In This Church Versus State Battle, The State Prevailed

by Allen Matkins

Borrowing a bon mot from the riding arena, there are two kinds of California corporate lawyers, those who have had a filing rejected by the Secretary of State’s office and those that will.  As almost every corporate lawyer in California knows, it is frustrating and discomfiting to have a filing bounced.  But as Chernyshevsky, Tolstoy, and Lenin have all asked, what is to be done?  Usually, you have four options.


First, you can fix the deficiency identified by the Secretary of State’s office.  This is an especially appealing choice when the Secretary of State’s office is correct – a possibility that shouldn’t be dismissed out of hand.  After all, the reviewer in all likelihood sees more filings in a year than you’ll see in your entire career.


Second, you can explain why the filing complies with the law.  This usually works when you’re actually correct, another possibility that shouldn’t be ignored entirely.  After all, even a blind pig finds an acorn once in awhile.


Third, you can in some cases submit a written legal opinion of a member of the State Bar of California to the effect that the specific provision does conform to law and stating the points and authorities upon which the opinion is based.  The Secretary of State is required to rely, with respect to any disputed point of law (with certain exceptions) upon the legal opinion.  This procedure is authorized by Corporations Code Section 110(b) (General Corporation Law); Section 5008 (Nonprofit Corporation Law); Section 12214 (Consumer Cooperative Corporations); Section 15902.06 (Uniform Limited Partnership Act of 2008); Section 17056 (Beverly-Killea Limited Liability Company Act); and Section 17702.03 (California Revised Uniform Limited Liability Company Act).


Fourth, you can sue the Secretary of State.  This was the course chosen by the Roman Catholic Bishop of San Jose when the Secretary of State refused to file articles of incorporation for “Pastor of Santee Catholic Mission, a corporation sole”.  The Roman Catholic Bishop of San Jose v. Bowen, Cal. Ct. Appeal Case No. C070516 (3rd App. Dist., Sept. 5, 2013).

In the Secretary of State’s view, the problem with the Bishop’s articles was that they provided for a distribution of remaining assets upon dissolution that conflicted with Corporations Code Section 10015.  I won’t get into the reasons as I doubt many readers are forming corporations sole.  Suffice it to say that the Bishop was unwilling to make a change and the Secretary of State was unwilling to file the articles as presented.  The result of this impasse was that the Bishop filed a petition for a writ of mandate and complaint for injunctive and declaratory relief.  The trial court denied the petition and judgment was entered in favor of the Secretary of State.

On appeal, the Bishop no doubt gave voice to hundreds of frustrated filers by arguing that the “there is no clear statutory delegation of authority to [the Secretary] to scrutinize or extract editorial concessions on [articles of incorporation] as a condition for filing.”  Justice Cole Blease. writing for the Court, rejected this argument finding that the Secretary of State’s authority extends to “determining whether submitted articles of incorporation on their face conform to the statutes governing corporations sole prior to filing the same.” (footnote omitted).

Just Because It’s Been Done A Hundred Times Before, Doesn’t Make It Right

What I found most interesting was that before filing the disputed articles of incorporation, the plaintiff’s counsel had filed approximately 100 articles of incorporation containing dissolution provisions identical to that found in the disputed articles.  Here’s what Justice Blease had to say about that:

That she [Secretary of State Debra Bowen] previously filed articles of incorporation containing the same conflicting language does not make her refusal to file the proposed articles arbitrary, particularly where, as here, there is no evidence that she filed articles containing the same conflict after refusing to file the proposal.  To the contrary, the Secretary represents that the filing of the articles containing the same conflicting language was an oversight, and that since the conflict was discovered, members of her staff now careful review the dissolution provisions of all articles of incorporation for corporations sole to ensure they conform to law, including [Corporations Code] Section 10015.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.