PREFACE
The Respondents/Defendants, Counterclaimants and Third-Party Plaintiffs in this action -hereinafter “Parish and Parishioners”– have in their previous submissions to this Court addressed fully and accurately each of the issues relevant to this proceeding, but here pray the Court’s indulgence for this, their reply to matters raised in the reinstated Petitioners’/Plaintiffs’ brief (erroneously captioned as a “Reply”) in opposition to the Cross Petition for Certification of the Parish and Parishioners.
The disingenuity of these reinstated Plaintiffs is apparent in their bald assertion to this Court that they did not impair their former membership rights in the Parish when, unilaterally and in clear defiance of the regularly constituted government of the Parish, they created a shadow church bearing the similar name as the Parish 2T26-4 to 15 but which in fact was a separate, distinct, and competing religious body. Since bringing this creation into existence, they have –if their testimony is to be accepted at face value– given this new congregation their loyalty as well as their dues, while admittedly neglecting their obligations to the Parish. 2T50-21 t0 51-6; 2t59-7 to 25; Da550; 2T27-11 to 28-3 They would have this Court now accept the proposition that this substituted support of their new congregation discharges their requirements for continued membership in Holy Ascension Church.
As a matter of law, it does not, and this
Court should hardly be distracted by such creative argument.[1]
While it cannot be denied that the relations of the Parish with the dismissed
clerical Plaintiffs (to whom the reinstated Plaintiffs remain attached and
whose interests they here represent 2T16-9 to 16) were strained by the
1995 action of these clerics in joining a competing non-Ukrainian, Greek Church
in Istanbul, Turkey, the record below is unchallenged that the status of Holy
Ascension Church as a parish of the UOC-USA, Inc., was never (until the
institution of this lawsuit) the object of any punitive corporate or
organizational action on the part of the runaway bishops in South Bound Brook. Da316
¶50-52; Da1667; Da446; Da476 The Parish was, for all purposes relevant to
these proceedings, still the local parish of the UOC-USA, Inc.; prior to this
lawsuit, the Parish was never put on any suspended or probationary status (an
action admittedly not authorized in any event by the organic documents of the
UOC-USA, Inc. 3T71-15 to 72-5) Absolutely nothing in the “Constitution”
of the UOC-USA, Inc., remotely suggests any authority on the part of the South
Bound Brook bishops to clone the Parish and unilaterally transfer its rights
and its very identity to a newly minted religious congregation. These
reinstated Plaintiffs have, in paraphrase of Watson v. Jones, 80 U.S.
679 (1871), 20 L. Ed. at 678, “first erected themselves into a new
organization;” by that fact they have “joined themselves to another totally
different [church], if not hostile, to the one to which they belonged when the
difficulty first began;” and, as this Court in Graves v Protestant Episcopal
Church in the Diocese of New Jersey, 83 N.J. 572 (1980) noted (relying on
the language of the Supreme Court of the United States in Watson),
“[u]nder any of the decisions which we have examined, the [reinstated
Plaintiffs and the clerical principals 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.” See Graves, 83 N. J., at 582.
These reinstated Plaintiffs have no standing to make any claims derivative from
their former, abandoned membership in the Parish.
Reduced to its bare essence, the reinstated
Plaintiffs’ argument here that they are not barred by considerations of res judicata
or collateral estoppel from asserting the claims of the dismissed clerical
Plaintiffs is premised on the single fact that the trial judge in this case did
not spread on the minutes of this proceeding any entry entitled “Judgment” but
only entered (and repeatedly reiterated) his Order that the clerical Plaintiffs
and UOC-USA, Inc., were barred, with prejudice, from making any claims against
the Parish and Parishioners in this case and were dismissed from it with
prejudice. Da249, Da251, Da281-290 From this fact alone, the reinstated
Plaintiffs deduce that they may now pick up where their clerical principals
left off and assert on their behalf their claims to control the Parish and
Parishioners. These Plaintiffs misstate
the law of New Jersey in this respect, as well as the clear intent of the trial
court in dismissing the clerical Plaintiffs and the UOC-USA, Inc. By his Order of November 28, 2000, Da224
Judge Mahon specifically found that the misbehavior of the clerical Plaintiffs
and of the UOC-USA, Inc., in failing to make lawful discovery in this action
was “intentionally disruptive of discovery and egregious, long-standing,
willful and deliberate,” Da225, for which reason he dismissed the
Complaint and Counterclaim and Specific Defenses of these clerics and of the
UOC-USA, Inc., providing further that “said Plaintiffs shall be deemed to be in
default” (but failing to fulfill Archbishop Anthony’s expressed desire that he
“would rather go to [j]ail than permit discovery.” Da231). Subsequently,
the trial court entered explicit Orders “imposing sanctions upon the Plaintiffs
and Third Party Defendant, Metropolitan Constantine,” Da243, “imposing
Money Judgment against Archbishop Antony and the Ukrainian Orthodox Church of
the USA,” Da241, and “Imposing Money Judgment against Archbishop Antony
and the Ukraine Orthodox Church of the USA,” Da246.[2]
These emphatic Orders and Judgments of the trial court were reaffirmed by
subsequent Orders of the court refusing to readmit the clerical plaintiffs and the
UOC-USA, Inc., as parties Plaintiff in this action. None of these Orders or Judgments of the trial court were
appealed; none of these Orders or Judgments are now subject to any further
appellate review in any court. They
are, in a word, final orders and judgments within the clear sense and
meaning of the doctrines of res judicata and collateral estoppel. The position taken by the reinstated
Plaintiffs here that they may now freely assert and maintain the very same,
identical claims, now long dismissed with prejudice from this action, to
control of the Parish and Parishioners formerly advanced by their clerical
masters –seemingly as if these very same claims had not already been dismissed
with prejudice– is a vacuous statement of aspiration and flies in the face on
the law of this State and its underlying policies. As this Court has clearly
said (and reaffirmed), “... the doctrine of res judicata provides that a cause
of action between parties that has been finally determined on the merits by
a tribunal having jurisdiction cannot be relitigated by those parties or
their privies in a new proceeding.” Velasquez v. Franz, 123 N.J. 498
(1991), citing Roberts v. Goldner, 79 N.J. 82, 85, 397 A.2d 1090 (1979)
(emphasis added). These reinstated Plaintiffs surely will not now be so bold as
to represent to this Court that the substantive claims of the dismissed
clerical Plaintiffs or of the UOC-USA, Inc., have not been finally
determined on the merits as that phrase was used in by this very tribunal
in Velasquez or that, even more incredibly, they are not the privies
of these dismissed parties within the meaning of that term as employed by this
Court in Roberts v. Goldner.
This Court should forcefully reject this effort on behalf of the
reinstated Plaintiffs here to resurrect and reassert long-moldering substantive
claims which have already been unquestionably and emphatically jettisoned, and
with prejudice, by a New Jersey court of acknowledged competence and
jurisdiction to do so.
Reading the unqualified statements made by
the reinstated Plaintiffs to this Court in their opposition brief to the Cross
Petition for Certification of the Parish and Parishioners, one is led inexorably
to the raw, unadulterated position assumed by these Plaintiffs: the religious
status of the dismissed clerical Plaintiffs and the UOC-USA, Inc., (they would
have this Court believe) with nothing more, makes their actions and deeds
(particularly those which are the subject of the Counterclaim and Third Party
Claims of the Parish and Parishioners) ipso facto of a religious
character such as would immunize them somehow under some pretended penumbra of
the First Amendment. Early on in this
litigation when the clerical Plaintiffs and the UOC-USA, Inc., were more candid
and forthright with the court, the trial judge made the flat, unqualified
finding that the now dismissed “plaintiffs do not allege or cite any facts [in
this case] that they claim to be ecclesiastical issues.” Da231 [Decision
of March 23, 2001]. Now, years later,
these reinstated Plaintiffs argue to this Court on behalf of their dismissed
principals a position diametrically opposed to that presented earlier to the
trial court below and insist that everything in this case is somehow
religious for the simple reason that runaway bishops are involved. The Parish
and Parishioners pray this Court to eschew the generality with which the
reinstated Plaintiffs are apparently content and to parse in minute detail the
precise nature of the claims made in their Counterclaims and Third Party Claims
Da162: these assert fraudulent representations of fact by the clerical
parties, facts relating to their subterfuge and misrepresentations concerning
their actions in Istanbul in 1994 and 1995; Da338 ¶¶ 3-5 they allege the
civil theft and conversion by clerical parties of personal property, simply
put, not their own; Da340 ¶9 they charge these clerical parties with an
unauthorized merger of a New York corporation with another body in a manner and
fashion inconsistent with and contrary to the positive requirements of
controlling New York law; Da334 ¶¶2,3 and they allege the substitution
of a Greek ethnic affiliation for the UOC-USA, Inc., in place of the Ukrainian
loyalty pledged and guaranteed in the organic documents of the UOC-USA, Inc. Da334
¶¶1-3 Nowhere in the Counterclaim or Third-Party Claim of the Parish and
Parishioners is there so much as a suggestion of a shadow of an issue touching
on religious doctrine, theology, religious discipline, liturgical matters, or
any other subject having the remotest connection with matters of faith. Neither the Parish nor the Parishioners ask
this Court or any court of the State of New Jersey for judicial aid in connection
with a religious issue, but only for the discharge of their constitutional duty
to protect them in the enjoyment of the civil and secular rights and liberties
–whether rooted in contract, tort or property law– which are theirs as citizens
of this State.
Moreover, the submissions of these reinstated
Plaintiffs to this Court betray their continuing misapprehension of New Jersey
law which specifically condones civil actions sounding in contract, tort, or
property law against religious organizations and officials even when these
entail some element of religious doctrine, practice or belief where there
is fraud or collusion on the part of the clerical malfeasors.[3]
POINT IV THE UOC-USA IS NOT HIERARCHICAL AS
TO PROPERTY MATTERS
With
a degree of hyperbole and undiscriminating exaggeration, Plaintiffs end their
latest submission to this Court with a three-sentence coda, which is as
conclusory as it is devoid of legal content or analysis. “Overwhelming
evidence,” they state, shows the “hierarchical” nature of the relationship of
the Parish here and the UOC-USA, Inc., while at the same time studiously
avoiding any citation to this Court of any shred of evidence in the record of
this case substantiating such a sweeping and insupportable conclusion. At the
same time, they turn a blind eye to the fundamental question raised repeatedly
in this litigation as to whether New Jersey law continues to attach any
mandatory legal significance to the threadbare “polity” discriminations, which
these Plaintiffs embrace with such apparent fervor.[4] In a similar conclusory tour de force,
the Plaintiffs tell this Court that the “structure” of Ukrainian Orthodoxy is “identical”
[Plaintiffs’ term] to the Protestant Episcopal Church, never troubling
themselves to address the total lack of any concrete basis in history or in
contemporaneous fact for such sweeping, hyperbolic overstatement.
There is, finally, supreme irony in the fact that the reinstated Plaintiffs here rest their entire position before this Court on isolated verbiage in the “Constitution” of the UOC-USA, Inc. (some of which was unilaterally and illegally inserted and most of which is not practiced by anyone within the UOC-USA), which would demand, in Plaintiffs’ the view, that any UOC-USA affiliated Parish be wholly and irrevocably subject to the unmitigated secular and spiritual domination and control of church officials in South Bound Brook –a concept lacking even the support of remote inference in the original organic documents of the UOC-USA, Inc. That same “Constitution” has been the repeatedly ignored and violated by these runaway bishops whose interests the reinstated Plaintiffs serve and who were formerly officers of the UOC-USA, Inc. These have blatantly ignored explicit provisions of that “Constitution;” illegally attempted to merge the corporation with a foreign Turkish church organization; surreptitiously sought to pervert its clear and unequivocal commitment to Ukrainian ethnic and national affiliation; and to subvert the indispensable independence and autonomous character of the UOC-USA, Inc. This manifest injustice the Court must not permit.
|
On the Brief E. R. Lanier, Esq. Counsel Pro Hac Vice Member of the Georgia Bar |
Respectfully Submitted ________________________ Myroslaw Smorodsky, Esq. Attorney for Respondents/Cross petitioners |
[1] The reinstated Plaintiffs implicitly recognize that their membership in the Parish was forfeited by their failure to support the Parish when they argue to this Court that they retained membership status in the Parish until administrative procedures were completed to terminate that status. They fail to recognize, of course, that their actions constituted not a simple failure of support, but an embrace of a hostile and competing religious organization and an active abandonment of their former rights within Holy Ascension Church.
[2] The trial court later reinstated certain individual Plaintiffs, but was careful in his order to note that only “the complaint of the aforesaid individuals herein [name] is hereby reinstated.” Da257; Da271. Judge Mahon was exceedingly careful to avoid any inference that the claims of any of the scofflaw clerical plaintiffs or of the UOC-USA, Inc., were similarly restored to an active status in this action.
[3] See Gonzalez v. Roman Catholic Archbishop of Manila, 80 U.S. 1 (1929); United States v. Ballard, 322 U.S.78 (1944); Serbian Eastern Orthodox Diocese v. Milivojevich, 425 U.S. 695 (1976); F. G. v. MacDonnell, 150 N.J. 550 (1997); Elmora Hebrew Ctr. Inc. v. Fishman, 125 N.J. 404, 413, 593 A.2d 725 (1991); Welter v. Seton Hall Univ., 128 N.J. 279, 293, 608 A.2d 206 (1992); and McKelvey v. Pierce, 173 N.J. 26 (2002), all recognizing that the State’s courts may adjudicate tort, contract, property, and other secular civil claims, even where a given dispute presents some interest related to limitations under the First Amendment to the United States Constitution.
[4] Plaintiffs apparently believe that Graves is the last statement of New Jersey courts on the outmoded Watson deference rule and show no awareness of the implications, or the existence, of more recent case law such as McElroy v. Guilfoyle, 247 N.J. Super. 582 (1990); Elmora Hebrew Center, Inc. v. Fishman, 125 N.J. 404, 593 A.2d 725 (1991); Welter v. Seton Hall University, 128 N.J. 279, 608 A.2d 206 (1992); Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 608 A.2d 218 (1992); Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141, 608 A.2d 1353 (1992), cert. denied, 507 U.S. 952 (1993); Scott’s African Union Methodist Protestant Church v. Conference of African Union First Colored Methodist Protestant Church, 98 F.3d 78 (1996); and Solid Rock Baptist Church v. Carlton, 171 N.J. 440, 794 A.2d 179 (2002).