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SPECIAL SECTION \J/ PUBLIC JURIDK PERSON OFFERS FLEXIBILITY

atholics who want to preserve organization, offers some definitions healthcare have become increasingly inter­ Structuring and directions: ested in the concept of the public juridic person, an alternative sponsorship arrange­ Public juridic persons are aggregates of per­ ment useful in a time of dwindling num­ And sons or things which are so constituted by Cbers of women religious and dwindling diocesan the competent ecclesiastical authority that, resources. Through this canonical vehicle, various Writing within the limits set for them in the name of Church entities can share resources. Rather than face the stormy marketplace alone, a single Catholic hospital or a weak Catholic healthcare Statutes for Summary Public juridic person is an alter­ system can combine with others to stay competi­ native sponsorship arrangement that allows various tive, thus maintaining the Church's presence in the Church entities to share resources, thus strengthen­ healing ministry. TJJIS Model ing their competitive position. Creating a public A familiar example of this type of arrangement juridic person is simple in theory but can be compli­ is Catholic Health Corporation (CHC), Omaha, Is Simple in cated in practice. a network of Catholic healthcare facilities incorpo­ The 1983 Code of states that public rated under civil law, and its canonical counter­ juridic persons are "aggregates of persons or things" part, the Catholic Health Care Federation Theory, consituted by the "competent ecclesiastical authori­ (CHCF), which is a public juridic person. Indeed, ty" to "fulfill a proper function given them in view of the public juridic person was created to sponsor the common good." The further indicates and manage Catholic hospitals—like those which Complex in that public juridic persons require statutes. The make up the CHCF—from which religious insti­ code provides a list of items to be included in the tutes have withdrawn. (Also see Judy Cassidv. *A statutes, such as a purpose, constitution, gover­ Vision of Collaboration," Health Progress, June Practice nance, operations, and conditions of membership. 1991, pp. 20-21.) Writing these items can be complex, depending on the makeup of the public juridic person. BY MSGR. JOHN R. CREATING A PUBLIC JURIDIC PERSON AMOS, JCD After writing the statutes, the entities' leaders Creating a public juridic person is relatively sim­ take them to the competent ecclesiastical authority, ple in theory but can become complicated in who approves them and thereby founds the public practice (as discussed later). The 1983 Code of juridic person. But it is not always easy to determine Canon Law, the manual of order for all who the competent authority is. Statutes can be tricky to formulate and therefore should contain provisions for modifications. They should be written as simply as possible. Bylaws should be used as much as possible for detailed provisions. Still, the most important safeguards of Ms/jr. Amos is adjutant judi­ Catholic identity will be the makeup of the board, cial vicar at the Metropolitan provisions for monitoring its activities, and the , Archdiocese of implementation of ethical directives issued by Mobile, Mobile, AL. Church authority.

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the Church, they fulfill a proper function statutes. Second, these statues need the approval given them in view of the common good, in of an ecclesiastical authority, or "the competent accord with the prescriptions of the law. (c. authority," as it is called in the law. 116.1) Statutes Statutes, according to the code, are "ordinances which are established in aggregates of Aggregates of persons must have three physical persons or things according to the norm of law persons as members. These aggregates are either and by which their purpose, constitution, govern­ collegia] or noncollegial. The members of a colle­ The public ment and operation are defined" (c. 94.1). They gia! juridic person "determine its actions through bind only the legitimate members of an aggregate participation in making its decisions, whether by of persons or those who govern an aggregate of equal right or not, according to the norm of its juridic person things (c. 95.2). own statutes" (c. 115.1); the members of noncol­ Statutes are like canon law for juridic persons. legial juridic persons do not. was created to They are more particular manuals of order. Their The code further defines the basics necessary for formulation (discussed later in this article) is one of the public juridic person's creation: sponsor and the major practical tasks in creating this canonical entity. An aggregate of things or an autonomous manage Competent Authority There are many competent foundation consists of goods or things, authorities in the Church—for example, the , whether spiritual or material, and is directed Catholic diocesan bishops, and heads of religious communi­ by one or several physical persons according ties. Deciding which competent authority should to the norm of law and its statutes, (c. grant approval and issue the erecting the 115.2) hospitals from public juridic person will depend on the scope of the eventual juridic person, that is, whether it is Public juridic persons arc given this person­ which international, national, or diocesan. In theory, ality either through the law or by a special international public juridic persons are the decree of the competent authority expressly religious province of the , national public juridic granting it. (c. 116.2) persons are handled by the conference of bishops, institutes have and diocesan public juridic persons are the respon­ No aggregate of persons or things, intend­ sibility of the diocesan bishop. In practice, howev­ ing to obtain juridic personality, can achieve withdrawn. er, other arrangements may have to be made. it unless its statutes have been approved by the competent authority, (c. 117) WRITING THE STATUTES The first paragraph of canon 94 provides a list of From this reading of the law, two points arc items to be included in the statutes of a public now clear. First, public juridic persons require juridic person, namely, definitions of the organiza­ tion's "purpose, constitution, government and operation" (see Box). This list might IK* expanded to include some items required for the statutes of WHAT GOES IN THE STATUTES associations of the Christian faithful, another canonical vehicle for ministerial cooperation The statutes of a public juridic person should contain: among physical persons. These include the head­ • The public juridic person's name iVtvT quarters (i.e., its location) and the conditions of • Its location ^*^- membership (see c. 304). • Its purpose Some of these items often can be copied from • The competent ecclesiastical authority with jurisdiction over it statutes of civil incorporation. The purpose of a • A description of the competent ecclesiastical authority's rights vis-a­ juridic person can be handled by including in the vis the public juridic person statutes a brief description of the proposed organi­ • A description of the method by which the public juridic person is to zation and its mission. Other items—such as the be governed constitution, governance, operation, and the con • A description of the manner in which its governors gain and lose ditions of membership—will require more detailed office commentary. • A list of rules for conducting meetings and elections • A list of regulations for the management of temporal goods THE CONSTITUTION • A description of the steps by which physical persons obtain and lose It is relatively easy to write a constitution for a new- membership public juridic person. One can begin by simply • A provision for the disposal of temporal goods on dissolution of the naming the persons or things making up the new public juridic person entity. However, constitutional questions arise if the entity includes personnel and material re-

32 • JANUARY - FEBRUARY 1996 HEALTH PROGRESS SPECIAL SECTION sources that have come from the merger of two tions of the is one way of other public juridic persons (e.g., two Catholic handling this issue. hospitals). "This new juridic person obtains the In writing statutes, one should precisely deter­ goods and patrimonial rights proper to the prior mine the rights of a "visiting ecclesiastical authori­ ones, and it also takes upon itself the obligations ty." These rights can be quite extensive, as can be with which they have been burdened; however the seen by taking recourse to parallel places, as canon intention of the founders and donors and acquired 17 recommends.1 A public association can, for rights must be respected" (c. 121). example, be commandeered by ecclesiastical Similar constitutional issues arise "if an aggre­ authority during an emergency, and its moderator gate which has public juridic personality is to be so can be removed (c. 318). The leaders of a public divided that a part of it is to be united to another juridic person are subject to die "higher direction" public juridic person" (c. 122). An example would of ecclesiastical authority, to whom they "must be one Catholic hospital merging with another render an account of the administration each whose capital includes part of the patrimonv of a All public year"; the leaders "must also render to the same never legally separated from the ecclesiastical authority a faithful account of the dis­ motherhouse. juridic persons positions of offerings and alms which it collects" Like a civil corporation, "a public juridic person (c.319). is of its nature perpetual," but it can cease to exist Various methods of governing public juridic through suppression by competent authority or "are subject to persons are possible. The code specifies nothing inactivity for 100 years (c. 120.1). "Upon the more than that noted already in canon 115. extinction of a public juridic person, the allocation the vigilance Collegia! juridic persons are governed by their of its goods, patrimonial rights and obligations is members; noncollegial juridic persons and aggre­ ailed by law and by statutes" (c. 123). Cessation of competent gates of things are governed by other physical per­ thus provides the first clue regarding possible sub­ sons. Thus a public juridic person can by governed ject matter proper for statutes. Otherwise the pub­ ecclesiastical either by a single individual or by a board. lic juridic person surrenders its right to determine There are several methods for designating these heirs, so to speak. "If [the statutes] give no indica­ authority." leaders. They may, for example, be elected by the tion, [the goods, patrimonial rights, and obliga­ membership of collegia] juridic persons or appoint­ tions] go to the juridic person immediately superi­ ed by ecclesiastical authorities, such as a bishop or or, with due regard for the will of the founder or superior. Canons 158-163 and 180 183 provide donors and for acquired rights" (c. 123). for two other methods: "presentation" and "pos- tulation." Under presentation, new leaders are GOVERNANCE designated by a body (a board, for instance) to an In general, governance of public juridic persons is ecclesiastical authority with the right to install carried out in the same manner as governance of these leaders in office. Lender posrulation, other Church entities enjoying the same legal sta­ some canonical impediment (e.g., a prohibi­ tus—for example, , parishes, and religious tion against serving successive terms) must institutes. Statutes are to be interpreted in the be relaxed before the selected candidate same manner as well. "Those prescriptions of can assume office. statutes which were issued and promulgated in Leaders of public juridic persons can lose their virtue of legislative power arc governed by the pre­ offices in five ways: lapse of term, resignation, scriptions of the canons on ," that is, canons transfer, removal, and privation. The key difference 7-22 (c. 94.3). between removal and privation is that, in the latter Governance of public juridic persons-like gov­ case, the leader loses his or her office as the result ernance of associations of the Christian faithful of being found guilty of committing a canonical (which also may or may not be public or private offense (e.g., apostasy, heresy, , procure­ juridic persons)—should be carried out in an eccle­ ment of an abortion). No such stigma is attached siastical context. That means that all public juridic to removal; only a just cause is required to deprive persons "are subject to the vigilance of competent the leader of his or her office (e.g., failure to meet ecclesiastical authority, whose duty it is to take care certain agreed upon goals or deadlines). that integrity of faith and morals is preserved in The type of governance chosen for a public them and to watch lest abuse creep into ecclesiasti­ juridic person must be spelled out in its statutes. cal discipline; therefore that authority has the right So must the methods through which leaders to visit them in accord with the norm of law and obtain and lose the offices of governance. The the statutes" (c. 305.1). statutes should also describe the manner of con­ It may be politically astute to include recogni­ ducting elections, if applicable. Most public juridic tion of such a right in the public juridic person's persons pick their leaders according to the canoni­ statutes. Adding a reference to the ethical dircc- cal method, spelled out in canons 119 and 164-

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179. The statutes, however, can be written to pro­ determined by the conference of bishops for its vide other methods—say, Robert's Rules of Order. region . . . when it is a question of juridic persons In some instances, for example, it may be inappro­ who are not subject to the diocesan bishop" (c. priate for the "one who is senior in age" to be 1292.1). The maximum expenditure permitted to a "considered elected" after a tie on the third ballot, public juridic person in the United States is S3 mil­ as is provided by the canonical method (c. 119). lion. For the sake of good order, the statutes could For that reason, the statute writers may want to spell out the required procedures for other large examine other methods for choosing leaders. expenditures, although these are adequately covered by the Code of Canon Law": OPERATIONS Financial matters constitute a major portion of the Otherwise, the competent authority is the daily operations of a public juridic person. The diocesan bishop with the consent of the organization's lines of accountability need to be [diocesan] finance council, the college of spelled out in the statutes, whether or not they are and the parties concerned, (c. as extensive as those for public associations of the Except on 1292) Christian faithful. Book V of the Code of Canon Law, as indicated financial The permission of the Holy See is also by canons 1257-1258, contains other regulations required for valid alienation [transfer or sig­ relevant to the writing of statutes. The general matters, the nificant encumbrance of Church property] principle is contained in canon 1276: when it is a case of goods whose value Church gives exceeds the maximum amount, goods It is the responsibility of the ordinary to donated to the Church through a vow or supervise carefully the administration of all goods which are especially valuable due to the goods which belong to the public juridic the leaders of their artistic or historical value, (c. 1292.2) persons subject to him with due regard for legitimate titles attributing even more signif­ a public [These same requirements,] with which the icant rights to the same ordinary. statutes of juridic persons must be in confor­ Ordinaries are to see to the organization juridic person mity, must be observed not only in an alien­ of the entire administration of ecclesiastical ation but also in any transaction through goods by issuing special instructions within wide latitude which the patrimonial condition of a juridic the limits of universal and particular law, person can be worsened, (c. 1295) with due regard for rights, legitimate cus­ in toms and circumstances. Except on financial matters, the Church gives determining the leaders of a public juridic person wide latitude Particular requirements appear in other canons in determining its operations. Canon 95 does not of Book V. Canon 1280 requires all juridic persons specify which rules of order must be observed in to have a finance council consisting of at least two its operations. assemblies of persons. As noted above, Robert's advisers. "The acts which go beyond the limits and Rules of Order may be utilized. Those leaders of a procedures of ordinary administration are to be public juridic person who arc not subject to the defined in the statutes" (c. 1281.2). laws governing religious are free to operate by con­ "Ordinary administration" is the regular transac­ sensus. tion of business, such as receiving rent or interest income, accepting normal gifts, paying bills, and CONDITIONS OF MEMBERSHIP making routine sales and purchases. Acts that go In general, conditions of membership refer to any beyond the limits and procedures of ordinary requirements for valid admission—requirements administration include "acts of major importance" for candidates, ceremonies of inscription, and so and "acts of extraordinary administration." Acts of on. Canon 306 says that, "in order for a person to major importance are determined in light of the enjoy the rights and privileges, and financial situation of the public juridic person and other spiritual favors granted to the associations, it of bodies to which it is subject (such as a is necessary and suffices that the person has been or religious institute). Acts of extraordinary admin­ validly received into it and not legitimately dis­ istration are nonrecurring acts of special signifi­ missed from it, in accord with the prescriptions of cance, including capital construction, accepting or the law and the proper statutes of the association." making major gifts, and making expenditures over Although canon 306 deals specifically with mem­ a certain amount. bership in associations of the Christian faithful, it Statutes should name the authority competent would appear (from canon 17's reference to "par­ for granting permission to make expenditures allel passages") to apply to membership in collegial "between the minimum and maximum amounts . .. juridic persons as well.

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Those who draft the public juridic person's become practical only in recent years. statutes will need to ask themselves: What consti­ Until the Church has more experience in creat­ tutes "valid reception"? Must some sort of cere­ ing public juridic persons by decree, other practical mony be performed, or does the candidate simply questions are likely to arise. For instance, who attend an initial board meeting, sign a letter of among the bishops of several dioceses should act as intent, and so on? How is a board member legiti­ the competent authority for granting juridic per­ mately dismissed? Is there an appeal process? sonality to an entity that has combined healthcare Conditions of membership apply especially to The idea of ventures from their dioceses? Should the NCCB those public juridic persons also known as public itself take this role? Or would such a matter be associations of die Christian faithful. Canon 316.1 creating handled better at a local level, especially if the facil­ says: "One who has publicly rejected the Catholic ities involved arc not truly national in scope? faith or abandoned ecclesiastical communion or public juridic At least one other situation can arise in which it been punished with an imposed or declared is unclear who is the competent authority. Granted excommunication cannot be validly received into that the Holy See (through the Congregation for public associations." Moreover, "those legitimate­ persons by Institutes of ) is the competent ly enrolled who fall into [these same] situations . . . authority for founding public juridic persons relat­ are, after a warning, to be dismissed from the asso­ which ed to religious institutes, to whom does one turn ciation, observing the association's statutes and when the public juridic person includes entities reserving the right of recourse to . . . ecclesiastical may carry on sponsored by both religious institutes and dioce­ authority" (c. 316.2). It is worth asking whether, ses? Would it be the Council for the Laity? Or the in view of canon 17, these provisions apply also to the apostolic Council for Healthcare? Do several congregations collegial juridic persons that are not associations. share jurisdiction? Might they be delegated to have It should be noted here that canon law neither work begun jurisdiction in particular cases? No precedents have forbids nor invalidates the membership of non- been set for such situations. Catholics in public associations of the Christian by religious faithful. A provision to this effect was removed just STATUTES SHOULD BE SIMPLY WRITTEN before of the code. Healthcare facili­ Formulating statutes is tricky. Mistakes will be ties with dedicated non-Catholics on the board has become made. The statutes should, therefore, contain pro­ need not worry on this account! visions for modification. Statutes should also be practical only written as simply as possible, containing only that PROPER ECCLESIASTICAL AUTHORITIES which is basic and necessary. Bylaws should be used Assuming that statutes have been prepared for the in recent as much as possible for detailed provisions, since creation of a public juridic person, to whom does they can be modified more easily than the more one take them? And for what? years. fundamental document. In this sense, the statutes The second question is easier to answer than the and bylaws of public juridic persons arc like the first. The statutes should be taken to the compe­ constitutions and directories of the legislation that tent ecclesiastical authority, who approves them creates religious communities. Changes in statutes and thereby constitutes or founds the public and constitutions both require the approval of a juridic person. The constitution is accomplished competent outside authority. But just as a religious through "a special decree of the competent au­ community' can modify its own director)', a public thority expressly granting it" (c. 116.2). Approval juridic person can modify' its own bylaws. of the statutes may appear in this or in a separate But statutes and bylaws, however flexible and decree. well formulated, are not the most important safe­ But who is the competent authority? As noted guards of Catholic identity. The most important previously, the theory is clear. International entities * safeguards are the makeup of die board, provi­ are handled by the Holy See, national entities by sions for monitoring its activities, and the inte­ the episcopal conference, and diocesan entities by gral implementation of ethical directives issued by the diocesan bishop. Church authority. • But this has not always worked in practice. In the United States, for example, the National Conference of Catholic Bishops (NCCB) appar­ NOTE ently does not yet have an office equipped to mon­ 1. Canon 17: "Ecclesiastical laws are to be understood in itor the operation of public juridic persons. Until accord with the proper meaning of the words consid­ now, the NCCB did not seem to need such an ered in their text and context. If the meaning remains office. The idea of creating public juridic persons doubtful and obscure, recourse is to be taken to paral­ by which laity may carry on in an organized, pro­ lel passages, if such exist, to the purpose and the cir­ cumstances of the law, and to the mind of the legisla­ fessional fashion the apostolic work begun by reli­ tor." {Code of Canon Law: -English Edition, Canon gious and clergy, although an ancient one, has Law Society of America, Washington, DC, 1983, p. 7.)

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