Congregation Jeshuat Israel v. Congregation Shearith Israel

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bobby R. Baldock, ** Appellate Judge. Published. * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. ** Hon. Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation. [16-1756]

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Date Filed: 08/02/2017

Entry ID: 6110253

United States Court of Appeals
For the First Circuit
No. 16-1756
CONGREGATION JESHUAT ISRAEL,
Plaintiff, Appellee,
v.
CONGREGATION SHEARITH ISRAEL,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]

Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Baldock, Circuit Judge.**

Louis M. Solomon, with whom Colin A. Underwood, Nancy L.
Savitt, John F. Farraher, Jr., Greenberg Traurig, LLP, Deming E.
Sherman, and Locke Lord LLP were on brief, for appellant.
Gary P. Naftalis, with whom Jonathan M. Wagner, Tobias B.
Jacoby, Daniel P. Schumeister, Kramer Levin Naftalis & Frankel
LLP, Steven E. Snow, and Partridge Snow & Hahn LLP were on brief,
for appellee.

*

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
**

Hon. Bobby R. Baldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.

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SOUTER, Associate Justice.

Entry ID: 6110253

This case began as an action

for declaratory judgment brought by Congregation Jeshuat Israel
("CJI"), which was followed by counterclaims on behalf of the
defendant, Congregation Shearith Israel ("CSI").

The district

court held that CJI was owner of rimonim used in its worship in
the Touro Synagogue and that CSI was owner of the building and
real

estate

subject

to

a

trust

for

CJI

as

representing

practitioners of Judaism in Newport, Rhode Island.

the

We reverse on

the basis of the parties' own agreements determining property
rights by instruments customarily considered by civil courts.

We

hold that the only reasonable conclusions to be drawn from them
are that CSI owns both the rimonim and the real property free of
any civilly cognizable trust obligations to CJI.
I.
The district court made extensive findings of fact, of
which the following, limited synopsis presents the background of
this litigation.

In the latter part of the 17th century, the

Jewish population of Newport, Rhode Island, made up principally of
immigrants from Europe, associated for religious observances and
in the course of the following century became known as Congregation
Yeshuat Israel, which worshiped largely according to the Sephardic
(Spanish

and

Portuguese)

Jewish

tradition.

In

the

mid-18th

century, these observant Jews acquired land in Newport on which
the building now known as Touro Synagogue was built.
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Self-

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assessments on the congregants funded the land acquisition, and
the Synagogue was erected through donations.

The members chose

three men to serve in a trusteeship capacity over the Synagogue
and its lands, though it is not clear that these individuals would
have been recognized as trustees by the civil law in the mid-18th
century.
Close in time to the construction of the Synagogue,
silversmith Myer Myers created the rimonim at issue here, a pair
of finials with attached bells made of silver and gold and designed
to surmount the shafts around which the Torah scrolls were rolled.
The rimonim were used in worship by Congregation Yeshuat Israel in
Touro Synagogue.
In

the

course

of

the

period

running

from

the

Revolutionary War through the War of 1812, the Jewish population
in Newport virtually vanished.
property,

including

the

As it dwindled, movable personal

rimonim,

Sephardic congregation in New York.

was

transferred

to

CSI,

a

In the ensuing years, and for

the better part of the 19th century, various individuals took it
upon themselves to maintain the fabric of the Newport Synagogue,
and CSI, too, helped care for the building, which it controlled
and made available for occasional funerals.

In the latter part of

the 19th century, out of a new infusion of immigrants, a Jewish
population grew again in Newport.

To a significant degree, its

religious character was of the Ashkenazic (central and eastern
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European)

tradition,

and

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its

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became

known

as

Congregation Jeshuat Israel, though its name represented no formal
connection with its predecessor.

When the community was large

enough to support a rabbi, Touro Synagogue was reopened, and CSI
returned the rimonim to Newport.
Around the turn of the 20th century, the relationship
between CJI and CSI soured to a point in 1901 when CSI closed the
Synagogue.

After a year of closure, a group of the Newport Jews

broke in and engaged in a limited occupation that lasted for
another year, whereupon CJI and several individuals brought suit
in equity against CSI in a Rhode Island court, claiming a right to
the Synagogue and its lands.

CSI removed the case to federal

district court, which in January 1903 sustained CSI's demurrer and
dismissed the case.

See David v. Levy, 119 F. 799 (D.R.I. 1903).

The effect that the judgment standing alone might have
today, if any, is not a matter of concern to us, owing to a series
of contracts that we mention here and describe in greater detail
below.

In 1903, CJI and CSI made an agreement to settle their

competing claims of interest in the real property, followed in the
same year by a five-year lease of the Synagogue from CSI to CJI,
which dealt with personal property as well as the real estate.
The lease was renewed for another five years in 1908.
CJI

continued

to

hold

services

in

the

building

Thereafter

and

in

1945

recognized its own status as lessee when it joined an agreement
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that

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the

two

congregations

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with

the

Department

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of

the

Interior, and it again recited its lessee status in a further
contract made in 2001 by CJI and a supporting organization with
the

National

Trust

for

Historic

Preservation.

Although

the

leasehold relationship was thus acknowledged, CJI was a holdover
tenant under the 1908 lease, and for much of the parties' recent
history each took a relaxed view of CJI's nominal rent obligation,
the district court having found only one annual payment since 1987.
In the recent period of their relationship, a want of
cordiality, if not acrimony, was brought to a pitch in 2011 by
CJI's efforts to raise an endowment to provide reliable income to
support its activity at the Synagogue.

In that year it received

an offer from the Museum of Fine Arts in Boston to purchase the
rimonim for over seven million dollars, and it prepared to sell
them.

CSI objected, claiming ownership of the objects, and

charging CSI with violation of the lease obligation to conform to
CSI's version of Sephardic practice, which forbade disposition of
such ritual objects.
The standoff between the two congregations precipitated
the present litigation, begun by CJI, which filed suit against CSI
in Rhode Island Superior Court in 2012.

It sought an order

declaring it to be the lawful owner of the rimonim and restraining
CSI from interfering with the proposed sale to the museum.

As a

fallback, CJI asked for a judgment declaring that CSI owned the
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rimonim in trust for the benefit of CJI and authorizing the sale
as being in CJI's best interests.

CJI further requested that CSI

be removed as trustee, to be replaced in a trust capacity by CJI's
own board of trustees.
CSI promptly removed the action to federal court, based
on diversity of citizenship, 28 U.S.C. § 1332(a), and then answered
the complaint and counterclaimed.

The counterclaims asked the

district court to declare that CSI owns and has full legal and
equitable rights to the rimonim.
the

sale

of

the

rimonim

tradition

as

maintained

would
by

CSI

CSI sought a declaration that
be
and

contrary
thus

to

the

unlawful

Sephardic
under

the

governing instruments, and requested an injunction barring the
sale to the Museum and ordering physical transfer of the rimonim
to CSI, unless CSI should agree otherwise.1

As to the real

property, CSI requested a declaration that CSI owned and had full
legal and equitable rights to the Synagogue and its lands.

CSI

also asked for a declaration that CJI had breached the terms of
the lease with CSI and the 1945 agreement with the Department of
the Interior by, among other things, attempting to sell CSI's

1

After trial but before the district court issued its
decision, CSI amended its counterclaims to state that, rather than
request the return of the rimonim to New York, it would stipulate
to a long-term loan of the rimonim to any congregation worshipping
at the Newport Synagogue in accordance with the conditions of the
lease and subject to other terms satisfactory to CSI.
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property and attempting to treat the Synagogue as its own by
installing

an

unauthorized

plaque.

CSI

requested

that

CJI

therefore be removed as lessee of the Synagogue and the related
real and personal property.

CSI went on to request that the

district court direct CJI to honor its "obligations and duties
under

the

contractual

and

long-standing

obligations

and

protocols," including an obligation not to alter its bylaws.
Finally, CSI sought an award of damages to be determined at trial,
along with attorney's fees and costs.2
After

a

nine-day

bench

trial,

the

district

court

concluded that CJI was the rightful owner of the rimonim, with
full power to sell them. It further found that the Touro Synagogue
and its lands were owned in a charitable trust for the purpose of
Jewish worship in Newport, with CSI as trustee.

After determining

that CSI had failed in its trusteeship duties, the district court
ordered CSI removed as trustee and CJI appointed in its stead.
II.
The district court approached the competing claims for
control of the rimonim and the Touro Synagogue's land and buildings

2

CSI also alleged that CJI had breached a "standstill
agreement" between the two parties by filing suit.
CSI sought
damages from the breach in an amount to be ascertained at trial.
But the district court considered this claim waived on account of
CSI's failure to argue it at trial, and CSI does not dispute that
determination on appeal.
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by

a

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conscientious

and

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exhaustive

historical

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analysis.

It

concluded that CSI's authority as owner of the Synagogue had
evolved to that of trustee for the benefit of CJI as beneficiary
standing for those who engage in Jewish worship in Newport.

The

court's findings traced a long path through the history of Newport
Judaism, beginning in Rhode Island's founding century and passing
through periods of historical obscurity, the most notable of which
followed the decline of Newport's Jewish population beginning at
the time of the Revolution and its disappearance after the War of
1812.

The court confronted conflicting claims of bailment and

trusteeship in the course of describing a basic sequence of events
depending substantially on information found in the synagogues'
respective records and correspondence.
Much of that history reflected, albeit without directly
addressing, the doctrinal tensions between the CSI congregation,
committed to preserving Sephardic practice at Touro, and the later
Newport

congregation

that

emerged

from

the

19th

century

immigration, which included a significant Ashkenazic element.

The

district court was scrupulous in avoiding any overt reliance on
doctrinal precepts, as forbidden by the Supreme Court's case law
applying the religion clauses of the First Amendment.

See, e.g.,

Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox
Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 709-10
(1976); Presbyterian Church in the U.S. v. Mary Elizabeth Blue
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Hull

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Mem'l

Presbyterian

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Church,

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393

U.S.

440,

449

Entry ID: 6110253

(1969).

Nonetheless, the court's historical investigation was unavoidably
an immersion in the tensions between two congregations that were
not doctrinally identical, one of which clearly insisted that the
other conform to some extent with a practice of Spanish and
Portuguese Judaism as a condition of favorable treatment. In fact,
CSI's insistence that its standard of religious practice forbade
the sale of the ritual objects was offered as the basis for
pressing its claim of ownership and authority to block the sale,
which eventuated in this case.
These are circumstances in which we think that the First
Amendment calls for a more circumscribed consideration of evidence
than the trial court's plenary enquiry into centuries of the
parties' conduct by examining their internal documentation that
had been generated without resort to the formalities of the civil
law.

In implementing the religion clauses of the First Amendment,

the Supreme Court has established a regime of limits on judicial
involvement in adjudicating disputes between religious entities
situated like the parties before us, when competing property claims
reflect doctrinal cleavages. What the Court has approved as merely
"marginal

judicial

involvement"

by

the

civil

courts

in

such

circumstances, Presbyterian Church, 393 U.S. at 450, is aimed at
avoiding, or at least minimizing, the twin risks presupposed
respectively by the Constitution's Free Exercise and Establishment
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Clauses: compromising the degree of religious autonomy guaranteed
by the former, and placing government in the position of seeming
to endorse the religious positions of the winners, forbidden by
the latter.

See Presbyterian Church, 393 U.S. at 449 ("If civil

courts undertake to resolve [church property disputes triggered by
religious doctrine and practice] . . . the hazards are ever present
of inhibiting the free development of religious doctrine and of
implicating secular interests in matters of purely ecclesiastical
concern.").

These objectives are summed up in another of the

Court's aspirational phrases, urging resort to a methodology that
allows courts, to the extent possible, to decide in ways that avoid
"entangl[ing them] in matters of religious controversy," Jones,
443 U.S. at 608, by relying instead upon the application of
"neutral principles of law, developed for use in all property
disputes," Presbyterian Church, 393 U.S. at 449; accord Soc'y of
Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 4142 (1st Cir. 2012).
Although there is no simple template for locating the
line of limited involvement when property disputes defy resolution
by religious contenders themselves, the Court has made a point of
instructing religious bodies on actions open to them in advance of
controversy,

to

keep

judicial

intrusion

within

bounds.

As

examples, the Court has mentioned including provisions in deeds
and corporate charters spelling out reversionary rights or express
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trust benefits, options available to religious organizations as
readily as to their secular counterparts.

Jones, 443 U.S. at 606.

And there can be no doubt that contractual arrangements between
the contending parties deserve the same preference as secular
grounds for judgment.

See id. at 603 n.3 (characterizing Watson

v. Jones, 80 U.S. (13 Wall.) 679 (1871), as establishing that
"regardless of the form of church government, it would be the
'obvious duty' of a civil tribunal to enforce the 'express terms'
of a deed, will, or other instrument of church property ownership"
(quoting

id.

instruments

at

for

722-23)).
establishing

It

is,

after

ownership

and

all,

these

control

common

that

most

readily enable a court to apply the required, neutral principles
in evaluating disputed property claims.
When such provisions of deeds, charters, contracts, and
the like are available and to the point, then, they should be the
lodestones of adjudication in these cases.

And they are available

here: three contracts entered into by the two congregations that
establish ownership of the Synagogue and the rimonim, and a fourth
agreement to which CJI is a party, which confirms the continuing
vitality of the conclusions reached in the prior three.
The first of them is a settlement agreement made in the
aftermath of the dismissal of the earlier action brought by CJI,
David, 119 F. 799. On January 30, 1903, a committee of CJI executed

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an agreement with the trustees of CSI containing these principal
provisions:
The Congregation, Jeshuat Israel, agrees to admit and
recognize without qualification the title and ownership of L.
Napoleon Levy and acting trustees [of CSI] to the synagogue
building, premises and fixtures.
. . . L. Napoleon Levy and acting trustees upon receiving the
absolute surrender of said premises agrees [sic] to make a
lease thereof to the Congregation Jeshuat Israel for five
years from February 1, 1903, at the nominal rent of one dollar
yearly; said lease shall be in form satisfactory to the
landlord and shall contain such clauses as will obviate the
necessity of any legal proceedings, so far as possible, by
either party to enforce its rights thereunder.
While the signatories on behalf of CSI are designated "trustees,"
there is no indication that they were understood to be trustees
for the benefit of any entity but their own congregation, and a
reasonable reading shows it to be highly unlikely that they were
understood to have trust obligations to CJI. CJI accepted "without
qualification" the CSI trustees' title to the Touro Synagogue land,
building, and fixtures.

The contract contemplates CJI's "absolute

surrender" of the premises, after which the CSI trustees agree to
lease them to CJI for five years at a dollar a year, "in form
satisfactory to the landlord."

Acceptance without qualification

of the title of trustees of an independent entity, to which
absolute surrender is made in anticipation of a lease satisfactory
to the landlord (without any reference to preference of the lessee)
is operative language without a hint of possible trust terms or
trust obligations running from the lessor landlord to the lessee.
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The contemplated lease was expeditiously signed, on
February 2, 1903, by a committee acting on behalf of CJI and by
the CSI trustees. Its maximum term was five years, at the trifling
annual rent specified in the preceding settlement.

The nominal

rent of course, expresses a hopeful, if not kindly, disposition on
the

landlord's

part,

but

is

not

an

acknowledgement

obligation of legally recognized trusteeship.

of

any

For that matter,

the generosity was apparently offset by a duty on the lessee's
part to maintain the premises; there was no provision obligating
CSI to pay for their upkeep, whereas CJI was obligated to surrender
them

in

as

good

condition

as

when

received,

reasonable wear and damage by the "elements."
maintenance

CJI's

only

obligation.

Even

save

only

for

Nor was property
within

the

rented

synagogue it had no discretion but to conduct "the usual and stated
religious services according to the ritual rites and customs of
the [Sephardic] Jews as at this time practiced" in CSI's own
synagogue in New York.3 And it was required to obtain CSI's advance

3

The condition to follow Sephardic practice does not
disentitle the lease to consideration as an essentially secular
document to be interpreted under neutral principles in determining
the parties' respective property rights. Some adversion to matters
of doctrine or practice animating the relationship of two religious
parties in controversy is probably inevitable, even on the
restrictive concept of legal acts preferred as bases for
determining the terms of ownership and control of property for
religious purposes under the cited case law.
In this instance
citation to religious practice is of no significance.
The
reference to Sephardic practice in this customary instrument of a
leasing transaction does not require a court to determine what
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approval of "any Minister" who might "officiate" on the premises.
For failure by CJI to pay the rent or for breach of conditions CSI
was entitled to "oust" CJI from the premises.
In

this

litigation,

particularly notable.

two

features

of

the

lease

are

First, neither in stating the lessee's

obligations and restrictions, nor in setting out the lessor's duty
to provide quiet possession was there any mention of a trust
obligation underlying or complementing the terms set out.

Just as

in any normal instance of a rental transaction, there was no
indication that the relationship of the parties was to be governed
by

anything

but

the

terms

of

the

contract.

Second,

an

interlineation in the typed text of the lease provided that it
covered not only the real estate described, together with its
appurtenances, but also "paraphernalia belonging thereto."

The

notary

the

for

the

interlineation

signers
had

been

on

behalf

added

of

before

CJI

attested

that

they

signed.

We

read

"paraphernalia" to cover the rimonim, given the evidence that they
were in use in Touro Synagogue at the time, as well as CJI's
argument here that they should be regarded as property historically
associated with Jewish worship in that Synagogue.

that practice should be. The lease refers to Sephardic ritual and
custom observed by CSI as of the time of the lease: that could
require only a determination of practice in fact, not a resolution
of contending views about what practice is or was "true."
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Although
"paraphernalia"

the

as

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district

encompassing

court

Entry ID: 6110253

declined

rimonim,

owing

to

to

a

read

lack

of

affirmative evidence that the CJI signatories understood the term
"paraphernalia" this way, we think no such specific evidence is
necessary.

Contracts are generally construed in accordance with

the

understanding

common

of

their

terms

at

the

time

of

the

agreement, and the common understanding in 1903 would have covered
the rimonim associated with Touro under the term "paraphernalia."
See Paraphernalia, The Century Dictionary and Cyclopedia (1903)
("Personal

ornaments

equipments,

or

especially

ostentatious

display,

accessories

such
as

as

the

are

of
used

symbolic

attire;
on

trappings;

parade,

garments,

or

for

ornaments,

weapons, etc., used by freemasons or the like."); Paraphernalia,
Webster's International Dictionary of the English Language (1900)
("Appendages; ornaments; finery; equipments."); Paraphernalia, A
Standard Dictionary of the English Language (1894) ("Miscellaneous
articles

of

equipment

or

adornment;

appendages;

belongings;

finery.").
The

third

of

the

significant

documents

subject

to

judicial consideration is a 1945 agreement among three parties,
CJI, CSI, and the Secretary of the Interior, for the care and
preservation of the Synagogue as a National Historic Site.
1903, CJI acted by a committee and CSI by its trustees.
contract's

terms,

public

access
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to

the

premises

As in

Under the

was

to

be

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consistent with the Synagogue as a place of worship by CJI, and
CSI and CJI agreed that in honoring the contract they would act
"in accordance with and subject to their respective rights and
obligations as lessor and lessee as heretofore established . . . ."
In one respect, however, this contract is unlike the
preceding ones in imputing trust obligations (unspecified) to CSI.
Their supposed source was identified as "a [recorded] Deed of Trust
dated April 27, 1894" said to have created "certain trusts in the
Touro Synagogue."

A subsequent provision referred to "recorded

deeds and declarations of Trusts," (although the only document
specifically identified was the one first cited).
The consequence of this language is, however, less than
meets the eye.

The agreement included no explanation aside from

the deed cited (and deeds alluded to) for speaking of CSI as being
under a trust obligation to CJI, and that cited source failed to
support any finding that it created a trust relationship.

As the

district court explained [Add 38, 86], CSI obtained the deed in
question at its own behest, from an heir of one of the three
original trustees of the pre-Revolutionary Congregation Yeshuat
Israel.

The deed purported to convey any interest that might have

passed to the trustee's descendants unbeknownst to them or to
anyone else in the interim.

The district court referred to eight

additional comparably indeterminate deeds from other Congregation
Yeshuat

Israel

trustee

descendants,
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two

of

which

the

court

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described

as

purporting

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to

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convey

subject to a trust obligation.

their

uncertain

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interests

Like the district court, we

conclude that the deeds lack any significance for this case.
To begin with, they contained no language that could
include the rimonim.

But even as to the real estate alone, we

have no indication that the grantors had anything to convey to
which a trust obligation could attach by the acts of the minority
of grantors who mentioned trust at all.

At best, the deeds may

collectively have had some rhetorical value for CSI in dealing
with the tensions between it and the new congregation of CJI; as
the district court noted, the deeds contained the first statements
of what later became the lease condition that worship at Touro
conform to Sephardic practice as observed by CSI.

The upshot is

that the record fails to show that the references to a trust
obligation on CSI's part to the worshipers at Touro were anything
more

than

terms

of

empty

conveyances.

They

are,

moreover,

unsupported by evidence of the sort preferred in applying neutral
principles meant to keep a court from entanglement.

Accordingly,

we treat the trust reference in the tripartite agreement as having
no legal significance in determining ownership of or authority
over either the rimonim or the Synagogue.4

4

The district court found significance in CJI's favor in
another item of legal character undoubtedly entitled to
consideration as a matter of course under the Supreme Court's model
for dealing with religious property disputes. In 1932 the Rhode
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This conclusion is supported by a fourth contract open
to consideration in harmony with Jones, 443 U.S. 595.

In 2001,

another agreement was made among three parties: CJI, a supportive
organization known as the Society of Friends of Touro Synagogue,
and the National Trust for Historic Preservation.

Its stated

durational term was fifty years, and its objects were preservation
of the Synagogue and provision of education for public visitors.
CJI was described as having "possession of the site through a lease
with Congregation Shearith Israel as owner."

That recitation was

not qualified by anything referring to a trusteeship duty on the
part of CSI, nor did any provision in the agreement raise any
implication of such a relationship.
two

congregations

were

bound

as

It simply confirmed that the
lessor

and

lessee

and

thus

indicated that, however erratic the rent payments had become, CJI
had no legal claim beyond that of a holdover tenant under the terms
of the 1903 lease, as formally renewed in 1908.

Although there

was an allusion to personal property in CJI'S obligations to the
other two parties to protect and conserve "the related collections
in its ownership, possession or control," no object was mentioned

Island General Assembly enacted a statute exempting the Synagogue
from property taxation.
1932 R.I. Acts & Resolves 427.
The
premises were described as "held in trust." Id. The statute does
not, however, reveal whether the trustees were those of CSI or CJI
itself, let alone what difference it would make in this litigation.
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Case: 16-1756

Document: 00117184781

Page: 20

Date Filed: 08/02/2017

Entry ID: 6110253

as being within any of the three categories, and nothing can be
inferred from this provision about the ownership of the rimonim.
III.
We think the only reasonable conclusions about property
title, ownership, and control that can be drawn from the foregoing
evidence are that, as between the parties in this case,
(a) CSI is fee owner of the Touro Synagogue building,
appurtenances,

fixtures,

and

associated

land

as

described in the 1903 lease;
(b) likewise CSI is owner of the rimonim in issue here;
(c) in each case CSI's ownership is free of any trust or
other obligation to CJI except as lessor to CJI as
holdover lessee;5
(d) CJI's interest in the Synagogue building and related
real property mentioned above is solely that of holdover
lessee.
We accordingly reverse the judgment of the district court and
remand

the

case

for

entry

of

judgment

consistent

with

the

conclusions set out above.

5

CSI's prayer for relief seeks a judgment that it owns the
Touro Synagogue and its ritual contents "as charitable trustee."
But CSI's counsel responded to a request from the court for
clarification by subsequently filing a letter under Federal Rule
of Appellate Procedure 28(j) stating that it stands by its claim
of ownership free of any legally cognizable trust obligation.
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Case: 16-1756

Document: 00117184781

Page: 21

Date Filed: 08/02/2017

Entry ID: 6110253

We recognize that the order of remand leaves a number of
the counterclaim requests for relief without resolution. But owing
both to the obvious consequences of the judgment outlined above,
and to the phrasing of CSI's request for relief at the conclusion
of its brief, we are uncertain of any present need for judicial
action on the issues raised but not formally resolved here.

The

judgment we order will therefore be without prejudice to CSI to
bring claims raised by it but not resolved here in a new action.
CSI's request for counsel fees and costs, however, shall be heard
by the district court on remand.

Any new action, as well as the

motion for fees and costs, shall be heard by a judge not already
fatigued by this litigation.
Each party shall bear its own costs.

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