FILED: NEW YORK COUNTY CLERK 08/30/ :59 PM INDEX NO /2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 08/30/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X In the Matter of the Application of METROPOLITAN NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA, individually and as administrator of the property of Index No.: /2017 The Evangelical Lutheran Church of St. Peter's-In-The-Bronx, also known as St. Peter's Evangelical Lutheran Church, Petitioner, For leave to transfer certain real property of pursuant to Section 12 of the Religious Corporations Law, THE EVANGELICAL LUTHERAN CHURCH OF ST. PETER'S- IN-THE-BRONX, also known as ST. PETER'S EVANGELICAL LUTHERAN CHURCH, -against- CATHERINE EMANUEL, DENISE MINGO, RACHEL HARPER, ASHANTI HARPER, BARBARA CURTIS, SHIRLENE LITTLE, THELMA SCOTT, individually and as officers and members of the Congregation Council of The Evangelical Lutheran Church of St. Peter's-In-The-Bronx, also known as St. Peter's Evangelical Lutheran Church, ROBERT WALTON and JOHN DOE 1 through 5, and JANE DOE 1 through 5, Respondents. X PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT Capell Barnett Matalon & Schoenfeld LLP Attorneys for Petitioner Metropolitan New York Synod of the Evangelical Lutheran Church in America 225 West 35 Street, 16 Floor New York, New York (212) jmilano@cbmslaw.com 1 of 23

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X In the Matter of the Application of METROPOLITAN NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA, individually and as administrator of the property of Index No.: /2017 The Evangelical Lutheran Church of St. Peter's-In-The-Bronx, also known as St. Peter's Evangelical Lutheran Church, Petitioner, For leave to transfer certain real property of pursuant to Section 12 of the Religious Corporations Law, THE EVANGELICAL LUTHERAN CHURCH OF ST. PETER'S- IN-THE-BRONX, also known as ST. PETER'S EVANGELICAL LUTHERAN CHURCH, -against- CATHERINE EMANUEL, DENISE MINGO, RACHEL HARPER, ASHANTI HARPER, BARBARA CURTIS, SHIRLENE LITTLE, THELMA SCOTT, individually and as officers and members of the Congregation Council of The Evangelical Lutheran Church of St. Peter's-In-The-Bronx, also known as St. Peter's Evangelical Lutheran Church, ROBERT WALTON and JOHN DOE 1 through 5, and JANE DOE 1 through 5, Respondents. ---X PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT INTRODUCTION Petitioner Metropolitan New York Synod of the Evangelical Lutheran Church in America (the "Synod"), engaged in a nearly ten year ecclesiastical process to allow it to take necessary measures to restore the pastoral care, governance and management at 2 of 23

3 Evangelica! Lutheran Church of St. Peter's-In-The-Bronx, also known as St. Peter's Evangelical Lutheran Church ("St. Peter's"), an interdependeñt member congregation of the Synod, which did not have a pastor and was lacking in its ability to perform its mission and ministry, and to protect its diminishing real property from further waste by the leaders of the Coñÿregation, who had allowed its three properties to be taken in rem by the City of New York. As part of this ecclesiastic process, the Synod Council, the board of directors of the Synod, sought to take charge and control of the property of the congregation pursuant to their organic documents. Under those documents, the congregation of St. Peter's had the right to appeal the Synod Council's decision to the Synod Assembly, the highest authority of the Synod, but it did not do so. Rather, the remnant of that congregation stayed in a dangerously deteriorating church building and forced the Synod to resort to this civil court to confirm that title to the property of St. Peter's had passed to the Synod by operation of ecclesial and civil laws. The Synod petitioned this Court to issue an order confirming passage of title to the property to the Synod. The officers and members did not interpose any answer to that petition. Rather, they submitted an affirmation from their attorney and an affidavit from their former president seeking to have this Court review the ecclesiastic decisions of the Synod Council and claimed, incorrectly, that they had terminated their relationship with the Synod and were not bound by its doctrine, polity or decisions. When St. Peter's declined to appeal to the Synod Assembly, the highest adjudicatory body of the Synod, the decision of the Synod Council became final and determinative of the matter and is not reviewable in this civil court. St. Peter's never terminated its relationship with the Synod and there is no defense to the transfer of title from St. Peter's to the Synod. 2 3 of 23

4 STATEMENT The United States Supreme Court has established a firm policy protecting First Amendment rights and prohibiting civil inquiry into ecclesiastica! decisions of a church. The First Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the church organization. Here, action was taken by petitioner's Synod Council, the appropriate ecclesiastical body, on an issue of internal church organization, relationship and structure. St. Peter's declined to exercise their right to appeal to the Synod Assembly, petitioner's highest adjudicatory body. Respondents are engaging in a veiled effort to have this Court impermissibly review the determinations of the Synod Council and substitute its own judgment for that of the ruling church body and thereby repudiate the First Amendment principles that have been ingrained in this nation's jurisprudence since its founding. FACTS The facts of this matter are set forth in the affidavits of the Reverend Robert Schoepflin, Secretary of the Synod (the "Schoepflin affidavit"), Susan Brandt, Director for Finance/Administration of the Synod (the "Brandt affidavit"), the Reverend Wm. Chris Boerger, Secretary of the Evangelical Church in America (the "Boerger affidavit") and Joseph Milano (the "Milano affidavit"), submitted with this memorandum, and in the verified petition, to which no formal answer has been interposed. For more than 100 years, Evangelical Lutheran Church of St. Peter's-In-The- Bronx, also known as St. Peter's Evangelical Lutherañ Church ("St. Peter's") has provided Lutheran worship and Christian education to the people of the Mott Haven ñeighborhood and surrounding communities in the Bronx. In the Twentieth Century, St. Peter's owned 3 4 of 23

5 three buildings in which it conducted its worship and mission services: a Lutheran elementary school and a parsonage for its pastor and the pastor's family: and the church building where worship was conducted, located at 435 East 140 Street in the Bronx (the "church building"). By mid-century, the Congregation began a slow and steady decline. In 1980, the school had problems with the Internal Revenue Service and eventually closed; all the buildings were in disrepair. In 1996, Brooke Astor visited St. Peter's at the request of the Association of Community Organizaticñs for Reform Now (more commonly known as "ACORN"). This visit resulted in gifts of $63,000 from the Astor Foundation and the Rhodebeck Charitable Trust to St. Peter's for renovations to the church building. Petition, Thereafter, the decline at St. Peter's contiñued. Membership was decreasing as was the Congregation's ability to maintain their properties. AII three of the properties were taken in rem by the City of New York. With financial support provided by the Synod of nearly $170,000, the tax foreclosures were vacated on 435 East 140 Street (the church building) and 427 East 140 Street (the rectory) and title returned to St. Peter's (the church building and the rectory, collectively, the "premises"). Title to the third building, 431 East 140 Street, remains in the City of New York Department of Housing Preservation and Development. Petition, Although the former president of St. Peter's and her attorney have attempted to hide what happened there over the last 20 years, the histci-y of the sad descent is documented in the records of the Bronx County Clerk and the New York City Department of Finance. It is a 20 year history of lay "leadership", in the absence of Lutheran clergy, that abandcñed the Congregation's own mandated principles of governance, making 4 5 of 23

6 them incapable of fulfilling the purposes for which St. Peter's was organized, and requiring the Synod to protect the Congregation's remaining property from further waste. Govemance at St. Peter's. St. Peter's is a member of the Evangelical Lutheran Church in America (the "Church") and its local expression, the Metropolitan New York Synod. The Synod Council is the board of directors of the Synod. Synod Constitution, The constitutions and organic documents of each of those three church bodies all provide that if it is the opinion of the Synod Council that the membership of a congregation has become so scattered or so diminished in numbers as to make it impractical for that congregation to fulfill the purposes for which it was organized, the Synod Council may take charge and control of the property of the congregation to hold, manage and convey the property on behalf of the Synod. The congregation shall have the right to appeal the decision to the Synod Assembly. Synod Constitution (A copy of the Constitution of the Synod is annexed as Exhibit "A" to the Schoepflin affidavit.) In ecclesiastic proceedings on April 24, 2010, the Synod Council adopted a resolution to impose synodical administration upon St. Peter's pursuant to secticñ of the Synod's Constitution to take charge and control of the property of St. Peter's, including the premises located at 435 East 140 Street (the church building) and 427 East 140 Street (the rectory), County of the Bronx, City and State of New York, to protect it from further waste and deterioration and to hold, manage and convey the property on behalf of the Synod. Schoepflin affidavit, 10. In making its determination to invoke section of the Synod Constitution ("secticñ 13.24") at St. Peter's, the Synod Council found St. Peter's to be lacking in its 5 6 of 23

7 ability to perform its mission and ministry. The Synod Council found that evangelical outreach and pastoral leadership was lacking at St. Peter's. The Synod Council further determined that the property of St. Peter's was experiencing waste and deterioration due to neglect by the Congregation's officers and Council. Schoepflin affidavit, 11. The Synod Council found, fundamentally, that the Congregation of St. Peter's, as it was being administered, was not practicing in fellowship with congregations of the Church and, more particularly, with those in the Synod. Pursuant to the Constitutions of the Synod and St. Peter's, the Congregation of St. Peter's had the right to appeal to the Synod Assembly the decision of the Synod Council. By letter dated September 27, 2010, the Vice President of the Synod formally notified St. Peter's Congregation Council of their right to appeal the decision of the Synod Council to the Synod Assembly. The Congregation of St. Peter's did not appeal the decision of the Synod Council to the Synod Assembly. Schoepflin affidavit, 12, 13. The ecclesiastic determination of the Synod Council is final and determinative and may not be reviewed by a civil court. Thereafter, from April 2010 through April 2015, the Synod and its representatives reviewed the property, documents and correspondence and engaged in a series of meetings and conversations with the few rerñaiñing members of the Congregation of St. Peter's and its Congregation Council (the board of directors of St. Peter's), to help discern the root causes of the problems at St. Peter's, in furtherance of the rehabliitation and protectioñ of the Congregation and its property. However, the Congregation of St. Peter's and its Congregation Council resisted and the deterioration of the property and decline of the Congregation continued. Schoepflin affidavit, of 23

8 For many years now, the Congregation has been so scattered and diminished as to be unable to pay for a pastor. Over the last several years, services for the remaining handful of members of the Congregation have been conducted by someone who not only is not on the clergy roster of the Church but is not even a Lutheran, in violation of the Constitutions of the Church, Synod and St. Peter's. The Congregation had diverged from the theological witness of the Evangelical Lutheran Church in America. Parts of the church building in which religious services are conducted at St. Peter's are crumbling and the building is unsafe for use. The Congregation has failed to insure the property and failed to provide financial statements to the Synod. Petition, 37. In ecclesiastic proceedings conducted on April 25, 2015, the Synod Council adopted a resolution to close St. Peter's and to provide pastoral care to the remnant of the Congregation and shepherding into other local Lutheran congregations. Thereafter, the Rev. Lamont Wells, Assistant to the Bishop and the Synod's director for evangelical missicñ, stewardship ministry and education, met with the Congregation of St. Peter's to inform them of the decision of the Synod Council to close St. Peter's and to begin the pastoral process of transition. By letter dated June 25, 2015, the Vice President of the Synod formally notified the Congregation of St. Peter's and its Congregati0ñ Council of the decision of the Synod Council to close St. Peter's and provide pastoral care to the remaining members. Schoepflin affidavit, The Congregation of St. Peter's did not appeal to the Synod Assembly the decision of the Synod Council to close St. Peter's. /d. at 19. The ecclesiastic determination of the Synod Council is final and determinative and may not be reviewed by a civil court. The property of St. Peter's passes by operation of Church (Synod Constitution 13.24) 7 8 of 23

9 and civil (RCL 17-c) laws to the Synod. However, the Congregation and Congregation Council of St. Peter's have failed and refused to deliver its real and personal property to the Synod as required by their Constitutions and the Religious Corporations Law and the Synod brings this petition for approval to transfer title from St. Peter's to the Synod pursuant to Section 12 of the Religious Corporations Law, Section 511 of the Not-for- Profit Corporation Law, and section 17-c of the Religious Corporations Law. Petitioiler, the Metropolitan New York Synod of the EvañÿelicâI Lutheran Church in America, is a corporation organized and existing under and by virtue of the Religious Corporations Law of the State of New York and is the local expression of the larger church body, the Evangelical Lutheran Church in America. The Evangelical Lutheran Church in America (the "Church"), formed from three separate and well-established American church bodies, the American Lutheran Church, the Association of Evangelical Lutheran Churches and the Lutheran Church in America, is a national church headquartered in Chicago, liliñois, with almost 4 million baptized members, nearly 10,000 congregations and more than 17,000 ordained clergy. As part of its religious and mission services, the Church has eight seminaries and is affiliated with 28 collegeh and universities, including Wagner College on Staten Island and Muhlenberg College and Gettysburg College in Pennsylvania. It is divided into 65 synods in the United States, which coordiñate the work of the local congregations. Each synod in assembly elects a bishop. The bishop, as the synod's pastor, oversees and administers the work of the synod, provides pastoral care and leadership for the synod, its congregations and its ordained ministers and is responsible to ensure that the constitutions and by laws of the Church and synod are duly observed, and that 8 9 of 23

10 the actions of the synod and its congregations are in conformity with those constitutions. The Synod bears primary responsibility for the oversight of the life and mission of its nearly 200 member congregations as well as additional affiliated mission and ministry organizations all located within New York City, Long Island and Westchester, Putnam, Dutchess, Rockland, Orange, Sullivan and Ulster counties, of which St. Peter's is included as a congregation. St. Peter's Lutheran Church, a New York religious corporation located in Bronx County, City and State of New York, is an interdependent member congregation of the Church and Synod. The Constitutions of the Church and the Synod recognize that the Church, the Synod and their congregations are interdependent units that share responsibly in the religious and mission services of the Church. The constitutions of the Church and the Synod require that St. Peter's adopt a constitution that is in conformity with those of the Church and Synod. Section of the constitution of the Synod provides: If any congregation of this synod has disbanded, or if the members of the congregation agree that it is no longer possible for it to function as such, or if it is the opinion of the Synod Council that the membership of a congregation has become so scattered or so diminished in numbers as to make it impractical for such a congregation to fulfill the purposes for which it was organized or that it is necessary for this synod to protect the congregation's property from waste and deterioration, the Synod Council, itself or through trustees appointed by it, may take charge and control of the property of the congregation to hold, manage and convey the same on behalf of this synod. The congregation shall have the right to appeal the decision to the Synod Assembly. The purpose of Synodical administration is not the dissolution of the congregation, but rather the observation and examination of the history of the congregation at that 9 10 of 23

11 location and the determination of the feasibility of a mission station of the Church at that location and the protection of the Congregation's property. Schoepflin affidavit, 50, 51. St. Peter's is an interdependent member congregation of the Church ("rostered member") and a member church of the Synod. As a rostered member of the Church, the Congregation of St. Peter's was required to adopt a constitution which incorporates and refers to the constitutions of the Church and the Synod and provides that all of its provisions shall be in agreement with those constitutions. Constitution of the Church. Chapter 8 of the Constitution of the Church (Exhibit "C") describes the relationship between congregations, synods and the Church as follows: This church shall seek to function as people of God through congregations, synods, and the churchwide organization, all of which shall be interdependent. Each part, while fully the church, recognizes that it is not the whole church and therefore lives in a partnership relationship with the others. * * * In faithful participation in the mission of God in and through this church, congregations, synods, and the churchwide organization-as interdependent expressions of this churchshall be guided by the biblica! and confessional commitments of this church. Each shall recognize that mission efforts must be shaped by both local needs and global awareness, by both individual witness and corporate endeavor, and by both distinctly Lutheran emphases and growing ecumenical cooperation References herein to the nature of the relationship between the three expressions of this church-congregations, synods, and the churchwide organization-as being interdependent or as being in a partnership relationship describe the mutual responsibility of these expressions in God's mission, and the fulfillment of the purposes of this church as described in Chapter 4, and do not imply or describe the creation of of 23

12 partnerships, co-ventures, agencies, or other legal relationships recognized in civil law. Chapter 9 of the Constitution of the Church describes the existence, function and responsibilities of a congregation of the Church as follows: A congregation is a community of baptized persons whose existence depends on the proclamation of the Gospel and the administration of the sacraments and whose purpose is to worship God, to nurture its members, and to reach out in witness and service to the world. To this end it assembles regularly for worship and nurture, organizes and carries out ministry to its people and neighborhood, and cooperates with and supports the wider church to strive for the fulfillment of God's mission in the world. * * * This church shall recognize, receive, and maintain on the roster those congregations which by their practice as well as their governing documents: * * * b. accept this church's Confession of Faith; c. agree to the Statement of Purpose of this church; d. agree to call pastoral leadership from the clergy roster of this church in accordance with the call procedures of this church All congregations of this church shall abide by the provisions of 9.21., 9.62., and The judgment on whether a congregation meets the criteria listed in shall be made by this church through the synod of this church to which the congregation relates. * * * A congregation newly formed by this church and any congregation seeking recognition and recepticñ by this church shall: a. Accept the criteria for recognition and reception as a congregation of this church, fulfill the functions of the congregation, and accept the govemance provisions as provided in Chapter 9 of the ELCA constitution and bylaws of 23

13 b. Adopt governing documents that include fully and without alterations the Preamble, Chapter 1, where applicable, and all required provisions of Chapters 2, 3, 4, 5, 6, 7, 8, 9, 15, 16, 17, 18, and 19 in the Model Constitution for Congregations consistent with requirements of this constitution and the Constitution for Synods of this church. Bylaws and continuing resolutions, appropriate for inclusion in these chapters and not in conflict with these required provisions in the Model Constitution for Congregations, the constitution of the synod, or the Constitution, Bylaws, and Continuing Resolutions of the Evangelical Lutheran Church in America, may be adopted as described in Chapters 16 and 18 of the Model Constitution for Congregations. c. Accept the commitments expected of all congregations of the ELCA as stated in *C6.01., *C6.02., and *C6.03. of the Model Constitution for Congregations. * * * Each congregation shall have governing documents, no terms of which shall conflict with provision Subject to the provisions of 9.52., these documents shall contain the elements listed in the bylaws. Synodical administration. Section 9.61 of the Constitution of the Church states The relationship between a congregation and this church may be terminated in one of the following ways: * * * e. The membership of the congregation becomes so scattered or diminished in numbers as to make it impracticable for such congregation to fulfill the purposes for which it was organized. In such case, the synod, in order to protect the property from waste and deterioration, through the Synod Council or trustees appointed by it, may take charge and control of the property of the congregation to hold, manage, and convey the same on behalf of the synod. The congregation shall have the right to appeal the decision to the Synod Assembly. The Synod Council, the appropriate ecclesiastical body, voted to impose Synodical administration of St. Peter's. The Congregation's exclusive remedy is an appeal to the of 23

14 Synod Assembly. They declined to do so. Instead, they dug in to the deteriorating edifice and refused to turn over the building or the books and records to the Synod, requiring the Synod to seek relief in this civil court and seeking to mislead this court into impermissibly reviewing the ecclesiastic decisions of the Synod Council. These are ecclesiastical decisions protected by the Constitution of the United States and the decisions of the United States Supreme Court and the Court of Appeals and other courts of this State. The Courts of the State of New York have specifically recognized that the Synod's "determination that the congregation had become so diminished and scattered that it could no longer function is a nonjusticiable religious determination". Matter of Metropolitan N.Y. Synod of the Evangelical Lutheran Church of Am. v David, 95 AD3d 419 (1st Dept 2012); cf Upstate N.Y. Synod of Evangelical Lutheran Church in Am. v Christ Evangelical Lutheran Church of Buffalo, 185 AD2d 693 (4th Dept 1992). This Court may and should confirm and declare that title to the property of St. Peter's has passed to the Synod by operation of the constitutions of the Church and Synod and RCL 17-c. The Congregation of St. Peter's was required to adopt a constitution which incorporates and refers to the constitutions of the Church and the Synod and provides that all of its provisions shall be in agreement with those constitutions, and that St. Peter's is a member of and an interdependent part of the Church and the Synod and subject to the discipline of the Church. To this day, St. Peter's persists in denying the Synod access to the Property and all the records of the Congregation of St. Peter's and in their refusal to deliver those records to the Synod as required. St. Peter's does not weiship with Lutheran clergy as of 23

15 required and they continue to take additional actions that are contrary both substantively and procedurally to the provisions of the Constitutions of the Church and Synod, to the mission and ministry practiced at St. Peter's and within the Synod and to the doctrine and scripture followed by members past and present of the Congregation and Synod. The resolution of these religious matters lies exclusively within the procedures of the Church; they are nonjusticiable matters over which the civil courts have no jurisdiction. They involve "a religious dispute the resolution of which under our cases is for ecclesiastica! and not civil tribunals". Serbian Easterñ Orthodox Diocese v Milivojevich, 426 US 696, 709 (1976). The Court may not, as respondents request, review these religious matters, but it may interpret the clear documents and provisions of RCL 17-c and confirm that title to the property has passed to the Synod. St. Peter's has ignored and continues to act in defiance of its constitution, its covenants with the Church and the Synod and its covenant with its members. St. Peter's is not acting in fellowship with the Church or the Synod and has neglected its covenants with the Church, the Synod and her fellow congregants. Point I Respondents seek to have this Court intervene in the internal governance of a hierarchical church to review the ecclesiastical decisions of the church tribunals on issues of theology, doctrine, organization, structure and relationship, and the process by which these decisions were made. The First Amendmsat prohibits such intrusion and review by a civil court. The First and Fourteenth Amendments to the United States Constitution permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these of 23

16 matters, and whenever those tribunals rule on such issues, the Constitution requires that civil courts accept their decisions as binding upon them. Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696 (1976); Watson v Jones, 80 US 679 (1871). Synodical administration is an ecclesiastic process for the protection, rehabilitation and renewal of a congregation as a vibrant place for proclamation of the Gospel. The Synod Council, the appropriate ecclesiastical body, voted to impose Synodical administration of St. Peter's. The Congregation of St. Peter's declined to appeal that determination to the Synod Assembly, the highest adjudicatory body of the Synod, making the Synod Council's determination final and binding. This Court lacks jurisdiction to review the determination of the Synod Council due to the application of the First Amendment of the United States Constitution. The Synod Council's "determination that the congregation had become so diminished and scattered that it could no longer function is a nonjusticiable religious determination". Matter of Metropolitan N.Y. Synod of the Evangelical Lutheran Church of Am. v David, 95 AD3d 419 (1st Dept 2012). The United States Supreme Court has established a firm policy protecting First Amendment rights and prohibiting civil inquiry into ecclesiastical decisions of a church. The First Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the church organization. Here, action was taken by Respondent, the appropriate ecclesiastical body, on an issue of internal church organization, relationship and structure. This action involves "a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals". Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696, 709 (1976) of 23

17 Respondents attempt to entangle this Court in an ecclesiastic matter involving church scripture, doctrine, governance, polity and administration. The First Amendment to the Constitution of the United States prohibits such involvement by this Court and mandates that the decision of the Synod Council is final and binding on Petitioner and on this Court. Serbian Eastem Orthodox Diocese, 426 U.S. at 710. The Synod Council determined to impose Synodical administration of St. Peter's. The First Amendment of the Constitution of the United States protects the Synod Council's exercise of its legitimate authority. Synodical administration involves interpretation of the goverñiñÿ documents of St. Peter's, the Synod and the Church. The Synod Council's determination to impose Synodical administration "is a nonjusticiable religious determination". Matter of Metropolitan N.Y. Synod of the Evangelical Lutheran Church of Am. v David, 95 AD3d 419 (1st Dept 2012). The Court should not engage in this impermissible foray into religious territory. When St. Peter's united with the Church and Synod, it "bound" itself "to submit to" the determinations of the tribunals created "for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association". The Supreme Court recognized that "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". Serbian Eastern Orthodox Diocese, 426 US at (1976). Petitioner is an interdepeñdeñt part of the Synod and the Church. It is bound by the decisions of the tribunals of the Synod and may not question here whether of 23

18 those tribunals acted properly. This Court may not disturb the decisions of the Synod Council and the Synod Assembly. St. Peter's abandoned the ecclesiastic appeal process, which they covenanted to followi and now impermissible attempt to have the Court review the acclesiastic process. The Court should dismiss the complaint, which presents a nonjusticiable religious dispute. As the respondent did in Serbian Eastem Orthodox Diocese, appellants disguise their claims in an attempt to lead this Court on an impermissible foray into the sacred territory of ecclesiastic decision making. In Watsoñ v Jones, 80 US 679 (1871), 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 questioñs 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 US at 727. Eighty years later, the Supreme Court described its decision in wetsca 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 1 St. Peter's Constitution acknowledges that it is "an interdependent part of the the" Evangelical Lutheran Church in America"; that it "is subject to the discipline of Church, C6.01; and that it agrees that all of the provisions of that Constitution "are in the" agreement with the constitution and bylaws of Church and Synod. C6.03(e) of 23

19 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 US 94 (1952). That rule and spirit of deferring to the highest church judicatories have been beacons to this day and are regularly reaffirmed by the Supreme Court. See, e.g. Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012). In addition, the Supreme Court has recognized the sanctity of religious tribunals as "of the essence" of religious association. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a 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 appeâ 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 decisioñ 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 (emphasis added). Watson v Jones, 80 US at St. Peter's united with the Church and Synod; its consent to their government and processes was explicit in its Constitution. The decision of the Synod Council was binding on them, "subject only" to the appeal procedure set forth in the Synod Constitution; civil courts are without authority to review that decision of the Synod Council, nor may they review these ecclesiastic proceedings. In Serbiañ Eastern Orthodox Diocese, the Supreme Court was particularly distressed by the liliricis Court's attempts to review the ecclesiastic process and substitute its own judgment for that of the church tribunals. The Court found that review repugñant of 23

20 to the First Amendment, declaring that "the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastica! tribunal within a church of hierarchical polity, but must accept such decisicñs as binding on them, in their application to the religious issues of doctrine or polity before them". 426 U.S. at The Synod took control of St. Peter's property pursuant to the ecclesiastic process of synodical administration, established by the organic docurñents of the Church and Synod. This process is not reviewable by a civil court. Matter of Metropolitan N.Y. Synod of the Evangelical Lutheran Church of Am. v David, 95 AD3d 419 (1st Dept 2012). The Church is one church body organized in three expressions: the coñÿregation, the synod and the churchivide organization. Each expression has its particular functions but all three together share common tenets of mission and ministry. Collectively these three expressions are the core of the Church and work together to build the Church and grow its mission and ministry. Synod Constitution 13.24, "synodical administration", goes to the heart of this interdependent relationship between the Congregation (the local missica point), the Synod (the regional church organization) and the churchwide organization, and the ecclesial partnership created among them to foster and spread the religious beliefs that they share, support, and proclaim. If any congregation is no longer able to function as such, it cannot provide the support essential to this interdependent relaticñship. If the property of a congregation is being wasted its ability to function could be impaired. Section13.24 requires the Synod Council to make fundamentally religious decisions concerning the mission and ministry of the denominaticñ at the congregation location, and the ability of the congregation to fulfill the purposes for which it was organized. When of 23

21 invoked, allows the Synod to take charge and control of the property to hold, manage and convey it on behalf of the Synod. The congregation's property may then be utilized in its existing form or converted and redeployed in support and furtherance of the purposes and goals of this interdependent relationship--to foster and spread the religious beliefs that these three ecclesial partners share. Synodical administration is an ecclesiastic process protected from civil review by the First Amendment. Termination of relationship with the Church and Synod. Without any basis in fact or supporting evidence, respondent erroneously claims that it is no longer a member of the Church and Synod. Affirmation of Frank Loverro in Opposition to the Petition, dated September 27, 2017, 7. This is not true. The theology and polity of the Church recognize that a congregation may terminate its relationship with the Church. Section 9.62 of the Constitution of the Church prescribes the specific and detailed procedure required of a congregation seeking to terminate its relaticñship with the Church and mandates strict adherence to that procedure. Pursuant to section 9.62, a congregation may only "terminate its reistionship with this church" if it complies with each of the requirements, including: a) notification to the bishop in writing that in not less than 30 days it will hold a meeting to vote to terminate its relationship with the Church and, within that 30 day period the congregation consults with the bishop or the bishop's designee; and then adopts a resolution iñdicating its intent to terminate its relaticñship by a two-thirds vote of the voting members present at a legally called and conducted special meeting of the congregation; b) within 10 days after that resolution has been adopted, the secretary of the coñÿregation must submit a copy of the resolution to the bishop, attesting that the special meeting was legally called and conducted and of 23

22 certifying the outcome of the vote, and must mail a copy of the resolution to voting members of the congregation; c) the bishop and the congregation must continue in consultation, during a period of at least 90 days after receipt by the synod of the notice as specified above; d) if after that 90-day period of consultation, the congregation still seeks to terminate its reistionship, it must do so at a legally called and conducted special meeting by a two-thirds vote of the voting members present; notice of the meeting must be mailed to all voting members of the congregation and to the bishop at least 10 days in advance of the meeting. The bishop and the bishop's designees shall have voice but not vote at the meeting; e) within 10 days after it has been adopted, the congregation must send to the bishop a copy of the resolution, attesting that the special meeting was legally called and conducted and certifying the outcome of the vote, at which time the relationship between the congregation and this church shall be terminated. Section 9.62(g) mandates that congregations seeking to terminate their relationship with the Church which fail or refuse to comply with each of the provisions of section shall be required to receive Synod Council approval before terminating their membership in the Church. St. Peter's did not take any of the steps required of them to terminate their relaticilship with the Church. See affidavits of the Rev. Robert Schoepflin, Secretary of the Synod, and the Rev. Wm Chris Boerger, Secretary of the Church, St. Peter's bears the burden of proving that they have complied with each of the provisions of section They have not done so because they cannot do so. Conclusion St. Peter's bound itself in scripture, govemance and polity as an interdependent member of the Church and Synod. St. Peter's joined in and pledged to be bound by the of 23

23 self-accepted restrictions contained in the organic documents of the Church and Synod and to be bound by the decisions of their tribunals. The decisions of those ecclesiastic tribunals may not be questioned in a civil court, directly or indirectly. The determination of the Synod Council to invoke at St. Peter's may not be reviewed here. As a result of that determination (and RCL 17-c), title to the property of St. Peter's passed to the Synod. The Synod has fulfilled all of the requirements of the Religious Corporations Law and the Not-for-Profit Corporation Law. Respondents have no defense to the petition. The Synod's motion for summary judgment should be granted. Dated: New York, New York August 30, 2018 Respectfully submitted, Capell Barnett Matalon & Schoenfeld LLP. By: J eph Milano Attorneys for Petitioner Metropolitan New York Synod of the Evangelical Lutheran Church in America 225 West 35 Street, 16 Floor New York, New York (212) jmilano@cbmslaw.com of 23