In the Matter of Ming Tung, et al., Appellants,v.China Buddhist Association, et al., Respondents.

Brief

N.Y.Feb 16, 2016

To be Argued by: JOSEPH MILANO New York County Clerk’s Index No. 110149/11 New York Supreme Court Appellate Division – First Department  MING TUNG, WAI CHING CHEN, and SHUN YI MON, Petitioners-Respondents, for a Judgment under Article 78 of the CPLR directing the CHINA BUDDHIST ASSOCIATION to conduct an annual membership meeting, – against – CHINA BUDDHIST ASSOCIATION, MEW FUNG CHEN, MING YEE, and CHIH-CHEN MA, Respondents-Appellants. BRIEF FOR RESPONDENTS-APPELLANTS LAW OFFICE OF TODD L. PLATEK 39-07 Prince Street, Suite 3E Flushing, New York 11354 (718) 321-7130 todd_platek@yahoo.com LAW OFFICE OF BENJAMIN L. HERZWEIG 629 Route 112, Suite 639-07 Patchogue, New York 11772 (631) 447-8838 benherzweig@hotmail.com CAPELL BARNETT MATALON & SCHOENFELD 100 Jericho Quadrangle, Suite 233 Jericho, New York 11753 (516) 931-8100 jmilano@cbmslaw.com Attorneys for Respondents-Appellants Printed on Recycled Paper i TABLE OF CONTENTS Page STATEMENT OF QUESTIONS PRESENTED ......................................... 1 PRELIMINARY STATEMENT ................................................................. 1 STATEMENT OF FACTS 1. Background ........................................................................................ 3 2. Nature of the Appeal .......................................................................... 6 3. Creation and Excommunication of Disciples-Members by Grand Master Chen ....................................................................................... 7 A. Creation of Disciples and Members ........................................... 7 B. The Excommunication of Disciple-Members of the China Buddhist Association in 2011 ..................................................... 10 1. Election of Trustees of China Buddhist Association on May 26, 2011 ....................................................................... 12 2. The Article 78 Proceeding ................................................... 13 3. The Decision/Order Under Appeal ...................................... 14 ARGUMENT THE COURT BELOW IMPROPERLY SOUGHT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE HIGHEST CHURCH AUTHORITY IN ECCLESIASTICAL MATTERS INVOLVING HIS CONGREGATION .................................................................................. 16 A. THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION PRECLUDES A CIVIL COURT FROM INTERFERING IN THIS RELIGIOUS CONTROVERSY REGARDING THEOLOGY, INTERNAL CHURCH GOVERNANCE, ADMINISTRATION, ORGANIZATION, AND MEMBERSHIP ................................................................ 16 ii B. THE ISSUE OF MEMBERSHIP IN A RELIGIOUS ORGANIZATION IS AN ECCLESIASTICAL MATTER WHICH IS NONJUSTICIABLE IN THE CIVIL COURTS ..... 21 C. EXCOMMUNICATION FOR VIOLATION OF FAITH, DOCTRINE AND CHURCH DISCIPLINE IS A NONJUSTICIABLE MATTER IN THE CIVIL COURTS ....... 26 D. THE COURT BELOW MADE AN IMPERMISSIBLE EXAMINATION OF THE KEY RELIGIOUS ISSUES UNDERLYING THE DISPUTE AT BAR ................................ 29 CONCLUSION ............................................................................................ 38 iii TABLE OF AUTHORITIES Page(s) Cases: Burgess v. Rock Creek Baptist Church, 734 F.Supp. 30 (D.D.C. 1990) ........................................................................................... 24 Congregation Beth Yitzhok v. Briskman, 566 F. Supp. 555 (EDNY, 1983) ........................................................................................... 23 Congregation Yetev Lev D’Satmar v. Kahana, 9 N.Y.3d 282, 849 N.Y.S. 463 (2007) .............................. 19, 21, 24, 25, 26, 35 Episcopal Diocese of Rochester v. Harnish, 11 N.Y.3d 340, 870 N.Y.S.2d 814, 899 N.E.2d 920 (2008) ............................................... 34, 35 Grunwald v. Bornfreund, 696 F.Supp. 838 (E.D.N.Y. 1988) ...................... 27 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. __, 132 S. Ct. 694 (2012) ........................... 17, 19, 32, 35n.7 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) ............................... 16, 18, 24 McGuire v. St. Patrick’s Cathedral, 54 Hun, 207, 7 N.Y. Supp. 345 (1889) ........................................................................................................ 26 Metropolitan New York Synod of Evangelical Lutheran Church of America v. David, 95 A.D.3d 419 (1st Dept. 2012) .............................. 35 Mills v. Standing General Commission on Christian Unity, Index No. 601640/2009, slip op. (Sup. N.Y., dated Jan. 29, 2013) ........................... 36n.6 Ram v. Lal, 84 Fed. R. Serv. 3d 187 (E.D.N.Y. 2012) ................................. 24 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) ............................................................. 12, 13, 15, 20, 25, 26 Waller v. Howell, 20 Misc. 236, 45 N.Y.S. 790 (Sup.Ct., Orange Cty, 1897) ..................................................................... 26, 27, 28 Watson v. Jones, 80 U.S. 679, 20 L. Ed. 660 (1872) .............. 17, 18, 20, 30 iv Statutes: 28 U.S.C. § 1651(a) ..................................................................................... 8 Not-For-Profit Corporation Law § 618 ....................................................... 21 Other Authority: Nancy Wilson Ross, Buddhism A Way of Life and Thought, (Alfred A. Knopf, 1980) ............................................................................ 9n.4 Wisdom Library, Three Jewels, Twelve Definition(s), at http://www.wisdomlib.org/definition/three-jewels/index.html ................. 9n.4 1 STATEMENT OF QUESTIONS PRESENTED 1. Did the Decision/Order of the court below violate the First Amendment of the United States Constitution? The answer is yes. 2. Did the court below fail to take into account the provision in the appellant China Buddhist Association’s By-Laws that predicate membership on being a disciple of the Grand Master Mew Fung Chen? The answer is yes. 3. Did the court below erroneously hold that because the appellant China Buddhist Association’s By-Laws did not contain a mechanism for excommunication per se, the excommunication performed by Grand Master Mew Fung Chen, founder of appellant and its spiritual leader, was invalid? The answer is yes. 4. Did the court below erroneously hold that the election held by appellants in May 2011, was invalid? The answer is yes. PRELIMINARY STATEMENT This appeal stems from an ecclesiastic process commenced in the Spring of 2011, during which appellant Mew Fung Chen, the founder and spiritual leader of the China Buddhist Association and its three Buddhist temples in New York, reviewed the conduct and activities of certain clergy and members of one of those temples, and resulted in him stripping those clergy and other members of that temple of his previously given “blessing,” and closing that temple pending further 2 ecclesiastic cleansing, purification and reconsecration in accordance with and in furtherance of Buddhist religious teachings and practices. This “stripping of their blessing” was the equivalent of excommunication. Rather than seeking review of this religious decree pursuant to Buddhist religious precepts, respondents commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules to review a membership meeting and election conducted after their excommunication. The court below ignored centuries of Buddhist religion and tradition and more than 200 years of American civil law in reviewing this nonjusticiable dispute involving religious theory and doctrine and making determinations relating to the strictly religious matter of excommunication within the context of a proceeding to review a membership meeting and election. The court below declared the membership meeting void, thereby nullifying the election, and ordered a new membership meeting. The issue in this case is not procedural due process, parliamentary procedure or whether those who were excommunicated had a right to attend the membership meeting and be heard. Rather, the issue is whether or to what extent the court below, or any civil court, should intervene in the internal governance of a church, or here, Buddhist temple, to review the ecclesiastical decisions made by the highest church authority on issues of theology, internal church governance, administration, 3 organization, relationship and structure. The First Amendment to the United States Constitution and the decisions of the United States Supreme Court and the Court of Appeals and other courts of this State prohibit such review. The decision below should be reversed. STATEMENT OF FACTS 1. Background Originally, the China Buddhist Association was an unincorporated Buddhist Society founded by appellant Mew Fung Chen, its “Grand Master” and highest religious authority. Its successor, appellant China Buddhist Association, was formally incorporated pursuant to the Religious Corporations Law in 1963 to hold title to its temple because it is contrary to Buddhist teachings for monks to own property. Under the guidance, supervision and spiritual leadership of the Grand Master, China Buddhist Association owns and operates three Buddhist Temples: the Ci Hang Temple where the China Buddhist Association maintains its headquarters, located at 136-12 39 Avenue, Flushing, New York (the “Flushing Temple”); the Fa Wang Temple, located at 245 Canal Street, New York, New York (the “Manhattan Temple”); and the Song Lin Temple, located at 211 Crum Elbow Road, Hyde Park, Dutchess County, New York (the “Hyde Park Temple”). R. 78; 189. 4 Although there are three Temples, there is only one China Buddhist Association which owns and operates all of them. The Temples are not separate entities, but rather they are part of one cohesive house of Buddhist worship. In 1996, Grand Master hired respondent Ming Tung as a monk to be employed by China Buddhist Association at its Manhattan Temple. Grand Master made the required immigration applications and financial arrangements to bring respondent Ming Tung to the United States from the People's Republic of China at no expense to respondent Ming Tung but at great expense to China Buddhist Association. Grand Master and China Buddhist Association hired respondent Ming Tung and brought him to the Manhattan Temple to work “jointly” with them “to promote the social harmony, family happiness and to advocate the truthfulness of view of life for individuals as well as to spread the truth of the Buddhism and for the benefits of the public”. Letter of Appointment. R. 199.1 Sadly, upon coming to New York, respondent Ming Tung and his coterie, including respondents Wai Ching Chen and Shun Yi Mon, gradually wandered from the way of the Buddha and now no longer follow the Buddhist religion or the pure teachings of Buddhism as practiced by China Buddhist Association. They and their followers engaged in wayward behavior contrary to the tenets of Buddhism. When the Grand Master informed them of their transgressions, they 1 References to Record on Appeal are referred herein as “R.,” followed by the relevant page number(s). 5 ignored him and refused to correct their bad behavior and follow the path of righteousness as he requested and Buddhism requires. Rather, respondents encouraged and repeatedly engaged in violence and disturbances in the Temple, conducted public demonstrations against China Buddhist Association and the Grand Master, challenged the authority of Grand Master, assailed his integrity and that of China Buddhist Association, published false accusations against him and commenced lawsuits in New York civil courts in at least two counties in an effort to take control of China Buddhist Association‘s three temples. R. 121. As a result of all of this, the Grand Master stripped respondents of his blessing, as he was obligated to do; they were no longer his disciples and thus, could no longer be members of China Buddhist Association. At the same time, the Grand Master declared that he would “announce a formal procedure for re- examining all my former disciples of [the Manhattan Temple] who wish to become cleansed and become my disciples once again”. R. 121. Though stripped of their blessing from the Grand Master and dismissed as his disciples, respondents were free to go to a temple outside of China Buddhist Association, or form their own Temple and practice their own brand of Buddhism. Instead, they commenced this civil action to invalidate a meeting and election that took place in May 2011, after their excommunication. R. 193. 6 2. Nature of the Appeal Appellants appeal from the Decision/Order of the Supreme Court, New York County, (Wright, J.) dated May 8, 2011. R. 7-9. Appellants appeal from all portions of that Decision/Order, in which the court below impermissibly examined appellant China Buddhist Association’s process of ecclesial excommunication of disciples-members, thereby violating the First Amendment of the United States Constitution. Appellants are the China Buddhist Association (incorporated in 1963 under the Religious Corporation Laws); Mew Fung Chen (founder of China Buddhist Association in 1963, and highest authority, and spiritual leader and Grand Master of China Buddhist Association); Ming Yee (a nun and trustee of China Buddhist Association), and Chih-Chen Ma (a layperson and trustee of China Buddhist Association), both disciples of the Grand Master. Respondents Ming Tung and Wai Ching Chen are two ex-clergy of China Buddhist Association, their employment by China Buddhist Association at its Manhattan Temple having been terminated in September, 2010, (R.120) and May, 2011, (R.116) respectively, and their religious “Master-Apprentice,” i.e. discipleship, relationships having been terminated at those times as well, by the ecclesiastical determination of Grand Master Chen in accordance with the tenets of Buddhism. Respondent Shun Yi Mon is an ex-member of China Buddhist 7 Association whose discipleship was terminated by Grand Master Chen in April and May 2011, because of respondent’s refusal to follow the precepts and teaching of the Buddha and respondent’s wanton disregard and overt disrespect to the teachings of the Grand Master Chen’s teachings, including following the rogue monk, Ming Tung, in rebelling against the then 47-year-long exclusive spiritual leadership of China Buddhist Association by Grand Master Chen. 3. Creation and Excommunication of Disciples-Members by Grand Master Chen A. Creation of Disciples and Members Grand Master Chen is currently 86 years old, and has devoted his entire life to practicing and teaching Buddhism. Born in Guangdong Province, China, his gifts were widely recognized, and as a young teenager, he was ordained in China as a Buddhist monk. Since his tonsure2, the Grand Master has devoted his life to the propagation of the Buddhist faith, by widely traveling, preaching, teaching and writing. In 1962, he was invited to come to the United States from Asia to promote and preach Buddhism. R. 189. In 1963, Grand Master Chen was one of the original incorporators of China Buddhist Association, one of the oldest continuous Buddhist monasteries in the United States. R. 95. 2 Tonsure is part of the rite of pabbajja, a part of becoming a monk. Pabbajja literally means “to go forth” and refers to the time a layperson leaves home to live the life of a Buddhist renunciate among a community of monks. 8 As Grand Master of the China Buddhist Association, and an acknowledged Buddhist scholar, Grand Master Chen writes and teaches extensively on myriad topics of Buddhist religion and philosophy. He conducts Buddhist ceremonies and worship. He is responsible for assigning the duties to the monks and nuns employed by the China Buddhist Association. He has been required to dismiss those monks and nuns whose conduct and actions were not in accordance with Buddhist teachings and customs. As the Grand Master of China Buddhist Association, he has the ultimate authority to accept disciples into the CBA as well as to dismiss disciples. R. 190, 220. The purposes of China Buddhist Association are contained in Article Two of the By-Laws, which explicitly provide that the organization was organized to provide a house of worship for conducting Buddhist religious services; to foster and promote Buddhist teachings and to foster fellowship among its own members and with members of other Buddhist and religious groups. R. 93. In accord with Buddhist tradition, teaching and custom, Grand Master Chen has ultimate and exclusive authority, as founder and sole spiritual leader of China Buddhist Association and its three temples, to invest disciples who accept and follow his learned interpretation and teachings of Buddhism. R. 190 As can be seen from the “Certificate of Buddhist Membership” and “Certificate of Committing to the Three Precious Ones” issued by Grand Master Chen to each of 9 five ex-members who were excommunicated for following ex-clergy Ming Tung (and whose certificates were included in respondents’ papers to the court below) R. 388-407, each former disciple had taken religious vows to accept Grand Master Chen (a/k/a Master Miao Feng)3 as each one’s teacher “for teaching and handing down the Three Abbots,” as each one’s holy commitment “to the Three Precious Ones”4 (emphasis added). Additionally, in each “Certificate of Committing to the Three Precious Ones,” Grand Master Chen bestows upon each person a unique “Dharma,” or Buddhist religious law and custom, name. Grand Master Chen’s signature and personal seal appear on each “Certificate of Committing to the Three Precious Ones,” and his photograph and name appear prominently on the “Certificate of Buddhist Membership.” Issuance of those certificates signify and are evidence of Grand Master Chen having accepted that person as his disciple, for 3 Grand Master Mew Fung Chen’s name, as such, is Cantonese. In Mandarin, it is pronounced Miao Feng Chen, hence the appellation “Master Miao Feng” appearing in the Certificate of Buddhist Membership and Certificate of Committing to the Three Precious Ones. 4 The “Three Precious Ones,” also sometimes referred to as “Three Gems,” “Three Jewels,” “Triple Refuge,” and similar terms, refers to Buddha, Dharma, and Sangha, which constitute the Buddhist religion’s “Holy Trinity” of essential components of the religion in which Buddhists take refuge in renouncing worldly values. Buddha is the Teacher; Dharma is the body of Buddhist law and custom, i.e. the truth revealed by Buddha; and Sangha is the community of faithful who live in accordance with the truth of Buddha’s teaching. They are also sometimes referred to as “Three Gems,” “Three Jewels,” “Triple Refuge,” and “the Teacher, the Teaching, and the Taught.” Practitioners take refuge in the fact that the Buddha found a way to freedom, taught the Dharma as the path to that freedom, and founded the Sangha as the supportive community that follows the way. See, e.g.,Wisdom Library, Three Jewels, Twelve Definition(s), at http://www.wisdomlib.org/definition/three-jewels/index.html; Nancy Wilson Ross, Buddhism A Way of Life and Thought, 25-6,86-9,91,150 (Alfred A. Knopf, 1980). 10 his teaching of Buddhist religion and philosophy, and of that person accepting Grand Master’s role as teacher from Buddha, the original Teacher. Membership in China Buddhist Association is specifically predicated on two requirements: being of the Buddhist faith and being a disciple of Grand Master Chen. Article Three of the By-Laws states: “Membership in this organization shall be open to all who are of the Buddhist faith and have been admitted as disciples.” (R. 95) (Emphasis added.) See also R. 190. In addition, continuing membership requires that membership dues of $10.00 be paid on January 1 of each year. See Article Eleven of the By-Laws. R. 105. B. The Excommunication of Disciple-Members of the China Buddhist Association in 2011 The formal ecclesiastical decree issued by Grand Master Chen in May, 2011, (R. 121) following on the heels of his religious ceremony in April, 2011, excommunicating all ex-clergy and members of China Buddhist Association who attended the Manhattan Temple, details the various types of impure, insidious and violent activity perpetrated in opposition to his spiritual guidance, all of which runs counter to Buddhist principles. Ming Tung, his discipleship and employment having been terminated by China Buddhist Association’s letter dated September 23, 2010, (R. 120) and personal meeting between Grand Master Chen and Ming Tung for delivery of that termination letter, refused to depart from the Manhattan Temple. Instead, Ming Tung, from his room at the Manhattan Temple, insidiously 11 orchestrated press conferences and street demonstrations sullying the name of Grand Master Chen and fellow nuns and monks; commenced lawsuits against China Buddhist Association and Grand Master Chen in the State courts in Queens and New York counties; directed a campaign of harassment of China Buddhist Association employees and volunteers at the Manhattan Temple; and spread rumors of sexual misconduct among clerics and members of China Buddhist Association. The very spirit of the Letter of Appointment, written by Grand Master Chen on July 2, 1996, inviting Ming Tung from his school in China to become a disciple and apprentice of Grand Master Chen “[i]n order to promote the social harmony, family happiness and to advocate the truthfulness of view of life for individuals as well as to spread the truth of the Buddhism and for the benefits of the public,” R. 129-131, was vitiated and repudiated by Ming Tung’s activities in and outside of Manhattan Temple, and resulted in the revocation of his discipleship, by the aforesaid letter dated September 23, 2010. Grand Master Chen determined that the Manhattan Temple had to be closed because of the spiritual pollution it had suffered as a result of the rebellious dissidence master- minded by ex-disciple and ex-employee, Ming Tung, and to prevent further pernicious activity from occurring there or infecting China Buddhist Association’s other two temples. R. 191-194, 220, 223, 408-409. Grand Master Chen, spiritual leader and head of China Buddhist Association, who had issued the 12 aforementioned certificates of membership and “Committing to the Three Precious Ones” to persons who had accepted him as teacher and vowed to follow his teachings of Buddhism, believed these people had strayed too far from the religious Buddhist path that they had agreed to follow when they accepted him as teacher and master, and he accepted them as disciples, and had rejected his teachings and spiritual authority. Such rejection of his teachings and supreme ecclesial authority was evidence of those members’ spiritual pollution by Ming Tung. Grand Master Chen was therefore obligated to strip all such persons of his blessing and to revoke their discipleships, thereby excommunicating them from his religious tutelage, and consequently terminating their membership in China Buddhist Association. R. 191-194, 220, 408-410. They were free, of course, to seek affiliations with other Buddhist temples or form one of their own. 1. Election of Trustees of China Buddhist Association on May 26, 2011 Following Grand Master Chen’s excommunication of his disciples at the Manhattan Temple, and termination of their membership in China Buddhist Association, and in accordance with China Buddhist Association’s By-Laws, China Buddhist Association duly called and conducted a Special Meeting on May 26, 2011, at China Buddhist Association’s Flushing Temple, at which time a quorum was present and three trustees were elected. R. 219-223,408-410. Prior to this election, the organization had been consistently and successfully operated for 13 47 years under Grand Master Chen’s sole guidance as spiritual leader in all religious matters, and under his leadership as President, with the assistance of his various monks and nuns and lay members, in all secular affairs. There had not been an election of trustees since 1964. Grand Master Chen had managed the China Buddhist Association in a way consistent with traditional Buddhist practice in China, whereby the Grand Master was the acknowledged and accepted leader and supreme authority among the hierarchy of clerics following his teachings and supervision. The China Buddhist Association had flourished under Grand Master Chen’s leadership for almost a half-century, and the respondents had accepted his authority for all the years of their discipleship and membership, until rejecting the Grand Master’s teachings by following un-Buddhist ways. 2. The Article 78 Proceeding By petition dated September 2, 2011, respondents commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules for an order compelling the holding of a membership meeting including the members of the Manhattan Temple who had been excommunicated, and appointing a receiver for China Buddhist Association to determine the names and addresses of all China Buddhist Association members who would be eligible to vote at a membership meeting. R. 30-169. Respondents elaborated in their prayer for relief that they sought, as the topics for the voting: (1) dissolution of China Buddhist Association; (2) division of 14 China Buddhist Association into two religious corporations, so that they could control the assets of one of the entities; and (3) election of a board of trustees. Respondents attacked the May, 2011, ecclesiastical edict of Grand Master Chen, arguing that although he had sole authority to select disciples, he was powerless to excommunicate the China Buddhist Association members who attended Manhattan Temple. The court below reviewed affidavits from both sides. China Buddhist Association submitted affidavits from Grand Master Chen and the Rev. Ming Yee. Respondents submitted affidavits from Ming Tung and several of his followers. No depositions were conducted and no other document discovery or other disclosure was engaged in as part of the proceeding.5 3. The Decision/Order Under Appeal Substituting its judgment for that of the highest ecclesial authority in the China Buddhist Association, this civil court intruded itself into sacred religious territory, when it rendered its Decision/Order. R. 7-9. The court below acknowledged that the appellants believed that the excommunication of Manhattan 5 Several Orders to Show Cause were served by each side during the proceeding, with respect to matters of “housekeeping” at the Manhattan Temple, because of the continuing disharmony between the two sides. (R-11-17; 21-23; 24-26) Respondents established at the Temple an atmosphere of aggressive disobedience and obstruction, generally doing their best to prevent China Buddhist Association employees and volunteers to perform their duties. New York Police Department officers from the Fifth Precinct were often called to the scene by both appellants and respondents. No arrests were ever made, and police officers always told the complainants that these were civil matters to take up with the court below. 15 Temple members, including individual respondents Ming Tung, Wai Ching Chen and Shun Yi Mon, validly eliminated such class of persons from membership in China Buddhist Association, and accordingly nullified their right to vote in a membership meeting for trustees and officers. However, the court postulated that “[t]he by-laws of China Buddhist Association contain no mechanism for excommunication” and that the By-Laws do not provide the “authority” for one contingent of China Buddhist Association to excommunicate the leadership and members of the other contingent; and opined that respondents were not privy to their excommunication by the Grand Master Chen’s April 2011, ceremony. R. 8. Finally, trespassing on purely religious territory, the court declared that “no particular lapse of faith to justify the excommunication was given”, R. 8, and concluded that the respondents therefore had been wrongfully deprived of their right to vote during the May 2011, China Buddhist Association membership meeting’s election for a board of trustees. The court held that the May, 2011, meeting and election was outside the rules of the Articles of Incorporation and By- Laws of China Buddhist Association, and ordered that appellants schedule another general meeting of the membership, including the respondents, pursuant to Articles Three and Four of the By-Laws.6 This was error. 6 The court perceived this dispute as one between “the Queens faction versus the Manhattan faction,” in which the Queens faction had no real active interest in the Manhattan Temple. From the inception of the court’s Decision/Order, it inaccurately stated that Appellants were “officials 16 ARGUMENT THE COURT BELOW IMPROPERLY SOUGHT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE HIGHEST CHURCH AUTHORITY IN ECCLESIASTICAL MATTERS INVOLVING HIS CONGREGATION. A. THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION PRECLUDES A CIVIL COURT FROM INTERFERING IN THIS RELIGIOUS CONTROVERSY REGARDING THEOLOGY, INTERNAL CHURCH GOVERNANCE, ADMINISTRATION, ORGANIZATION, AND MEMBERSHIP Religious freedom encompasses the power of religious bodies to decide for themselves, free from state interference, matters of church government, faith and doctrine. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 721- 22, 96 S.Ct. 2372, 2386 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 154 (1952). The First and Fourteenth Amendments to the United States Constitution permit religious organizations to establish their own rules and regulations for internal discipline and governance, and to create procedures for adjudicating disputes over such matters, and whenever those organizations rule on such issues, the Constitution requires that civil courts accept their decisions as final and binding on them. Serbian Eastern Orthodox Diocese, in the Queens County temple of the Association.” The court overlooked or misapprehended the facts that over the nearly 50 years of its existence, Grand Master Chen presided over and led regular worship services at both temples and China Buddhist Association, at Grand Master Chen’s direction, continuously financed and maintained all aspects of the Manhattan Temple, maintained an administration office within the Temple, and was owner of the building in which the Manhattan Temple is housed. 17 supra; Watson v. Jones, 80 U.S. 679, 727, 20 L. Ed. 666 (1872). A civil tribunal may not even inquire as to whether the religious organization followed its own procedures, a resolution the First Amendment commits exclusively to the highest ecclesiastical authority of the church. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. __, 132 S. Ct. 694, 705 (2012); Serbian Eastern Orthodox Diocese, 426 U.S. at 718-720, 96 S.Ct. at 2385. The central issue in this instant appeal, the exclusive authority of the Grand Master of China Buddhist Association to excommunicate his disciples for breaches in faith, for failing to follow the teachings of Buddha and the Grand Master, and for outright insurrection against his leadership, thereby stripping them of his blessing, and resultantly their membership in China Buddhist Association, involves “a religious dispute the resolution of which is for ecclesiastical and not civil tribunals.” Serbian Eastern Orthodox Diocese, 426 U.S. at 709, 96 S.Ct. at 2380. Nearly 150 years ago, the United States Supreme Court recognized the danger of civil courts attempting to navigate the shoals of religious laws and announced that such excursions by civil courts were prohibited by the United States Constitution. Each of these large and influential [religious denominations]…has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that 18 tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so. Watson v. Jones, 80 U.S. 679, 727, 20 L.Ed. 660 (1872). In Watson, its seminal decision on factional disputes within a church, the Supreme Court announced its guiding rule in religious congregational disputes: In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority, is that, whenever the questions of discipline, or of faith, or ecclesiastic rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them (emphasis added). 80 U.S. at 727. Eighty years later, the Supreme Court described its decision in Watson as “radiat[ing]… a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in America, 344 U.S. 94, 116, 73 S.Ct. 143, 154 (1952). Since Watson, supra, the 19 inviolate nature of ecclesiastic discipline and the impenetrable barrier precluding civil review of the ecclesiastic disciplinary process has been repeatedly proclaimed and reaffirmed by the Supreme Court, most recently in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. __, 132 S. Ct. 694, 705, 712-713 (2012), and the courts of this State, see, e.g., Matter of Congregation Yetev Lev D’Satmar v. Kahana, 9 N.Y.3d 282 (2007). In Serbian Eastern Orthodox Diocese, the Supreme Court was particularly distressed by the Illinois court’s attempt to review the ecclesiastic process, finding that review repugnant to the First Amendment. The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. Consistently with the First and Fourteenth Amendments, “civil courts do inquire whether the relevant (hierarchical) church governing body has power under religious law (to decide such disputes) …. Such a determination … frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a hierarchical church so as to decide…religious law (governing church polity)… would violate the First Amendment in much the same manner as civil determination of religious doctrine.” Md. & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 369, 90 S.Ct. 499, 500, 24 L.Ed.2d 582 (1970) (Brennan, J., concurring). For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest 20 ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. 426 U.S. at 708-709, 96 S. Ct. at 2380. Here, the court below specifically ran afoul of the guiding principle set forth in Watson, by invading sacred religious territory to reverse decisions of an ecclesial nature made by church authority: All who unite themselves to [a religious] body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Nor do we see that justice would likely be promoted by submitting those decisions to review in the ordinary judicial tribunals. Each of these large and influential bodies…has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so. (emphasis added) 21 80 U.S. at 729. B. THE ISSUE OF MEMBERSHIP IN A RELIGIOUS ORGANIZATION IS AN ECCLESIASTICAL MATTER WHICH IS NONJUSTICIABLE IN THE CIVIL COURTS It is well established that the determination of membership in a religious organization is an ecclesiastical matter over which the civil courts lack subject matter jurisdiction. In a matter very similar to the case at bar, Matter of Congregation Yetev Lev D’Satmar v. Kahana, 9 N.Y.3d 282 (2007), the Court of Appeals was confronted with a dispute for control between two rival factions of the Orthodox Jewish Chasidic Satmar congregation. The Grand Rabbi of the congregation had appointed one of his sons as his successor, and after his death, supporters of his two sons feuded over which son was entitled to succeed the Grand Rabbi. Competing elections were held by each faction, and one faction, as petitioners, filed a proceeding under Not-For-Profit Corporation Law § 618 seeking an order declaring respondents’ election null and void. The respondents challenged the court’s jurisdiction, arguing that it should refrain from interfering in the internal affairs of the congregation. Additionally, respondents argued that petitioners’ election was “a sham election for several reasons, including that Berl Friedman [president of petitioner] had been expelled from the Congregation by the Grand Rabbi,” 9 N.Y.3d at 285, and was no longer a 22 member of the congregation, and therefore ineligible to claim a position of officer of the organization. As the respondents do here, Friedman denied he had been removed from the congregation, and argued that an elected corporate officer could not be removed by a spiritual authority such as the Grand Rabbi. Friedman further argued that the matter involved nothing more than issues of notice, quorum or other technical challenges to the respondents’ election, and that the dispute was rightly within the court’s jurisdiction to resolve on the basis of “neutral principles of law.” The Court of Appeals disagreed, declaring that contrary to his argument, “Friedman’s religious standing within the Congregation is essential to resolution of this dispute” and is an ecclesiastical issue which cannot be determined by the Court. 9 N.Y.3d at 288. The Court of Appeals held the matter to be nonjusticiable, as the Appellate Division and Supreme Court had, declaring that the dispute involved issues “beyond mere notice and quorum challenges,” Id. at 287, and concluded: It is well settled that membership issues such as those that are at the core of this case are an ecclesiastical matter (Park Slope Jewish Ctr. V. Stern, 128 AD2d 847, 513 NYS2d 767 [2d Dept 1987], appeal [**288] dismissed 70 NY2d 746, 519 NYS2d 1032, 514 NE2d 390 [1987]; Matter of Kissel v. Russian Orthodox Greek Catholic Holy Trinity Church of Yonkers, 103 AD2d 830, 478 NYS2d 68 [2d Dept 1984]. A decision as to whether or not a member is in good standing is binding on the courts when examining the standards of membership requires intrusion into constitutionally protected ecclesiastical matters. Although courts generally have jurisdiction to determine whether a congregation has adhered to its own 23 bylaws in making determinations as to the membership status of individual congregants, here, the Congregation’s bylaws condition membership on religious criteria, including whether a congregant follows the “ways of the Torah.” Whether Berl Friedman was expelled from membership of the Congregation inevitably calls into question religious issues beyond any membership criteria found in the Congregation’s bylaws (Park Slope Jewish Ctr., 128 AD2d 847, 513 NYS2d 767 [1987]; Kissel, 103 AD2d 830, 478 NYS2d 68 [1987]). Contrary to petitioners’ position, Berl Friedman’s religious standing within the Congregation is essential to resolution of this election dispute. Petitioners ask this Court not only to determine the validity of the respondents’ election but also to recognize that petitioners, including Berl Friedman, are elected officers and the authorized governing body of the Congregation. With such membership issues at the center of this election dispute, matters of an ecclesiastical nature are clearly at issue. These particular issues must be resolved by the members of the Congregation, and cannot be determined by this Court. (emphasis added). 9 N.Y.3d at 287-288 Even the sole dissenting judge agreed that the issue of membership was an exclusively ecclesiastical one, given the Satmar By-Laws’ specific requirement that a member must follow the “ways of the Torah,” and therefore nonjusticiable. 9 N.Y.3d at 295. In so agreeing, Judge Smith hearkened back, 9 N.Y. 3d at 291, to Congregation Beth Yitzhok v. Briskman, 566 F. Supp. 555 (EDNY, 1983), wherein United States District Judge McLaughlin dismissed another Chasidic congregational dispute, stating that because a dispute in successorship of the late Skolyer Rebbe existed, resolution of the claims in the action first required the Court to make an impermissible examination into the pertinent religious issues. 24 In cases involving a dispute between two … religious factions, the Court must look beyond the allegations of the complaint to ascertain what lies at ‘the heart of the controversy.’ Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94,122, 73 S.Ct. 143,157, 97 L.Ed. 120 (1952)(Frankfurter, J., concurring). Such an examination in this case leads ineluctably to the conclusion that resolution of the allegations in the complaint first demands that I determine the proper succession to the post of Skolyer Rebbe. As tempting as that invitation may be, it does not appear to be the proper role of a federal court…. This Court is not in a position to ascertain whether defendants’ understanding of the Skolyer Rebbe’s prerogatives reflects applicable religious law. It is therefore apparent that an issue of religious doctrine must be decided before it can be determined whether the defendants’ acts were wrongful. (emphasis added) 566 F. Supp. at 558. The Court of Appeals’ pronouncement in Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana has been echoed in other courts in New York. Recently, as acknowledged in Ram v. Lal, 84 Fed. R. Serv. 3d 187, 196 (E.D.N.Y. 2012), adhering to the rule set forth in Serbian Eastern Orthodox Diocese that civil courts may not adjudicate claims that “require religious determinations that are ecclesiastical, regardless of the nature of the underlying dispute, the court stated “[n]umerous courts have declined to intervene where the issue relates to membership in the religious organization.” (citing cases involving excommunication). The court then cited Burgess v. Rock Creek Baptist Church, 734 F.Supp. 30, 31 (D.D.C. 1990) to summarize its position that a civil court should not violate the First Amendment “by ruling against one party and for the 25 other party based on the court’s resolution of the underlying controversy over religious doctrine and practice.” Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, supra, is applicable and controlling here. A matter in which a civil court must first examine and determine religious issues is nonjusticiable. The By-Laws of the China Buddhist Association require that members be of the Buddhist faith, and be “admitted as disciples.” R. 95. The Court of Appeals, the Second Department, and the Supreme Court, Kings County, all agreed that civil courts were constitutionally prohibited from hearing and determining matters in which they were required to examine whether one had been following “the ways of the Torah” to be considered a member of the Chasidic Satmar religious organization; to conclude otherwise would give license to civil courts to cross into and trespass on holy, ecclesiastical ground. Here, the examination by a civil court of the issues of membership in the China Buddhist Association which would require a determination of who is “of the Buddhist faith” and who has been “admitted as” and what is a “disciple,” is similarly forbidden. In light of Grand Master Chen’s religious ceremony and subsequent ecclesial decree of excommunication, this proceeding is equally nonjusticiable, thereby requiring the reversal of the lower court’s Decision/Order. 26 C. EXCOMMUNICATION FOR VIOLATION OF FAITH, DOCTRINE AND CHURCH DISCIPLINE IS A NONJUSTICIABLE MATTER IN THE CIVIL COURTS It is well established that the act of excommunication is the exclusive domain of religious authorities and beyond the review of civil courts. New York courts have uniformly held that disputes involving matters of violation of faith, doctrine and Church discipline are nonjusticiable. The Court of Appeals’ decision in Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, supra, continued in the spirit of courts throughout New York that have recognized for two centuries the primacy of ecclesiastical decisions, because: All questions of faith, doctrines, and discipline belong exclusively to the church and its spiritual officers; and the courts will neither review their determination on the facts, nor their decision on the question of jurisdiction. Waller v. Howell, 20 Misc. 236, 237 (Sup.Ct., Orange Co. 1897). More than 100 years ago, in Waller, the court stated that the question of whether “a right of membership and communion in the church is a civil right” had been frequently adjudicated and that it had been held that such question was one “over which the church itself had exclusive jurisdiction,” citing McGuire v. St. Patrick’s Cathedral, 54 Hun 207, 7 N.Y.S. 345 (1st Dept. 1889). The question of excommunication was specifically delineated as a matter of the church’s exclusive jurisdiction: 27 This court, having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline. Our only judicial power in the case arises from the conflicting claims of the parties to the church property and the use of it***We cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court. The judicial eye of the civil authority of this land of religious liberty cannot penetrate the veil of the church, nor can the arm of this court either rend or touch that veil for the forbidden purpose of vindicating the alleged wrongs of the excinded members. When they became members, they did so on the condition of continuing or not, as themselves and their church might determine. In that respect they voluntarily subjected themselves to the ecclesiastical power, and cannot invoke the supervision or control of that jurisdiction by this or any other civil tribunal. (emphasis added) Waller v. Howell, id.at 239-40, 793 (citing Shannon v. Frost, 42 Ky. 253, 3. B. Mon. 253) In Grunwald v. Bornfreund, 696 F.Supp.838 (E.D.N.Y. 1988), the federal district court held that excommunication was beyond the Court’s power to stop, so long as the excommunication resulted in nothing more than the excinded member being excluded from his religious community. The court was confronted with an action between members of a branch of Orthodox Judaism. The matter was brought on motion of plaintiff for an order prohibiting the Rabbinical Congress of the United States and Canada from taking steps to have his action withdrawn from court and submitted to a rabbinical court, and to prohibit the relevant ecclesiastical 28 body from excommunicating plaintiff. The court noted that excommunication was not a harm for which courts would provide a remedy. Excommunication is not a harm for which courts will provide a remedy, and it is not within the “usages and principles of law,” 28 U.S.C. § 1651(a), for a court to interfere with an excommunication. A long line of Supreme Court cases holds that, where a religious body adjudicates relations among its members, courts will not interfere with the decisions of those bodies made in accordance with those bodies' rules. Gonzalez v. Archbishop, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929); Bouldin v. Alexander, 82 U.S. (15 Wall) 131, 139–40, 21 L.Ed. 69 (1872); Watson v. Jones, 80 U.S. (13 Wall) 679, 20 L.Ed. 666 (1871). This line of cases is based on the Court's observation that voluntary religious organizations are much like any other voluntary organization and are in the best position to interpret their own rules. 696 F.Supp. at 840. Here, the court below impermissibly penetrated the veil of the church and attempted to examine the religious underpinnings of the excommunication of certain clerics and laypersons “for the forbidden purpose of vindicating the alleged wrongs of the excinded members.” Waller v. Howell, supra. That was error. 29 D. THE COURT BELOW MADE AN IMPERMISSIBLE EXAMINATION OF THE KEY RELIGIOUS ISSUES UNDERLYING THE DISPUTE AT BAR The court below impermissibly delved into key religious issues at the heart of this matter, improperly substituting its own judgment and opinions for that of the highest authority in this religious organization, inserting its own judgments and opinions as to matters of faith, making faulty factual findings based on an insufficient reading of the record, predicating its conclusion on its own concept of how a congregation should be operated, and erroneously applying a “neutral principles of law” approach to arrive at a conclusion that it found to be pragmatic. When they voluntarily joined China Buddhist Association, respondents voluntarily subjected themselves to the ecclesiastic authority of the Grand Master. Respondents could not invoke the supervision or control of his religious authority or jurisdiction by New York Supreme Court or any other civil tribunal. The court below improperly intruded on the exclusive domain of the Grand Master -- the excommunication of the respondents herein, and their followers at China Buddhist Association’s Manhattan Temple, some of whom had theretofore been disciples of the Grand Master and thereby had qualified as members of China Buddhist Association. The court below egregiously trespassed into a constitutionally- proscribed venue, examining the spiritual and doctrinal bases of the 30 excommunication and finally deemed this religious ceremony and decree to be of no validity. The actions taken by the court below in reviewing the ecclesiastical proceedings of China Buddhist Association are precisely the same as the proscribed review conducted by the Supreme Court of Illinois, which were criticized and found impermissible by the Supreme Court in Serbian Eastern Orthodox Diocese, supra. The Supreme Court noted that the Illinois court, just as the court here, “also failed to take cognizance of the fact that the church judicatories were also guided by other sources of law, such as canon law, which are admittedly not always consistent” (emphasis added). Serbian Eastern Orthodox Diocese, 426 U.S. at 718, 96 S. Ct. at 2384. As described in Watson, supr, 80 U.S. at 727, the failure of the court below was of a Constitutional as well as jurisdictional nature. In its Decision/Order, the court below concluded that “the Petitioner’s [sic] were all excommunicated by action taken in April, 2011, to which they were, on the record before me, not privy.” There is no requirement in Buddhism or civil law that petitioners be “privy” to their excommunication. The attempt of the court below to engraft some due process requirement is patently improper. As the Supreme Court stated in Serbian Eastern Orthodox Diocese: Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of 31 faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of “fundamental fairness” or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance. 426 U.S. at 714-715 96 S. Ct. at 2383. The court below trespassed into sacred territory, and was factually incorrect, when it concluded “that no particular lapse of faith to justify the excommunication was given.” The court below overlooked, or somehow misapprehended, the affidavit of Grand Master Chen (R. 188-199) which sets forth in detail many of the “particular lapse[s] of faith to justify the excommunication,” including, but not limited to, engaging in wayward behavior contrary to the tenets of Buddhism; refusing to correct their bad behavior and follow the path of righteousness as Buddhism requires; encouraging and engaging in violence and disturbances in the Temple; conducting public demonstrations against China Buddhist Association and the Grand Master; challenging the authority of the Grand Master and assailing his integrity and that of China Buddhist Association; publishing false accusations against him; and commencing lawsuits in New York civil courts in at least two counties in an effort to take control of China Buddhist Association‘s three temples. See, also, the formal written ecclesiastical decree stripping the respondents of the Grand Master’s blessing, and decreeing that they are no longer disciples of his or members of China Buddhist Association. R. 121. The Decision/Order ignores that 32 affidavit of Grand Master Chen and his ecclesiastical decree. The court below appears to have ignored, or misconstrued, that May 16, 2011 ecclesiastical decree. One of the specific “lapses of faith” enumerated in Grand Master Chen’s excommunication decree was “commenc[ing] lawsuits in New York courts.” Although it may not be commonly known, it is anathema in several religions that their followers do not resolve disputes among themselves internally, without resort to civil courts. This heresy was recently recognized by the Supreme Court in relation to the Lutheran doctrine that disputes among them should solely be internally resolved. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. at __, 132 S. Ct. at 716 (concurring opinion of Justice Alito). The general lack of familiarity with religious doctrines such as this, and so many others, was also cited by the Supreme Court as another reason that civil courts must not engage in attempts to interpret ecclesiastic law. Article Three of the By-Laws of China Buddhist Association requires that “Membership is open to all who are of the Buddhist faith and have been admitted as disciples” (emphasis added) (R. 95). It is undisputed, as established in the affidavits of Grand Master Chen and Rev. Ming Yee, that since its inception in 1963, Grand Master Chen has been, and continues to be, the sole and supreme judge of who is entitled to receive his blessing and become a disciple of his at China Buddhist Association. Grand Master Chen explained his decision to dismiss 33 those disciples and order the closure of China Buddhist Association’s Manhattan Temple as a matter of religious necessity. R. 191-194. Grand Master Chen’s motivation was to reverse the tide of the spiritual pollution that existed at the Manhattan Temple, and prevent its transmission to and infection of the other temples, due to the misguided thoughts and actions of the rogue monk, Ming Tung; the nuns there who followed his lead; and the worshippers who had strayed from the way of the Buddha and betrayed their vows to the Buddha and Grand Master Chen when they accepted him as teacher and spiritual master (see, e.g., the various Certificates of Membership of several of the dismissed disciples establishing their vows) (R. 388-407). The Grand Master’s religious decision to excommunicate the disciples who chose to follow Ming Tung, and to close the Manhattan Temple for spiritual cleansing, is a decision not reviewable by a civil court for any purpose. Notwithstanding the prohibition against civil courts interfering in religious doctrine and practice, the court below went on an impermissible foray into religious territory, asserting that since the By-Laws omitted a mechanism for excommunication, the excommunication was invalid, and therefore the ensuing May, 2011, meeting of members and election of trustees was also invalid because those “impermissibly" excommunicated were not given notice of or an opportunity to be heard at the meeting. 34 Although the court below acknowledged that “excommunication may be a strictly religious affair and thus beyond the reach of civil authorities (citing Blaudziunas v. Egan, 18 N.Y.3d 275, 961 N.E.2d 1107, 938 N.Y.S.2d 496, 2011 N.Y. Slip Op. 08962),” and it agreed that “a civil authority should not become embroiled in matters of faith,” it nevertheless took that plunge, averring that “the court may take a peek behind the curtain to determine if the rules of the organization have been followed”. Because the court below was determining the propriety of excommunication, a uniquely religious concept and proceeding, it was reversible error for it to pull back that protective curtain. The Constitutionally-impermissible intention and effect of the Decision/Order of the court below was the usurpation of the Grand Master’s sole authority as religious leader of China Buddhist Association, and the nullification of the excommunication, thereby impermissibly overriding the Grand Master’s ecclesiastical decree on secular grounds. The court below relied on Episcopal Diocese of Rochester v. Harnish, 11 N.Y.3d 340 (2008) as support for taking “a peek behind the curtain” on the grounds that “the calling and holding of annual meetings are lay in nature.” This was a serious misreading and misinterpretation of Harnish, which involved an Article 78 proceeding wherein the respondent local parish had sought to annul the determination by the Rochester Diocese declaring the parish extinct. It was out of 35 this decision to close the local parish for reasons declared ecclesiastical, that the argument over title to church property grew. The Court of Appeals looked to the heart of the matter and affirmed the Appellate Division’s and Supreme Court’s decisions dismissing the Article 78 petition, “since the Rochester Diocese’s decision to dissolve the parish was a purely ecclesiastical determination and not reviewable by the Court.” Id. at 348, 352 (citing Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.2d 282 (2007)). This Court, in Metropolitan New York Synod of Evangelical Lutheran Church of America v. David, 95 A.D.3d 419 (1st Dept. 2012), cited Harnish in support of its decision holding that the determination of a supervising church body as to who constituted the members of a local congregation, and that body’s resulting decision to close that local church, was a non-justiciable religious determination. Hence, whereas neutral principles of law may be available to review subsidiary questions of ownership of assets, as to determinations of who is a “disciple” and excommunication, matters of faith and doctrine, decisions by a religious body charged with ecclesiastical responsibility for the spiritual health and continuity of the organization, and the faith itself, are nonjusticiable.7 7 In a decision just signed by Charles B. Ramos, J.S.C., in a matter involving dismissal of a pastor for reasons including “unwillingness to follow instructions of [his] supervisor, ineffectiveness in performance, insubordination, untrustworthiness, undermining the ministry of the General Secretary and disrespecting and disparaging the Board of Directors of the [GCCUIC],” and “repeated undiplomatic behavior reported regularly by our ecumenical partners and ongoing conduct unbecoming a ecumenist,” the court relied on Hosanna-Tabor Evangelical 36 In the instant action, China Buddhist Association is a congregational religious entity under the spiritual guidance of Grand Master Chen, who accepts disciples in accordance with Buddhist canons of law and Buddhist tradition and custom. The secular By-Laws of China Buddhist Association, established for the purposes of holding real property, do not contain “a mechanism” for admission of disciples, which has evolved through centuries of doctrine and tradition. Similarly, those secular By-Laws do not contain “a mechanism” for dismissal or excommunication of disciples, which has also evolved through centuries of doctrine and tradition. Grand Master Chen has been the central and commanding religious figure in China Buddhist Association since its inception almost 50 years ago. Grand Master Chen’s religious vision has steered China Buddhist Association for this past half-century. It was against this background that Grand Master Chen made his ecclesiastic determination to excommunicate Ming Tung, other clerics, and the laypersons for their sacrilege and for supporting Ming Tung’s revolt against Buddhist tradition, Grand Master Chen’s Buddhist teachings and his vision Lutheran Church and School v. EEOC, supra, in dismissing that pastor’s claims. The court stated “adjudication of Mills’ claims would require this Court to interpret various sections of the Book of Discipline, a constitutionally questionable endeavor at best, given the religious nature of the text. Specifically, this Court would be obliged to examine Mills’ behavior and determine whether his termination was justified under paragraph 711 of the Book of Discipline which enumerates reasons that an Associate General Secretary may be terminated.” After further discussion about the nature of the employment, the court concluded that “Finally, if Mills’ employment was not at will, his termination would be subject to the terms of paragraph 711 of the Book of Discipline which, as described above, this Court cannot interpret as a matter of law.” Mills v. Standing General Commission on Christian Unity, Index No. 601640/2009, slip op. at pp. 17-19 (Sup. N.Y., dated Jan. 29, 2013) (Ramos, J.S.C.). 37 for his disciples. Once their discipleship was revoked, their membership in China Buddhist Association was automatically terminated. The refusal of the court below to accept these facts is contrary to the First Amendment and federal and New York State law. While admitting that excommunication is a strictly religious matter and beyond its reach, the court below tried to breathe new secular life into the excommunicated bodies of dismissed clerics and disciples, and thereby resuscitate their “membership” in China Buddhist Association. This is exactly what the First Amendment, Supreme Court of the United States and the New York courts have forbidden. CONCLUSION For the reasons stated herein, the Decision/Order of the court below should be reversed in every aspect; the results of the May 2011, China Buddhist Association election should be deemed valid; and the appellants' stewardship over the Congregation and its affairs should be maintained. Dated: March 18, 2013 LAW OFFICE OF TODD L. PLATEK 39-07 Prince Street, Suite 3E Flushing, New York 11354 (718) 321-7130 todd-platek@yahoo.com \ LAW OFFICE OF BENJAMIN L. HERZWEIG 629 Route 112, Suite 639-07 Patchogue, New York 11772 (631) 447-8838 benherzweig@hotmail.com CAPELL BARNETT MATALON & SCHOENFELD 100 Jericho Quadrangle, Suite 233 Jericho, New York 11753 (516) 931-8100 jmilano@cbmslaw.com Attorneys for Respondents-Appellants 38 Printing Specifications Statement I, Todd L. Platek, attorney for the Respondents-Appellants, hereby certify that this brief is in compliance with§ 600.10(d)(l)(v). The brief was prepared using Microsoft Word 2010. The typeface is Times New Roman. The main body of the brief is in 14 point. Footnotes and Point Headings are in compliance with § 600.1 0( d)(l )(i). The brief contains 9,227 words counted by the word-processing program. Dated: March 18, 2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------X MING TUNG, W AI CmNG CHEN, and SHUNYIMON, Petitioners, for a Judgment under Article 78 of the CPLR directing the CmNA BUDDIDST ASSOCIATION to conduct an annual membership meeting, -against- CHINA BUDDIDST ASSOCIATION, MEW FUNG CHEN, MING YEE, and CIDH-CHEN MA, Respondents. -------------------------X 1. Title of Action: See caption. 2. Full Names of Parties: As per caption. No changes. 3. Counsel for Appellants: Law Office of Todd L. Platek 39-07 Prince Street, Suite 3E Flushing, NY 11354 4. Counsel for Appellees: (718) 321-7130 Law Office of Benjamin L. Herzweig 629 Route 112, Suite 639-07 Patchogue, NY 11772 (631) 447-8838 Law Office of Alexander P. Kelly 16 Court Street, 35th Floor Brooklyn, NY 11241 (718) 422-0822 Index No.110149/2011 PRE-ARGUMENT STATEMENT 5. Appeal taken from Decision/Order dated May 8, 2012, and entered in Supreme Court, New York County, on May 31, 2012, per Exhibit 1 (and derivative orders based on said order, per Exhibit 2). 6. No related actions in this or other jurisdictions. 7. Appeal taken from Decision/Order dated May 8, 2012, entered in Supreme Court, New York County, on May 31, 2012, per Exhibit 1 (and derivative orders based on said order, per Exhibit 2). 8. Article 78 proceeding to compel a general membership meeting and election of trustees of Appellant-Respondent China Buddhist Association, and/or place China Buddhist Association in receivership. 9. Result below: Court held that ecclesiastical decree excommunicating certain clergy and followers was invalid, held that the May, 2011, election of trustees was invalid, and ordered general membership meeting to be held 10. Grounds for reversal: Court violated the Establishment Clause of the First Amendment of the United States Constitution. Dated: Flushing, NY June 20, 2012 Law ce of Benjamin . erzw ig AttoJ.:lleys for Appellants-Respon ts 629 Route 112, Suite 639-07 Patchogue, NY 11772 (631) 447-8838 2 ATIORNEY CERTIFICATION The undersigned hereby certifies that, to the best of his knowledge, information and belief, formed after a reasonable inquiry under the circumstances, the presentation of the within Pre-Argument Statement or the contentions contained herein are not frivolous as defined in 22 NYCRR Sec. 130-l.l(c). Dated: Flushing, NY June 20,2012 To: Clerk of the Court Supreme Court, New York County 60 Centre Street New York, NY Alexander P. Kelly, Esq. Attorneys for Appellees-Petitioners 16 Court Street, 35th Floor Brooklyn, NY 11241 (718) 422-0822 Todd L. Platek 3