Harvard Climate Justice Coalition v. President and Fellows of Harvard College , 90 Mass. App. Ct. 444 ( 2016 )

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15-P-905 Appeals Court
HARVARD CLIMATE JUSTICE COALITION & others1 vs. PRESIDENT AND
FELLOWS OF HARVARD COLLEGE & others.2
No. 15-P-905.
Suffolk. June 7, 2016. - October 6, 2016.
Present: Cypher, Grainger, & Kinder, JJ.
Charity. Corporation, Charitable corporation. Practice, Civil,
Motion to dismiss, Standing.
Civil action commenced in the Superior Court Department on
November 19, 2014.
Motions to dismiss were heard by Paul D. Wilson, J.
Joseph E. Hamilton, pro se.
Benjamin A. Franta, pro se.
Brett Blank, Assistant Attorney General, for the Attorney
General.
Martin F. Murphy for President and Fellows of Harvard
College & another.
1
Benjamin A. Franta, Sidni M. Frederick, Olivia M. Kivel,
and Talia K. Rothstein in their capacity as student members of
the Harvard Climate Justice Coalition. After oral argument,
three plaintiffs who are named in the complaint as members of
the coalition withdrew from the appeal.
2
Harvard Management Company, Inc., and the Attorney
General.
2
Jeffrey D. Pierce, of California, & Piper Hoffman, for
Animal Legal Defense Fund, amicus curiae, submitted a brief.
Daniel M. Galpern, of Oregon, & Joseph B. Simons, for James
E. Hansen, amicus curiae, submitted a brief.
CYPHER, J. The plaintiffs, Harvard Climate Justice
Coalition, an unincorporated association of students at Harvard
University (university), and its members, appeal from a Superior
Court judgment dismissing their action that sought a permanent
injunction requiring the President and Fellows of Harvard
College (the university's formal name) and Harvard Management
Company, Inc. (the company that manages the endowment funds)
(collectively, Harvard), to divest the university's endowment of
investments in fossil fuel companies. In a two-count complaint,
the plaintiffs allege that those investments contribute to
climate changes (commonly known as global warming), which
adversely impact their education and in the future will
adversely impact the university's physical campus. We affirm.3
The students filed their complaint in November, 2014.
Almost two months later, the defendants, Harvard and the
Attorney General,4 filed motions to dismiss. In count one of the
complaint, the plaintiffs asserted that the harms of global
3
We acknowledge the amicus briefs submitted by Dr. James E.
Hansen and the Animal Legal Defense Fund.
4
Because this case concerns investment decisions of a
charitable corporation, the plaintiffs joined the Attorney
General as a defendant as required by G. L. c. 12, §§ 8, 8G.
See Brady v. Ceaty, 349 Mass. 180, 181 (1965).
3
warming resulting from investments in fossil fuel companies
constitute mismanagement of the charitable funds in the
university's endowment. In count two, the plaintiffs sought to
assert the rights of "[f]uture [g]enerations" to be free of what
the plaintiffs call the "[a]bnormally [d]angerous [a]ctivities"
of those companies, and proposed a new tort of "[i]ntentional
[i]nvestment in [a]bnormally [d]angerous [a]ctivities."
The judge allowed both motions to dismiss. As to count
one, the judge ruled that the plaintiffs failed to show that
they had standing to maintain their claim of mismanagement of
the endowment. As to count two, the judge declined to allow the
plaintiffs to assert the rights of future generations, and
declined to recognize the proposed new tort.
Analysis. 1. Count one. The plaintiffs' complaint
asserts that the "burning of fossil fuels results in the
emission of greenhouse gases that become trapped in the
atmosphere . . . [and] accumulate . . . [resulting in] climate
change[, which causes] physical changes to the Earth's
ecosystems" and results in "deleterious geopolitical, economic,
and social consequences." In count one of their complaint, the
plaintiffs allege that Harvard's investments in fossil fuel
companies is a breach of Harvard's fiduciary and charitable
duties to uphold the university's "special obligation and
accountability to the future, to the long view needed to
4
anticipate and alter the trajectory and impact of climate
change." The plaintiffs seek a permanent injunction requiring
Harvard immediately to sell their direct holdings in fossil fuel
companies and to begin divesting their indirect holdings in
those companies.
The plaintiffs recognize that their challenge to Harvard's
investments invokes the exclusive standing of the Attorney
General under G. L. c. 12, § 8, inserted by St. 1979, § 716, to
"enforce the due application of funds given or appropriated to
public charities."5 While acknowledging that authority, the
plaintiffs note that Massachusetts law recognizes the right of
special interest plaintiffs to bring suits against charities.
In his memorandum and order, the judge noted that on "rare
occasions," the Supreme Judicial Court has permitted persons
other than the attorney general to challenge the management of
charitable funds. The judge's noting of "rare occasions"
appears to be a reference to a limited exception to the Attorney
General's exclusive standing known as the "special standing"
doctrine. Special standing applies only where "the claim has
5
"The power and duty delegated to the Attorney General to
enforce the proper application of charitable funds are a
recognition by the Legislature not only of his [or her] fitness
as a representative of the public in cases of this kind, but of
the necessity of protecting public charities from being called
upon to answer to proceedings instituted by individuals, with or
without just cause, who have a private interests distinct from
those of the public." Dillaway v. Burton, 256 Mass. 568, 575
(1926).
5
arisen from a personal right that directly affects the
individual member" of a charitable organization. Weaver v.
Wood, 425 Mass. 270, 276 (1997).
On appeal, the Attorney General cites to cases in which our
courts have determined that the special standing doctrine is
applicable because the plaintiffs have been accorded a personal
right in the administration or management of a public charity
and, as such, may enforce that right against the charitable
organization.6 While the plaintiffs recognize that courts have
acted on personal rights in such cases, they do not assert any
of the personal rights identified in those cases, or any other
personal right in the management or administration of Harvard's
endowment. Instead, the plaintiffs assert that they satisfy the
criteria for special standing because as student members of the
university, they are to receive the benefits of Harvard's
charitable authority and therefore enjoy benefits that are
distinct from the general benefits enjoyed by members of the
public.
6
The cases cited by the Attorney General include Jessie v.
Boynton, 372 Mass. 293, 302-305 (1977) (members had standing to
challenge elimination of voting rights in charitable
corporation); Lopez v. Medford Community Center, Inc., 384 Mass.
163, 166-168 (1981) (individuals had standing to litigate claim
that they were unlawfully denied membership in charitable
corporation but could not litigate claim of mismanagement);
Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235,
245 (2007) (plaintiffs alleged personal rights that entitled
them to standing to litigate claim of equitable reversion of
land conditionally gifted to church).
6
"[M]embership in a public charity, alone, is [in]sufficient
to give standing to pursue claims that a charitable organization
has been mismanaged or that its officials have acted ultra
vires." Id. at 277. The plaintiffs, moreover, fail to show
that they have been accorded a personal right in the management
or administration of Harvard's endowment that is individual to
them or distinct from the student body or public at large.
The plaintiffs further assert that the fossil fuel
investments have a chilling effect on academic freedom and have
other negative impacts on their education at the university.
The judge understood that argument as an attempt by the
plaintiffs to obtain standing on the theory that the investments
had impacts that interfered with their personal rights. After
lengthy consideration, the judge concluded that those arguments
were too speculative, too conclusory, and not sufficiently
personal to establish standing.
As the students failed to demonstrate special standing,
count one fails to state a claim upon which relief may be
granted, and was properly dismissed. See Doe v. The Governor,
381 Mass 702, 705 (1980); Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008).
2. Count two. With regard to their second count, the
judge stated that the plaintiffs assert the rights of future
generations to be free of what they call "[i]ntentional
7
[i]nvestment in [a]bnormally [d]angerous [a]ctivities,"
referring to that count as a tort claim. The judge noted that
no court in any jurisdiction has ever recognized that tort, and
in any event creating a new tort in the Commonwealth is the
function of the Supreme Judicial Court or the Legislature.
The judge also stated that the plaintiffs had not provided
any recognized legal principle in support of their unilateral
assertion to represent the interests of future generations.
"[I]f the individual plaintiffs may not maintain the action on
their own behalf, they may not seek relief on behalf of a
class." Doe v. The Governor, supra at 704-705. The judge
therefore properly dismissed the second count.
Conclusion. We conclude, as did the judge below, that the
plaintiffs "have brought their advocacy, fervent and articulate
and admirable as it is, to a forum that cannot grant the relief
they seek."7
Judgment affirmed.
7
The plaintiffs also represented their cause before this
court with a commendable degree of skill, passion, and
ingenuity.