for no votes; (iii) any no votes must be counted; and (iv) so that he may decide how to vote, Bates has the right to receive Trinity Wall Streets financial statement. PARTIES 12. 13. 14. 15. The PlaintiffJeremy Bates (Bates)resides in New York County. Bates is a member of Trinity Wall Street, and has been since around 2004. Bates is on Defendants list of members eligible to vote at its elections. The DefendantThe Rector, Church-Wardens, and Vestrymen of Trinity

Church, in the city of New-Yorkis a religious corporation headquartered in New York County. 16. For nearly a century after it was founded, Defendant was a parish church

of the Diocese of London of the Church of England. 17. After the War of Independence, Defendant became a parish church of the

Diocese of New York of The Episcopal Church. 18. 19. In recent years, Defendant has adopted the brand Trinity Wall Street. On information and belief, Trinity Wall Street owns commercial real

estate that it has valued at a total of more than one billion dollars ($1,000,000,000.00). -2-

FACTS Under Its Charter, Granted in 1697, Trinity Wall Street Is Governed by a Rector, Two Wardens, and 20 Vestrymen 20. On information and belief, Trinity Wall Street was incorporated in 1697

by a royal Charter (the 1697 Charter) signed by the governor of the Province of New York. 21. The 1697 Charter provides that there shall be a perpetual succession of

Rectors who will have care of the souls of the inhabitants of the City of New York. 22. The 1697 Charter also provides that the Rector of Trinity Wall Street, and

certain inhabitants of New York City, will together form a body corporate and Politiq: And we have further thought fitt and . . . are graciously pleased to create and make [the then Bishop of London] and his successors, Rectors of the said Parish, together with all the inhabitants from time to time inhabiting, and to inhabit in our said City of New Yorke, and in communion of our aforesaid Protestant Church of England, as now established by our laws, a body corporate and Politiq [sic]. 23. The 1697 Charter gives the Rector and Inhabitants corporate powers,

providing that the Rector and Inhabitants shall be . . . for ever hereafter a body corporate and politique . . . by the name of the Rector and Inhabitants of our said City of New Yorke, in communion of our Protestant Church of England as now established by our laws. And that by the same name they and their successors shall and may have perpetuall succession, and shall and may be persons able and capable in the law to sue and be sued, to plead and be impleded, to answer and be answered unto, to defend and be defended in all and singular suits . . . and also to have, take, possess, . . . and purchase, lands . . . as other our liege people, or any corporation, or body politicque within our realme of England or this our Province may lawfully do. 24. The 1697 Charter further provides that the power to hire the Rector of

Trinity Wall Street shall . . . be hereby vested in the Churchwardens and Vestrymen.1 25.
1

The 1697 Charter states that there shall be two wardens and 20 vestrymen.

The Churchwardens are known simply as wardens. Vestryman and vestrymen are the terms still used today, although many of Trinity Wall Streets vestrymen are women. -3-

The 1697 Charter Provides That the Wardens and Vestrymen Shall Be Elected by the Majority of Votes 26. The 1697 Charter further provides that Trinity Wall Streets wardens and

vestrymen are to be elected. 27. Importantly, the 1697 Charter sets forth the standard for their election:

The wardens and vestrymen are to be duly elected by the majority of votes of the inhabitants of the said Parish in communion as aforesaid (italics added). 28. Originally, inhabitants of the City of New York who were members of the

Church of England could vote for the wardens and vestrymen of Trinity Wall Street. 29. After the War of Independence, the Church of England was disestablished

in New York State, and other Episcopal parishes were founded in the City of New York. 30. As a result, for more than 200 years, the right to vote at Trinity Wall

Streets elections has been restricted to, and exercised by, the members of Trinity Wall Street. In 2012, Trinity Wall Street Gave Its Members Notice That the Vestry Election Would Be Held . . . in Accord with the 1697 Charter 31. On April 8, 2012, in the Sunday bulletin, Trinity Wall Street gave its

members notice that The annual Vestry elections will be held Easter Tuesday, April 10, 2012, in accord with the original Charter of Trinity Parish in 1697 by King William III of England. (A copy of the April 8 bulletin is attached hereto as Exhibit A.) 32. Before the April 10 election, Trinity Wall Street also posted a sample

ballot. (A copy of that sample ballot is attached hereto as Exhibit B.) 33. The sample ballot listed the names of the two nominees for warden and

the 20 nominees for vestryman. 34. Next to each name, the sample ballot had only one boxfor a yes vote.

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At the 2012 Election, Bates Voted Against All Nominees 35. 36. 37. At the April 10 election, Bates was given a ballot identical to Exhibit B. Bates voted against all nominees for warden and vestryman. Bates recalls that he did this by bracketing the names of the two nominees

for warden, and writing next to this bracket no as to both nomineesagainst both nominees; and by bracketing the names of the 20 nominees for vestryman, and writing next to this bracket no as to all nomineesagainst all nominees. 38. On information and belief, on April 10, 2012, other members of Trinity

Wall Street also voted against one or more of the nominees for warden or vestryman. 39. On information and belief, Trinity Wall Street has kept the paper ballots

cast at its April 10, 2012, election. 40. On April 10, 2012, Trinity Wall Street announced that all nominees for

warden and vestryman were elected. (A copy of this announcement is attached as Exhibit C.) 41. This announcement stated that the election had been conducted in

accordance with the Ordinances of Trinity Church. 42. Under the 1697 Charter, the Rector and inhabitants may make

ordinances for the good and welfare of the members of the said church and corporation: And We do . . . give and grant unto the said Rector and inhabitants of our city of New Yorke in communion, &c., full power and authority from time to time to . . . make, ordaine and constitute or repeal such rules, orders and ordinances for the good and welfare of the members of the said church and corporation, so that those rules orders and ordinances be not repugnant to the laws of our Realme of England and of this our province [of New York]. 43. Although Trinity Wall Streets 1697 Charter grants the power to make

ordinances to the Rector and inhabitants of our city of New Yorke, on information and belief, the ordinances have never been approved by the members of Trinity Wall Street. -5-

Bates Then Asked Whether All the Votes Had Been Counted, But the RectorWho Had Counted the VotesAvoided the Question 44. On information and belief, the person who counted the ballots for Trinity

Wall Streets 2012 election was the churchs Rector, Dr. James Cooper (Cooper). 45. On April 11, 2012, the day after the election, Bates wrote Cooper to ask

about the election result. (A copy of Batess April 11 letter is attached as Exhibit D hereto.) 46. Specifically, Bates asked Cooper As to each nominee, taken individually

1. Were the yes votes counted? 2. Were the no votes counted? 3. And was the majority of votes yes, or not? 47. In an April 14 e-mail to Bates, Cooper failed to answer these questions

directly, did not refer to the 1697 Charter, and instead invoked Trinity Wall Streets ordinances: In brief response allow me to note that the elections were conducted in the manner as provided in Trinitys ordinances. Each ballot cast as marked by the voter was carefully considered, the votes were counted consistent with the ordinances, and the the [sic] election results were certified by the two inspectors of election and myself as the elections presiding officer, again in accordance with the ordinances. (A copy of Coopers April 14 e-mail is attached as Exhibit E hereto.) 48. Cooper was likely invoking 2.02 of Trinity Wall Streets ordinances

which states that the Parish Nominating Committee may nominate more than one person for each vestry vacancy, and which goes on to say, [T]he persons who shall be found to have the greatest number of votes for each position shall be deemed to be duly elected. 49. On information and belief, the language of ordinance 2.02 quoted in the

preceding paragraph has never been approved by the members of Trinity Wall Street at any annual meeting, at any special meeting, or otherwise.

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Bates Also Asked Whether the Charters Majority Rule Had Been Followed, But He Was Told That a Plurality Rule Applied Instead 50. On May 4, 2012, Bates wrote Cooper back. (A copy of this May 4 letter

is attached as Exhibit F hereto.) 51. Citing the 1697 Charter, Bates asked Cooper whether Cooper had applied

the majority of votes standard and whether Cooper would apply that standard in the future: At last months vestry election, were all the votes counted? And as to each nominee whom you, as presiding officer, certified to have been elected, did that nominee receive the majority of votes? And what about next year? When you preside over future vestry elections, will you use the Charters majority of votes standard? Will you count not only votes for, but also other votes, to determine whether any nominee has fallen short of a majority? 52. The only reply that Bates has received to his May 4 letter came from

Trinity Wall Streets Chancellor, Stefan Ford (Ford). 53. On May 17, 2012, Ford e-mailed Bates and stated that Trinity Wall

Streets ordinances provide for a plurality rule: The current ordinances . . . provide for what is referred to in corporate governance as the plurality rule. As you know, under plurality voting, those nominees receiving the greatest number of votes in contested elections are elected, and in uncontested elections those nominees receiving any votes in favor of their election are elected. (A copy of this e-mail is attached as Exhibit G hereto.) 54. Cooper recently told a congregational committee of Trinity Wall Street

that at the 2013 election, only yes votes will be counted. 55. Nevertheless, on January 6, 2013, in the Sunday bulletin, Trinity Wall

Street announced that The annual vestry election will be held Easter Tuesday, April 2, 2013, in accord with the original charter of Trinity Parish in 1697.

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FIRST CAUSE OF ACTION (Declaratory JudgmentTo Be Elected, One Must Receive the Majority of Votes) 56. 57. Bates realleges paragraphs 1 through 55 as though set forth herein. A dispute has arisen between Bates and Trinity Wall Street over whether

Trinity Wall Streets elections must be conducted under a majority rule. 58. This dispute between Bates and Trinity Wall Street is a justiciable dispute

that is within this Courts jurisdiction and power to resolve. 59. To resolve this dispute, this Court should declare that a nominee for is not

elected warden or vestryman of Trinity Wall Street unless he or she has received the majority of votes, as the 1697 Charter requires. SECOND CAUSE OF ACTION (Declaratory JudgmentNo Votes Are Permitted, Must Be Counted, and Must Be Given Effect) 60. 61. Bates realleges paragraphs 1 through 59 as though set forth herein. A dispute has arisen between Bates and Trinity Wall Street regarding

whether Bates may vote no at Trinity Wall Streets election, and if he does, whether such a no vote must be counted. 62. This dispute between Bates and Trinity Wall Street is a justiciable dispute

that is within this Courts jurisdiction and power to resolve. 63. To resolve this dispute, this Court should declare that at Trinity Wall

Streets 2013 election, Bates may cast a no vote; that if he casts a no vote, Trinity Wall Street must count it; that under the 1697 Charter, one is not elected warden or vestryman of Trinity Wall Street by the majority of votes unless one has received the majority of votes cast, including no votes or votes against; and that if a nominee receives fewer yes votes than no votes, or an equal number of yes and no votes, then that nominee is not elected. -8-

THIRD CAUSE OF ACTION (Declaratory JudgmentThe Ballot Must Include Boxes for No Votes) 64. 65. Plaintiff realleges paragraphs 1 through 63 as though set forth herein. As Exhibit B shows, Trinity Wall Streets 2012 ballot ostensibly did not

provide a way to vote no as to, or to vote against, nominees. 66. Trinity Wall Streets form of ballot therefore wrongfully suggested

despite the 1697 Charters majority of votes standardthat a no vote was somehow impermissible, or that a vote against a nominee somehow would not be counted. 67. By reason of the foregoing, a dispute has arisen between Bates and Trinity

Wall Street as to whether Trinity Wall Streets form of ballot is improper and unlawful. 68. This dispute between Bates and Trinity Wall Street is a justiciable dispute

that is within this Courts jurisdiction and power to resolve. 69. To resolve this dispute, this Court should declare that at any election held

under the 1697 Charters majority of votes standard, Trinity Wall Street must provide a ballot that has boxes for no votes, or votes against nominees. FOURTH CAUSE OF ACTION (Declaratory JudgmentTrinity Wall Street Must Provide Bates Its Financial Statement) 70. 71. Plaintiff realleges paragraphs 1 through 55 as though set forth herein. As a member of Trinity Wall Street, Bates has the right to inspect the

books and records of Trinity Wall Street and to receive a copy of its financial statement. See, e.g., New York Not-for-Profit Corporation Law 621. 72. On July 6, 2012, Bates wrote Cooper to request a copy of Trinity Wall

Streets financial statement. (A copy of this letter is attached as Exhibit H hereto.)

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73.

In his July 6 letter, Bates phrased this request as follows: Dear Dr. Cooper: As you know, I have been a member of record of Trinity Wall Street (the Corporation) for at least six months immediately preceding today. I hereby request that the Corporation give or mail to me its annual balance sheet and profit-and-loss statement, or a financial statement performing a similar function (either such document, the Statement), for the preceding fiscal year. Please either (i) send a copy of the Statement to me at the above address or (ii) let me know when I may pick the Statement up at the Corporations offices during regular business hours. Thank you for your attention to this request.

74.

In a July 16 e-mail, Cooper implicitly denied Batess request: Dear Jeremy, I am in receipt of your letter dated July 6, 2012, requesting certain financial information concerning Trinity Church. Currently, the Churchs financial statements are only distributed to and reviewed by the Vestry and its committees and are not disseminated to the congregation at large.

(A copy of Coopers July 16 e-mail is attached hereto as Exhibit I.) 75. By reason of the foregoing, a dispute has arisen between Bates and

Trinity Wall Street over whether Bates has a right to receive Trinity Wall Streets financial statement. 76. This dispute between Bates and Trinity Wall Street is a justiciable dispute

that is within this Courts jurisdiction and power to resolve. 77. To resolve this dispute, this Court should declare that under New York

law, as a member of Trinity Wall Street, Bates has the right to receive a copy of Trinity Wall Streets financial statement.

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