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Chomsky v. Sewitch

Superior Court of New Jersey, Appellate Division

July 23, 2013



Argued January 29, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-208-11.

Larry S. Loigman argued the cause on behalf of appellants (Larry S. Loigman, attorney; Ira W. Heller, of counsel; Mr. Loigman, on the brief).

Avram S. Eule argued the cause on behalf of respondents (Carella, Byrne, Cecchi, Olstein, Brody & Agnello, attorneys; Kenneth L. Winters and Mr. Eule, on the brief).

Before Judges Messano and Lihotz.


Plaintiffs Herschel Chomsky, Alan Goldsmith, and Zephyr Chomsky are members of Congregation Shaarey Tefiloh (the Congregation), an Orthodox Jewish synagogue in Perth Amboy. Herschel Chomsky is a member of the Congregation's five-person Presidium. Defendants Shep Sewitch, William Sewitch, Barry Rosengarten, and George Cohn are also members of the Congregation and its Presidium. Plaintiffs' complaint, submitted on an order to show cause, challenged defendants' exercised authority on behalf of the majority of the Presidium, to approve the dissolution of the Congregation and sale of its Perth Amboy property. Plaintiffs sought to enjoin defendants' action and compel transfer of the dispute to the Congregation's designated beth din, a religious arbitral tribunal, for resolution under Halacha, or Jewish law.

Chancery Division Judge Frank M. Ciuffani considered the issues during a four-day trial. In a written opinion, Judge Ciuffani declined to adjudicate whether defendants complied with Jewish law, and denied plaintiffs' request to transfer the dispute to the Jewish tribunal. The judge determined defendants and the Presidium complied with the Congregation's bylaws and abided by all applicable statutory requirements. He entered judgment for defendants and dismissed plaintiffs' complaint, with prejudice. Plaintiffs appeal. We affirm.


The facts are taken from the trial record. We confine our recitation to those facts related to the issues on appeal.

The Congregation was formed as an Orthodox Jewish religious corporation in 1903, incorporated pursuant to N.J.S.A. 16:1-1. The Congregation's constitution and bylaws provide for a five-member Presidium, comprised of the executive officers elected by the Congregation. The Presidium, which serves as the entity's board of trustees, carried out the duties and functions of the Congregation.

In years past, the Congregation had several hundred members. However, by 2010, total membership had declined to twenty-seven. For many years, the Congregation was without a rabbi and remained unable to assemble a minyan (ten Jewish males) for the Sabbath.

On August 8, 2010, a special meeting of the Congregation was held to discuss a proposal for the dissolution of the Congregation and sale of its real property. Because of the Congregation's desperate financial situation and bleak prospects of recruiting an Orthodox Jewish group, such as a yeshiva, to occupy the synagogue and finance its continued operation, the following motion was presented:

1. The Presidium shall engage proficient legal counsel to assist and advise in the dissolution of Congregation Shaarey Tefiloh.
2. The Presidium shall engage real estate brokers to place the building for sale.
3. The Congregation shall conduct Rosh Hashanah and Yom Kippur services this year, after which the Shule shall be closed on Sept. 19, 2010.
4. The Presidium shall appoint a committee to recommend the disposition of the . . . [Congregation's religious] artifacts and furnishings.
5. The Presidium shall consult with legal counsel as to the future of all cemeteries owned by the Congregation . . . and the distribution of its assets.

The vote was thirteen to six in favor of adoption, with one abstention.

Shortly after the meeting, defendants received a letter from an attorney on behalf of Goldsmith and other objectors, challenging the procedures employed at the August 2010 meeting. Specifically, the letter stated the dissolution decision failed to comply with the bylaw requirements of prior explicit notice and an affirmative vote of a two-thirds majority, at a meeting called for that purpose.

Sewitch mailed a notice of special meeting, scheduled for December 5, 2010, informing members there would be a vote on the sale of the Congregation's real property and dissolution of the Congregation. Among those eligible to vote, thirteen voted in favor of passing the resolution and five voted against doing so.

The Presidium obtained an appraisal of the Congregation's realty and engaged Rosengarten Realty & Development Corp. to market the property.[1] Rosengarten was not involved in the decision to utilize his company's services, and he has abstained from voting on issues regarding the contract.

Efforts to sell the building to a yeshiva or other Jewish entity proved unsuccessful. In fact, during the seven-month period the property was on the market, the only offer received was from Science of Spirituality, Inc. (SSI), a non-Jewish religious organization. On September 20, 2011, over Chomsky's objection, a majority of the Presidium voted to approve the sale of the Congregation's real estate to SSI for $925, 000, which was only a few thousand dollars less than the appraised value. Closing was scheduled for December 31, 2011.

Plaintiffs filed their four-count verified complaint and order to show cause seeking to enjoin the dissolution of the Congregation and sale of its realty, arguing the Congregation was bound by Halacha, which prohibited the sale to a non-Jewish religious organization. Further, plaintiffs maintained the matter must be transferred to a beth din, for oversight and determination under Jewish law. The complaint also alleged the Presidium's actions did not comply with the Congregation's bylaws and statutes governing non-profit religious corporations, and asserted defendants were engaging in self-dealing.

Plaintiffs later filed a notice of lis pendens and rejected defendants' request to discharge same. The sale to SSI did not take place as planned because of the pending litigation.

Defendants counterclaimed, alleging plaintiffs' actions constituted tortious interference with contract. However, this claim was severed from the Chancery litigation and transferred to the Law Division for adjudication.

While the Chancery matter was pending, plaintiffs unilaterally sought to have the dispute presented to and resolved by the Beth Din of Elizabeth, conducted by Rabbi Elazar M. Teitz. Rabbi Teitz sent defendants a letter "summoning" them to a din torah (Jewish religious trial) to resolve their matters with plaintiffs. Defendants declined. Following oral argument, Judge Ciuffani denied plaintiffs' motion to compel defendants to appear before and submit to the jurisdiction of the beth din. The judge concluded, under New Jersey law, the court must refrain from interjecting itself into religious issues, and a party cannot be compelled to submit to a beth din or present non-religious matters to the religious tribunal.

Plaintiffs continued with the beth din proceeding despite defendants' absence. Rabbi Teitz issued a seiruv (writ of refusal) to defendants, purporting to disqualify them, as a matter of Jewish law, from serving as officers of the Congregation, and, consequently, stripping them of "the authority to take any steps towards the sale of the synagogue."

Defendants moved before the Chancery judge to discharge the notice of lis pendens. After reviewing the pleadings and considering oral argument, Judge Ciuffani submitted a written opinion granting defendants' application. The judge found plaintiffs failed to establish a likelihood of success on their claim alleging defendants acted improperly in approving the dissolution and sale of the Congregation's property. Furthermore, as a matter of law, the judge concluded, there was no basis to support the entry of a notice of lis pendens to encumber the property and prevent its sale.

Plaintiffs next proceeded to record in the county clerk's office an instrument entitled "Memorandum as to Rights and Interests in Real Estate" (the Memorandum). The Memorandum was prepared and signed by the individual plaintiffs, and purported to memorialize the decision by the Beth Din of Elizabeth removing defendants from their leadership positions in the Congregation, prohibiting them from acting for or on behalf of the Congregation, "reaffirm[ing]" the Congregation's real property was to continue to be used as an Orthodox Jewish religious institution, and prohibiting the sale to any non-Jewish religious organization. Defendants filed a motion to discharge this instrument of record, which was granted.

Trial commenced on April 30 and continued on May 1, May 8, and May 9, 2012. The parties testified and plaintiffs presented several religious experts. Following trial, Judge Ciuffani found no proof defendants had violated any statutes governing the operation of the religious corporation or the Congregation's bylaws. He entered judgment for defendants and dismissed plaintiffs' complaint with prejudice. This appeal ensued.


The scope of our review of a judgment entered following a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We will not disturb a trial judge's factual findings unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotation marks and citations omitted). Credibility determinations receive "particular deference, " RAB Performance Recoveries, L.L.C. v. George, 419 N.J.Super. 81, 86 (App. Div. 2011), because of the position of the trial judge to observe witnesses and hear them testify, Cesare v. Cesare, 154 N.J. 394, 412 (1998). On the other hand, our review of a trial judge's legal conclusions is de novo, as "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995).



Plaintiffs argue the court erred in characterizing this matter as a real property dispute, maintaining it in fact was a question of who properly held religious authority to act for the Congregation. Although plaintiffs initiated the litigation, raising both religious and non-religious issues, they assert "[t]he trial court erred when it failed to abstain from this dispute, which is inextricably linked to religious issues." Plaintiffs believe the court had no authority to address the merits of such a religious dispute and could only direct the matter to be heard by the beth din, characterizing the trial court's decision as "overrul[ing] the finding of the beth din[.]" We disagree.

It is well-established that the Establishment Clauses of the Federal and State Constitutions severely circumscribe the role of civil courts in resolving disputes concerning religious entities. Chavis v. Rowe, 93 N.J. 103, 107 (1983) (citing Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872)); Solid Rock Baptist Church v. Carlton, 347 N.J.Super. 180, 191 (App. Div.), certif. denied, 171 N.J. 440 (2002); U.S. Const. amend. I; N.J. Const. art. I, ¶ 4. The State is prohibited from promoting religion or becoming excessively entangled in religious affairs. McKelvey v. Pierce, 173 N.J. 26, 40, 43 (2002) (citation omitted). Although civil courts may not override a religious tribunal's decisions, interpret religious laws or canons, or otherwise decide issues of religious doctrine or ecclesiastical polity, this constitutional proscription does not preclude religious parties and organizations from seeking civil adjudication of secular legal questions. Elmora Hebrew Ctr., Inc. v. Fishman, 125 N.J. 404, 413 (1991) (citations omitted); Solid Rock Baptist Church, supra, 347 N.J.Super. at 191-93.

Plaintiffs make much of the trial court's characterization of the synagogue as one of "congregational, " rather than "hierarchical, " governance.[2] Although judicial treatment of litigation involving religious entities sometimes may turn on the governance structure of the religious organization involved, we need not spend much time dispelling the importance of this quandary, as we conclude its outcome is inconsequential because accepting plaintiffs' characterization would not alter the final determination on the matters in controversy. Therefore, plaintiffs' argument lacks sufficient merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(1)(E).[3]

More to the point, we must ensure the court's adjudication was confined to its proper civil sphere and did not infringe upon the constitutional autonomy guaranteed to religious organizations. For example, secular matters affecting the civil or property rights of individuals, such as those pertaining to contractual obligations, church membership, or corporate governance, may be addressed by civil courts so long as excessive entanglement with ecclesiastical and doctrinal matters does not occur. Chavis, supra, 93 N.J. at 109-10; Elmora Hebrew Ctr., supra, 125 N.J. at 414-15. The United States Supreme Court has developed two approaches — the "deference approach" and the "neutral principles approach" — to ensure civil courts do not become excessively entangled in religion. Under the deference approach, courts may defer to and "accept the authority of a recognized religious body in resolving a particular doctrinal question." Elmora Hebrew Ctr., supra, 125 N.J. at 414. Alternatively, under the neutral principles approach, a court may resolve a dispute involving a religious entity by applying neutral principles of law to questions presented, without implicating religious doctrine or practice.

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); Solid Rock Baptist Church, supra, 347 N.J.Super. at 192 (citations omitted). The threshold requirement is a judicially protectable interest — whether it arise under the law of property, contract, corporations, tort, or another area — presented for adjudication. Chavis, supra, 93 N.J. at 110. The latter approach was followed by Judge Ciuffani, who conducted a "secular examination of church deeds, constitutions, by-laws, canons and the like [to] settl[e the Congregation's] disputes, thereby freeing [the] 'civil court[] completely from entanglement in questions of religious doctrine, polity, and practice.'" Chavis, supra, 93 N.J. at 108 (quoting Jones v. Wolf, 443 U.S. 595, 603, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775, 785 (1979)). See also Solid Rock Baptist Church, supra, 347 N.J.Super. at 192 (explaining examination and interpretation of church documents under the neutral principles approach should be "in accordance with wholly secular legal rules whose applications do not entail theological or doctrinal evaluations"). In this regard, review is not impacted by the type of governance structure of a particular church. Elmora Hebrew Ctr., supra, 125 N.J. at 414.

The trial court did not decide any disputed questions of religious doctrine. See id. at 413. Indeed, the issues resolved did not require the judge to go beyond the statutes or the bylaws and constitution of the Congregation. Rather, he deliberately and expressly abstained from adjudication of, and thereby avoided entanglement with, those claims which required resolution of religious questions, such as whether defendants' actions complied with the tenets of Halacha, and whether the parties were required to submit their dispute to the beth din because the Congregation was an Orthodox Jewish institution.

Following our review of this record, we conclude the judge properly employed the neutral principles approach to consider and determine only "those disputes involv[ing] purely secular issues" that were capable of resolution "without the judiciary becoming enmeshed in matters of faith or doctrine." Abdelhak v. Jewish Press, Inc., 411 N.J.Super. 211, 224 (App. Div. 2009) (citation omitted). Contrary to plaintiffs' suggestion, the Congregation's documents, around which much of this dispute was focused, were "clear, provable, and express, " and, therefore, the court could enforce them "without engaging in a searching, and therefore impermissible, inquiry in [synagogue] polity." See Solid Rock Baptist Church, supra, 347 N.J.Super. at 195 (citation omitted). Judge Ciuffani properly limited adjudication to the secular questions presented, and applied well-established, neutral principles of law to determine whether defendants' actions were legally sound and in conformity with the statutes governing religious organizations and the Congregation's constitution and bylaws. The judge simply determined "whether established procedures of [the Congregation], as proved, were followed[.]" Baugh v. Thomas, 56 N.J. 203, 208 (1970). To the extent any religious questions underlay this litigation, the trial court did abstain.

Ironically, had the trial court considered plaintiffs' request to compel submission to the beth din, it would have had to first determine whether Jewish law required resolution by a religious tribunal. Such a determination would be an impermissible intrusion into religious doctrine. The court declined to adjudicate whether, as a matter of Jewish law, defendants were eligible to hold office in an Orthodox Jewish congregation, notwithstanding issuance of a seiruv. Moreover, the court's refusal to judicially enforce the seiruv containing the beth din's opinion on that matter does not equate to excessive entanglement. The judge neither accepted nor rejected the beth din's determination. As is constitutionally required, he eschewed the issue in its entirety.

Absent consent by both parties, or express provision in the bylaws, a civil court will not compel arbitration before a beth din or any other religious tribunal. Elmora Hebrew Ctr., supra, 125 N.J. at 419. If the parties wished to require arbitration of disputes by such a religious tribunal, a provision could have been included in the Congregation's governing documents. See id. at 415 (recognizing application of the neutral principles approach "presents the potential advantage of permitting parties to assure a consistent approach to questions of property ownership or church membership by inclusion of appropriate terms in deeds, contracts, or by-laws"); Welter v. Seton Hall Univ., 128 N.J. 279, 296-97 (1992) (explaining that if parties intend resolution of some or all of their disputes to be governed or influenced by doctrinal matters, they may manifest such intentions by express provision in their documents or instruments, or by mutual submission to a religious tribunal for adjudication of their dispute).

Primarily for the reasons discussed in Judge Ciuffani's written opinion, we reject plaintiffs' contention the matter was one entangled with religious doctrine such that resolution of the dispute was within the exclusive jurisdiction of the beth din. We discern no constitutional impropriety.


Alternatively, plaintiffs challenge the factual findings and legal conclusions of the court, insisting the judge erred in not finding defendants ran afoul of corporate and statutory requirements in the December 5, 2010 vote to dissolve the Congregation and their subsequent efforts to sell its property. Specifically, plaintiffs contend: the trial court applied the wrong version of the bylaws; defendants did not provide sufficient notice of the December 2010 meeting to the members of the Congregation; defendants lacked the power to bind the corporation in the manner at issue; defendants did and still do plan to divert the proceeds from the sale of the Congregation's real property; and defendants failed to adopt a plan of dissolution at the time the Congregation's members voted to dissolve. Having considered these arguments in light of the record and applicable law, we conclude they are unfounded and lack merit. R. 2:11-3(e)(1)(E). We include these brief comments.

On appeal, plaintiffs challenge the trial court's factual finding that the 2000 bylaws had been properly adopted and, therefore, governed the procedural requirements for the December 2010 meeting and vote. Plaintiffs maintained the governing instrument was the 1966 bylaws, which provided the Congregation could not be dissolved if there were seven persons still holding membership, and sale of the synagogue could be authorized only with the approval of three-fourths of the Congregation's members. The 1994 and 2000 bylaws, on the other hand, required only a simple majority vote to sell Congregation property, and did not prohibit dissolution under any circumstances. Plaintiffs' argument rejecting the validity of the 1994 and 2000 bylaws is grounded on the lack of similar markings showing adoption of the 1994 or 2000 version of the bylaws, as found on the 1966 bylaws, as well as defendants' inability to locate a copy of the minutes memorializing action taken in 1994 and 2000 to adopt these later versions.

The judge relied upon Sewitch's extensive trial testimony reflecting the 2000 version of the bylaws was in effect during his participation on the Presidium. Finding his testimony credible and persuasive, Judge Ciuffani explained Sewitch "testified over the course of several days and was subject to lengthy and detailed cross-examination[, ]" and "[h]is testimony was clear, consistent, and persuasive regarding the by-laws that controlled the actions which the Congregation took in December 2010." The judge weighed the absence of documentation conclusively establishing the adoption of the 2000 bylaws against the substantial, credible testimonial evidence, and determined the 2000 bylaws controlled.

After reviewing all of this evidence and testimony in its decision, the court stated:

This [c]ourt finds that the action taken by the Congregation on December 5, 2010, was done in accordance with the constitution and the by-laws of the Congregation, and the New Jersey Statutes. This finding is supported by the only testimony offered in this case from a member of the Presidium, Shep Sewitch, which this [c]ourt again, finds to be credible, the documentation submitted, and also by the conduct of the [p]laintiffs, who at the December 5, 2010 meeting and for a considerable period of time thereafter, never contended that the vote taken on December 5, 2010 was deficient because seventy-five percent (75%) of those members in good standing who attended the meeting did not vote in favor of dissolution and sale.

We defer to these findings. See Rova Farms Resort, supra, 65 N.J. at 484. Accordingly, we reject plaintiffs' arguments attacking the validity of the actions taken at and pursuant to the December 5, 2010 meeting.

We further reject plaintiffs' challenges based on defendants' failure to provide notice of the December 5, 2010 meeting "by advertisement set up in open view at or near the place of meeting, " as required by N.J.S.A. 16:1-6. In fact, defendants ensured procedural due process by providing actual notice to all congregants, satisfying the spirit and purpose of the statute to afford interested parties adequate notice and an opportunity to be heard.


Finally, we have reviewed plaintiffs' remaining arguments challenging the final and prior orders discharging the notice of lis pendens and vacating the recorded Memorandum, as well as those alleging defendants' anticipated untoward diversion of the proceeds of the sale, all of which are baseless. We determine these arguments lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E).

In conclusion, the judge's factual findings, clearly articulated in his written opinion, are supported by substantial credible evidence found in the record. Moreover, his legal conclusions based on these findings are sound. Defendants were fully authorized by the Congregation's express bylaws and under statute to enter into a contract of sale and bind the corporation, upon a majority vote. See N.J.S.A. 16:1-4, -6 (empowering the trustees of a religious organization to sell or otherwise dispose of the entity's property, so long as authorized by a majority of voting members).


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