(full text - unedited)

March 28, 2006

Dear Bernie,

This letter to you, and to Tom by cc. is intended to clear up a possible misapprehension of positions I have taken on constitutional and prudential issues relating to Ave Maria Town (AMT) and Ave Maria University (AMU).

As quoted by Naomi Schaefer Riley, in her Wall St. Journal column of Nov. 11, 2005, Tom made the following statement, apparently in an address in Boston:

"We'll own all commercial real estate," Mr. Monaghan declared, describing his vision, "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."

Very recently, in various TV and other interviews, and in their joint statement of March 3rd, Tom and Paul Marinelli, of Barron Collier, repudiated that concept of what AMT would be like. "I would say I just misspoke," said Tom with reference to the statement just quoted. "There are," he said, "a lot of misconceptions." In response to a question as to whether AMT was going to be an isolated community for Catholics and Catholics only, Tom said, "I don't know where that idea came from." Tom also said, "I don't have a vision for the town." Mr. Marinelli emphasized that "From the beginning this town was not going to be a Catholic town. It was to be open to all."

I do not at all imply that the Monaghan-Marinelli statements were incorrect in their terms, nor that there was any intent to mislead. Mr. Marinelli's statement, for example, was apparently intended to mean merely that persons of all beliefs would be welcome to live in AMT. However, these and other similar Monaghan-Marinelli statements raise an overall inference that there never was an intention to institute a regime in AMT comparable to what Tom described in his Boston address. Those statements can be reasonably understood to create the impression that anyone who said that the founding intent resembled in any way the content of Tom's Boston statement was uttering a falsehood.

That is where I come in. The impression that the founding intent of AMU and AMT did not include anything like the elements mentioned in Tom's Boston speech contradicts positions I have taken in raising constitutional issues as a member of the AMSL Board.

As you know, at the meeting of the Board of Governors on September 28, 2005, when my ejection from the Board was set in motion, I reserved the right to make any statements or disclosures necessary, in my judgement, to prevent any misapprehension of positions I took while I was a member of the Board. When the Board ejected me by adopting the two-term limit on December 7th, it did so subject to that right I had reserved. It is appropriate for me to exercise that right at this time.

On November 27, 2002, I noted in a memo to the AMSL Board that the projected character of Ave Maria Town (AMT) and its relation to Ave Maria University (AMU) raised serious issues of constitutionality and prudence that ought to be resolved before the AMSL Board considered a possible relocation of AMSL. I have stated that position, to the Board and publicly, several times since 2002.

My stated concern about the problems involved in the projected character of AMT and the symbiotic relation between AMT and AMU was well grounded in fact. The Letter of Intent, signed at Ann Arbor on November 18, 2002 by AMU and the Barron Collier Companies (BCC) included the following provisions:

"6. The New Town in its character, ambiance, restricted convenants, zoning, etc. shall allow no public activities which are offensive to traditional Christian values or which might represent a scandal to Catholic and Christian sensibilities. Thus, no topless bars, abortion clinics, "adult" bookstores or the like shall be permitted. The town or village shall be called "Ave Maria" or the "Town of Ave Maria".X X X X X X "13. The partnership shall donate land for public and private schools (and in the case of Catholic schools, land for churches that will help support such schools) in such size and location as may be appropriate for forecasted demand for such schools.X X X X X X"15. If the University intentionally ceases to be a Catholic university, or intentionally or materially deviates from its stated plan to become a broad-based high quality institution for higher-learning and does not correct these defaults after due warning from Collier, thena. The University options under paragraph 10 hereof shall cease, andb. Collier shall have the option to acquire the University's 50% interest in undeveloped lands at the original cost to the University, andc. Collier shall have the option to acquire the University's remaining interest in the Partnership at the then current market value.

That Letter of Intent was not "a binding legal document, but rather a framework for drafting the full set of agreements required to achieve the intended result." I do not have access to the final, binding agreement. The Joint Venture agreement between AMU and BCC was signed on August 22, 2003. Tom Monaghan, on September 11, 2003, rejected my request that the AMSL Board, in considering relocation, have access to that entire binding agreement between AMU and BCC. The AMSL Board acquiesced in Tom's denial to them of the actual agreement. Instead, Tom gave the AMSL Board a nine-page "executive summary" of the sixteen agreements constituting that overall agreement between AMU and BCC. That executive summary contains no reference to the Catholic character of AMT, although it does provide for reconveyance to Barron Collier of the land donated to AMU if AMU fails to meet five requirements, including that it "use its best efforts to become a Catholic University of national renown."

Whether or not the full agreements between AMU and BCC contained any provision relating to a Catholic character of AMT, later statements by AMU were consistent with, and did not repudiate, an intention to govern AMT as stated in the November 18, 2002, Letter of Intent. Tom's Boston statement as quoted in the Naomi Schaefer Riley column in the Wall St. Journal, is especially consistent with that Letter of Intent.

The Monaghan-Marinelli statements tend to generate the impression that the concept governing AMU and AMT was, from the beginning, inconsistent with the Letter of Intent and Tom's Boston address and therefore that the constitutional and prudential concerns raised by me in 2002 and since were not well founded in fact. The immediate purpose of this letter is to correct that impression.

The constitutional and prudential concerns I expressed were, and are, substantial and legitimate. The Monaghan-Marinelli statements do not resolve the constitutional problems arising from the overall symbiotic relation between AMU and AMT. Also, those statements could possibly invite litigation from the other direction, from people who have contributed money or otherwise changed position in reliance on AMU fund-raising solicitations - such as one I have that said, 'When we announced that we would be building a town for Catholics like you, along with the University, we received... 3,000 requests for information." (Underlining in original). Another AMU solicitation said, "At the intersection of the town and University will be the focal point of both - a beautiful Catholic Church." That statement ws immediately followed by the heading, "With your help, Ave Maria will truly be a city of God!" A reasonable observer could conclude that AMT would be preferentially hospitable to Catholics in ways that would raise the constitutional concerns I have expressed.

In short, the constitutional and prudential objections to the AMU-AMT project were, and are, solidly grounded, notwithstanding any impression that might be generated by the Monaghan-Marinelli statements or other events.

In light of the conceptual uncertainties newly apparent at AMU-AMT it can fairly be regarded as an act of stunning imprudence for you and Tom to ask the Board to reactivate at this time the heretofore dormant Feasibility Study. That action will accelerate the destabilization of AMSL. This is the worst conceivable time to open the door to possible speculation that the relocation of AMSL to the site of the AMU-AMT venture is a done deal.

I know that you and Tom are acting in the what you see as the best interests of AMSL. Nothing in this letter implies anything to the contrary with respect to yourselves, Mr. Marinelli or anyone else. I ask you seriously, however, to reconsider the course you have set which I believe is likely to be fatal to the Catholic and academic integrity, if not the very existence, of AMSL.

As always, let us continue in prayer for the success of AMSL and the welfare of each member of its community. I am not sending this letter to the AMSL list but will make it available to interested members of the AMSL community.

Sincerely,

Charles E. Rice
Professor Emeritus of Law

Tags: accountability, conflict-of-interest