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Ukrainian Orthodox Church of the United States of America v. Luchejko

August 19, 2009

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.



On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-47-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 31, 2009

Before Judges Graves, Grall and Espinosa.

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,*fn1 and the Sobor*fn2 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 UOCUSA'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 ...


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