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Public Juridic Person Offers Flexibility VkX^ SPECIAL SECTION \J/ PUBLIC JURIDK PERSON OFFERS FLEXIBILITY atholics who want to preserve Catholic Church 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 Canon Law 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 canon law 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 The make up the CHCF—from which religious insti­ code provides a list of items to be included in the tutes have withdrawn.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 official 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 Tribunal, Archdiocese of implementation of ethical directives issued by Mobile, Mobile, AL. Church authority. HEALTH PROGRESS JANUARY - FEBRUARY 1996 • 31 SPECIAL SECTION 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 pope, 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 decree 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 Holy See, 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 episcopal conference 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 religious institute 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.
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