DIRECT
EXAMINATION OF DEFENSE WITNESS
Professor
Thomas E. Bird by Mr. Smorodsky
and
CROSS
EXAMINATION OF DEFENSE WITNESS
Professor
Thomas E. Bird by Mr. Rehill
DIRECT EXAMINATION
OF PROFESSOR THOMAS E. BIRD BY MR. SMORODSKY
p.127
Q. Now, during the
1950s -- strike that.
A.
They did. They elected their own priests, and then they would go to
the Consistory to be told whether or not their priest had the canonical, a
recognized ordination, that he was a Ukrainian priest, that he believed the
Orthodox faith, but the parish elected their priest, all during that time.
Q.
Now,
how did this differ from the practice in the Greek Catholic -- strike that. In
the Greek Orthodox Church?
A.
The Bishop of the diocese, of any of the diocese in the Greek
Orthodox Church in the United States appoints the priest.
Q.
During
that period of time between 1950 and today, did the Ukrainian Orthodox Church
of the United States of America ever claim that it had any ownership right
whatsoever in the property of the parishes?
A. There has never been a hint of a claim to
property rights, and an article as late as 1951 in the Ukrainian Orthodox Word
from
South Bound Brook
says explicitly that the parishes control their real estate. Father Bazyl
repeated that and affirmed that this
morning.
Q. Now, you testified earlier that the election of Patriarch
Mstyslav occurred some time in 1991, correct?
A. Correct. Uh-huh.
Q. Did the Ukrainian Orthodox Church of the United States of
America participate in the Sobor that elected him?
A. They did indeed. Right. Participated in
the structure. Definitely.
Q. Now --
A. Sent delegates from the United States and participated in that election in Ukraine.
Q. Now, in 1993, Patriarch Mstyslav passes away?
A. Right, right, and there is a new election.
Q. And did the Ukrainian Orthodox Church of the United States of America participate in
that election?
A. I think we can say that the Church
participated. It sent delegates, it
sent lay delegates, it sent clergy, and indeed Archbishop
Antony, one of the plaintiffs, was a
candidate for the office of Patriarch in the election of 1993. I would call
that real
participation. The interesting thing I
think is that Archbishop Antony wasn't elected in 1993.
Q. Who was?
A. Father Volodymyr who became Patriarch.
Q. Spell the name please.
A. Yes. V-O-L-O-D-Y-M-Y-R. Who had been in
Stalin's camps and was a hero of conscience to the Ukrainian people. And
between 1993, when he was not
elected, and December of 1994, Archbishop Antony seems to have had a change of
heart.
Q. Now, in December of 1994, did an event take place where the
bishops of the UOC-USA and the Patriarchate of
Constantinople enter into an agreement?
A. You know, that is
a controverted question, Counsellor. If we read what Constantinople says, there
was such a meeting. If we
read many of the
statements of the South Bound Brook bishops, there was only some informal
conversations.
Q. Now, I show you what has been marked for identification as
D-57, which are the Points of Agreement. What is the date of that
agreement?
A. December, 1994.
Points of Agreement between the Ukrainian Orthodox Church U.S.A. and the Ecumenical
Patriarchate of
Constantinople.
Q. I call your attention to paragraph six. How does that paragraph affect the structure of the Ukrainian Orthodox Church in the
U.S.A.?
A. Up until November of 1994, there was no ecclesiastical
officer who was superior to the Metropolitan of the Ukrainian
Orthodox Church U.S.A. point six says that the Primate, meaning the
Metropolitan of the Ukrainian Orthodox Church in the U.S.A., after consultation
with the Exarch of the Ecumenical Patriarchate" -- that is the Greek
Orthodox Archbishop of New York -- in consultation with that Exarch, the
Metropolitan shall submit a slate of candidates for the Office of Metropolitan,
a slate of candidates for Bishops to the General Council, to the Sobor of the UOC
in the U.S.A., for approval in the first instance, which implies that there is
a second instance. The names of the candidates approved by the Sobor will then
be submitted to the Holy and Sacred Synod of the Ecumenical Patriarchate for
canonical election. That is something totally novel. That has never happened
before in the history of the 1921 through 1994 church.
Q. And how is it novel?
A. It says that the Metropolitan is no longer,
the Metropolitan of the UOC-USA is no longer the final arbiter of church life
in this
church; that indeed all he and his
bishops can do is suggest. The term is "submit a slate of
candidates." The names of the
candidates approved by the Sobor will
then be submitted once again to the Synod of the Ecumenical Patriarchate of
Constantinople, and only then do they
become real. Only then are they elected. And with respect for Father Bazyl's
testimony,
if I understood him correctly this
morning, he said that the South Bound Brook bishops had not been elected. With
respect,
they were elected by the Holy Synod of
the Constantinople Church, and it was only with that election that they became
legitimate for the Ecumenical
Patriarchate, and were given Episcopal titles by the Church of Constantinople
which is their
official, canonical title.
THE COURT: Mr. Smorodsky, we have been going for a while. Is
this an appropriate time for a break?
MR. SMORODSKY: This would be a very appropriate time.
THE COURT: Okay. We'll take ten minutes.
THE WITNESS: Thank you, your Honor.
(Recess taken.)
(Witness resumes the stand.)
THE COURT: Mr. Smorodsky.
MR. SMORODSKY: Yes.
BY MR. SMORODSKY:
Q. The Points of Agreement that are before you which you were
testifying to right before the break, I would like to refer you to
paragraph -- I'd like to refer you to paragraph nine. Can
you read that paragraph, please?
A. "The Ukrainian
Orthodox Church in the U.S.A., coming under the canonical omophorion of the
Ecumenical Patriarchate, shall
become a member of the
Standing Conference of Canonical Orthodox Bishops in the America (SCOBA)."
Q. Now, the phrase "omophorion," what does that term
mean?
A. In the Orthodox Church, when a penitent
goes to confession, the priest puts his stole, which hangs down in front of the
priest,
over the head of the penitent. That's
the omophor. It indicates the authority of the priest to, in the sacrament of
reconciliation,
to forgive the penitent's sins. The
omophor is a sign and symbol of authority. In this context, omophor means
juridical control.
It means juridical submission. It is I
have to think partly a pious use to invoke a vestment, and partly intended to
be unclear and
vague, and to be filled with whatever meaning the speaker wishes to give to it. It is clearly, in the context of these points,
intended to mean juridical control,
juridical authority, juridical submission.
Q. Does that mean virtually or administratively?
A. It certainly means virtually, but in
these points it also clearly means administratively because it says that the
canonical head of
this ecclesiastical entity is the
Ecumenical Patriarch. That is more than spiritual; that is administrative. When
you are using the
word "canonical," you are
talking legality.
Q. You are talking about using the phrase "canonical
omophor." Does that have special significance?
A. That is underlining the legalistic interpretation and meaning of the term, making it unambiguous.
Q. I show you what has been marked as D-160 for identification.
This letter purports to be a letter written by Dr. Lewis Patsavos
to Mr. Robert Hedish. Who is Dr. Lewis Patsavos?
A. Dr. Patsavos is a
very dear friend of many years. He is a well-known, renowned, recognized canon
lawyer. He is recently
retired from the faculty
of Holy Cross Greek Orthodox Theological School outside Boston. His advance
degrees are from
Greece and from
Germany. He is well and widely published, and is a recognized authority on
Orthodox Canon Law.
Q. Now, I –
MR. REHILL: Your Honor, this document is not one of those
documents which we agreed would be offered in evidence.
Counsel is aware that I had an objection to this document. He is
now asking questions of a third party about a letter written by
someone who purports to be a canon law expert who is not here.
MR. SMORODSKY: Your Honor –
MR. REHILL: I can't cross-examine the document, I can't
cross-examine the witness, and it was represented to me that this
document would not be offered in this case.
MR. SMORODSKY: I disagree. This document came up during
cross-examination to contradict the testimony of someone that
Mr. Rehill represents, the
plaintiffs, and the UOC-USA. This is a document that was submitted into
this Court as part of the
record in October 27th, 1999. It's a declaration against
interest by their expert.
MR. REHILL: Your Honor, the fact that Mr. Smorodsky chose to
use a letter in cross-examination for a purpose which is
unrelated to the direct testimony this morning doesn't make it
suddenly admissible. We went through a long and very tedious
process of identifying those documents which were going to be
offered in this trial. We agreed on all of them. Mr. Smorodsky
was aware that I had an objection to this document. It clearly
is hearsay. If the testimony is going to be coming in as hearsay,
regardless of what Mr. Hedish may have done with it back in
1999, I have no knowledge of that use of it. Regardless of the fact is
that I don't think it's appropriate for -- and I don't know
what it says, frankly..
THE COURT: I am sorry?
MR. REHILL: I don't even remember what it says, but it was not
one of the documents that we agreed would be offered. For
another witness to testify about that letter, that witness
should be here, if that's another person, if he wants to get some opinion
from someone else about anything relating to the structure of
the Church.
MR. SMORODSKY: Your Honor, I'm not going to cross-examine or examine this witness on
the contents of this letter. I'm
identifying what the document is and his identification of the
person that wrote it. The purpose why this will be –
THE COURT: Well, that has been accomplished.
MR. REHILL: That that
has already been accomplished.
MR. SMORODSKY: I am not going any further with this one.
MR. REHILL: Okay. Then I have no idea why it's in the record,
but that's okay. I am not going to worry about it.
THE COURT: I understood Mr. Smorodsky may seek to have it
admitted.
MR. SMORODSKY: As a declaration against interest.
THE COURT: Well, get through this witness and we can discuss
that at a later time.
BY MR. SMORODSKY:
Q. Now, Professor Bird, as a result of the Points of Agreement,
or since 1995 -- let me strike that question. Since 1995, how has
- did I take it?
A. You took it.
Q. I'm sorry. Since 1995, how has the Ecumenical Patriarchate represented its relationship to the Ukrainian
Orthodox Church of
the United States of America?
Q. Since 1995, has there been any co-celebration of the liturgy
between clergy of the UOC-USA and the Ukrainian Orthodox
Church in Ukraine?
A. From reading the Union Press, I read
that there have been instances of priests, of clergy. There have not been
con-celebrations
between the hierarchs of the UOC-USA
and the Autocephalous Church in Ukraine because in a canonical sense they are
no
longer in communion, and Metropolitan
Constantine has made that clear in response to questions at the last Sobor.
Q. Now, how does the Ecumenical Patriarchate -- strike that.
Does the Ecumenical Patriarchate since 1995 recognize the
autocephaly of the Ukrainian Orthodox Church of the United
States of America?
A. Absolutely not.
It couldn't, and give it the rank that it does in its yearbook. It can only
recognize an Autocephalous Church that
it does not control and
it controls the UOC-USA.
Q. Now, let me ask you this: Are Bishops Antony or Archbishop
Antony, Metropolitan Constantine and Archbishop Vsevolod,
are they hierarchs of an Autocephalous Church?
A. Absolutely not.
There is no way. There is no canon lawyer in the world who would support that claim.
They are subject to the
Ecumenical
Patriarchate. There is no Autocephalous Church who, which is subject to another
Patriarch. It doesn't exist. What
is more, the
Ecumenical Patriarch is on public record as having assured the Patriarch of Moscow
that he will not at anytime in
any way support the
notion of a Ukrainian Autocephalous Orthodox Church. He is in writing on record
making that promise to
his fellow Patriarch.
Q. Going back to Archbishop Antony and Archbishop, Metropolitan Constantine, were they elected to their positions by the
Synod of Constantinople?
A. With respect to
what Father Bazyl said, he was misinformed. He claimed that they were never
elected. They were indeed
elected by the Holy
Synod of the Patriarchate of Constantinople.
Q. And that was published publicly by the Ecumenical
Patriarchate, was it not?
A. It was. And once again we have variant
readings because in general, the South Bound Brook bishops give themselves
American
titles, but in documentation that comes
from the Ecumenical Patriarchate, they are given their legitimate canonical
titles to which
they were elected which are ancient
Byzantine Sees. They are titular bishops of the Ecumenical Patriarchate.
Q. Can a Bishop be a Bishop in two entities, one of which is
autocephalous, and one of which is subservient to the Bishop of
A. Res ipsa loquitur. It is out of the question. It's a contradiction in terms. Couldn't possibly exist.
MR. SMORODSKY: Nothing further, your Honor.
CROSS-EXAMINATION OF PROFESSOR THOMAS E.
BIRD BY MR. REHILL:
Q. Start with the last questions if I can just, because they are
fresh in my mind. And I am not clear I understood exactly what you
were saying, Professor.
A. Please.
Q. You refer to the Metropolitan Constantine and Archbishop
Antony as titular bishops of the Sees of the Ecumenical
Patriarchate?
A. Right.
Q. Titular meaning not actually functioning as bishops there?
A. No. With respect, sir, they are real
bishops by all means and recognized by the Patriarchate as real bishops. They are clearly
less than free agents as bishops by
being given titular Sees. That is a demotion in their canonical rank.
Q. In your opinion?
A. I think in the opinion of the fraternity of canon lawyers, sir.
Q. They were given mythical Sees?
A. Correct.
Q. Not real Sees?
A. Correct.
Q. With mythical names when the Ecumenical Patriarch put them under
his omophor?
Q. Is that correct?
A. No, that is not correct, sir. As you
know, they are not mythical. They are real Sees that once existed and were
destroyed for
one reason or another and no longer exist,
but they are not mythical. They are historical.
Q. But bishops traditionally are tied to geography?
A. That's right, sir.
Q. Piece of land, some area of land over which the bishop exercises authority, jurisdiction?
A. Correct.
Q. And neither Constantine nor Antony exercise jurisdiction over
any piece of land other than within the United States, correct?
A. That's correct.
Q. But they were, in fact, elected, both of them, by the
Ukrainian Orthodox Church of the United States of America to be
bishops, correct?
Q. But –
A. But that was not the final instance. They had to be ratified by the Ecumenical Patriarchate Synod.
Q. Perhaps if you just answer my questions one at a time and we'll
get through this quickly.
A. I'm sorry. Of course.
Q. They were both elected Bishop by the Sobor of the Ukrainian
Orthodox Church of the United States of America?
A. That's correct.
Q. They were each of them consecrated Bishop prior to the Points
of Agreement, prior to any relationship with the Ecumenical
Patriarch, correct?
A. Correct.
Q. Metropolitan Constantine was elevated to the level of
Metropolitan long before the relationship with the Ecumenical Patriarch,
correct?
Q. Yes. Is that correct?
A. That had to be confirmed by the Patriarchate for his present status to be legitimate.
Q. Under the Points of Agreement?
A. Correct.
Q. But before the Points of Agreement, he still had the
position?
A. But nobody recognized it.
Q. Nobody meaning in the Orthodox world?
Q. And once the Points of Agreement were executed, then
everybody recognized him?
A. After the Patriarchate had legitimatized it and recognized it, then the rest of the Orthodox world accepted it. Yes, sir.
Q. And he was recognized as the Metropolitan of the Ukrainian
Orthodox Church of the United States of America, was he not?
A. That's correct.
Q. And Antony was recognized as Archbishop of the Ukrainian
Orthodox Church of the United States of America, correct?
A. Correct.
Q. And Vsevolod was recognized as Bishop --Archbishop of the
Ukrainian Orthodox Church of the United States of America,
correct?
A. Correct, sir.
Q. Not simply nongeographic Sees in Greece, but also by their
names here?
A. Correct.
Q. But their real geography and real jobs here, correct?
A. Correct.
Q. And that didn't
change?
Q. Their positions here did not change by virtue of the Points
of Agreement with the Ecumenical Patriarch?
A. Oh, I beg your pardon, sir. They changed
existentially. Now they were canonically legitimate. Before they were a fantasy
in
their own minds.
Q. I'm sorry. I appreciate that difference. But in terms of
their administrative responsibilities, they still had the responsibilities of –
A. I agree with you.
A. I agree with you.
Q. Now this church is, in fact, the Church, that is the
Ukrainian Orthodox Church of the United States of America, is the Church
which was established in 1924 by Archbishop John Theodorovich,
correct? Simply the same church with additions coming in?
A. I couldn't possibly agree to that. No.
Q. You could not agree?
A. No.
Q. It is not the same church?
A. No, because that church was autocephalous. This church is a suffragan of a foreign, ethnically different church.
Q. Setting aside the spiritual difference?
A. No. This is an administrative difference, counsellor.
Q. We'll get to that.
A. But I can't grant your premise. It's much more than spiritual.
Q. All right. Let's talk about your premise then. You said the
Ecumenical Patriarch controls the UOC-USA. In what respect does
he exercise control?
A. They cannot
create a new bishop. They cannot create a new diocese without his permission
and legitimation. I find that
substantive.
Q. What else, what else?
A. Oh, I'm willing to stop right there.
Q. Well, I am not. Is that all there is? They control the
administration of the diocese?
A. Yes.
Q. In what way?
A. They can't function episcopally without his agreement.
Q. Does he have any representative sitting in the Church Sobor?
A. He doesn't need to. The Sobor is merely
advisory and has to submit everything that it does in terms of Episcopal
appointment
and the creation of jurisdictions to
the Ecumenical Patriarch Synod.
Q. Are you familiar with the Constitution of the Church?
A. Roughly.
Q. Is there anywhere in here that says that -- is there any in
the Constitution of the Ukrainian Orthodox Church of the United
States of America which gives the Ecumenical Patriarch the
authority over the actions of the Sobor that you just told the Court?
A. Counsellor, can I
ask you if you do not think as I do, that the Points of Agreement supersede
this Constitution. Because that's
my firm believe; that
the Points of Agreement are much more important than anything in this
Constitution.
Q. Would you answer my question?
A. Okay, sir. There is nothing in that
Constitution that says so. That is an antecedent document, and it is, as Father
Bazyl said this
morning, it has internal
contradictions.
Q. What is the date of that Agreement? What is the date of that
Constitution?
A. This is the Constitution of the last Sobor, I believe.
Q. 1998?
A. 1998, yes.
Q. Antecedent to what?
A. The contents of it are antecedent. They
did not make the changes to this Constitution that the Points of Agreement
state. It is
an incomplete document.
Q. It's an inconsistent document?
A. It is not only inconsistent; it is also incomplete because it does not indicate the higher instance of ecclesiastical authority.
Q. The Points of Agreement document is dated December of 1994?
A. '94. Right. Sorry.
Q. Sobor Metropolitan in '95?
A. Right, sir.
Q. Sobor Metropolitan in 1998?
A. Right.
Q. Sobor Metropolitan in 2001?
A. Right.
Q. Sobor has the power to amend the Constitution at anytime,
does it not?
A. Yes, it does.
Q. Did it?
A. No, sir, it did not.
Q. It never yielded authority to the Ecumenical Patriarch to
which you ascribe?
A. Oh, I totally disagree with that premise, sir.
Q. How did it do that? Just curious. How did it do that if it
did not amend its Constitution which doesn't give that power to
anyone?
A. By an agreement
which the Bishops of South Bound Brook made with the Ecumenical Patriarchate
and do not choose to talk
about publicly.
Q. Does that supersede the Constitution of the Church?
A. The action of the Bishops? Absolutely.
Q. How does it do that?
A. I'm sorry. That's my premise; that the
actions of that Synod of Bishops of South Bound Brook, in negotiation with the
Ecumenical Patriarchate, supersedes
any document of the Church.
Q. And it's a premise that has no -- you can't give any further
explanation other than it's your premise?