INTRODUCTION
In their appeal to this Court seeking to
reverse the decision of the Appellate Division which overturned a judgment on
the claims of their Complaint by the Chancery Division in their favor, the
reinstated Plaintiffs here rely almost exclusively on the so-called “deference
to hierarchy” rule adopted by a one-vote majority of this Court almost a
quarter century ago in Protestant Episcopal Church v. Graves, 83 N.J.
572, 417 A.2d 19 (N.J. 1980), cert. denied, 449 U.S. 1131 (1981).[1]
The Defendants, Counterclaimants and Third-Party Plaintiffs in this action
–Holy Ascension Ukrainian Orthodox Church, Inc., in Clifton, New Jersey, its
officers and the members of its Parish Board, hereinafter “Parish and Parishioners”–
now show this Court that the Graves decision is inapposite and
inapplicable to this case and that in application to the facts here the
deference standard of Graves is unconstitutional and violative of the
rights of the Parish and Parishioners guaranteed them under the First Amendment
to the Constitution of United States. Accordingly, the Appellate Division
should be affirmed in its decision to reverse the Chancery Division to the
extent that the trial court determined to exercise subject matter jurisdiction
over the claims of the Plaintiffs in this action.
A.
The Graves
Rule of Deference is Inapplicable to This Interchurch Dispute.
The Graves principle of deference upon
which Plaintiffs so heavily rely has relevance only to disagreements within a single
church body resulting in adverse factions inside an individual religious
group. It is a matter of uncontested fact,
however, that the dispute before this Court represents, not an internal dispute
within a single religious body, but in fact a contest between two separate and
distinct religious organizations, each with their own separate leaders,
organizational structures, and headquarters. 3T124-21 to 126-12 The
clerical Plaintiffs (who, along with their claims, have long been dismissed
with prejudice from this suit by the trial court Da224; Da229-240; Da281-290)
were clerical officers of the Ukrainian Orthodox Church in the United States of
America, Inc. (UOC-USA, Inc.), a New York corporation. Da312 ¶¶31-33 In 1994 and 1995, however, these clerics engaged
in secretive, unauthorized and clandestine negotiations with a Greek church
authority in Turkey which led to their joining his jurisdiction, their election
to official positions within his church, and their assumption of new religious
titles under his authority. None of this was done with the knowledge or consent
of the Parish or Parishioners, nor any other Parish within the UOC-USA, Inc.
These actions on the part of the former clerical leaders of the UOC-USA, Inc.,
constituted an abandonment of their corporate offices within the UOC-USA, Inc.;
a renunciation by them of all forms of corporate authority which they formerly
held as officers of the UOC-USA, Inc.; and, consequently, the negation of any
obligation of any kind on the part of the Parish or Parishioners to these
Plaintiff-Bishops who had abandoned the UOC-USA, Inc. Da334 ¶¶2-4.
The legal consequences of the
abandonment by the clerical Plaintiffs of their offices within the UOC-USA,
Inc., are within the purview of this Court, and Eastern Orthodox Catholic
Church in America, Inc. v. Adair, 141 N.Y.S.2d 772 (1955), is the best
available expression under New York law of the civil consequences of such
actions on the part of a New York corporation. There, bishops of the Eastern
Orthodox Catholic Church in America, Inc., submitted themselves to the
authority of the Russian Orthodox Church Outside Russia, a separate and
distinct Orthodox Christian organization, and assumed new offices within this
distinct and separate body. These bishops then purported to claim continuing
authority within their first church.
The issue facing the New York court was identical to that now before
this Court, and the response of the tribunal in New York was unequivocal: it
emphatically denied any authority in a runaway cleric to exercise any position
of trust or authority in his original church affiliation; even more
resoundingly, the New York court ruled against any subordination of the
original church organization to the second stemming merely from the personal
“conversion” of a church leader in the first body. “[A] bishop of one church who accepts consecration as a bishop of
another church, in effect, runs away from the first church and, instead of
thereby affiliating the first church with the one in which he accepts consecration,”
wrote Justice Walter of the Supreme Court of New York County, N.Y., “I think he
thereby ceases to be a bishop of that first church.” 141 N.Y.S.2d, 782. The New
York court was adamant about the law of that State (the same in which the
UOC-USA, Inc., is incorporated Da312 ¶31-33): the act of the runaway
bishops in submitting themselves to a competing church organization did not
subjugate their former church affiliation to the new organization; but it did,
however, result in a forfeiture of their clerical offices within their first
affiliation; and the activities of the runaway bishops after their abandonment
of their first affiliation were not lawfully binding within the organization of
their first church since they were not acts of proper corporate officers within
the structure of the first affiliation.
The implications of Adair as to the case at bar are unmistakable:
the clerical Plaintiffs here are owed no duty by the Parish or Parishioners,
and the Parish and Parishioners owe no duty to any church organization now
headed by them, regardless of its name.
With an irony apparently lost on these
reinstated Plaintiffs, the Graves decision –apparently the only one
which their research has uncovered seemingly supporting their position here–
endorses the principle of the New York Adair opinion that clergy who
join a competing religious organization by that fact alone lose their position
and standing in their first affiliation. To paraphrase the language in Graves
(itself quoted from Watson v. Jones, 20 L. Ed., at 678):
[The clerical Plaintiffs here] have first
erected themselves into a new organization, and have since joined themselves to
another [the Greek church in Turkey] totally different, if not hostile, to the
one to which they belonged when the difficulty first began [the American
diocese of the Kyiv-based Ukrainian Orthodox Church]. Under any of the decisions which we have examined, the
[reinstated Plaintiffs and the clerical principles whose interests they advance
here], in their present position, have no right to the property, or to the use
of it, which is the subject of this suit.[2]
See Graves, 83 N.
J., at 582.
This proceeding is then, in truth, a dispute
between two separate religious bodies and is by no means an internal
squabble by mere factions within a local church. Graves and its rule of deference are wholly inapposite to
this situation and have nothing to contribute to its resolution, save only its
approval of the rule that runaway clergy abandon their rights in their former
church affiliation.
B.
The Graves
Rule of Deference Is No Longer a Valid Expression of the Law of New Jersey.
The mandatory deference standard of Graves
has now been effectively superseded as the law of New Jersey by a
constitutional method for the resolution of church property disputes which
employs only neutral, purely secular principles of law in the resolution of
such cases. The Graves régime of
unquestioning and automatic judicial obeisance to hierarchical dictates, even
where acknowledged civil, secular, contract, tort and property rights of
parties are implicated –adopted by a one-vote majority of the New Jersey
Supreme Court in 1980– has been steadily eroded, and justly so, since the time
of its first appearance in this State’s law, to the point that New Jersey
courts now regularly invoke as a matter of course the alternative but
infinitely more appropriate neutral principles standard of Jones v. Wolf,
443 U.S. 595 (1979). The Graves opinion itself spoke approvingly of
the neutral principles standard, and since McElroy v. Guilfoyle, 247
N.J. Super. 582 (1990), New Jersey courts have recognized that “ ... secular
courts may decide civil disputes between a religious body and its members or
its clergy if those disputes involve purely secular issues and can be resolved
without an entanglement with matters of faith, discipline or doctrine. In such cases, courts are to apply neutral
principles of law to the facts presented.” 247 N. J. Super., at 586. This
Court, barely a year after McElroy was decided, confirmed the viability
in New Jersey of the neutral principles rule for the resolution of
church-related disputes when it stated in Elmora Hebrew Center, Inc. v. Fishman, 125 N.J. 404, 593 A.2d 725
(1991), that, “ ... [w]ithout regard to the governing structure of a particular
church, a court may, where appropriate, apply neutral principles of law to
determine disputed questions that do not implicate religious doctrine. ‘Neutral principles’ are wholly secular
legal rules whose application to religious parties or disputes does not entail
theological or doctrinal evaluations.” 593 A.2d, 729-730 (citations omitted).
The trend of these decisions was further reinforced by this Court in Welter
v. Seton Hall University, 128 N.J. 279, 608 A.2d 206 (1992) when it noted
that “in appropriate circumstances a court may apply neutral principles of law
to determine disputed questions that do not implicate religious doctrine.” 608
A.2d, 212. Moreover, this Court said in Welter, only in conflicts
indisputably religious in character (and, by necessary implication, not corporate
and not centering on ethnic or national affiliations, as here) “should
courts abdicate their duty to enforce secular rights. Judicial deference beyond that demarcation would transform our courts
into rubber stamps invariably favoring a religious institution’s decision
regarding even primarily secular disputes.” 608 A.2d, 213. Recognizing the
vitality of the neutral principles standard but declining under the facts of
the particular case to apply it, this Court in Alicea v. New Brunswick
Theological Seminary, 128 N.J. 303, 608 A.2d 218 (1992), relied heavily on
its earlier approval of the neutral principles test in Elmora Hebrew Center
and Welter, but completely ignored Graves and its archaic
deference rule. This Court’s emerging embrace of a method to resolve church
civil disputes by the use of appropriate secular rules and rejecting
unthinking, knee-jerk enforcement of out-of-bounds hierarchical orders was
clarified within a year of its Alicea ruling in Ran-Dav’s County
Kosher, Inc. v. State, 129 N.J. 141, 608 A.2d 1353 (1992), cert. denied,
507 U.S. 952 (1993). There, this Court once again and in emphatic terms
endorsed the neutral principles test as a means of resolving controversies
involving religious groups, as being “particularly suited for adjudication of
property disputes ... or civil contract actions.” 608 A.2d, 1363.
In surveying this line of cases in New Jersey
courts (and particularly those handed down by this Court), the United States
Court of Appeals for the Third Circuit, through a thoughtful and scholarly
opinion written by Judge Sloviter in Scott’s African Union Methodist
Protestant Church v. Conference of African Union First Colored Methodist
Protestant Church, 98 F.3d 78 (1996), concluded in the context of that
diversity case in which New Jersey law controlled the substantive issues at
bar, that this State has effectively abandoned the antiquated deference
requirement of Graves and has adopted the “proper modern judicial approach
to intra-church disputes,” 98 F.3d at 90, the neutral principles test. “The New
Jersey cases we have examined,” observed Judge Sloviter, “show a decided
progression of New Jersey court decisions toward adoption of a
neutral-principles approach in resolving intra-church property disputes like
the one before us.” Id., at 94.
The continued viability of the deference rule
as a part of New Jersey law was dealt an implicit death blow by this Court in
its recent decision to deny certification from the Appellate Division in the
case of Solid Rock Baptist Church v. Carlton, 171 N.J. 440, 794 A.2d 179
(2002). The lower court there, 347 N.J. Super. 180, 789 A.2d 149, in discussing
the application of neutral principles to the facts of that case, noted with
absolute accuracy that “[w]here
appropriate, the [neutral principles] approach to church disputes is used
regardless of the governing structure of a particular church,” 347 N.J. Super.
180, at 192. Going forward, the Appellate Division
went to the heart of the issue: “Complicating the matter is the fact that
the once simple dichotomy between hierarchical and congregational polities does
not reflect the diversity of contemporary denominational structures.” Solid
Rock Baptist, 347 N.J. Super. 180, at 193 (emphasis added). The Parish and
Parishioners here respectfully submit to this Court that when it is recognized
that “contemporary denominational structures” disprove the simplistic,
dichotomous categorization assumed in Graves –black or white,
one-or-the-other, one-size-fits-all–, the deference rule of that case loses all
logic, relevance and validity. This
Court should now go forward and extend the fundamental rationale of the Solid
Rock Baptist decision and acknowledge the demise of the deference régime in
the State of New Jersey by an explicit adoption of the neutral principles
standard as the sole and exclusive means by which New Jersey courts may resolve
disputes surrounding civil, contract, and property disputes involving religious
organizations in this State. The application of that standard on the facts of
this case mandate a decision of this Court recognizing the sole and exclusive
right of the Parish and Parishioners to control and manage their own civil,
property, and contract affairs in accordance with the long-standing traditions,
customs and practices of the Parish as memorialized for almost a century in its
own corporate charter and corporate bylaws.
C.
The Facts of Protestant Episcopal Church v. Graves Are
Fundamentally Distinguishable From Those of the Case at Bar.
Given the extraordinary weight
which the reinstated Plaintiffs place on the decades old ruling of this Court
in Protestant Episcopal Church v. Graves, it is surprising that
no effort is made by them to explain the wide variation of the factual circumstances
of that case in comparison to those of the dispute at bar. (1) Most fundamentally, of course, is the
fact that the Protestant Episcopal Church was the religious community at issue
in Graves while that church obviously plays no part in the present
litigation. Although the Parish and
Parishioners here have made a detailed showing as to the democratic,
decentralized and nonhierarchical character of Ukrainian Orthodox polity, the
record is devoid of any showing on the part of the reinstated Plaintiffs –
other than their own conclusions and sporadic references to the “Constitution”
of the UOC-USA, Inc., shown to have been invalidly amended by the clerical
officers of the corporation Da318 ¶62, 4T80-7 to 24 – which would
establish the relevance of the Graves deference rule in this case. (2) The local church implicated in the Graves
case had been established by the Episcopal Church and its New Jersey diocese (Graves,
at 574) and incorporated under the State law provided for the chartering of
parishes of the Episcopal Church. Graves,
at 574, FN 1. In this case, the Parish originated in a secession from the Roman
Catholic Church which resulted in an independent congregation; this congregation
only later and on a wholly voluntary basis decided to affiliate itself with the
newly established American diocese of the Ukrainian Orthodox Church.[3]
Da1522; Da1509; Da1522; Da308 ¶1 It caused itself to be incorporated
under the general corporation laws of New Jersey, and it did so decades before
the incorporation in New York of the UOC-USA, Inc. Da1475; Da1483; Da308 ¶2
(3) The Court in Graves, on
competent evidence, found that the Episcopal Church is a completely integrated
hierarchical body. Graves, at
580. Overwhelming, uncontradicted evidence in this case establishes that the
Ukrainian Orthodox Church is of a conciliar and nonhierarchical nature, and
that its polity includes substantial freedom in the affiliate congregations to
control, administer and determine with no outside participation or interference
all aspects of their local affairs of a civil or secular character. i.e. 3T122-22
to 124-15; 3T127-2 to 128-12
Plaintiffs here introduced no substantial evidence on these matters, and
they never attempted to rebut the showing that Ukrainian Orthodoxy is, with
respect to civil, contract and property or affairs of local parishes, of a
congregational polity. (4) in Graves, evidence established that diocesan
participation in and consent to the exercise of civil, secular, property and
contract rights was a customary feature of parish life; here, on the other
hand, there is not a single scrap of evidence to indicate any involvement by
any external religious official or entity in the property and contract affairs
of the Parish and that, in fact, the Parish regularly dealt freely and
independently with respect to all such matters, including its acquisition and
transfer of real property as well as the hiring and firing of its priests. Where the Graves case indicated the
necessity for diocesan consent to the mortgaging of real property interest by
the local church there concerned, unrefuted and stipulated evidence in this
case shows that the officials of the UOC-USA, Inc., were only rarely aware of such
activities by the Parish here and were never even so much as consulted in that
regard.[4]
Da325 ¶¶105-112 In virtually every respect, including the right of the
Parish to hire and fire its own clergy employees Da1493, there is no
evidence of record that on any single occasion the Parish sought prior consent
or approval by the UOC-USA, Inc., for any local Parish action or that
the UOC-USA, Inc., ever asserted the right to participate in any way in such
transactions. Here, the New Jersey
charter of incorporation of the Parish Da1475, Da143 is replete, as are
the bylaws of the Parish Da1500, with references to the independence and
autonomy of the local congregation in dealing with its own civil and secular
rights, all without reference to any role in this respect for the UOC-USA, Inc.
The factual underpinnings of this case could hardly be more different from
those which appeared in Protestant Episcopal Church v. Graves. (5) The
issues in Graves leading to tensions between the local church and the
diocese were of a radically different locus and nature than those in evidence
in the case at bar. In Graves,
the local congregation bolted from the diocese and affiliated itself with a
hostile religious organization owing to issues between it and the diocese of an
indisputably religious and doctrinal nature.
Here, the precise reverse is true: officials of the UOC-USA, Inc., had
improperly and secretively affiliated themselves with a Greek church
organization in Istanbul, Turkey: the disapproval of this unauthorized action
by the Parish and Parishioners led to this punitive lawsuit filed by the
clerical officers of the UOC-USA, Inc. In this case, it was the diocese which
formed an objectionable liaison with a new religious organization, not the
local Parish; the local Parish in fact remains committed to its traditional
loyalty to the Ukrainian Orthodox Church, of which the UOC-USA, Inc., is an
intermediate level diocese, and has in fact never seceded from the UOC-USA,
Inc., although within the polity of Ukrainian Orthodoxy it has the right to do
so 3T122-22 to 124-15 and despite the fact that, as the record
indicates, many other parishes of the UOC-USA, Inc., have in fact done so on
many occasions with impunity. Da333; 3T68 to 74-8 Further, the tensions
giving rise to this lawsuit center on the unauthorized corporate activities
of the clerical Plaintiffs and their abandonment of the traditional national
and ethnic affiliation of the UOC-USA, Inc., with the Ukrainian Orthodox
Church in Kyiv, Ukraine: absent from this case (unlike Graves) is any
shadow of a suggestion of any doctrinal, dogmatic, liturgical or other
religious controversy between the parties.
D.
The Deference Rule of Protestant Episcopal Church v. Graves
Upon Which the Reinstated Plaintiffs Rely Is Unconstitutional in Both
Concept and in Application.
The Graves rule of
deference to hierarchy urged on this Court by the reinstated Plaintiffs is
invariably in application an unconstitutional establishment of religion and
should now be abandoned by this Court in favor of an exclusive application of
the neutral principles standard of Jones v. Wolf. Justice Sydney
M. Schreiber, writing in 1980 for a strong three-judge dissent in Protestant
Episcopal Church v. Graves, 83 N.J., at 585, stressed that the deference
principle, as limited by Watson v. Jones, does not infer that
“the [mere] existence of a hierarchical church organization conclusively
establishes that a local property dispute must be resolved in favor of the religious
doctrine or tenet advocated by the central church,” 83 N.J., at 585; rather, he
suggested, it is only where the central body has been authorized to decide the
question at hand that its determination would be final and binding on civil
courts. Justice Schreiber’s perceptive observation is rooted squarely in the contractual
nature of the deference principle as promulgated in 1872 by the United States
Supreme Court. This Court, in the
majority opinion in Graves, echoed this basic limitation of the deference
rule. Justice Schreiber accurately predicted the perversion of the deference
rule in the manner urged here by the reinstated Plaintiffs:
Even if the question is projected
as the majority suggests, namely that when a hierarchical institution exists
civil courts must defer to ecclesiastical authority to resolve property
disputes, the Watson v. Jones rule must be applied consistently with the
principles contained in Jones v. Wolf. In Jones v. Wolf, both the
majority and dissent, unlike the majority in this case, recognized that the
hierarchical form of the church's organization did not per se resolve an intra‑church
dispute over control of church property. Since a hierarchy could exist as to
ecclesiastical matters and not as to others, the first question to be addressed
according to the Jones v. Wolf dissent is, "where within the
religious association the rules of polity, accepted by its members before the
schism, had placed ultimate authority over the use of the church
property."
Graves, 83 N.J. at 588 (Schreiber, J.,
dissenting) (footnotes and citations omitted)
Stressing that the deference rule
has no proper application unless it is first established that the local church
has actually agreed to be bound by the authority of another church organ
in some respect, Justice Schreiber continued:
The assumption that a local
church has necessarily given up the power to control its property by
affiliating with a hierarchical church is unsound. It assumes the existence of
a provision to that effect in the agreement [between the local and central
bodies] that in fact may not exist. Moreover, by not ascertaining who the
parties had agreed should decide the question of property control in the event
of a schism, the court might effectively contravene the First Amendment. The
court might then be compelling, without consent of the owner, the appropriation
of its property for use by another for religious purposes.
Id.
Justice Schreiber’s concern for
the perversion of the deference rule is rooted in Watson’s unqualified
insistence on the real consent (whether explicit or implied) of the
local church as a basis for the exercise of any authority by the
external religious entity, Watson v. Jones, 80 U.S. at 729, a
requirement echoed in Graves’ expectation that the court will make an
explicit inquiry as to where a particular church body has placed
ultimate decisional authority over the use of church property. Graves, 83 N.J., at 577. This Court
in Graves made such an inquiry, deciding there that the Episcopal Church
was a fully integrated hierarchical religious body;[5]
this Court decided that case on its examination, not of self-serving documents
engineered in a post-hoc fashion by a central church, but on its explicit
review of the customs, practices, and usages of the church there under
review. 83 N.J., at 581. An objective review of the customs, practices, and
usages of the Parish now before it, as well as its mother community, the
Ukrainian Orthodox Church, will establish just as clearly the autonomy and independence
of this Parish as to all secular, civil, property, and contract matters which
have always –and it is of paramount importance to recall that the Plaintiffs
here offered absolutely no evidence to contradict the massive showing of the
Parish and Parishioners in this respect– been reserved within Ukrainian
Orthodoxy to the local congregation.
The single greatest
constitutional failure of the Watson deference standard in application
is the reflexive, un-analytical, and undemanding nature of the rule in accepting
postulates about religious organizations in the absence of solid, competent,
and trustworthy proofs on these critically important matters. In constitutional terms, such unsupported
postulates are little more than assumptions which serve to establish a religion
in violation of the First Amendment of the United States Constitution. Louis J.
Sirico has isolated the problem:
The [deference] test requires assuming the church members submit totally to the church’s internal authority. That authority is assumed to be so plenary that it enjoys immunity from challenges of acting arbitrarily, acting beyond its jurisdiction, being the subject of political domination, and perhaps engaging in fraud or collusion.
Louis J. Sirico, Church
Property Disputes: Churches As Secular and Alien Institutions, 55 Fordham
L. Rev. 335 (1986) 349.
Other scholarly analysis of the
deference rule is also overwhelmingly negative, most such comment criticizing
the rule’s tolerance of unsupported and unproven assumptions regarding the
agreement of local congregations to be wholly controlled by central church
agencies. See, e.g., Michael William Galligan, Judicial Resolution of
Intrachurch Disputes, 83 Columb. L.
Rev. 2007 (1983) (judicial decisions to defer to one authority place a
governmental stamp of approval on that authority in a manner that violates the
establishment clause); Roger J. Bohner, Jr., Religious Property Disputes and
Intrinsically Religious Evidence: Towards A Narrow Application of the Neutral
Principles Approach, 35 Vill. L. Rev.
949 (1990) (finding a growing trend in favor of a narrow application of
the neutral principles approach and a rejection of the deference test); Kent
Greenawalt, Hands Off! Civil Court Involvement in Conflicts Over Religious
Property, 98 Colum. L. Rev.
1843 (1998) (deference to church courts in all hierarchical churches is out of
line with treatment of nonreligious associations and fails to reflect the
expectations of many church members; the stark variation in the treatment of
hierarchical and congregational churches is itself unconstitutional; and the
line between hierarchical and congregational churches is often illusory);
William G. Ross, The Need For an Exclusive and Uniform Application of
“Neutral Principles” in the Adjudication of Church Property Disputes, 32 St. Louis U. L. J. 263 (1987) (the
deference rule suffers from a major infirmity: it fails to recognize that the
decision-making authority of a hierarchy does not necessarily extend to the
disposition of church property; churches may be hierarchical as to doctrinal
questions and congregational for purposes of using and controlling property);
Patty Gerstenblith, Civil Court Resolution of Property Disputes among
Religious Organizations, 39 Am. U. L.
Rev. 513 (1990) (granting a hierarchical religious organization immunity
from judicial dispute resolution, as the rule of compulsory deference requires,
denies members of religious groups the same protection of law that is given to
members of other voluntary associations where there is no such immunity; the
deference rule impairs individuals’ contractual and property interests and
violates free exercise rights, and it also unconstitutionally favors
hierarchical religious groups by bestowing on them greater authority than is
granted to religious organizations with different polities); and Ellman, Driven
from the Tribunal: Judicial Resolution of Internal Church Disputes, 69 Calif. L. Rev. 1378 (1981) (the
deference rule creates a special law-free zone for clerical leaders in
hierarchical churches; law-free, however, means lawless).
This Court should now recognize
that the unconstitutional and archaic “deference to hierarchy” rule articulated
in Protestant Episcopal Church v. Graves, the thin reed on which the
reinstated Plaintiffs here rest their argument to this Court, has been
superseded by the neutral principles standard of Jones v. Wolf as
the law of New Jersey, denying to the reinstated Plaintiffs the relief they
here demand. This Court should affirm the Appellate Division decision reversing
the trial court’s exercise of jurisdiction over the reinstated Plaintiffs’
claims against the Parish and Parishioners here.
|
On the Brief E. R. Lanier, Esq. Counsel Pro Hac Vice Member of the Georgia Bar |
Respectfully Submitted ________________________ Myroslaw Smorodsky, Esq. Attorney for the Cross petitioners |
[1] The reinstated Plaintiffs also place weight on a limited number of “amendments” to the “Constitution” of the UOC-USA, Inc., which purport to limit the right of the Parish to hire and fire its own clergy and to secede from the UOC-USA, Inc. The Plaintiffs have never shown how or why this “Constitution” –which is neither the charter nor the corporate bylaws of either the UOC-USA, Inc., or of the Parish– in any way binds the Parish or Parishioners. Further, overwhelming evidence establishes that these “amendments” were unilaterally inserted into the so-called “Constitution” of the UOC-USA, Inc., and that no pretense whatsoever was made that these were not adopted in the manner mandated by the instrument for its own amendment. Da318 ¶62; 4T80-7 to 24; 4T83-9 to 14 The dismissed clerical and reinstated Plaintiffs here have introduced absolutely no evidence to show otherwise, but have studiously ignored this fundamental issue. Further, the Parish and Parishioners have submitted massive evidence to show that the affiliated parishes of the UOC-USA, Inc., have universally ignored these pseudo-“amendments” since their first appearance 4T40-8 to 12; 4T27-7 to 28-6; Da333 and have freely joined in and departed from membership in the UOC-USA, Inc., at will Da333; 3T95-5 to 193-6 and have, from time immemorial, hired and fired their own clergy. i.e 4T15-2 to 16-6; 4T16-9 to 25-24; 4T40-22 to 44-15. The Plaintiffs have failed to introduce any evidence to the contrary. These practices of the parishes –traditional ones within Ukrainian Orthodoxy– have not been challenged by any party.4T16-9 to 25-24; Da333;
[2] In Graves, Protestant Episcopal clergymen fled that church to join the Anglican Catholic Church, provoking the ruling of this Court that they had by that fact lost any claims to any authority or rights in the Protestant Episcopal Church. The reinstated Plaintiffs here never bother to explain how their clerical leaders, admittedly now holding new offices and new titles in a non-Ukrainian Greek church, still command obedience in the UOC-USA, Inc., their former church affiliation.
[3] The reinstated Plaintiffs’ assertion in their brief before this Court that Holy Ascension Parish was founded by and within the UOC-USA, Inc., is patently false and misleading: indeed, the record is clear that UOC-USA, Inc., (incorporated in 1941 Da1606) did not exist when the Parish was established (in 1925 Da1475).
[4] The UOC-USA constitution itself specifically provides that property rights are solely that of the parishes. Da308 ¶¶57, 80.
[5] The reinstated Plaintiffs are prone in their brief to importing this language from Graves and applying it to the Parish here, but without producing any evidence whatsoever to support such a conclusion. The uncontested facts in this case demonstrate that the Parish, far from being part of a fully integrated hierarchical church, was autonomous and independent in its inception and has maintained this independence in civil, secular, contract, and property matters consistently throughout its long history. Mere membership and participation in a larger church organization is not, under New Jersey law, equated with hierarchical integration, an obvious point seemingly lost on these reinstated Plaintiffs. See St. John’s Greek Catholic Hungarian Russian Orthodox Church of Rahway, New Jersey v, Fedak, 96 N. J. Super. 556 (1966).