UKRAINIAN ORTHODOX CHURCH OF THE UNITED STATES OF AMERICA v. JOHN LUCHEJKO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5893-07T35893-07T3

UKRAINIAN ORTHODOX CHURCH OF

THE UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN LUCHEJKO, ROSE CLEMENS, WALTER

MOHUCHY, KATHLEEN MENKE, EVE RAKETSKY,

JENNIE LUCHEJKO, IVAN MARCHENKO,

VICTOR RUD, PETER PALUCH, LESIA PALUCH,

SVITLANA MARCHENKO, THEODORE OLESCHUK,

STEFAN TATARENKO, ANDREW RACHKO, PETER

VELECHKO, THEODORE TARACHIWSKY, SONIA

LELET, WILLIAM PANYCIA, FRANK ZEEVALT,

IVAN LENCZUK, GREGORY KLYMENKO, WILLIAM

NAKONECHNY, ROMA LISOVICH,

Defendants-Respondents.

_______________________________________

 

Argued March 31, 2009 - Decided

Before Judges Graves, Grall and Espinosa.

On appeal from the Superior Court of New

Jersey, Chancery Division, Passaic County,

Docket No. C-47-07.

Michael F. Rehill argued the cause for appellant.

Myroslaw Smorodsky and E.R. Lanier of the

Georgia bar, admitted pro hac vice, argued

the cause for respondents (Mr. Smorodsky and Mr. Lanier, attorneys and on the brief).

PER CURIAM

Plaintiff, the Ukrainian Orthodox Church of the United States of America (UOC-USA), appeals from an order dismissing its civil complaint seeking enforcement of an order of its Church Court. Defendants are parishioners who served as members of the board of the Ukrainian Orthodox Holy Ascension Church (Holy Ascension) located in Clifton, which is a member parish of the UOC-USA. On cross-motions for summary judgment, the trial court concluded that it lacked subject matter jurisdiction because enforcement of that order would entangle the court in a religious controversy.

The order of the Church Court, among other things: declares defendants "permanently ineligible for service in any position of parish administration or leadership including the parish council of administration or any parish organization"; declares that the "'priest' who currently serves illegitimately in that capacity without such appointment by the Eparchial Hierarch and the Consistory must immediately cease and desist from such activity and remove himself, his family and all personal property from the parish rectory and all other facilities"; compels defendants "to immediately turn over all Holy Ascension parish property, finances, records, keys and administrative responsibility to the legitimate parish council of administration and parish Pastor"; and, deprives defendants of "membership in Holy Ascension parish for a period of five years," after which they may apply for membership.

The UOC-USA's complaint seeks judgment ordering defendants "to comply with the orders of the Church Court and to turn over all Holy Ascension parish property, finances, records, keys and administrative responsibility to the court-recognized parish council of administration and parish Pastor" and "[b]arring defendants from participating in the affairs of Holy Ascension Parish."

This court previously identified and discussed the underlying dispute about doctrine and polity between the minority and majority of the parishioners of Holy Ascension. The dispute centers on the UOC-USA's authority to affiliate with the Ecumenical Patriarchate of Constantinople (EPC) despite the UOC-USA's historical bond with the Ukrainian Orthodox Church. That bond was disrupted during a period of political turmoil in Ukraine. On the prior appeal, the panel held that resolution of the dispute between the minority and majority about control of the church property would require the court to determine whether the UOC-USA subordinated the church to the EPC and, "if so, whether such subordination was outside the scope of the hierarchy's authority." Ukrainian Orth. Church of the USA v. Luchejko, No. A-854-03 (Dec. 27, 2004) (slip op. at 6). The panel further concluded that the underlying dispute was "religious" and involved questions of church "polity" and that abstention was required by the First and Fourteenth Amendments of the United States Constitution. Id. at 6, 10-24. The panel suggested that the parties should have sought relief through the processes outlined in the UOC-USA's constitution. The Supreme Court denied plaintiffs' petition for certification. Burgan v. Luchejko, 183 N.J. 211 (2005).

Since this court's decision, the Church Court has adjudicated the underlying dispute. The Church Court issued a "Notice of Accusations and Issues" against defendants. The defendants were accused of numerous "[v]iolations of Canon Law[,] Scripture and Sacred Tradition": the "seizure of parish property and the unwillingness to turn over its full administration to the recognized Pastor and Board of Administration"; "[a]ffiliating with [an] anti-ecclesiastical organization[,] the 'diocese' of the 'Kyivan Patriarchate' in America"; "[c]ommitting fraud and the sin of theft"; "[d]ismissing a pastor in violation of the parish or UOC[-USA] Constitution"; and, of "[c]reating the terrible sin of schism of creating divisions in the Church and dividing the church asunder against church teaching and against the Pastor and the hierarchy."

In response to the "Notice of Accusations and Issues," defendants contended that the Church Court lacked any authority over them "whether religious or civil" and that they were only "subject to . . . the Ukrainian Orthodox Church having its seat in Kyiv." When the Church Court convened, defendants did not appear or otherwise contest the charges. The Church Court ruled against defendants, and issued the orders that the UOC-USA now seeks to enforce.

Upon receipt of the Church Court's decision and order, defendants petitioned Patriarch Filaret of the Kyivan Patriarchate to set it aside as "null, void, and of no effect." He did so, and asserted that Holy Ascension "is now and has been since its inception and foundation a lawful and integral part and portion of the Ukrainian Orthodox Church of which we are, by the grace of God, now Patriarch and Spiritual Head." So armed, defendants did not comply with the Church Court order.

Thereafter, the Church Court considered whether the "procedural processes of entering under the omophorion of the [EPC were] observed." It concluded that "all canonical and constitutional procedures for establishing full ecclesiastical communion with the [EPC] were diligently observed by the hierarchs, the Metropolitan Council, and the Sobor of the"

UOC-USA. The resolution "to bring the . . . UOC[-USA] under the omophorion of [the EPC] . . . was approved by an overwhelming majority of the delegates to the Sobor."

The UOC-USA commenced this litigation to enforce the Church Court's order. In its answer to that complaint, defendants contended that the Church Court lacked authority under the UOC-USA's constitution because its members included clerics or faithful "of a different church, the Greek Orthodox Church of Constantinople." Although they acknowledge that the UOC-USA is "hierarchical in spiritual matters" and that Holy Ascension is and has remained a part of the UOC-USA, they contended that UOC-USA is bound to follow the subsequent declaration by the Kyivan Patriarch.

The Church Court order the UOC-USA seeks to enforce provides in full:

1: In accordance with ecclesiastical discipline and ordinance, the Church Court of the [UOC-USA] orders that the only legitimate parish council of administration (or parish board) of Holy Ascension Parish, Clifton, NJ, is that approved by the Eastern Eparchy Hierarch, upon its election by the parish membership. The Church Court also orders that none of the respondents in the matter before the Court are recognized as members of the parish council of administration of Holy Ascension Parish, Clifton, NJ since they were removed and suspended by their Eparchial Hierarch in a letter to the parish membership dated 11 July 2001. . . . The respondents are also ruled permanently ineligible for service in any position of parish administration or leadership including the parish council of administration or any parish organization. The respondents are ordered to immediately turn over all Holy Ascension parish property, finances, records, keys and administrative responsibility to the legitimate parish council of administration and parish Pastor.

2: The Church Court finds that the evidence presented to the Court leaves little doubt that in their refusal to submit to the proper hierarchical authority of the bishops of the [UOC-USA] and in their subversion of that authority, the respondents have willfully and deceptively transgressed and/or ignored specific articles in the constitutions of Holy Ascension Parish, Clifton, NJ and the [UOC-USA], Canon Law and Holy Scripture, as outlined in the Canonical Report to the Court - sections I, II, II-A and II-B. . . . The Court orders that only a priest assigned by the Eparchial Hierarch and the Consistory of the [UOC-USA] may serve as Pastor, or any other clergy rank, in Holy Ascension Parish and rules that the 'priest' who currently serves illegitimately in that capacity - without such appointment by the Eparchial Hierarch and Consistory - must immediately cease and desist from such activity and remove himself, his family and all personal property from the parish rectory and all other facilities.

3: The Church Court orders that the respondents are deprived of membership in Holy Ascension parish for a period of five years and must cease and desist from all disruption of parish and [UOC-USA] ecclesiastical life by word and deed. Following this five year period they may apply for membership once again and may be received into the parish family only after sincere participation in the Sacrament of Penance and the recommendation of the parish Pastor. Should the respondents fail to adhere to this ruling, they shall be subject to referral to the Council of Bishops of the [UOC-USA] for immediate excommunication from Holy Ascension parish and the [UOC-USA].

4: The Church Court upholds Canon Law, Holy Scripture, Holy Tradition and the Constitution of the [UOC-USA] as the highest precepts of ecclesiastical administration and life of Holy Ascension parish and the [UOC-USA] and rules that Holy Ascension parish is now, always has been and always will be a member parish of the [UOC-USA].

5: The Church Court upholds Canon Law, Holy Scripture, Holy Tradition and the Constitution of the [UOC-USA] in ordering that the membership of Holy Ascension parish is subject to the authority of the Hierarchs of the [UOC-USA] only and may not submit itself to or invite any other Hierarch or any other individual of clergy rank to exercise any authority over it.

The trial court held that though it was "bound by all aspects of the Church Court's decision," it could not enforce that decision without becoming entangled in a religious controversy. The court found the prospect for an impermissible excursion into church doctrine and polity in provisions of the order that direct defendants to "cease and desist from all disruption of [UOC-USA] ecclesiastical life by word and deed" and condition defendants' participation in church life after the suspension upon their "sincere participation in the Sacrament of Penance and the recommendation of the parish Pastor."

"[T]he Establishment Clauses of our Federal and State Constitutions . . . severely circumscribe the role that civil courts may play in resolving church property disputes." Solid Rock Baptist Church v. Carlton, 347 N.J. Super. 180, 191 (App. Div.), certif. denied, 171 N.J. 440 (2002); see Presbyterian Church v. Hull Mem'l Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 606, 21 L. Ed. 2d 658, 665 (1969); see also Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 121, 73 S. Ct. 143, 157, 97 L. Ed. 120, 139 (1952) (Frankfurter, J., concurring). "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 80 U.S. (13 Wall.) 679, 728, 20 L. Ed. 666, 676 (1871). Accordingly, civil courts are prohibited "from resolving church property disputes on the basis of religious doctrine and practice." Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 3025, 61 L. Ed. 2d 775, 784 (1979). See Ran-Dav's County Kosher, Inc. v. State, 129 N.J. 141, 161-63 (1992), cert. denied sub nom., Nat'l Jewish Comm'n on Law v. Ran-Dav's County Kosher, 507 U.S. 952, 113 S. Ct. 1366, 122 L. Ed. 2d 744 (1993).

Courts have a duty to resolve "distinct civil issues" but must "avoid unconstitutional entanglement of civil and religious issues." Elmora Hebrew Ctr., Inc. v. Fishman, 125 N.J. 404, 419-20 (1991). Among the questions a court may not decide is "whether a general church organization ha[s] departed from its original doctrines and tenets." Id. at 416. And, "a state court ha[s] no power to overturn the decisions about church clergy and governance . . . made by the highest authority of a hierarchical church." Ibid. State courts may fulfill their duty to resolve property disputes without unconstitutional involvement in religious doctrine or polity obligation by deferring, "accept[ing] the authority of a recognized religious body in resolving a particular doctrinal question," or by "apply[ing] neutral principles of law to determine disputed questions that do not implicate religious doctrine." Id. at 414.

"In a hierarchical church, [where] the local church is an integral and subordinate part of the general church and subject to its authority[,] . . . [civil courts may resolve] property dispute[s] between a subordinate local parish and the general church . . . [by] accept[ing] the authoritative ruling of the higher authority within the hierarchy." Prot. Episcopal Church in the Diocese of N.J. v. Graves, 83 N.J. 572, 577 (1980), cert. denied sub nom., Moore v. Prot. Episcopal Church in the Diocese of N.J., 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 2119 (1981). The Court "conclud[ed] that the hierarchical (Watson) approach should be utilized in church property disputes in this State." Id. at 580. "Only where no hierarchical control is involved, should the neutral principles of law principle be called into play." Ibid.

Regardless of the approach, it is clear that "insinuation by civil courts into the customs and usages of the [church] by-laws and the [church] constitution, into the administration and the polity of the church in the hope of uncovering clues to the correct disciplinary procedures, threatens the freedom of religious institutions from secular entanglement." Chavis v. Rowe, 93 N.J. 103, 112 (1983). Such problems can arise with respect to congregational or hierarchical churches. In Solid Rock, the question of eligibility and selection of candidates for the board of a congregational church improperly entangled the court in church polity. 347 N.J. Super. at 199-200. And, courts have recognized that "'where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy.'" Chavis, supra, 93 N.J. at 111 (quoting Md. & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 369-701, 90 S. Ct. 499, 500-01, 24 L. Ed. 2d 582, 584 (Brennan, J., concurring).

On the foregoing authorities, it is clear that the courts of this State cannot resolve the underlying disputes of church doctrine and polity that led to the rift between the UOC-USA and the majority of the members of the Holy Ascension congregation.

The UOC-USA argues that the decision in this case is controlled by Graves. We question whether the UOC-USA can bring the matter within Graves and thereby avoid application of neutral principles of law. Graves concerned a dispute between the Protestant Episcopal Church and a local parish related to the ordination of women. Graves, supra, 83 N.J. at 575. The Protestant Episcopal Church in the Diocese of New Jersey, the Trustees of Church Property of the Diocese and the Diocesan Bishop filed suit against the parish rector, Reverend Graves, "seeking . . . to bar [him] from conducting services at [the parish] and to restrain defendants from putting parish property to any use not sanctioned by the Diocese." Ibid. Though the deeds to the parish property ran "to the parish corporation and d[id] not contain any words of trust or reverter in favor of the Diocese," id. at 574, the "local church organization and its property [were] subject to the hierarchical authority of the parent church as indicated in the constitutions and canon law of the national church and its dioceses," id. at 580 (emphasis added). On that ground, the Court held that the plaintiffs "were entitled to the relief sought," which was control of the church property and removal of Reverend Graves. Id. at 576, 580. As the UOC-USA's constitution reveals, the UOC-USA has no comparable hierarchical control over the property of its constituent parishes. Indeed, during the prior litigation, the parties stipulated that the property of a member parish is under the control of the parish.

There is, however, no reason for this court to delve into the question of allocation of authority over property to resolve the UOC-USA's request to enforce the Church Court order requiring surrender of keys and records. While courts have an obligation to adjudicate civil disputes about property, the UOC-USA has framed its request as one seeking enforcement of the Church Court's order directing defendants to "immediately turn over all Holy Ascension parish property, finances, records, keys and administrative responsibility to the legitimate parish council of administration and parish Pastor." That order does not purport to give the UOC-USA any right to possession of Holy Ascension's property. Although the UOC-USA argues in its reply brief on this appeal that it is entitled to a civil order compelling "the return of the Church property to" the UOC-USA, in its complaint it sought to enforce an order compelling surrender to the "legitimate" parish board and pastor.

The Church Court's order further declares "that the only legitimate parish council of administration (or parish board) of Holy Ascension Parish Clifton, NJ is that approved by the Eastern Eparchy Hierarch, upon its election by the parish membership." There is nothing in the record provided on this appeal demonstrating that the "legitimate parish council of administration" referenced in the Church Court's order was elected by the members of the parish or approved by the Eastern Eparchy Hierarch after defendants' membership was suspended. Thus, it is not at all clear to whom a civil court would compel defendants to return the property. In any event, there is no dispute that Holy Ascension, and not the UOC-USA, has title to the property and the parties entitled to possession under the church order that the UOC-USA seeks to enforce are not before us. Cf. Kidist Mariam Ethiopian Orth. Tawahedo Church v. Kidist Mariam Ethiopian Orth. Tawahedo Church, 465 S.E.2d 491, 493-94 (Ga. Ct. App. 1995); Piletich v. Deretich, 328 N.W.2d 696, 698 (Minn. 1982). Therefore, with respect to the narrow question presented by the UOC-USA's complaint, the Church Court's order gives the UOC-USA no secular interest to enforce, and it has not identified those who do. For that reason, we conclude the UOC-USA, as a matter of law, is not entitled to the relief requested in its complaint or on appeal.

 
The order dismissing the complaint is affirmed.

The Metropolitan Council is composed of "all the Bishops of the Church," representatives of the clergy and laity and the Metropolitan, the church's "Prime Hierarch." The council is "charged" with "oversight of the Church administration, property and finances," "approv[al] of Constitutions of the central institutions affiliated with the Church" and "mak[ing] decisions concerning relations with other Christian Churches."

The Sobor is a church council composed of clergy and parish delegates that "convene[s] every third year and upon an emergency." It is "[t]he supreme organ of government of the" UOC-USA, responsible for, among other things, "safeguarding the purity of Faith, Traditions and the canonical Church Order" and "affairs pertaining to administration and to religious education, and of the financial needs of the Church." The Sobor also elects the church leaders. See Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 96 n.1, 73 S. Ct. 143, 144 n.1, 97 L. Ed. 120, 126 n.1 (1952) (describing a sobor, in the context of Russian orthodoxy, as "a convention of bishops, clergymen and laymen with superior powers, with the assistance of which the church officials rule their dioceses or districts").

We recognize that since Graves, the Court has discussed, in dicta, the advantages of application of neutral principles of law in resolving property disputes. Elmora, supra, 125 N.J. at 414-15. But it has cautioned "that courts must avoid questions of ecclesiastical polity or doctrine and should ordinarily defer to recognized church authority on such questions." Id. at 415-16; see Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 311 (1992) (repeating the same warning); cf. Scotts African Union Meth. Prot. Church v. Conf. of African Union First Colored Meth. Prot. Church, 98 F.3d 78, 89-94, 94 n.6 (3d Cir. 1996) (concluding that the decisions of New Jersey courts "show a decided progression . . . toward adoption of a neutral-principles approach in resolving intrachurch property disputes" and affirming a decision applying neutral principles to resolve "a property dispute, not one of church polity or doctrine"), cert. denied, 519 U.S. 1058, 117 S. Ct. 688, 136 L. Ed. 2d 612 (1997).

(continued)

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A-5893-07T3

August 19, 2009