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

Brief

N.Y.February 16, 2016

To be Argued by: JOSEPH MILANO New York County Clerk's Index No. 110149/11 New Jnrk ~upreme O!nurt App£11ate lliuisinn -ltftrst llepartm£nt ----+tt..,_ __ _ 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. REPLY BRIEF FOR RESPONDENTS-APPELLANTS Printed on Recycled Paper 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 BARNETI MATALON & SCHOENFELD 100 Jericho Quadrangle, Suite 233 Jericho, New York 11753 (516) 931-8100 jmilano@cbmslaw .com Attorneys for Respondents-Appellants TABLE OF CONTENTS Page PRELIMINARY STATEMENT IN REPLY............................................... 1 POINT I RESPONDENTS FAIL TO OVERCOME THE FIRST AMENDMENT'S GUARANTEE OF THE OVERRIDING RIGHT OF THE CHINA BUDDHIST ASSOCIATION TO RELY ON THE JUDGMENT OF ITS HIGHEST CHURCH AUTHORITY IN ECCLESIASTICAL MATTERS INVOLVING HIS CONGREGATION................................................................................... 3 A. THE LONG LINE OF FEDERAL AND NEW YORK CASE LAW REQUIRES REVERSAL OF THE DECISION/ORDER UNDER APPEAL BECAUSE THE COURT BELOW IMPERMISSIBLY INTRUDED UPON THE ECCLESIASTIC DECISION-MAKING AUTHORITY OF APPELLANT................ 3 B. THE RELIGIOUS CORPORATIONS LAW REFLECTS THE LEGISLATURE'S INTENT NOT TO REGULATE MATTERS OF RELIGION................................................................................... 8 POINT II RESPONDENTS' ADDITIONAL ARGUMENTS AND SO MUCH OF THEIR BRIEF AND SUPPLEMENTAL RECORD AS DISCUSSES EVENTS AND PROCEEDINGS OCCURRING AFTER ISSUANCE OF THE DECISION/ORDER ON APPEAL SHOULD BE STRICKEN......................................................................................... 13 CONCLUSION............................................................................................ 14 TABLE OF AUTHORITIES Cases: Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413 Page(s) (3d Cir. 2012)....................................................................................... 6, 7n.1, 10 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S._, 132 S. Ct. 694 (2012) .......................................................... 3, 11 Kedroffv. St. Nicholas Cathedral, 344 U.S. 94,73 S. Ct. 143 (1952)........ 1, 3 Lightman v. Flaum, 97 N.Y.2d 128 (2001).................................................. 12 Matter of Congregation Yetev Lev D'Satmar v. Kahana, 9 N.Y.3d 282 (2007)................................................................. 1, 2, 4, 5, 6, 9, 10 Park Slope Jewish Ctr. v. Stern, 128 A.D.2d 847 (2d Dept. 1987), appeal dismissed, 70 N.Y.2d 746 (1987) ................................................ 1, 2 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372 (1976) ................................................................................ 1, 3, 10, 11 Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7 Cir. 2005) ............ 1 Watson v. Jones, 80 U.S. 679,20 L. Ed. 666 (1872)................................... 3 Watt Samakki Dhammikaram, Inc. v. Thenjitto, 166 Misc. 2d 16, 631 N.Y.S. 229 (Sup. Ct., Kings Co. 1995) ............................................. 7, 8 Statutes: Civil Practice Law and Rules §5512 (a)...................................................... 13 RCL §26 ....................................................................................................... 8 ii PRELIMINARY STATEMENT IN REPLY A suit to restore a clergy member who has been removed on the ground that he is a heretic, or to reinstate a parishioner who has been excommunicated, has never been justiciable in the federal courts. See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372 (1976); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7 Cir. 2005). Even if the suit does not involve an issue of religious doctrine, but concerns the governance structure of the church, federal courts will not assume jurisdiction if doing so would interfere with the church's management. Kedroffv. St. Nicholas Cathedral, 344 U.S. 94 (1952). The courts of the State of New York have necessarily recognized the same principles and have, on constitutional and jurisdictional grounds, refrained from intruding into ecclesiastical matters. Consistent with those principles and in a case similar to the one at bar, the Court of Appeals has held that the First Amendment forbids ci vii courts from interfering in or determining religious disputes or from determining civil disputes involving religious parties or institutions where the interpretation of ecclesiastical doctrine is required. Matter of Congregation Yetev Lev D'Satmar v. Kahana, 9 N.Y.3d 282 (2007); Park Slope Jewish Ctr. v Stem, 128 A.D.2d 847 (2d Dept. 1987), appeal dismissed, 70 N.Y.2d 746 (1987). Here, petitioners-respondents ("respondents") called on the court below to make determinations as to the membership status of individual congregants, where the Congregation's bylaws condition membership on religious criteria, including whether a person is of the Buddhist faith and has been admitted as a disciple of the Grand Master. Respondents were excommunicated and expelled from membership of the Congregation and sought judicial review of those determinations, a review which inevitably calls into question religious issues. It is well settled that membership issues such as those that are at the core of this case are ecclesiastical matters beyond the jurisdiction of civil courts. Matter of Congregation Yetev Lev D'Satmar v. Kahana, 9 N.Y.3d 282, 287-288 (2007); Park Slope Jewish Ctr. v Stem, 128 AD2d 847 (2d Dept. 1987), appeal dismissed, 10 N.Y.2d 746 (1987). The dispute in question is non justiciable. Respondents' Supplemental Record, containing matter unrelated to the Order/Decision appealed from, and their repeated use of the phrase "neutral principles of law", do not address the central issue in this appeal-- the error by the court below in violating the First Amendment by impermissibly analyzing the excommunication of disciples of the Grand Master Mew Fung Chen of China Buddhist Association and the resulting cancellation of their membership in China Buddhist Association; then, under the guise of neutral principles of law, invalidating the election held by the China Buddhist Association in May, 2011. There are no neutral principles of law that could assist a court in evaluating the Grand Master's ecclesiastical decree excommunicating disciples and disqualifying members, based on his religious decision, as the highest church 2 authority, due to their abandonment of the basic teachings and tenets of Buddhism as he and the China Buddhist Association have held and promoted as articles of faith. Respondents' introduction of coptous extraneous material about other lawsuits occurring before and during the pendency of the instant litigation should be ignored by this Court, if not stricken outright. Such extraneous material is irrelevant to the issue on appeal. POINT I RESPONDENTS FAIL TO OVERCOME THE FIRST AMENDMENT'S GUARANTEE OF THE OVERRIDING RIGHT OF THE CHINA BUDDHIST ASSOCIATION TO RELY ON THE JUDGMENT OF ITS HIGHEST CHURCH AUTHORITY IN ECCLESIASTICAL MATTERS INVOLVING HIS CONGREGATION. A. THE LONG LINE OF FEDERAL AND NEW YORK CASE LAW REQUIRES REVERSAL OF THE DECISION/ORDER UNDER APPEAL BECAUSE THE COURT BELOW IMPERMISSIBLY INTRUDED UPON THE ECCLESIASTIC DECISION-MAKING AUTHORITY OF APPELLANT. The seminal rulings in Watson v. Jones, 80 U.S. 679, 20 L. Ed. 666 (1872); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S. Ct. 143 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372 (1976); and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. _, 132 S. Ct. 694 (2012), confirm the primacy of a church organization in being 3 free from state interference in its internal church governance, and matters of faith and doctrine. Following two centuries of jurisprudence recognizing the right of religious institutions to govern themselves and prohibiting civil courts from inquiring into internal church governance where issues of ecclesiastic doctrine are involved, the New York Court of Appeals declined jurisdiction in Matter of Congregation Yetev Lev D'Satmar v. Kahana, 9 N.Y.3d 282, 288 (2007), a case bearing striking similarities to the instant proceeding and, as set forth in our principal brief, controlling here. Respondents' attempts to distinguish and diminish the importance of Matter of Congregation Yetev Lev D'Satmar v. Kahana are to no avail. In Matter of Congregation Yetev Lev D'Satmar v. Kahana, as here, the central issue was "whether resolution of an election controversy between two rival factions of a religious congregation can be achieved through the application of neutral principles of law without judicial intrusion into matters of religious doctrine." 9 N.Y.3d at 284. In that case, the Court of Appeals, like the trial court and Appellate Division, concluded that it cannot. The same is true here. The material facts of and legal issues raised in the two cases are the same. In Matter of Congregation Yetev Lev D 'Satmar v. Kahana, the trial court declined to make a determination as to the validity of an election (of Berl 4 Friedman) within a religious congregation, holding that it could not decide the election dispute through the application of neutral principles of law because the resolution of the issues would require it to apply ecclesiastical doctrine in violation of the First Amendment; the Second Department agreed that "resolution of the parties' dispute would necessarily involve impermissible inquiries into religious doctrine and the Congregation's membership requirements" (31 A.D.3d 541, 543 [2d Dept 2006]) and the Court of Appeals affirmed, declaring that this membership dispute could not be determined using neutral principles of law. As here, the head of the congregation, the Grand Rabbi had denounced Friedman and another member of his faction for rebelling against the authority of the Grand Rabbi and the Grand Rabbi's son, resulting in their expulsion from the Congregation. Friedman denied being removed from the Congregation. As here, the Congregation's bylaws condition membership on religious criteria, including whether a congregant follows the "ways of the Torah." The Court of Appeals recognized that "the dispute between the two factions involves issues beyond mere notice and quorum challenges, such as whether Berl Friedman had been removed or expelled from the Congregation", 9 N.Y.3d at 288, and found that because the Congregation's bylaws condition membership on religious criteria, including whether a congregant follows the "ways of the Torah," a determination whether "Friedman was expelled from membership of the 5 Congregation inevitably calls into question religious issues beyond any membership criteria found in the Congregation's bylaws." 9 N.Y.3d at 288. It declared that "Friedman's religious standing within the Congregation is essential to resolution of this election dispute" and held that "[ w ]ith 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." /d. At 288. That decision is determinative here, where respondents' religious standing within the Congregation is essential to the resolution of this dispute. In another recent case involving a schism within a church and excommunication, where "the core dispute" was whether petitioner was still a church member, the Third Circuit found that the "non-entanglement principle" embedded in the First Amendment shielded the excommunication decision from civil court review. Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413, 415 (3d Cir. 2012). In Matter of Congregation Yetev Lev D'Satmar v. Kahana, the by-laws of the religious organization required that a member "follow the ways of the Torah." Membership in China Buddhist Association is also conditioned upon religious criteria. The By-Laws of the China Buddhist Association mandate in Article Three, that "Membership in this organization is free to all who are of the Buddhist 6 faith and have been admitted as disciples." (emphasis added)1• R.95. The court below impermissibly made its Decision/Order by analyzing the procedure and substance of the Grand Master's excommunication of disciples and inherent disqualification of members, reaching its own conclusion abrogating this critical ecclesiastic judgment by the China Buddhist Association's highest authority, and then, ignoring two centuries of American jurisprudence, ordering new elections to involve everyone and anyone who wished to call himself and herself a "member." The court was prohibited from addressing these doctrinal issues. Its incursion into ecclesiastic territory was error requiring reversal by this Court. Moreover, respondents' reliance on Watt Samakki Dhammikaram, Inc. v. Thenjitto, 166 Misc. 2d 16,631 N.Y.S. 229 (Sup. Ct., Kings Co. 1995) on the issue of excommunication is misplaced. That case did not deal with excommunication or any other ecclesiastic decisions. Rather, in a strictly secular corporate employment dispute, the court found that the board of directors of plaintiff not-for- profit corporation, was "without authority to terminate defendant's [monk] In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413, 415 (3d Cir. 2012), the church's bylaws predicated membership on leading "a life being consistent with the doctrine of The Church". The Third Circuit held that requirement "makes membership in the Church an ecclesiastical matter. ... We know of no neutral principle of law that could assist in evaluating whether a member lives his or her life in a manner consistent with church doctrine. 684 F.2d 419. In the case at bar, there is no neutral principle of law that could assist a court in evaluating whether a person is "of the Buddhist faith." 7 employment or demand his resignation in the absence of a corporate resolution empowering them to do so." ld. at 231. Indeed, the court ordered the defendant monk "to relinquish possession and control of all corporate records, books, etc." and to account "for all corporate and religious monies received and disbursed." Id. at 232. That decision has no bearing on the issue on appeal here. B. THE RELIGIOUS CORPORATIONS LAW REFLECTS THE LEGISLATURE'S INTENT NOT TO REGULATE MATTERS OF RELIGION. The Religious Corporations Law ("RCL") sets forth the legislature's clear intent and recognition that ecclesiastic matters are not the domain of regulation by statute, and therefore not to be regulated by civil courts. RCL §26, entitled "Worship," states: No provision of this chapter authorizes the fixing or changing of the times, nature or order of public or social or other worship of any church, in any other manner or by any other authority than in the manner and by the authority provided in the laws, regulations, practice, discipline, rules and usages of the religious denomination or ecclesiastical governing body, if any, with which the church corporation is connected. This statutory language demonstrates the legislature's intent that no aspect of worship, i.e. religious life and activity, of a church shall be a matter for civil regulation, and that all aspects of worship are the exclusive domain of the "religious denomination or ecclesiastical governing body." 8 Here, Grand Master Mew Fung Chen, the founding member and undisputed religious leader of China Buddhist Association for 50 years (like the Grand Rabbi in Matter of Congregation Yetev Lev D'Satmar, Inc. v. Kahana) stands as the ecclesiastical governing body of the China Buddhist Association. He is the founding cleric of the organization, and is the highest authority on religious matters in the church corporation. As indicated in appellants' principal brief, at pages 8- 10, membership in the China Buddhist Association is predicated on Grand Master Chen's decision to accept an applicant as his disciple. The membership certificates state, on their face, that the named person has accepted Grand Master Chen as his or her teacher for the teaching of the Three Precious Ones, which are the cornerstone of Buddhist theology and philosophy. R. 388-407. Hence, membership in China Buddhist Association is predicated upon being a disciple of Grand Master Chen, without whose acceptance no discipleship, and therefore no membership, is possible. Respondents inaccurately claim (brief at page 33) that the court below "never reached the issue of excommunication in its decision/order." In fact, the court below stated: .. .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 9 May 2011 membership meeting for their status as leaders of the temple. However, according to the affidavit of Rev. Ming Yee, 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 on their right to attend and be heard. I note further, that no particular lapse of faith to justify the excommunication was given. (emphasis added) R. 8. This was improper jurisdictionally, incorrect factually and an impermissible attempt to engraft a secular due process requirement into a religious matter. The authority to excommunicate members falls squarely within the realm of matters insulated from civil court review. There are no neutral principles of law upon which a civil court may review that ecclesiastic determination; civil courts have no jurisdiction in matters which concern "theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them" (emphasis added). Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713-714 (1976). See, also, Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413, 415 (3d Cir. 2012); Matter of Congregation Yetev Lev D'Satmar v. Kahana, 9 N.Y.3d 282 (2007). 10 Although the court overlooked it, the reasons for the excommunication (the "lapses of faith") are listed in the ecclesiastic decree of Grand Master. R. 121. Although the court may have been unfamiliar with the seriousness of these particular lapses to those of the Buddhist faith, a court may not base a decision on "popular familiarity with a religious doctrine," Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 312 S. Ct. 694, 716 (2012); indeed, that is a reason why civil courts must defer to those versed in the law and tradition of the religion. Moreover, as the Supreme Court has held, "it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith. . . . Constitutional concepts of due process, involving secular notions of 'fundamental fairness' or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 714-715, 96 S. Ct. 2372 (1976). Not only did the court below impermissibly reach the issue of excommunication when it incorrectly stated that appellants had not stated specific "lapses of faith to justify the excommunication," but also it impermissibly intruded where it should not by specifically finding the excommunication to be ineffective because no such provision for excommunication is provided in the By-Laws of the China Buddhist Association. Excommunication is an aspect of worship as recognized by the New 11 York legislature, and is forbidden territory for the legislature to regulate. Accordingly, the judiciary is likewise forbidden from entering such territory to scrutinize and judge the efficacy of such worship. What the court below referred to as a mere "peek behind the curtain", R. 8., was, in reality, an improper incursion into sacred religious territory. The necessity for the judicial forbearance in this area mandated by the First Amendment (not even a "peek") was acknowledged by the Court of Appeals in Lightman v. Flaum, 97 N.Y.2d 128 (2001), where a rabbi relied on religious law and doctrine for disclosing what plaintiff alleged was confidential information. The Court of Appeals would not allow an examination of these religious principles, stating: the prospect of conducting a trial to determine whether a cleric's disclosure is in accord with religious tenets has troubling constitutional implications. To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated. 97 N.Y.2d at 137 12 POINT II RESPONDENTS' ADDITIONAL ARGUMENTS AND SO MUCH OF THEIR BRIEF AND SUPPLEMENTAL RECORD AS DISCUSSES EVENTS AND PROCEEDINGS OCCURRING AFTER ISSUANCE OF THE DECISION/ORDER ON APPEAL SHOULD BE STRICKEN. It is hornbook law that issues on appeal are limited to those matters contained in the order or judgment being appealed. Cf. Civil Practice Law and Rules §5512 (a). Similarly, it is hornbook law that the record on appeal is limited to those pleadings and other documents filed with the court below in the matter that have resulted in appealable paper. All matters occurring after the filing of the Decision/Order are outside the record and should be ignored. The Court should decline to consider any and all such allegations of fact and arguments related thereto. Similarly, respondents' claim that the May 26, 2011 election was never "actually held", respondents' brief, page 22, must be dismissed, not merely because it was raised for the first time in their brief, but because, as discussed in the court below, they well knew that the meeting had been held, and that appellants' counsel had been present and the entire election videotaped. 13 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: August 14, 2013 Respectfully submitted, 14 TODD L. PLATEK 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 Printing Specifications Statement I, Joseph Milano, attorney for the Respondents-Appellants, hereby certify that this brief is in compliance with § 600.10(d)(1)(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 § 600.10(d)(1)(i). The brief contains 2,998 words counted by the word-processing program. Dated: 8/14/2013