MacEdono-bulgarian Orthodox Church Saint Clement Ohridski v. MacEdonian Patriotic Organization Fatherland

Bronson, J.

This is an appeal from summary judgments granted in the Wayne County Circuit Court.

On appeal two cases were consolidated. In one the Maeedono-Bulgarian Orthodox Church Saint Clement Ohridski, a subordinate hierarchical church, seeks to restrain its former priest, George Nicoloff, from attempting to conduct services in the premises allegedly owned by the church, and to restrain him from using any of the church’s real or personal property; and for an accounting. The complaint alleges that Nicoloff was defrocked by the church because he participated in a schismatic creation of a new hierarchy.

The second action, consolidated on appeal, was instituted by followers of Father Nicoloff against the Tovan faction of the church (so named for the president of the church), seeking a receiver, an accounting, and a determination of the proper governmental body of the temporal affairs of the church. From summary judgments in favor of plaintiff church in the first case and for the defendants in the second ease, this appeal is taken.

In 1938, the Holy Synod of the Bulgarian Eastern Orthodox Church, which is situated in Sofia, Bulgaria, established the Diocese of America, North and South, and Australia. Bishop Andrey was appointed head of that diocese. Both parties agree that as of 1938, when the diocese was formed, the hierarchical structure consisted of: (1) The Holy Synod, (2) The Diocese of America, North and South, and Australia, and (3) Macedono-Bulgarian Orthodox Chnrch Saint Clement Ohridski (hereinafter referred to as the church), in that order.

In 1947, fearing the influence of a communist regime in Bulgaria upon the Holy Synod, Bishop Andrey, Father Nicoloff and others formed a “new” diocese. This new diocese was incorporated in New York, with Bishop Andrey as its bishop. The certificate of incorporation provides in part:

“Resolved, that the Bulgarian Eastern Orthodox Chui’ch; Diocese of America, North and South, and Australia, shall become a corporation pursuant to § 15 of the Religious Corporation Law of the State of New York under the name of

Bulgarian Eastern Orthodox Church;

Diocese of America, North and South, and Australia,

as the governing body of our dioceses, bishoprics, churches, missions, parishes, congregations, societies and committees in the Americas and all the territorial possessions and/or dependencies or protectorates of the Hnited States, of Canada, of Australia and of the South American republics, under the spiritual jurisdiction of the Holy Synod of Bulgaria, exercised by its duly authorized exarch, metropolitan, archbishop or bishop.

“The purposes of this religious corporation are:

“(a) To exercise governing and advisory authority over the subdivisions of its own jurisdiction;

“(b) To maintain spiritual unity, coordinate re-religious work or activity, and promote collaboration and closer relations with the governing and advisory bodies of other Eastern Orthodox Catholic jurisdictions in said territory with the intent of propagating, practicing and forever perpetuating the religious worship, services, ministrations, sacraments and teachings in full accordance and unity with the doctrine, ritual, canon law, faith, practice, discipline, traditions and usages of the Eastern Orthodox Church.

“(c) That the canonical exarch or metropolitan or archbishop or bishop, who is the duly authorized ecclesiastical administrator of said diocese, shall be the presiding officer and president of this corporation irrevocably.”

This creation of a “new” diocese which, while under the spiritual jurisdiction of the Holy Synod of Bulgaria, -was, according to the articles of incorporation, “to exercise governing and advisory authority over the subdivisions of its own jurisdiction”, was viewed by the Holy Synod with disfavor; and in response the Holy Synod removed Bishop Andrey as head of the diocese. However, as the articles of incorporation stated that:

“(d) The term of office of His Grace Andrey Velichky, incumbent bishop and ecclesiastical administrator, shall be for life and his successors in said office shall be appointed by the Holy Synod of Bulgaria and shall qualify as such provided that each successor is elected as such at a stated or at a special convention of the diocese.”

the action of the Holy Synod was ignored.

For the next 15 years the incorporated diocese acted as a seemingly independent diocese, and Macedono-Bulgarian Orthodox Church Saint Clement Ohridski operated as a church within this framework. It is the claim of the appellants that as of 1947 the hierarchical structure to which the local church adhered was: (1) the “new” diocese, and (2) the church.

At a date some 15 years after the incorporation Bishop Andrey determined, on his own authority, to return to the administrative control of the Holy Synod in Bulgaria. When the various member churches of the diocese learned of Bishop Audrey’s actions, a special church conference was called. At this conference, held in Detroit on March 25, 1963, it was determined that Bishop Andrey’s actions were contrary to the constitution of the diocese and to the decision of the Diocesan Sobor (constituent assembly) held in 1947.

This decision of the 1963 conference created a second rift in the church resulting in two factions, one group, the Tovan faction, following the dictates of Bishop Andrey and the other group, the Nicoloff faction, following the dictates of the special conference. The Nicoloff faction then sought the protection of the Russian Orthodox Church Outside of Russia, renouncing their allegiance to Bishop Andrey. The underlying reason for the conflict was the alleged domination of the Bulgarian Eastern Orthodox Church by the Communist Party.

The special conference held in 1963 determined that Archimandrite Kyrill who had been assistant to Bishop Audrey, would become the administrative head of the diocese. The conference further determined that, as they were now effectively without a Bishop, the diocese should seek the protection of the Russian Orthodox Church Outside of Russia, and that the Russian Orthodox Church Outside of Russia ordain Archimandrite Kyrill as a bishop of the Bulgarian Eastern Orthodox faith.

In 1964, Bishop Andrey instituted proceedings to defrock Father Nicoloff as a priest. Father Nicoloff countered that as Bishop Andrey had departed from the then true diocese he had no authority or jurisdiction over Father Nicoloff or his church.

Since about 1935 the church has occupied and used a building situated on 25th Street in Detroit. The premises were originally owned by the Macedonian Political Organization, which was later incorporated under the name of the Macedonian Patriotic Organization.

Before this presént dispute the church also had acquired property on Ford Road in Dearborn where it had commenced building a new church. In early 1965 this factional dispute erupted at the church’s annual meeting. Since that time, pending the outcome of this litigation, and pursuant to an agreement made in open court, the Nicoloff faction has continued to worship in and use the church on 25th Street while the Yovan faction has continued to worship in and use the church on Ford Road.

Under the facts here presented, in order to reach a decision as to who owned or has a right to certain properties, this Court would have to delve into areas presently forbidden to the civil courts. In this regard we are controlled by Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 US 440 (89 S Ct 601, 21 L Ed 2d 658), and by Berhaw v. Mayflower Congregational Church (1969), 18 Mich App 245.

When, in 1947, the “new” diocese was formed there appears to have been no dissent amongst the followers of Bishop Andrey and Father Nicoloff. Although the Ploly Synod disapproved of this incorporation and removed Bishop Andrey, he nevertheless continued to act as bishop for the “new” diocese. Some 15 years later Bishop Andrey, after effecting a rapprochement with the Holy Synod, seemingly had Father Nicoloff defrocked. Thus, we cannot help hut observe that we are being asked to consider two apparent schisms.

In order to resolve property rights this Court would have to determine the effect of the 1947 action, the power of the Russian Orthodox Church Outside of Russia to ordain a bishop in the Bulgarian Eastern Orthodox faith,^* and whether the Andrey faction or the Nicoloff faction represented the faithful minority, at the time of the dispute in 1963. As the Supreme Court of the United States stated in Mary Elisabeth:

“[T]he First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, School District of Abington v. Schempp (1963), 374 US 203 (83 S Ct 1560, 10 L Ed 2d 844); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, states, religious organizations and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.”

The Mary Elisabeth case involved:

“[A] church property dispute which arose when two local churches withdrew from a hierarchical general church organization. * * * The question presented is whether the restraints of the First Amendment, as applied to the states through the Fourteenth Amendment, permit a civil court to award church property on the basis of the interpretation and significance the civil court assigns to aspects of church doctrine.”

And, while noting that:

“It is of course true that the state has a legitimate interest in resolving property disputes, and that a civil court is a proper forum for that resolution. Special problems arise, however, when these disputes implicate controversies over church doctrine and practice”,

the United States Supreme Court found that:

“The Watson Court refused, pointing out that it was wholly inconsistent with the American concept of the relationship between church and state to permit civil courts to determine ecclesiastical questions. In language which has a clear constitutional ring, the Court said

“ ‘In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect * * * . All who unite themselves to such a body (the general church) do so with an implied consent to (its) 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 anyone aggrieved by one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.’ 80 US (13 Wall), at pp 728, 729 (20 L Ed at pp 676, 677).

The logic of this language leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes.”

As this Court noted in Berkaw v. Mayflower Congregational Church (1969), 18 Mich App 245:

“The Supreme Court (in the Mary Elisabeth case) reversed the Georgia jury verdict granting church property to the local churches based upon a finding of fundamental abandonment of the original doctrines by the general church. * * *

“We consider the Mary Elisabeth decision to be controlling in the instant case. The fundamental inquiry in this case was whether the majority, by voting to become a part of the United Church of Christ, departed from Congregational doctrine. Clearly, therefore, in order to grant the relief plaintiffs request, ecclesiastical issues regarding departure from doctrine must be resolved by civil courts. Such a determination was expressly prohibited by Mary Elisabeth:

“ ‘The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a ‘substantial departure’ from the tenets of faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.’ ”

Although we agree with Judge Fitzgerald’s observation in his concurrence in Berkaw, supra:

“I cannot refrain from briefly observing that strict application of the Mary Elisabeth case catapults us to the ultimate irony that churches have been divorced from any statutory protections, from fostering influences furnished by state legislatures, and from all the benefits of law save perhaps those ‘marginal’ few cited in Gonzales.”

it is onr opinion that under the ruling in the Mary Elisabeth and Berlcaw cases we are prevented from deciding the questions here presented. Accordingly, the lower court decisions are vacated.

McGregor, J., concurred.

* This ease is to be distinguished from Hanna v. Malick (1923), 223 Mieh 100, where ordination of a Syrian Orthodox priest was performed by a Russian Orthodox bishop since in Hanna the rite was performed at the request of the Patriarch of Antioch whereas in the present case the ordination of Bishop Kyrill was in direct opposition to the desires of the Holy Synod in Sofia.