In the Matter of Ming Tung, et al., Appellants,v.China Buddhist Association, et al., Respondents.BriefN.Y.February 16, 20161 ALEXANDER PALMER KELLY ATTORNEY AT LAW 36 WEST 44TH STREET, SUITE 630 NEW YORK, NEW YORK 10036 Tel. (212) 719-5000 Fax. (212)719-5005 alexanderkellyattorney@msn.com October 12, 2015 VIA HAND DELIVERY Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12217 Re: Matter of Tung v. China Buddhist Association APL-2015-00214 Honorable Sirs: By leave of the Appellate Division, First Judicial Department, the appellants appeal from each and every part of that court’s November 13, 2014 order reversing the May 8, 2012 decision of the Supreme Court, New York County (Wright, J.), which held that a disputed membership meeting of the China Buddhist Association (“CBA”) allegedly conducted by the respondents herein on May 26, 2011 violated the rules of the CBA articles of incorporation and by-laws, and ordered the respondents to forthwith schedule another general meeting of the CBA including appellants. As requested by this Court pursuant to section 500.11 of the Court of Appeals Rules of Practice, the appellants respectfully state their position on the merits as follows: QUESTIONS PRESENTED 1) At issue in this appeal is whether the Appellate Division made an impermissible determination of the purely religious doctrine of excommunication in violation of the First Amendment to the United States Constitution and Article One of the New York State Constitution, when it held the appellants lack standing to challenge the alleged trustee election because they were excommunicated. 2 2) Whether the Appellate Division erred by failing to recognize that independent congregational churches are governed by the majority of their members who are the highest ecclesiastic authority in such churches. 3) Whether the Appellate Division violated the due process clause of the Fourteenth Amendment to the United States Constitution by upholding the purported expulsion of the majority of members of the CBA by only one member, when it is undisputed that the majority was neither provided with advance notice that their expulsion was contemplated, the nature of the charges against them, or an opportunity to be heard on the issue. Appellants respectfully assert that the Appellate Division erred by holding respondent Mew Fung Chen had the authority to expel the majority of the CBA from membership in the absence of any provisions in the CBA by-laws for internal discipline, dispute resolution, or the removal of members, and without providing the members with any advance notice of the nature of the charges against them, or an opportunity to be heard on the issue in their defense. BACKGROUND The China Buddhist Association The CBA is a religious corporation formed under Article 10 of the Religious Corporations Law in October, 1963 for the purpose of serving the spiritual needs of the Buddhist community in New York City. The CBA owns and maintains two Temples where divine worship services are regularly conducted, namely the Fa Wang Temple located at 245 Canal Street, New York, New York, and the Ci Hang Temple located at 136-12 39th Avenue, Flushing, New York. The CBA additionally owns a retreat house in Hyde Park, New York which it refers to as the Song Lin Temple. The Fa Wang Temple is the original CBA Temple where divine worship services have been conducted regularly from January 1964 to the present time. Upon information and belief, the Fa Wang Temple is the second oldest Buddhist Temple in continuous operation in the State of New York. The Fa Wang Temple has a far larger congregation than the Ci Hang Temple which first opened approximately 30 years later in 1994. (R. 221, 262-264, 307-313, 327-329, 353- 387). 3 Appellants Appellant, Master Ming Tung, is an ordained Buddhist monk and a member of the CBA. He has been the presiding monk at the CBA Fa Wang Temple since 1997. Master Tung resides at the Fa Wang Temple along with two ordained Buddhist nuns. Together they conduct all divine worship services at the temple, perform weddings and funerals, counsel congregants, make hospital and home visits to the sick and elderly, maintain the temple, and fulfill all of the typical functions of clergy. Master Tung is a graduate of the Buddhist College of Minnan, located in Xiamen, China, where he completed a six year program of higher education and religious training, and where he served as an instructor before accepting the position of presiding monk at the Fa Wang Temple. (R. 51). Appellant, Master Wai Ching Chen, is an ordained Buddhist nun and a member of the CBA. She has ministered as a nun at the CBA Fa Wang Temple since 1994. Master Wai Ching Chen also graduated from seminary at the Buddhist College of Minnan in Xiamen China. Appellant, Shun Yi Mon, is an active lay member of the CBA, and has been for over forty years. Ms. Mon resides in Manhattan. She regularly attends divine worship services at the CBA Fa Wang Temple, and she makes regular financial contributions to the CBA to the present time. Respondents Respondent Mew Fung Chen is one of several original founders of the CBA. He was the presiding monk of the CBA Ci Hang Temple in Flushing Queens, but upon information and belief, he is currently at least 90 years of age and long ago stopped attending religious services regularly. Respondent Ming Yee resides at the Ci Hang Temple in Flushing, Queens, where she purports to be the “abbotess,” but she has admittedly not undergone any formal religious training or education for such position and, upon information and belief, she is the only nun at the Temple. Please see the annexed Exhibit A, excerpt of trial transcript in related contempt proceeding. Respondent Chih-Chen Ma is a resident of the State of New York, County of Queens. He is a lay member of the CBA who holds himself out to be a trustee of the association. 4 History The CBA held its first and only undisputed membership meeting on January 2, 1964, at which time by-Laws were adopted and a board of trustees was elected to serve for a term of three years. (R. 31, 221). Article Seven of the CBA by-laws provides for the creation of a three person board of trustees charged with managing the affairs of the association. Trustees are supposed to be elected at the annual membership meeting for the ensuing year to serve for a term of three years, except when a vacancy arises mid-year, in which case the vacancy is to be filled by majority vote of the remaining trustees to serve the balance of the year. (R. 239- 240). Article Four of the by-laws requires the association to hold its annual membership meeting on the 2nd day of January of each year, and to conduct regular membership meetings on the first Sundays of April, July, and October of each year. (R. 236). However, the association failed to notice or hold a subsequent membership meeting or election of trustees after January 2, 1964, until the opposing parties began holding disputed meetings in 2011 (R. 50-77). From the time that Master Ming Tung took over as presiding monk of the Fa Wang Temple in 1997 until late 2009, the clergy of each CBA temple administered the affairs of its individual temple autonomously; only consulting the clergy of the other temple over major acquisitions and other decisions of universal import. During those years the clergy of the two temples enjoyed a friendly collegial relationship. (R. 51, 133, SR. 15-16, 98). That relationship changed in 2009 when respondent Mew Fung Chen began to sour on the clergy of the Fa Wang Temple. Toward the end of 2009, respondent Chen asked the Fa Wang Temple clergy to allow a Ci Hang Temple lay-congregant named Cheuk Yiu Man, to volunteer at the Fa Wang Temple. The Fa Wang Temple clergy accepted Mr. Man into their home by providing him with an office in the third floor residential area of the Temple. (R. 51, SR. 15-16, 41, 84-85). Mr. Man rewarded them shortly thereafter by installing video cameras aimed at each of their bedroom doors. (SR. 15-16) Mr. Man embarked upon a campaign to intimidate and harass the Fa Wang Temple congregants and clergy and to close the Temple. Mr. Man assaulted elderly and defenseless Fa Wang Temple congregants. (R. 51-52, 134-135, 144- 148, 156-164, SR. 16-17). Mr. Man vandalized Temple property. (SR. 38-45, 121- 128). Mr. Man changed the locks to the Fa Wang Temple prayer hall where 5 regular religious services are conducted. (R. 54, 133, SR. 18) Mr. Man removed and secreted the membership attendance and financial contribution books and records for the Fa Wang Temple. (SR. 30-31, 38-42, 124-125). Mr. Man tried to install new clergy members at the Fa Wang Temple on at least two separate occasions. (SR. 23-28, 30-31) As a result, an insidious charlatan named Xiao Dan Wu took up residence at the temple for several months and caused the appellants to suffer a great deal of distress and embarrassment before he suddenly fled the temple. (R. 132-136, SR 15-21, 29). Most egregiously, on September 22, 2010, Mr. Man brutally beat a 70 year old female congregant of the Fa Wang Temple named Yu Zhen Zhao, by knocking her to the floor in the prayer hall, straddling her chest, and repeatedly slamming her head against a steel door frame in front of at least 20 horrified congregants who called the police and pleaded with Mr. Man to stop. (R. 40, 52, 145-146, 156-165). On July 1, 2011, Mr. Man repeatedly struck appellant Master Wai Ching Chen’s hand - deeply bruising her - and breaking a camera she was holding, which was dashed to the floor. (R. 144-148). Mr. Man boldly admitted to striking Rev. Chen in an affidavit dated July 29, 2011. (R. 165-169). On May 16, 2011, Cheuk Yiu Man posted a flier signed by respondent Mew Fung Chen upon the exterior façade of the Fa Wang Temple, in which Mew Fung Chen purported to excommunicate all of the CBA members that worship at the Fa Wang Temple, and to close the temple. (R. 121). On the same day, Cheuk Yiu Man changed the locks to the 2nd floor prayer hall where religious services are normally conducted, effectively locking the clergy and congregants out of the prayer hall for over eight months with no prior notice. (R. 54, 133). After locking the appellants out of the Fa Wang Temple prayer hall on May 16, 2011, Mr. Man repeatedly blocked elderly congregants from entering the building at 245 Canal Street, and he ordered members that he discovered inside the building to leave in a loud and threatening manner. And he repeatedly blocked elderly congregants from traversing the temple’s steep and narrow stairways, creating a very dangerous situation, and he continued this pattern of behavior even after being restrained from doing so by the lower court. (R. 137-138, 146-147, SR. 15-28). 6 The by-laws of the CBA do not provide any procedures for internal discipline, dispute resolution, or for the excommunication or expulsion of clergy or lay members of the association. However, the CBA by-laws do provide an analogous procedure for the removal of trustees. Article Seven of the CBA by- laws states that a trustee may be removed by the board “when sufficient cause exists for such removal.” Notably, Article Seven provides procedural due process protection to such a trustee accused of wrongdoing by providing that a trustee “may be represented by counsel upon any removal hearing.” (R. 239-240) On September 2, 2011, the appellants commenced the underlying action as petitioners pursuant to Article 78 of the CPLR seeking to compel the CBA to hold a general membership meeting pursuant to its by-laws; and for the appointment of a receiver to determine the names and addresses of all members entitled to vote at such a meeting (R. 30-49). As alleged in the verified petition and in ten duly sworn witness affidavits, the appellants acted as trustees for the CBA for at least nine years prior to their purported excommunication (R. 30-77), yet none of the appellants were provided with any notice that their removal was contemplated, or the opportunity to be heard in their defense at a “removal hearing” pursuant to Article Seven of the by-laws. Hundreds of other CBA members that congregate at the Fa Wang Temple were also affected by Mew Fung Chen’s May 16, 2011 excommunication flier without notice or an opportunity to be heard. These Fa Wang Temple congregants should be entitled to the same due process protections as a trustee of the association facing removal, including notice of the charges against them and an opportunity to be heard in their defense. The long-time lay members of the CBA that submitted affidavits in support of the petition all testified that they never heard mention of any membership meeting of the CBA prior to August, 2011. They also testified to their admission to membership in the CBA, and they established their right to participate in CBA membership meetings and vote in trustee elections because they regularly attended divine worship services and made regular financial contributions to the association for several years prior. (R. 58-77). During a conference call with the trial court on February 2, 2012, an attorney for the respondents suggested this action was moot because, he alleged, respondents had already conducted a special membership meeting of the CBA at the Ci Hang Temple in Flushing Queens on May 26, 2011. Respondents’ counsel claimed the respondents were elected trustees at an election held during that 7 meeting, and he expressed his opinion that the alleged meeting was dispositive of all of the issues before the court. Curiously, the petition had previously been marked fully submitted by the lower court over three months earlier on October 27, 2011, with no mention by the respondents of their alleged May 26, 2011 membership meeting and trustee election in their verified answer and objections in points of law. Nevertheless, on February 2, 2012, the lower court gave respondents the opportunity to submit affidavits detailing their alleged May 26, 2011 special membership meeting, including what if any notice of the meeting was provided to the CBA members. In so doing, the lower court effectively converted this action into a proceeding to ratify the respondents’ alleged May 26, 2011 trustee election pursuant to Section 618 of the Not for Profit Corporations Law. Accordingly, the burden of proof was shifted to the respondents to present evidence in admissible form proving their election was valid. Respondents submitted the affidavit of Ming Yee dated February 24, 2012, in response to the lower court’s request. (R. 219-317). In her affidavit, Ming Yee freely admitted that the congregants and clergy of the Fa Wang Temple were not provided with any notice of the respondents’ alleged May 26, 2011 membership meeting. Ming Yee testified that notice “was mailed to existing CBA members who had not been excommunicated by Grand Master Chen.” (R. 221). Ming Yee argued that the appellants were not entitled to receive notice of the meeting because they were excommunicated along with everyone else that worshipped at the Fa Wang Temple. Ming Yee submitted a list of only approximately 100 persons that the respondents consider to be the entire membership of the CBA entitled to participate in trustee elections. (R. 262-264, 307-313). In response to Ming Yee’s submission, the appellants submitted the affidavits of Master Ming Tung, Master Wai Ching Chen, and Master Ming Xin Shi, along with the affidavits of six lay congregants, and exhibits including an accurate list of 517 CBA members that are congregants of the Fa Wang Temple entitled to notice of membership meetings and to participate in trustee elections. (R. 353-387). They all testified that they received no notice whatsoever of the respondents’ alleged May 26, 2011 membership meeting, nor did they know of any person that had. (R. 334-350). The lay members additionally testified to their right to participate in trustee elections based upon regular attendance at divine worship 8 services and making regular financial contributions to the CBA for well over one year prior to May 26, 2011. 1 (R. 336-350). One such affiant, Mr. Chuen Wu testified that he is a congregant of the CBA Ci Hang Temple in Flushing Queens, and therefore not subject to Mew Fung Chen’s offensive excommunication flier. Notably, Mr. Wu testified that he attended the two regular divine worship services held at the Ci Hang Temple immediately prior to May 26, 2011, and no announcement was made at either service regarding the respondents’ alleged May 26, 2011 membership meeting, as required by Section 194 of the Religious Corporations Law. (R. 383-340). As a result, the appellants opined in their submission in response to Ming Yee’s affidavit that no such membership meeting actually took place. (R. 327-335). The Lower Court’s Decision The lower court rejected the respondents’ argument that petitioners were not entitled to notice of the alleged May 26, 2011 membership meeting and “directed the respondents to forthwith schedule another general meeting of the membership, Petitioners included, pursuant to the dictates of Article Three and Article Four of the By-laws.” (R. 8-9). The lower court based its decision upon the narrow secular grounds that the notice provisions contained in the CBA by-laws were not followed and the purportedly expelled members were not given any warning that their expulsion was contemplated, or the nature of the charges against them, or an opportunity to be heard on the issue in their defense. (R. 8) The lower court’s decision is entirely free from entanglement in religious dogma and it comports well with the applicable provisions of the Not for Profit Corporations Law, including NPCL § 194, 195. As a result, the lower court’s decision should not have been disturbed on appeal. 1 Three of the CBA members that submitted affidavits in response to Ming Yee’s submission also submitted affidavits in support of the underlying petition, namely Bo Chu Changjong-Olmos, Yuet Sim Lui, and Yee Lu Ng. 9 The Appellate Division Decision Writing for the majority of the Appellate Division, Justice Gische begins the majority’s opinion by announcing: “We reverse the Supreme Court’s grant of the petition because the issues raised are not secular in nature, but religious, and cannot be resolved by the application of neutral principals of law.” (In re. Tung v. China Buddhist Assn.,124 A.D.3d 13, 15 [1st Dept. 2014]). The majority frames its decision in the context of an Establishment Clause issue, as follows: “We cannot consider whether one master or faction is better suited or more correct for the CBA than another. To do so would be to “enter a forbidden [domain].” Id. at 22; quoting First Presbyt.Church of Schenectedy v. United Presbyt. Church, 62 N.Y.2d 110, 116 [1984]. Antithetically, the majority then went on to do just that and worse, when it upheld the validity of the purported excommunication of the majority of the CBA by a lone monk, as follows: We take no issue with petitioners’ claim and the dissent’s conclusion that the CBA has not followed corporate formalities which may impact on whether the parliamentary acts undertaken by it are valid. We hold, however, that because petitioners are not members of the CBA based upon Master Chen’s excommunication of them, they cannot challenge these corporate actions… Since petitioners were excommunicated from the CBA in September 2010, and they were no longer members when these parliamentary actions were taken, they had no right to be notified of, or participate in, the meetings held or votes taken. Id at 19. In so holding, the majority made the very same impermissible determination regarding the validity of the purely religious ritual of excommunication that it ostensibly reversed the lower court to prevent. The majority’s decision not only conflicts with the majority’s own reasoning as set forth above, it also violates the Establishment Clause of the First Amendment to the United States Constitution, and well established principals of law. 10 ARGUMENT The Appellate Division erred by failing to recognize that independent congregational churches are governed by the majority of their members who are the highest ecclesiastic authority in such a Church. It is well settled law that in the absence of any provisions in an independent congregational church’s by-laws providing for the removal of members, members may only be removed by agreement of the majority of the association at a general meeting, even though they may be separately excommunicated by their spiritual leader. As early as 1872, the United States Supreme Court was confronted with this very issue in a remarkably similar case: Bouldin v. Alexander, 82 U.S. 131, (1872). The facts of the Bouldin case involved a charismatic African-American Baptist minister named Albert Bouldin who began holding prayer meetings at his home in the District of Columbia in about 1857, “he being always a chief actor in the assemblages.” And though his congregation was few in number at first, “under Bouldin’s leadership they increased in strength, and, after a certain time went to work to raise the money to build a meeting house. Bouldin taking the lead in the whole matter, the temporal part as much as the spiritual, and being at once pastor, collector, treasurer, chief agent, and actor in the enterprise, and getting into his own hands most of the moneys collected.” Id. Shortly after constructing and opening their church, the congregation divided into two factions and Bouldin found himself in the minority. The faction led by Bouldin voted to replace the existing trustees and to excommunicate 41 members of the congregation. Bouldin’s faction changed the church’s door locks so that only Bouldin and his trustees had access to the prayer hall. The existing trustees sued Bouldin for illegally seizing the property and taking over the board. Bouldin responded by asserting that the existing trustees had no authority because they had not been properly elected and because they were excommunicated. The Bouldin court based its decision upon secular legal principles that it called “temporalities,” and not upon an interpretation of the church’s religious doctrine. Id. at 137. The Bouldin court ruled that civil courts do not have the power to evaluate whether a congregation should have elected or removed particular members, but civil courts do have the power to determine whether such a decision was actually made by the congregation as follows: We must take the fact of excommunication as conclusive proof that the persons exscinded are not members. But we may inquire 11 whether the resolution of expulsion was the act of the church, or of persons who were not the church and who consequently had no right to excommunicate others. And, thus inquiring, we hold that the action of the small minority, on the 7th and 10th of June, 1867, by which the old trustees were attempted to be removed, and by which a large number of the church members were attempted to be exscinded, was not the action of the church, and that it was wholly inoperative. In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church. An expulsion of the majority by a minority is a void act. We need not, however, dwell upon this. Certain it is, that trustees are not necessarily communing members of the church. Excommunication from communing membership does not disqualify them, even if the excision be regular. Still more certain is it that they cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules. U.S. 131, at 140. The Bouldin decision certainly contradicts the respondents’ claim in the preliminary statement to their reply brief to the Appellate Division that: “A suit to restore a clergy member who has been removed… or to reinstate a parishioner who has been excommunicated, has never been justiciable in the federal courts.” (Resp. Reply Brief, P.1) The Bouldin case was decided less than one year after the U.S. Supreme Court decided another important case involving a dispute over church property, Watson v. Jones, 80 U.S. 679 (1871), which arose when a Presbyterian congregation in Kentucky split into two factions after a dispute over the issues of slavery and secession. Each faction claimed to be the rightful owner of the congregation’s property. The group that opposed slavery claimed to be entitled to the property because the national church, The Presbyterian Church in the United States, had officially recognized the anti-slavery faction to be the legitimate congregation. Id. In considering the Watson case, the U.S. Supreme Court first had to set a legal standard to apply to the dispute. The Watson court determined that there are three permissible ways for courts to determine disputes involving church property. First, courts may consider whether there is any valid legal document like a deed or by-laws that would resolve the issue. If so, a court may simply enforce the terms 12 of the document, thus avoiding entanglement in issues of religious dogma. But if there is no unambiguous legal document, then a court must first determine whether the church is congregational in nature, or whether it is part of a larger hierarchical denomination. Id. at 722. In what has come to be known as the doctrine of judicial deference, the Watson court held that in the case of churches that are a subordinate part of a larger hierarchical denomination with established rules and tribunals for ecclesiastical government, those tribunals must decide all questions of faith, discipline, rule, custom, or ecclesiastical government, and courts must defer to the decisions of such tribunals regarding which faction is entitled to church property. But, the Watson Court held, in the case of churches that are not part of a larger hierarchical denomination, if there are no unambiguous legal documents, then courts should treat disputes involving such independent congregational churches just as they would any other voluntary association - by allowing a vote of the majority of the congregation’s members, or in the alternative by applying relevant statutes that are determinative of the issue. Id at 724-725. The U.S. Supreme Court upheld and expanded its ruling in the Watson case over one hundred years later in Jones v Wolf, 443 US 595 [1979], which is widely considered to be the seminal case that developed the “neutral principals of law analysis” as a method to resolve disputes involving church property. The Jones case also involved a Presbyterian congregation that decided to withdraw from the national church. The majority of the congregation decided to break away because it objected to certain policies of the national church that it deemed to be too liberal. The minority faction filed a lawsuit against the majority, seeking to retain control of the congregation’s property. The Georgia Supreme Court ruled for the majority faction because the church’s deeds expressly conveyed the property to the congregation and not the national church. The national church, The Presbyterian Church in the United States appealed to the U.S. Supreme Court, claiming that the national assembly had reached a determination that the minority faction was the true congregation, and the First Amendment precluded the high court from ruling otherwise. The U.S. Supreme Court rejected that argument and ruled in favor of the majority faction. The Jones court stated that civil courts are free to choose a variety of different approaches to disputes involving church property; they may choose to follow the hierarchical church authority, or where appropriate the votes 13 of the majority of members, or ignore both, and apply neutral principals of law to resolve the dispute. Id. at 602. The Court of Appeals adopted the “neutral principals” of law approach in a similar case involving another dispute between a break-away Presbyterian congregation and the national church, and likewise declined to defer to the decision of the national church in the case of First Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S. 62 N.Y.2d at 110. This Court stated its preference for the neutral principals of law approach to disputes involving church property in the decision as follows: It is completely secular in operation, it is flexible enough to accommodate all forms of religious organizations and it relies upon well-established principles of law familiar to Judges and lawyers. It also provides predictability so that religious organizations may order their affairs to account for its application. Moreover, we agree with those who have observed that the doctrine is preferable to deference because it does not prefer one group of disputants to another. Id. at 121. On appeal to the Appellate Division, the respondents rejected the neutral principals of laws analysis as a basis for resolving this dispute. Instead, respondents took the position that there are no neutral principals of law to analyze because respondent Mew Fung Chen’s excommunication flier must be obeyed without question. Respondents cited the Watson case and its progeny as the seminal rulings establishing the doctrine of judicial deference that would require this Court to submit to Mew Fung Chen’s authority. However, the Watson decision and its progeny are not helpful to the respondents because these cases all recognize a distinction between churches of independent congregational organization and churches that are part of a larger hierarchical body, and the CBA is undisputedly a church of independent congregational organization with no internal disciplinary rules, no judicatories, and no established procedures for internal dispute resolution or the removal of clergy or members. Surprisingly, the majority of the Appellate Division declined to draw any such distinction between independent congregational churches and hierarchical churches. The majority explained its reasoning for treating disputes involving these two very different types of churches the same as follows: “Constitutional 14 protections to practice one’s religion are not limited by the manner of its organization or structure.” 124 A.D.3d at 21, citing Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn. of City of N.Y., 55 NY2d 512, 521-523 [1982]. While the majority’s conclusion is ostensibly true as a general principal, the majority cites a Court of Appeals decision from a case concerning the validity of a religious corporation’s tax exempt status, which is clearly not an issue dependent upon whether a particular religious corporation is independent versus part of a larger hierarchical organization. The Holy Spirit Assn. case does not involve a dispute over church property, it is not relevant to the issues at hand, and the Appellate Division’s position in citing the case is a clear departure from well established precedent. A relatively recent 2012 article in The First Amendment Law Review discusses the neutral principals of law analysis in the context of church structure. The author notes that corporate form is at the core of U.S. Supreme Court jurisprudence when considering internal disputes of religious corporations. The article cites abundant precedent establishing that in the case of independent congregational churches, courts may either defer to the decision of a majority of the members of the congregation on ecclesiastical matters, or decide disputed matters by the application of neutral principals of law. The most relevant portion of the article is produced below: A normative First Amendment Religion Clause doctrinal analysis of an internal dispute within a religious corporation emphasizes internal organizational structure and corporate form. This emphasis leads to a bifurcated consideration of the dispute. The bifurcation, however, is a function of the religious corporation's internal organizational structure which is either hierarchical or congregational. A hierarchically structured religious organization is governed by an ecclesiastical tribunal that exercises authority over the membership. Mainline Christian Protestant religious organizations (e.g., Anglicans, Presbyterians, and Methodists), and Catholics are hierarchically structured and so governed. This is in contrast to non-Mainline Christian groups like Baptists and Quakers, and non-Christian groups like Jews, Muslims, Hindus, and Buddhists, whose internal organizational structures are congregational, where the internal affairs of each organization are governed exclusively by its members independently from any other religious tribunal or institution… A 15 civil court has two options when considering a religious organization's internal dispute. It may either defer to the decision made by the religious corporation's internal governing body on the matter, or, provided the dispute does not involve ecclesiastical issues, it may engage and resolve the matter by applying neutral principles of law. To understand how the hierarchical-congregational distinction affects the analysis, consider its application to a hierarchical religious corporation. In a hierarchically organized and governed religious corporation, a normative analysis considering an internal property dispute offers a court the option to either defer to the decision of the organization's highest religious tribunal on matters of religious discipline, faith, governance, custom or doctrine, or, if the matter does not involve these issues, it may choose to resolve the matter by the application of “neutral principles of law.” The “neutral principles of law” approach allows civil courts to fact find by consulting a corporation's secular documents such as deeds, charters, and organizational bylaws, as well as state statutes and constitutions, and then apply well-known legal rules to settle the matter. Similarly, for congregationally organized and governed religious corporations, a court has the option to either defer to the decision of a majority of the members of the congregation on ecclesiastical matters, or, decide the matter by the application of neutral principals of law. (Bruce B. Jackson, Secularization by Incorporation: Religious Organizations and Corporate Identity, 11 First Amend. L. Rev. 90 [2012]) The lower court recognized the structural distinction between independent congregational churches and churches that are part of larger hierarchical bodies. Left undisturbed, the lower court’s decision would have submitted the issues raised by this action to the general membership of the CBA for resolution by majority vote, without reaching the validity of the purported excommunication, or the dismissal of the Fa Wang Temple clergy, or any other ecclesiastic issue. The respondents argued in opposite on appeal, claiming that the lower court did reach the issue of the validity of the purported excommunication. Respondents claimed that the inclusion of the following language in the lower court’s decision shows that it made an impermissible determination that there was no justification for the appellants’ excommunication: “I note further that no particular lapse of faith to justify the excommunication was given.” (R. 23). The respondents argued at length in their briefs that there was in fact justification for the purported excommunication. 16 Respondents clearly missed the lower court’s purpose for including such language in its decision. Whether or not the flier contained reasonable justification for the purported excommunication of the appellants is entirely irrelevant, and it wasn’t considered by the lower court. The salient point to consider when interpreting said language is not the content of the excommunication flier, or whether or not it was justified, but rather its timing. The excommunication flier was posted at the Fa Wang Temple after the congregants and clergy were excommunicated - not before.2 The appellants were locked out of the prayer hall simultaneous with the posting of the flier. Because the May 16, 2011 flier was posted after the Fa Wang Temple congregants were allegedly expelled from membership, it necessarily failed to provide them with any advance notice of the charges against them that would justify their expulsion from membership in the CBA. Reviewing the entire passage from the lower court’s decision provides the proper context to understand that the lower court never examined respondent Mew Fung Chen’s motives for the alleged excommunication: Although as stated above, a civil authority should not become embroiled in matters of faith, it is also a fact that the by-laws make no reference to excommunication, as it only defines membership as “all who are of the Buddhist faith and have been admitted as disciples.” The by-laws contain no mechanism for excommunication. In this case, the Respondents rely on a May 2011 membership meeting for their status as leaders of the temple. However, according to the affidavit of Rev. Ming Yee [on behalf of 2 The Appellate Division decision erroneously refers to the date of the purported excommunication of appellants as “September 2010” (124 A.D.3d 13, 6), and not the date the excommunication flier was posted at the Fa Wang Temple - May 16, 2011. The majority confuses the date of the purported excommunication with correspondence dated September 23, 2010, in which Mew Fung Chen purported to dismiss Master Ming Tung from his position as presiding monk at the Fa Wang Temple (R. 191). Mew Fung Chen did not purport to dismiss appellant Master Wai Ching Chen from employment until several months later on May 17, 2011. (R. 191). Appellant Shun Yi Mon was never an employee of the China Buddhist Association. Mew Fung Chen testified in an affidavit dated October 4, 2011, that he performed the purported excommunication of the Fa Wang Temple congregants by decree dated May 16, 2011, and “closed the temple” the same day. (R. 188-195) 17 respondents], the Petitioners were all excommunicated by action taken in April 2011, to which they were, on the record before me, not privy. I intuit therefore, that the Petitioners were not given notice of the May 2011 membership meeting, and thus were deprived of their right to attend and be heard. I note further, that no particular lapse of faith to justify the excommunication was given. I hold, therefore, that the meeting of May 2011, and the business conducted and concluded there, was outside of the rules of the Articles of Incorporation and by-laws. The lower court was simply applying a straight forward neutral principals of law analysis to the facts before it. The clear and undisputed facts considered by the lower court, and upon which it based its decision, are all secular in nature: a) The China Buddhist Association By-laws contain no provision for internal dispute resolution or for the discipline or removal of members. b) The Fa Wang Temple congregants were not provided with any advance notice that they were facing expulsion from the association, or the nature of any charge against them. c) The Fa Wang Temple congregants, appellants included, were not provided with an opportunity to be heard in their defense on the issue of their expulsion. d) The expulsion of the Fa Wang Temple congregants was not by agreement of the majority of the association. e) The Fa Wang Temple congregants, appellants included, were not provided with any advance notice of the nearly contemporaneous May 26, 2011 special membership meeting allegedly conducted by respondents, or an opportunity to be heard there. The lower court never reached the issue of the validity of the purported excommunication. It is clear from the well-reasoned precedents established by the U.S. Supreme Court in the cases of Bouldin v. Alexander, Watson v. Jones, and Jones v. Wolf, and by this Court in the case of First Presbyterian Church of Schenectady v. United Presbyterian Church in the U.S. supra, that when a civil court is faced with a dispute involving the property of an independent congregational church and there is no unambiguous legal document to rely upon; 18 the court may treat the dispute the same way it would one involving any other voluntary association, as long as it avoids reaching issues of religious doctrine. It is well settled that a voluntary association whose members become entitled to privileges or rights of property cannot exercise a power of expulsion without being providing with advance notice to the member and an opportunity to be heard on the issue. (Wachtel v. Noah Widows and Orphans Benevolent Society, 39 Sickels 28, 84 N.Y. 28 [1881]). It is undisputed that no such notice or opportunity to be heard was provided to the appellants or to any of the purportedly excommunicated Fa Wang Temple congregants. It should also be noted that the by-laws of a not-for-profit corporation are in the nature of a contract between the members of the corporation and the corporation itself. (See George v. Holstein-Frisien Ass’n of Am., 283 N.Y. 515, 523 [1924]). When, as in this case, the bylaws and rules of a religious corporation are silent, or when they conflict with applicable sections of the Religious Corporations Law, the applicable sections of the Religious Corporations Law control. (See Venegala v. Nori, 11 N.Y.3d 55, 59 [2008]; and see Eisenberg v. Fauer, 25 Misc.2d 98 [Sup. Ct., Kings Co. 1960]; and see Religious Corporations Law § 200. The majority seems to ignore this well settled principal, as follows: “Neither the bylaws, nor the Religious Corporations Law, provide petitioners with any right to vote at a CBA meeting.” (124 A.D.3d at 18-19). However, the dissenting opinion strongly disagreed with the majority on this point. As argued in the dissent, even if the May 16, 2011 purported excommunication flier stripped the Fa Wang Temple congregants of Mew Fung Chen’s blessing, they would still be entitled to vote in an election of trustees for the Association, and to receive advance notice of the same pursuant to Sections 194 and 195 of the Religious Corporations Law. The dissenting opinion further argued that the Appellate Division was required to take judicial notice of the applicable sections of the Religious Corporations Law including RCL 195, without request pursuant to CPLR 4511(a). RCL § 195 lays out two separate and exclusive standards of qualifications that entitle individuals to vote at corporate meetings, as follows: At a corporate meeting of an incorporated church to which this article is applicable the following persons, and no others, shall be qualified voters, to wit: All persons who are then members in 19 good and regular standing of such church by admission into full communion or membership therewith in accordance with the rules and regulations thereof, and of the governing ecclesiastical body, if any, of the denomination or order to which the church belongs, or who have been stated attendants on divine worship in such church and have regularly contributed to the financial support thereof during the year next preceding such meeting; and any other church incorporated under this article, may at any annual corporate meeting thereof, or any corporate meeting called pursuant to the provisions of this article, if notice of the intention so to do has been given with the notice of such meeting, determine that thereafter only members of such church shall be qualified voters at corporate meetings thereof. RCL § 195 therefore establishes alternative qualifications for congregants of an incorporated church to be entitled to vote in a trustee election beside “being a member in good and regular standing of such church by admission into full communion or membership…” Pursuant to the statute, even persons that have not been admitted into membership, or who are not in good standing, are nonetheless entitled to vote if they: “have been stated attendants on divine worship in such church and have regularly contributed to the financial support thereof during the year next preceding such meeting.” RCL § 195 allows a religious corporation to determine at an annual membership meeting or a properly noticed special membership meeting “that thereafter only members of such church shall be qualified voters at corporate meetings thereof.” But no such determination has ever been made at a membership meeting of the China Buddhist Association, the petitioners have never claimed otherwise, and if they do so now it will be false. Thus, assuming arguendo that Mew Fung Chen’s purported excommunication flier is valid (which is not conceded), all of the Fa Wang Temple congregants that regularly attended religious services and made regular financial contributions in the twelve months prior to the election at issue in this action, would still have been eligible to vote and entitled to receive advance notice of those elections. As recognized by the majority in its decision, it is undisputed that being a member of the CBA is a prerequisite to being a CBA clergy member, and it is undisputed that all of the petitioners herein were members of the CBA - but for 20 Mew Fung Chen’s purported excommunication. As a result, Sections 194 and 195 of the Religious Corporations Law provided the appellants with the right to receive notice and participate in the alleged May 26, 2011 membership meeting - if it really took place. The lower Court was provided with multiple sworn statements that no announcement was made of the alleged May 26, 2011 special membership meeting at either CBA temple during the two regular divine worship services immediately preceding the alleged special meeting. If the meeting actually took place, it was not properly noticed pursuant to Section 194 of the Religious Corporations Law, which requires notice of a special meeting for a religious corporation: [T]o be given at a regular meeting of the church for public worship, at morning service, if such service be held, on each of the two successive Sundays next preceding such meeting, if Sunday be the regular day for such public worship, and public worship be had thereon, or otherwise at a regular meeting of such church for public worship on each of two days, at least one week apart, next preceding such meeting, or if no such public worship be held during such period, by conspicuously posting such notice, in writing, upon the outer entrance to the principal place of worship of such church. This Court has held that failing to comply with the notice requirements established under RCL § 194 for special membership meetings may render the results of such meeting void. (In re Kaminsky, 277 NY 524 [1938].) As stated above, the appellants argued before the lower court that the May 26, 2011 meeting and all evidence of it was actually fabricated by the respondents. The lower court was in a better position to judge the credibility of the parties. As a result, its decision should not be disturbed unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence. “This is especially true when findings of fact rest in large measure on considerations relating to the credibility of witnesses.” (See Islamic Center of Harrison v. Islamic Science Foundation Center 262 A.D.2d 362 [2nd Dept. 1999]). The Islamic Center case also involved a situation in which the membership status of several people in a religious corporation was in dispute. The Second Department held that these individuals were members of the religious corporation based upon the alternative definition of membership found in Religious Corporations Law § 195, based upon attendance and contributions. Id. at 363. 21 The Appellate Division’s decision is based almost entirely upon this Court’s decision in the Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282 (2007) , which the Appellate Division described as “strikingly similar” to the case at hand. However, the facts of the Satmar case are easily distinguishable from the facts of this case for several very important reasons. First, the Satmar controversy did not involve the clergy of one Temple expelling the entire congregation of another Temple from membership in the corporation without notice or an opportunity to be heard. Second, membership in the Satmar congregation is conditioned by Article 3 of its by-laws upon the following criteria: a) If he keeps the Sabbath as prescribed and does not intentionally transgress anything that is forbidden in our holy Torah. b) If he generally conducts himself in the ways of the Torah, and educates his children in the ways of the Torah and his wife does not go in public with her hair exposed. c) If he is over 18 years old or immediately after his wedding. Membership in the Satmar congregation is therefore conditioned upon adherence to an on-going pattern of behavior that is both purely religious and largely impossible to quantify. A copy of the translation of the Congregation Yetev Lev D’Satmar By-laws that was admitted to be correct by the association and which was considered by the trial court and the Second Department, is reproduced from the Appendix of petitioner-appellants to the Court of Appeals, and annexed hereto in a separate bound volume as Exhibit B. Appellants respectfully request this Court to take judicial notice of two portions of the record on appeal from the Satmar case as reproduced in the annexed Exhibits B and C. The Congregation Yetev Lev D’Satmar By-laws establish an ecclesiastical hierarchy and provide clear procedures for internal dispute resolution. The Satmar by-laws vest broad control over the corporation’s secular affairs in its board of trustees, specifically providing its board with “the right to settle all matters of the Congregation.” The Satmar By-laws additionally create the position of grand rabbi, 22 providing that Rabbi Joel Teitelbaum is the “only authority in all spiritual matters. No Rabbi, ritual slaughterer or teacher can be chosen without his consent. His decision is binding on every member.” Please see again the annexed Exhibit B. Article 10 of the Satmar by-laws specifically provides for the expulsion of members, and establishes a procedure if a complaint is brought against a member, by which a committee of three board members “must research and investigate if the complaint is valid.” Article 10(c) of the Satmar By-laws further provides that a member must be expelled in five situations, four of which are based upon religious grounds, such as declining to submit to a rabbinical court or abide by its verdict, intentionally transgressing the Ten Commandments, and intentionally desecrating the Sabbath. The Satmar congregation also has its own internal judicatories in the form of rabbinical courts named Beth Dins, which issued ecclesiastical rulings on the very matters underpinning the litigation in that action. Please see the annexed Exhibit C, Satmar Beth Din “Judges Announcement” with translation. While it is not readily apparent without examining the Satmar by-laws in detail, the Satmar congregation is far less of an independent congregational church than the CBA. The Satmar congregation has a well-defined ecclesiastical hierarchy, a well-developed body of rules, detailed procedures for internal dispute resolution, including the removal of members, and an active judicatory. In sharp contrast, the CBA has none of the above. The CBA By-laws are entirely silent regarding the removal or excommunication of clergy and members, although as mentioned, the by-laws do provide CBA directors facing removal with due process rights such as the right to have counsel present at a hearing on the issue of their removal. The criteria for membership in the CBA are also very different from that in the Satmar congregation. Article Three of the CBA by-laws provides only the following criteria for membership: “Membership in the organization shall be open to all who are of the Buddhist faith and have been admitted as disciples.” (R. 95). There is no requirement in the CBA by-laws that its members adhere to an ongoing pattern of behavior. CBA members are not required to follow the ways of the Buddha, the Dharma, the Sangha, or even Mew Fung Chen. The CBA By-laws do not contain the words “grand master” or create a hierarchy of any kind among the clergy, unlike the Satmar By-laws. And contrary 23 to the Appellate Division majority’s opinion, it was not undisputed in the lower Court that respondent Mew Fung Chen always made the determination of who would be accepted into membership in the CBA. The lower court was presented with multiple sworn statements testifying that the clergy of each of the CBA’s two temples managed the affairs of its respective temple completely autonomously, only consulting each other when major expenditures or decisions of universal import were involved. (R. 51, 133, SR 15-16, 98). The majority ignored the same. The majority also ignored abundant evidence of a long pattern of wrong- doing on the part of the respondents, including acts of violence and secret meetings. Ming Yee claimed that Mew Fung Chen unilaterally appointed two new board members for the CBA in January 2012, after there had undisputedly been no election of trustees since 1963. Yet the majority did little more than mention respondents’ bad behavior dismissively in passing. By ignoring the respondents’ long pattern of bad behavior, including the blatant irregularities in the appointing of board members, and the defects in noticing the respondents’ May 26, 2011 trustee election, the Appellate Division decision departs from the precedents of this Court and other courts of this State, and creates a split in opinion between the Appellate Division Departments. Most departments hold that elections of trustees of religious corporations that are not conducted pursuant to proper bylaws or statutory requirements are invalid, and those persons purportedly elected acquire no legal right to such offices, and when the results of such an election are not free from suspicion, or are clouded in doubt, and justice demands, courts may order a new election. (See Matter of Kaminsky, 251 A.D. 132, [4th Dept. 1937], affd. 277 N.Y. 524 [1938]; Matter of Ruthenian Greek Catholic Church of St. George, 224 A.D. 113 [1st Dept. 1928], affd. 249 N.Y. 607 [1928]), and their performance of functions of the offices is a nullity (See Rector, Churchwardens & Vestrymen of Church of Holy Trinity, Brooklyn, N.Y. v Manufacturers Trust Co., 18 Misc. 2d 761 [Sup. Ct., Kings Co. 1959], affd. 9 A.D.2d 932 [1959]; see also Shevlin v National Conservation Corp., 199 A.D.2d 995 [4th Dept. 1993]; cf. Morris v Scribner, 69 N.Y.2d 418 [1987]; Kroth v Congregation Chebra Ukadisha Bnai Israel Mikalwarie, 105 Misc. 2d 904 [Sup. Ct., NY Co. 1980]). 24 CONCLUSION If allowed to remain as precedent, the majority’s decision will produce bizarre unintended results. Any unscrupulous clergy member will be able to rest all of the temporalities of an independent church away from its congregants, by merely excommunicating the entire membership en masse and creating a church of one. Pursuant to the precedent set by this decision, such unscrupulous behavior would foreclose judicial review. The well-reasoned dissenting opinion of Appellate Division Presiding Justice Peter Tom recognized the likelihood of just such a result: Reduced to its essentials, respondents' argument confronts us with the question of whether a single Zen monk, acting without legal corporate authority, can exercise authoritarian control over the property of a religious corporation through the expedient of expelling any and all of his opponents, thereby ruling as a majority of one. Thus, to the sound of one hand clapping, respondents would have this Court add the conundrum of the singular plurality. To accept their position that Master Chen's ostensibly ecclesiastical decision subjects corporate property to his exclusive personal control would relegate the Religious Corporations Law to the status of an easily obviated artifact (see Westminster Presbyt. Church, 211 NY at 224 ["A deed of land to a religious corporation is not worth much if it can thus readily be nullified"]), a result that hardly promotes legislative intent (see Thoreson v Penthouse Intl., 179 AD2d 29, 33 [1st Dept 1992], affd 80 NY2d 490 [1992]; McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a]). To adopt respondents' view would reward Master Chen for ignoring provisions of the Religious Corporations Law and the association's bylaws for 43 years and treating the CBA as his alter ego. 124 A.D.3d at 32. The CBA Fa Wang Temple has never ceased holding divine worship services. The Temple continues to thrive as the spiritual home to hundreds of long-time CBA congregants in the Manhattan Buddhist community. For that reason, and because the issues presented herein are likely to recur in future cases, this action presents important issues of public interest. Because the Appellate Division decision states that the Fa Wang Temple is closed, the affidavit of Master Ming Tung testifying otherwise is annexed hereto as Exhibit D. The appellants have additionally submitted the membership attendance and financial contributions records for 2014, as Exhibit E for the same purpose, along with an English language translation of the same as Exhibit F, and the Pinyin English names of 278 members that attended divine worship services and made stated financial contributions during at least seven separate months during 2014. Once again, these exhibits are only submitted for the limited purpose of showing that the Fa Wang Temple is very much alive. For all of the reasons stated herein, the Appellants respectfully urge this Court to reverse the November 13, 2014 Appellate Division decision, and to reinstate this case and remand it to the trial court for further proceedings. Respectfully Submitted, aee~aJ'u:_ I! k!di'r Alexander P. Kelly, Esq. 25