EUGENE STOUPINE v. PHILIP PETROVSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3185-10T2

EUGENE STOUPINE, NADEJDA

MAMYSHEVA, OLGA STOUPINE

AND PAVEL MAMYSHEV, Individually

and on behalf of ST. NICHOLAS

RUSSIAN EASTERN ORTHODOX CHURCH,

Plaintiffs-Appellants,

v.

PHILIP PETROVSKY, SERGE LUKIANOV,

PETER LUKIANOV, TD BANK NORTH,

successor entity to COMMERCE BANK,

COMMERCE BANK, ST. NICHOLAS

RUSSIAN EASTERN ORTHODOX CHURCH

OUTSIDE OF RUSSIA, and THE METROPOLITAN

SEE OF THE RUSSIAN ORTHODOX CHURCH

OUTSIDE OF RUSSIA,

Defendants-Respondents.

________________________________________

Telephonically argued December 7, 2011 Decided April 30, 2012

Before Judges Messano, Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-165-09.

Ronald L. Lueddeke argued the cause for appellants (Lueddeke Law Firm, attorneys; Mr. Lueddeke, on the brief).

Brendan Judge argued the cause for respondent TD Bank North (Connell Foley, L.L.P., attorneys; Mr. Judge, on the brief).

Pasquale Menna argued the cause for respondentsPhilip Petrovsky,Serge Lukianov, Peter Lukianov, St. Nicholas Russian Eastern Orthodox Church Outside of Russia, and the Metropolitan See of the Russian Orthodox Church Outside of Russia (Menna, Supko & Nelson, L.L.C., attorneys; Mr. Menna, on the brief).

PER CURIAM

Plaintiffs appeal Chancery Division orders entered on December 2, 2010, dismissing their complaint against defendants. For reasons that follow, we affirm.

This appeal arises from a dispute over church control between former and present members of a parish council. Although plaintiffs have brought allegations that certain defendants improperly gained control of church funds, it is stipulated that no funds belonging to the church have been misused or otherwise applied to anything other than appropriate church business.

On May 4, 2010, plaintiffs Eugene Stoupine, Nadejda Mamysheva, Olga Stoupine and Pavel Mamyshev, individually and "on behalf of St. Nicholas Russian Eastern Orthodox Church" (sometimes hereinafter collectively referred to as plaintiffs) filed an amended verified complaint against defendants and alleged that, as members of the parish council of Saint Nicholas Russian Eastern Orthodox Church (St. Nicholas Church) in Red Bank, plaintiffs were "entrusted with the maintenance and financial management" of the church. Plaintiffs asserted that on January 30, 2008, defendant Serge Lukianov, the church rector, "caused the improper and unauthorized withdrawal of all parish monies from three accounts" at Commerce Bank, predecessor of TD Bank, North (hereinafter the Bank).

Plaintiffs claimed that Lukianov "unilaterally and improperly removed the signature" of the parish secretary and treasurer from the accounts' signatory list and "usurped the financial oversight" of the parish council. Plaintiffs further alleged that Lukianov later convened an "improper and unauthorized" parish meeting in order to conduct an "improper and unauthorized election for [p]arish [c]ouncil." Plaintiffs asserted that the new council members had not been granted membership in the church and were thus ineligible for election to the council.

The first count of the amended verified complaint asserted that in causing a "fraudulent election" and in permitting the unauthorized withdrawal of church funds, plaintiffs were harmed. They sought various forms of relief, including an order "freezing" church bank accounts; the removal of certain defendants as signatories on church bank accounts; the removal of all "current [p]arish [c]ouncil members"; and an order restraining defendants from "conducting any church business." The second count alleged that the Bank breached its agreement with St. Nicholas Church by allowing accounts to be drawn upon in violation of a depositor contract which required two signatures from among plaintiffs Eugene Stoupine, Nadejda Mamysheva, and defendant Petrovsky to authorize any withdrawal of funds.

On November 17, 2010, the Bank filed a motion to dismiss the amended verified complaint pursuant to the Establishment Clause of the First Amendment to the United States Constitution. The remaining defendants filed a similar motion. Plaintiffs opposed the motion, and on November 30, 2010, the parties agreed that the court could decide the motions predicated upon jointly- submitted "undisputed facts." We summarize the undisputed facts.

As of January 1, 2008, plaintiffs were a "subset" of the St. Nicholas Parish Council. In February 2001, St. Nicholas Church opened two bank accounts at the Bank and listed Eugene Stoupine, Nadejda Mamysheva and defendant Petrovsky, a Russian Orthodox priest and rector of St. Nicholas Church, as the authorized signatories. The deposit contract with the Bank provided that funds may be withdrawn on the signature of "any two" of the designated "officers or employees." Subsequently, in February 2007, St. Nicholas Church opened a certificate of deposit at the Bank with Nadejda Mamysheva as the authorized signatory.

On January 10, 2008, "[d]iocesan authorities formally appointed defendant Serge Lukianov as Rector of St. Nicholas" Church and, by virtue of that position, he also became president of the parish council. Shortly thereafter, a dispute arose between plaintiffs and Lukianov over the St. Nicholas Church bank accounts. On January 29, 2008, the Communications Director for the Synod of Bishops of the Russian Orthodox Church Outside of Russia, with which St. Nicholas Church is affiliated, certified that Lukianov, as rector, was authorized to be a signatory on all financial accounts of the church along with the church's treasurer and secretary. The next day, after receiving the certification of the Communications Director, the Bank transferred $64,006.09 from existing church accounts to a new church account opened by Petrovsky, the former rector, and Lukianov, the current rector.

Shortly after the transfer, plaintiffs contacted the Bank and alleged that the transfer of funds was improper and unauthorized. The Bank immediately froze all church accounts and called the Red Bank Police Department. A Red Bank detective and a representative of the Bank then contacted Bishop Gabriel of the New York and Eastern America Diocese of the Russian Orthodox Church Outside of Russia about the controversy over the church funds. On February 14, 2008, Bishop Gabriel issued a church directive (called a "Ukaz") appointing the diocesan treasurer, Deacon Dmitri G. Temidis, as temporary treasurer of St. Nicholas Church, and directing all parish council members and officers to release all banking and other records to Temidis. The Ukaz further provided that no checks were to be sent on behalf of the church by anyone other than the temporary treasurer and that all bills and "collections" were to be provided to Lukianov who in turn would transfer them to Temidis.

The Bishop further directed that "in addition to the Reverend Serge Lukianov, Deacon Dmitri G. Temidis is appointed as temporary signatory on the new bank account[.]" Upon receipt of this directive, the Bank closed all existing church accounts and opened two new accounts in the name of St. Nicholas Russian Orthodox Church with Temidis and Lukianov as authorized signatories.

Plaintiffs appealed to the hierarchy of the church to remedy what they considered to be inappropriate and unauthorized actions by Lukianov and Petrovsky. Metropolitan Hilarion, the Presiding Bishop of the Synod Bishops and the highest church authority over St. Nicholas Church, appointed a commission to investigate the matter. On March 31, 2009, the Metropolitan issued a letter stating that "the commission found there to be absolutely no wrong doing on the part of Father Serge Lukianov or Father Philip Petrovsky." The Metropolitan further stated that plaintiffs should be removed from the parish council and declared,

Let it be known once and for all that Fr. Serge Lukianov and Fr. Philip Petrovsky have committed no crimes and broken no canons, but have, to the contrary donated their time, money, and tireless efforts to the restoration and growth of St. Nicholas Church in Red Bank. I thank them for their courage and obedience to me, their ruling Bishop.

The Metropolitan also issued a statement that church funds spent after the transfer to the new accounts were spent for legitimate parish-related purposes.

After considering the stipulated facts and oral argument, Judge Thomas W. Cavanaugh, Jr., rendered his opinion from the bench on December 2, 2010. After noting the concession of all parties that no church money was spent inappropriately, Judge Cavanaugh found,

the determination involving the appointment of a new pastor and the procedure involved in considering the appropriateness of that appointment and the ramifications of that appointment are truly religious doctrine. They are religious areas.

He further found that because the church hierarchy had conducted an investigation which concluded defendants Lukianov and Petrovsky were the proper representatives of St. Nicholas Church and that no church funds were misused, it would be improper for the court to "enter into this canon law dispute."

Judge Cavanaugh concluded,

In essence, what we have is a dispute among members of the parish. It is true that the plaintiffs had signatory rights on the parish account. However, they were not the owners of the account, nor were they entitled to the money. They were simply representatives.

The church, by its bylaws and through interpretation, by the Diocese, the higher authority, has restructured that same church in terms of signatures and how the money will be available.

No one in this case contends that the Synod took the money and kept it and absorbed it for their own uses. It is still available and being used by the current parish church in Red Bank.

No one suggests for one moment that the people now involved as signatories spent the money improperly, other than procedurally, because the plaintiffs weren't asked to join as signators.

Clearly, I would be involving myself in what I think would be an unconstitutional entanglement of civil and religious issues if I were to get involved in essentially overruling the Synod authorities and the religious authorities in determining that the parties no longer in control as representatives should oust the parties who are in control, despite the church's review and directive that they remain in control.

The court thereafter entered orders dismissing the complaint.

On appeal, plaintiffs do not challenge any of the stipulated facts upon which the court based its decision. Rather, plaintiffs challenge the trial judge's conclusion that longstanding principles of First Amendment jurisprudence forbid civil courts from deciding issues of religious governance or ecclesiastical policy.

On a motion for summary judgment, we apply the same standards that govern trial courts in reviewing summary judgment orders. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We accord no special deference to a trial court judge's ruling on a question of law, however. Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

"The First Amendment clearly bars government from involving itself in purely ecclesiastic matters, including, but limited to church doctrine, hiring, firing and retention of church employees and or ministers." McKelvey v. Pierce, 173 N.J. 26, 38-39 (2002) (internal citations and quotations omitted). The proscription of courts from becoming too entangled in religious affairs finds its genesis in both the Free Exercise Clause and the Establishment Clause of the First Amendment. Id. at 39. The Free Exercise Clause prohibits "secular control or manipulation" of religious organizations and protects their power "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 154-55, 97 L. Ed. 120, 136 (1952). "In contrast to the Free Exercise Clause, the Establishment Clause prohibits states from promoting religion or becoming too entangled in religious affairs, such as by enforcing religious law or resolving religious disputes." McKelvey, supra, 173 N.J. at 40. (internal citations omitted).

The threshold inquiry is "whether the underlying dispute is a secular one, capable of review by a civil court, or an ecclesiastical one about 'discipline, faith, internal organization, or ecclesiastical rule, custom or law.'" Id. at 45 (quoting Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th Cir. 1997)). When adjudicating the merits of a claim requires a court to interpret any of these religious tenets, the court must abstain for lack of subject matter jurisdiction. Id. at 52. Where a dispute can be resolved by the application of neutral principles alone, no First Amendment issues arise. "'Neutral principles' are wholly secular legal rules whose application to religious parties or disputes does not entail theological or doctrinal evaluations." Elmora Hebrew Ctr. v. Fishman, 125 N.J. 404, 414-15 (1991); Abdelhak v. Jewish Press Inc., 411 N.J. Super. 211, 224 (App. Div. 2009).

With these principles as our guide, we cannot divine an adjudicatory role for a civil court in this case that would not intrude upon the church's ecclesiastical domain. Plaintiffs maintain that the directives issued by the ecclesiastical authorities, Bishop Gabriel and Metropolitan Hilarion, contravene church by-laws and that control of the parish council was achieved by a "fraudulent election" and the "withdrawal of church funds in an unauthorized manner." In essence, plaintiffs want the court to reverse the actions of the ecclesiastical hierarchy respecting church governance in circumstances where the church's highest authority, Metropolitan Hilarion, having convened a commission of church authorities to investigate the "recent bank account charges and all other matters" pertaining to St. Nicholas Church, and having received its report, declared that defendants Petrovsky and Lukianov committed "no wrongdoing" and broke no church canons. Plaintiffs now dispute these conclusions, despite having explicitly requested the investigation.

Clearly, the court's involvement in a matter of church governance would run afoul of the First Amendment. Plaintiffs ask the court to intervene in a dispute between them and the church hierarchy about the authority of the Synod of Bishops and the Metropolitan See over St. Nicholas Church. This is a matter of "church government" which the Supreme Court has declared must be free of "secular control or manipulation" under the First Amendment. Kedroff, supra, 344 U.S. at 116, 73 S. Ct. at 155; 97 L. Ed. at 136.

We cannot parse the ecclesiastical laws of the Russian Orthodox Church Outside of Russia and then apply neutral principles to determine whether the church's highest authority, the Metropolitan, properly interpreted and applied such laws in this case. Matters of church governance, predicated upon its canons and hierarchical structure, should not be the subject of secular judicial resolution. "In disputes involving a church governed by a hierarchical structure, courts should defer to the result reached by the highest church authority to have considered the religious question at issue." Elmora Hebrew Ctr., supra, 125 N.J. at 414 (citing Watson v. Jones, 80 U.S. (13 Wall.) 679, 727, 20 L. Ed. 666, 676 (1871)); Chaves v. Rowe, 93 N.J. 103, 108 (1983).

Moreover, plaintiffs' claims against the Bank were properly dismissed. The claims against the Bank are dependent on the identification of the appropriate church official authorized to act on behalf of the church and that determination would require us to undertake the proscribed inquiry noted above. Further, the Bank, upon being notified of the controversy, immediately froze all the accounts of St. Nicholas Church and contacted the police. Subject to police oversight, it then sought direction from the appropriate diocesan authority and was instructed by the Bishop that he had appointed Deacon Dmitri G. Temidis as the temporary treasurer of St. Nicholas Church and that Deacon Temidis and Lukianov were appointed as temporary signatories on all church accounts. The Bank dutifully complied with this directive and plaintiffs concede that no church funds were lost or improperly applied to expenses not related to appropriate church business.

Plaintiffs do not contend that church funds were their personal property and concede that their interest in the funds arose only in their capacity as representatives of the church. St. Nicholas Church and its diocesan hierarchy do not contend that the Bank failed to fulfill its contractual obligations and, in fact, acknowledge that the Bank dutifully observed and complied with the church's directives pertaining to the accounts.

Affirmed.