JEFFREY J. F. SOUTER v. ROBERT FORNESS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5513-04T15513-04T1

JEFFREY J. F. SOUTER,

Plaintiff-Appellant,

v.

ROBERT FORNESS, TIMOTHY

BAKER, FRANKLIN J. MCVEIGH,

and THE BOY SCOUTS OF

AMERICA,

Defendants-Respondents.

__________________________________________________________

 

Argued May 10, 2006 - Decided June 26, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Mercer County, C-19-04.

Sydney S. Souter, argued the cause for

appellant (Sydney S. Souter and Associates,

attorneys; Steven D. Wallach, of counsel;

Mr. Souter and Mr. Wallach, on the brief).

Richard E. Snyder argued the cause for

respondents (Morgan, Melhuish, Monaghan,

Arvidson, Abrutyn & Lisowski, attorneys;

(Mr. Snyder, of counsel and on the brief).

PER CURIAM

Plaintiff Jeffrey J. F. Souter appeals from an order dismissing his complaint for failure to state a claim on which relief can be granted, R. 4:6-2(e), and a subsequent order denying his motion for reconsideration. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by the trial court.

In his complaint, plaintiff alleges that while he was a member of Princeton Troop #43, the Boy Scouts of America (BSA) violated his common law right to fair procedure by not following its written rules and procedures during the process that led to denial of Eagle Scout status. Plaintiff also contends that the individual defendants willfully and maliciously caused him "to lose the economic and community advantage which accompanies those who have attained the status of Eagle Scout." Plaintiff's complaint sought compensatory and punitive damages from the individual defendants, and he sought a judgment directing the BSA "to specifically perform Boy Scout policies and procedures and to advance plaintiff to Eagle Scout, nunc pro tunc."

In a statement of reasons attached to an order denying plaintiff's motion for reconsideration, Judge Shuster summarized the pertinent facts and the reasons for entering the order of dismissal:

The facts reveal that Plaintiff was a Boy Scout in Princeton Troop #43 and that he sought to become an Eagle Scout. In May 1994, Plaintiff initiated his Eagle Scout project of clearing and marking 3.5 miles of trail in the Herrontown Woods, a Mercer County Park located within Princeton Township. Plaintiff's complaint contended that despite the successful completion of this project, Plaintiff was unfairly kept from achieving the Eagle Scout rank. He states that Tim Baker, the chairman of the Troop Committee of Princeton Troop 43 and Robert Forness, Plaintiff's scoutmaster, maliciously prevented him from attaining this rank. Following an initial phone call from Baker in which he informed Plaintiff that he might not make the Eagle Scout rank, Plaintiff successfully demanded a full Board of Review pursuant to the Boy Scout Handbook. The Board did not vote unanimously in favor of his candidacy, and thus it failed. A series of appeals and letters to different levels of the Boy Scout organization followed, and finally, many years later, Plaintiff filed this lawsuit.

Plaintiff's complaint contained three counts. The first count stated that no factual basis has been given by the Boy Scouts for the denial of the rank of Eagle Scout. The second count stated that the Boy Scouts failed to follow their own procedures. The third count stated that the conduct of the individual defendants was willful and malicious and interfered with Plaintiff's economic and community advantage. As a result of these allegations, Plaintiff first requested relief in the form of a declaratory judgment that would state that the Boy Scouts must produce, defend, and prove negative comments or allegations against Plaintiff that were brought against him as reasons for denying his advancement. Second, Plaintiff requested specific performance of the Boy Scouts'[s] procedures and an advancement of Plaintiff to Eagle Scout, nunc pro tunc. Plaintiff also requested compensatory and punitive damages.

As stated above, the court's March 8th order dismissed this complaint in its entirety. The court first ruled that the action was brought in a timely manner under the statute of limitations. Though Plaintiff's complaint is vague about what substantive principles of law it depends upon, the arguments by the parties centered around several specific possibilities. The court addressed these principles, first ruling that the right to fair procedure did not apply to the circumstances in this case. The court looked to New Jersey cases and to cases around [the] country that interpret the same common law right to fair procedure. This right, "protects an individual from arbitrary exclusion or expulsion from membership in a 'private entity affecting the public interest' where the exclusion or expulsion has substantial adverse economic ramifications." Kim v. Southern Sierra Council Boy Scouts of America, [11 Cal. Rptr. 3d 911, 913 (Ct. App. 2004)] (quoting Potvin v. Metropolitan Life Ins. Co., [ 997 P.2d 1153, 1159-61 (Ct. App. 2000)]). The court found that since, in this case, there is no exclusion or expulsion that has substantial adverse economic ramifications, this right does not apply. The court also ruled that there was no interference with prospective economic advantage because Plaintiff could identify no prospective economic advantage recognized by the law. The court addressed several other miscellaneous issues that did not affect the ruling, and denied Plaintiff's motion for discovery.

In the statement of reasons attached to the prior order dismissing plaintiff's complaint, the trial court found that plaintiff's case "rests on a handbook that the Boy Scouts publish that sets forth the procedures and requirements necessary to achieve the rank of Eagle Scout." The court also noted that plaintiff had personally appeared before the George Washington Council, BSA, Council Advancement Committee, for an Eagle Scout Board of Review on August 3, 1995. And on August 4, 1995, Franklin J. McVeigh, Chairman of the Council Advancement Committee, explained the Committee's review conducted from July 24 to August 3, 1995:

The Council review consisted of many hours of personal and telephone interviews with twenty people. Twelve adult leaders from Troop 43 were interviewed, including the Committee Chair, Former Committee Chair, five committee members, Scoutmaster, Former Scoutmaster, and three Assistant Scoutmasters. Five of the eight references which you provided were available and were interviewed. Your parents submitted three letters and made a personal statement to the Committee. Finally, the Council interviewed you by conducting an Eagle Scout Board of Review, in accordance with local and national policy.

Your Eagle Scout Board of Review was conducted on August 3, 1995, at the Council Service Center in Pennington, NJ. The members of your Board consisted of five members of the Council Executive Board. The professional staff member assigned to Council Advancement was present as an advisor. During the review, the Board interviewed you for over two hours, thoroughly discussing your Eagle Scout Service Project, your leadership experiences both in and outside of Scouting, and your Scout Spirit. As you know, Scout Spirit is defined as living the Scout Oath and Scout Law in a Scout's everyday life. The Board spent considerable time attempting to determine your attitude and acceptance of Scouting's ideals, trying to make sure that you recognized and understood the values of Scouting in your Troop, home, school, and community. The Board is specifically charged with the task of determining your ideals and goals, and making sure that a high standard of performance has been met.

The members of your Eagle Scout Board of Review deliberated carefully, thoroughly discussing all relevant information available to them, to determine your qualifications for Eagle Scout. The decision of the Board is that you do not [q]ualify for Eagle Scout at this time. Specifically, the Board had serious reservations concerning your leadership experiences and your Scout Spirit. You were informed of the decision and reasons on August 3, 1995, and a discussion was held as to whether you might be able to meet the Eagle Scout requirements before your 18th birthday, September 26, 1995. During that discussion you stated that you believed that with your imm[i]nent departure for college, and with the short time span remaining before your 18th birthday, it would not be possible for you to resolve the leadership or Scout Spirit questions with Troop 43, or by joining another Troop. The Council Advancement Committee agrees with your assessment.

While you did not qualify for Eagle Scout, the Council Advancement Committee [nevertheless] believes that you have many fine qualities, and show a great deal of potential for the future. We have the highest hopes for your future success, and desire all the best for you in your upcoming challenges at the Citadel.

At plaintiff's request, a second Board of Review was conducted on January 2, 1996. But plaintiff concedes in his letter of June 6, 1996, that he "blew the interview" because he felt like nothing he could say would make a difference. On June 5, 1996, plaintiff filed an appeal with the BSA national office and on January 6, 1997, the national office denied plaintiff's appeal. Following these events, plaintiff attended the Citadel, a military college in Charleston, South Carolina, for four years, prior to becoming an officer in the United States Army.

In dismissing plaintiff's complaint, Judge Shuster considered but rejected the common law right to fair procedure that plaintiff relies upon:

The common law right to fair procedure, as cited by Plaintiff, "protects an individual from arbitrary exclusion or expulsion from membership in a 'private entity affecting the public interest' where the exclusion or expulsion has substantial adverse economic ramifications." Kim v. Southern Sierra Council Boy Scouts of America, [ 11 Cal. Rptr. 3d 911, 913 (Ct. App. 2004)] (quoting Potvin v. Metropolitan Life Ins. Co., [ 997 P.2d 1153, 1159-61 (Ct. App. 2000)]). Kim states when the right is found, that "the decision-making 'must be both substantively rational and procedurally fair.'" Ibid. (quoting Potvin, supra, [997 P. 2d at 1156-57]). It is clear in this case that there has been no exclusion or expulsion from membership. While the Eagle Scout rank may be a prestigious distinction, as a matter of law the common law right to fair procedure does not apply in this case.

. . . .

All of the cases discussed above, New Jersey, Federal, and California, only apply the common law right to fair procedure in cases where a member of an organization is being expelled, or in rare cases, receiving severe discipline. This action is also usually accompanied by a direct financial effect on the plaintiff in the case. . . . Courts have never found a cause of action regarding the awarding of honors within an organization and despite the emotional appeal of Plaintiff's circumstances, the court will not depart from the accepted path in this situation.

 
We have carefully reviewed the record in light of the briefs and applicable law, and we perceive no basis to intervene. See Higgins v. American Soc'y of Clinical Pathologists, 51 N.J. 191, 202 (1968) ("Courts ordinarily ought not to intrude upon areas of associational decision involving specialized knowledge"). "[A] private organization has a great interest in controlling its own affairs." Rutledge v. Gulian, 93 N.J. 113, 123 (1983). "[J]udicial intrusion should be confined to procedures that are fundamentally unfair." Id. at 124. This is not such a case. We therefore affirm substantially for the reasons expressed by Judge Shuster in his comprehensive written decisions rendered on March 8, 2005 and June 3, 2005. In light of this determination, we need not address defendants' argument that plaintiff's complaint is barred by the statute of limitations.

The orders under review are affirmed.

(continued)

(continued)

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A-5513-04T1

June 26, 2006