Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich – Oral Argument – March 22, 1976

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Audio Transcription for Opinion Announcement – June 21, 1976 in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich

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Warren E. Burger:

We will hear arguments next in number 75-292, the Serbian Eastern Orthodox Diocese against Milivojevich.

Mr. Jenner you may proceed whenever you are ready.

Albert E. Jenner, Jr.:

Mr. Chief Justice and may it please the Court.

This is the first time I am on Church case.

A review of a decision of the Illinois Supreme Court which in our petition we charge that that decision of that Court violated the First Amendment, the separation of Church and the state provisions and the right of free exercise of religion.

May I say that, Mr. Justice Walter Schaefer did not participate in that decision, having excused himself because of the fact that his son-in-law is one of the partners in our firm?

Now, what the Supreme Court of Illinois did in this case and I will have to recite some basic facts, I know the Court has studied the briefs, but to put the two issues in perspective that is the issue of the suspension, demotion, a removal and then defrockment of the Bishop Dionisije as to one and secondly the reorganization of the diocese and to three dioceses relating to organizational matters, the discipline of the Bishop Dionisije, the discipline area as distinguished from organization area.

Now, the Illinois Supreme Court construed the constitutions of the Church, the Mother Church, the Serbian Orthodox Church and of the Diocese of the United States and Canada and construed the penal code, various regulations of the Serbian Orthodox Church, the Mother Church which by the way all Courts have said we have considered this matter, including the Illinois Supreme Court as a true hierarchical church and I will spend no time on that unless that issue is raised in the reply argument.

In construing those internal regulations and the constitution, the Illinois Supreme Court —

Byron R. White:

Can the — is the Court free to disregard Church decisions about that initial question?

Albert E. Jenner, Jr.:

It is not and that is included in the briefs that we have filed to which I will point, I hope during the course of my argument.

In that result of the Illinois Supreme Court having looked into the regulations, looked into and construed them differently from the way the Holy Assembly of Bishops which is the highest diocese authority in the Serbian Orthodox Church and held that the defrockment of Bishop Dionisije, his suspension in May 1963, his demotion or removal as a Bishop of the Diocese in the Summer of 1963 was arbitrary action within the decision of this Court in the Gonzalez case of which you, Mr. Justice Brennan were the author on behalf of the full Court.

So that the net result of the decision of the Illinois Supreme Court was to restore as a Bishop of the Serbian Orthodox Church, this suspended, removed, and defrocked person and as to the reorganization of the diocese that the Court just says out of hand without citing any authority whatsoever, not a single authority, that the Holy Assembly of Bishops may, despite the fact that is the highest body in the church and despite the fact that only it and only it might create dioceses and only it may end the diocese, only it may reorganize the diocese, that is Article 16 of the Church Constitution that that was improper action.

Now —

Byron R. White:

So only it may create Bishops, is it not correct?

Albert E. Jenner, Jr.:

And only it as Your Honor has stated, that is absolutely right, the only body in this Orthodox Church.

It is one of 14 Great Worldwide Orthodox Churches and only — the constitution provides, the constitution of the diocese which is introduced here as a matter that must be discussed, writes expressly that only the Holy Assembly of Bishops which is the same position of the College of Cardinals in my Church and the Catholic Church, those two highest diocese authorities may only appoint bishops, they remove bishops and it may only appoint diocesan bishops for a particular diocese in the congregation or parishes where people in that diocese have no say with respect to the appointment of those particular bishops.

Potter Stewart:

That is why this Respondent Diocesan Bishop became a Diocesan Bishop, was it not?

Albert E. Jenner, Jr.:

Precisely, if Your Honor pleases, that is exactly the way we have Diocesan Bishop.

Now, so the basic law in this case, I have a little trouble arguing this case because it seemed so simple to me and I do not want to over simplify my argument.

Watson versus Jones, the decision of this Court in 1871, the first defended decisions of this Court with respect to this subject matter and that Court after a very deep analysis of the issues and the First Amendment said in substance, I have the —

William H. Rehnquist:

Watson is not touching on the First Amendment at all?

Albert E. Jenner, Jr.:

You are correct that Watson did not refer to the First Amendment.

William H. Rehnquist:

I thought you just said it did?

Albert E. Jenner, Jr.:

If I said that, then I am sorry.

I meant to say that Watson v. Jones set down the principles.

Later on this Court, in the Kreshik held that the Fourteenth Amendment incorporated the First Amendment to make it applicable to the State Courts and to the State Legislators and forgive me for that misstatement that was an oversight on my part.

Civil Courts, said this Court in Watson v. Jones, are limited to accepting the decision of the highest adjudicative authorities in a hierarchical church and may not inquire into the decisions made by those authorities and once made, they must be accepted by the Civil Courts in Gonzales which came along at a later point.

There was this statement in the opinion, in affirming and adapting and reaffirming Watson v. Jones, the Court said that this was true except possibly was the dictum, if there are elements of fraud, collusion, or arbitrariness involved in the decisions of the highest body of the church.

This Court also said that that had very narrow reach.

Albert E. Jenner, Jr.:

There was no occasion and the Court did not apply that particular doctrine or gloss upon Watson v. Jones in that particular case nor has this Court done it any other case.

Harry A. Blackmun:

So it is dictum?

Albert E. Jenner, Jr.:

It is dictum.

It has been repeated, but repeated as dictum from time to time in the cases this Court has determined, always going back in every decision of this Court to Watson v. Jones as the basic case.

Warren E. Burger:

Have you distinguished in any way between fraud and collusion on one hand and arbitrariness on the other as to the reach of judicial review?

Albert E. Jenner, Jr.:

Yes, I would if your Honor pleases.

I would via this opinion, that if there is absolute fraud and absolute collusion, then I would reach the conclusion that the Court had not exercised — the church authority had not exercise in any respect the rights and privileges of decision on the merits that it had.

It was engaged in a fraud, and therefore, was not functioning as a decision body.

William H. Rehnquist:

What if it were simply an allegation of fraud?

Would the Court be entitled to sit and hear and decide whether or not there has been fraud?

Albert E. Jenner, Jr.:

The Court, in my judgment, if Your Honor pleases, would be entitled to sit and hear whether there had been fraud to the extent that the Church body was not sitting and exercising its rights and judgments as a church body.

So, it had not performed judicially.

William H. Rehnquist:

But how do you apply that to a practical case?

So supposing the argument is that the Council of Bishops was deceived because one of the people whom they have heard had made a false statement to it.

Now, is that enough allegation of fraud to entitle the Court to review the question of whether the decision ultimately made should be reviewed by the Civil Court?

Albert E. Jenner, Jr.:

If Your Honor pleases, my answer to that is of quite affirmative no.

I thought your inquiry with respect to fraud or collusion was fraud or collusion in the decision body itself among its members.

That is, they were not actually exercising their judicial function within the rules of the Church itself.

If there is a fraud on the body itself that in my judgment does not afford the Civil Courts to undertake to inquire into the matter.

Potter Stewart:

Really, truly under your understanding of that exception to the rule, fraud or collusion or arbitrariness, it is — particularly fraud or collusion, it is difficult to imagine that case in the real word, is it not?

Albert E. Jenner, Jr.:

It is very difficult and I think that Your Honor, let us put the figure on it, it really never would occur and that is why I have trouble with that fraud, collusion and arbitrariness exception.

I certainly do not (Inaudible) in reading all the cases, all the judgments of Your Honors and comments in the larger articles, Zalman (ph) and Stokes (ph) and the others, I do not see any possible way in which that can function in the light of Watson v. Jones and the Court’s repeated affirmance of the principles of Watson v. Jones.

Potter Stewart:

I suppose, would you think that if you could absolutely prove that the decision makers in the church have been bribed to reach the decision, they did and reached it for that reason that that would come within the exception?

Albert E. Jenner, Jr.:

I have to say on my own, I would find it very difficult not to say that there be some measure, possibly of relief.

But one of the problems here is that we in America are thinking in terms of our own due process, our own procedures and we are inclined to impose or not necessarily impose, but we think in that fashion and when we are looking at allegations, whereas we are really not permitted to do that under Watson v. Jones and if — these cases usually come up in property cases, involving property.

This case involves property only in the sense that the original complaint filed in this case by Bishop Dionisije and his followers sought to enjoin those loyal to the Mother Church from occupying the seat in Libertyville, Illinois and some other properties.

This is not a property case in the sense of title to property.

No one is seeking any title or trying to grab property as is stated in the (Inaudible) fashion in the answering brief in this case.

William H. Rehnquist:

I thought your client in its original complaint had requested some sort of an injunction against a bank where there was some money tied up?

Albert E. Jenner, Jr.:

Well, Bishop Firmilian, as I recall the facts if Your Honor pleases.

Albert E. Jenner, Jr.:

Bishop Firmilian, now Bishop Firmilian, he was then a cleric not a bishop, who had been appointed by the Holy Assembly or by the Holy Synod which is executive arm of the Holy Assembly as the administrator, pending disposition of the proceedings with respect to Bishop Dionisije, he being suspended in that particular time and as alleged in that complaint, he had written a letter to the bank, holding one of the bank accounts, requesting that bank not honor checks drawn by Bishop Dionisije and his assistants and followers.

In that sense, money was involved.

William H. Rehnquist:

So it is a form of property strictly?

Albert E. Jenner, Jr.:

It is a form of property, yes.

Lewis F. Powell, Jr.:

Mr. Jenner?

Albert E. Jenner, Jr.:

Yes sir?

Lewis F. Powell, Jr.:

You talked a bit about what might happen if there were fraud.

Let us assume for the moment that it were crystal clear under the Church Law, the constitution, that the governing body before it could remove or defrock a bishop had to afford him what we call a due process hearing and assume further that it were equally clear, undisputed that no such hearing had been provided, would you think that would come under the arbitrariness exception in Gonzalez?

Albert E. Jenner, Jr.:

I do not think they would come in the arbitrariness provision announced in the Gonzalez case.

The Holy Assembly of Bishops has the authority as dose the College of Cardinals in the Catholic faith to grant that hearing or not as it sees as fit.

The due process concepts of, we in this great country, tend to make us feel all that very same arbitrariness.

Lewis F. Powell, Jr.:

My assumption was that it was perfectly clear that Church Law required a due process hearing, not the United States Constitution?

Albert E. Jenner, Jr.:

I am sorry.

Potter Stewart:

I suppose is that the College of Cardinals are the equivalent of Council of Bishops here, could say, that is very clear in the language of Church Law and we decided in this Court, in a case that that means no hearing at all and that would be the end of it?

Albert E. Jenner, Jr.:

That is correct.

Potter Stewart:

Because they would have the exclusive power to decide what that meant and by their action they would have decided it?

Albert E. Jenner, Jr.:

That is precisely my position and I believe that is precisely the position this Court took in Watson versus Jones which it has been a great care to affirm very affirmatively every time this issue has come before this Court.

William H. Rehnquist:

Well, but that really boils down to saying that your client, the diocese comes into Court and presents an injunction and the Circuit Judge of Lake County just has to sign it, no matter what sort of defense the party might raise.

If the bishop wants an injunction they get it?

Albert E. Jenner, Jr.:

Only if, with what, this Clause Mr. Justice Rehnquist, the Civil Court inquires into whether or not the appropriate judicial authority in the tiers of hierarchy interpreted its Church Laws, that those Church regulations and matters of that character.

William H. Rehnquist:

What if that —

Albert E. Jenner, Jr.:

If it did.

William H. Rehnquist:

What if it is unclear though to the Court?

What if there are conflicting decisions within the Church, the canonical decision?

Albert E. Jenner, Jr.:

It is said in Watson v. Jones and other cases that Your Honors have decided that they generally are conflicting.

It is amazing.

The canons conflict, the penal codes conflict, various ecumenicals are held and they reach various decisions.

Let us say the bishops just assemble and calling on the spirit of the good Lord, reached the conclusion.

That the Bishop Dionisije should be discharged, that is it.

They exercised in the wrong spiritual good faith, reached their decision in this particular arch of church and they have the authority to do that.

William H. Rehnquist:

What if there is a question under Church Law as to whether the Council of Bishops say that Traineo (ph) Convention had the authority to do this.

Can the Civil Court decide that?

Albert E. Jenner, Jr.:

No, all the Civil Court can do is to look to see if the judicial body, having the jurisdiction with respect to a particular matter of organization or a particular matter of jurisdiction has exercised that judgment.

William H. Rehnquist:

But how does it decide?

Albert E. Jenner, Jr.:

As to fraud.

William H. Rehnquist:

How does it decide what judicial body has that jurisdiction, supposing there are two different judicial bodies in the church?

Albert E. Jenner, Jr.:

Mr. Justice, the reason I am thinking here is, there are different judicial bodies in this Church, but they are in tiers.

(Inaudible)

Albert E. Jenner, Jr.:

That is correct and it is only the highest judicial body that was involved in this case.

The Holy Assembly of Bishops, sometimes called the Bishops’ Council are comparable to the College of Cardinals.

There was not any —

Potter Stewart:

But what if — I gather my brother Rehnquist’s question is what if two groups exist and each one claims it is the highest judicial body in that particular church and one defrocks the bishop and the other says, no you will not defrock, instead of that we are going to give you a medal, you have been such a good bishop.

Albert E. Jenner, Jr.:

Alright.

Potter Stewart:

And so what does the Court then do?

Albert E. Jenner, Jr.:

The closest I can get to that is the Kedroff case, involving the occupation of the Cathedral in New York City in which there were two contesting groups.

One was for members of the Russian Orthodox Church in America, organized under a New York Statute and the other was the Russian Patriarch appointed by the Holy Assembly of Bishops of the Russian Orthodox Church, so there were two contestants as who was the patriarch.

Potter Stewart:

But it was rather pretty clear who the original and legitimate one was, was it not?

Albert E. Jenner, Jr.:

It was absolutely clear and this Court so held that was absolutely clear.

Potter Stewart:

This is the way the Episcopalian Church begin in this country, did it not, by a renegade Bishop from the Church of England?

Albert E. Jenner, Jr.:

Well, I am not familiar with that, but I do not doubt from what my reading of law in this area that other religious would have started that way as well.

Harry A. Blackmun:

Mr. Jenner, I take it it is your position that the Civil Court may go into a determination of what is the highest juridical body in the Church?

Albert E. Jenner, Jr.:

I do.

Harry A. Blackmun:

And this has been held and this is clear and I think is this not the answer to Mr. Justice Stewart’s question?

Albert E. Jenner, Jr.:

I think so.

Potter Stewart:

In any event that is you say not an issue in this case?

Albert E. Jenner, Jr.:

Oh no clearly, it is not an issue in this particular case.

Warren E. Burger:

(Inaudible) hypothetical.

Suppose the determination dismissal, defrockment was for a basis that would not be tolerated under the constitution of the United States internally in all matters?

Let us say for example with the particular priest or bishop had exercised his First Amendment rights within the framework of this country in a way that was unacceptable to the hierarchy and they dismissed him on that ground, is that reviewable?

Albert E. Jenner, Jr.:

It is not.

Albert E. Jenner, Jr.:

Civil Courts must accept the decision of the highest body of that particular church and thus not reviewable.

Warren E. Burger:

The only judicial function is to see whether the particular church followed the rules of the club when they acted.

Is that —

Albert E. Jenner, Jr.:

I think that is a fair way of putting it.

They might not necessarily have followed him literally.

The Holy Assembly of Bishops has the same privilege that this Court has.

This Court has jurisdiction to decide the case.

It is not required to decide it right.

There are allowances for error and their allowances for error in the case of the Holy Assembly of Bishops insofar as any inquiry of a Civil Court is concerned.

William H. Rehnquist:

Would you concede at all in response to the Chief Justice’s question that the Civil Court has the power to see whether the bishops follow the rules of the club, as he put it?

Albert E. Jenner, Jr.:

I would concede that the Civil Court has a right to look into the case sufficiently only to see whether the Holy Assembly of Bishops in this case, in its recital and the judgment or otherwise considered and construed its own rules, regulations and constitutions and if it construed them for “X” result, that was inimical and hurtful to the bishop or the person who is under the trial. On the other hand, the Civil Courts in the United States cannot say, well, your decision as to your construction of your statutes was wrong.

William H. Rehnquist:

What if the Bishop’s Court said we know this is what our Canon Law requires, but we are not going to follow the Canon Law, we are just going to do something we know is arbitrary, but it is up to us and that is what we are going to do?

Albert E. Jenner, Jr.:

They could do that.

When you use the word arbitrary, are you meaning arbitrary in the American sense or are you saying arbitrary in the sense here in the Serbian Church sense?

Arbitrary in the (Inaudible)

Albert E. Jenner, Jr.:

I think under Watson v. Jones and even under Gonzalez that that would be binding upon a Civil Court.

William J. Brennan, Jr.:

But what constant, if any, do you give to Justice Brandeis in the absence of fraud, collusion or arbitrariness?

Albert E. Jenner, Jr.:

I give no —

William J. Brennan, Jr.:

Generally, that preceded the principle which you have been insisting upon the decisions of the proper church, tribunals and matters purely ecclesiastical or affecting civil rights or accepted litigation before the Secular Courts is conclusive because the parties of interest made themselves by contract real-like, that is the general principle?

Albert E. Jenner, Jr.:

That is the general principle.

William J. Brennan, Jr.:

But he introduced it with in the absence of fraud, collusion, or arbitrariness.

What content did he mean by that principle, do you suppose?

Albert E. Jenner, Jr.:

Well, if I may suppose because that is all we can do I suppose —

William J. Brennan, Jr.:

That is exactly that Mr. Justice Stewart just suggested, none?

Albert E. Jenner, Jr.:

I do not think he gave in.

As far as arbitrariness is concerned in the sense that we now already consider arbitrariness, there is no moment and I think the arbitrariness should certainly be stricken from it.

As to fraud and collusion, where there is — where the deciding body as I said earlier becomes so bribed or it gauges under conspiracy of some particular kind that body is not interpreting its own laws.

That body is not making a decision based upon the Church authorities.

Now, that is what I think he meant with respect to fraud in conclusion.

William J. Brennan, Jr.:

Is that involved?

Albert E. Jenner, Jr.:

It is not involved in this case.

No court, the Illinois Appellate Court, The Illinois Supreme Court, the Trial Court, the Trial Court found expressly that there was no fraud, collusion or arbitrariness.

The Illinois Supreme Court said that in its interpretation of the rules, regulations and constitutional laws of the church that in its opinion, by way it interpreted those laws, that the Holy Assembly Bishops did not follow those laws, and therefore, it did not follow them as the —

William J. Brennan, Jr.:

This is like Hull, McCollum-Hull said we had not have any occasion to define fraud, collusion, or arbitrariness?

Albert E. Jenner, Jr.:

That is right.

William J. Brennan, Jr.:

Are you suggesting we do not have to address that hearing either?

Albert E. Jenner, Jr.:

I am exactly saying that the Court does not have to address either fraud or collusion.

William J. Brennan, Jr.:

It goes so far as you just suggested that at least arbitrariness is meaningless and Mr. Justice Brandeis’ dictum, but certainly there is no issue either of fraud or collusion here?

Albert E. Jenner, Jr.:

There is no issue of fraud or collusion.

William J. Brennan, Jr.:

What about arbitrariness?

Do we not have to address that?

Albert E. Jenner, Jr.:

You address it, if I may suggest Your Honor only to the extent that you say that it is not arbitrary in this case for the —

William J. Brennan, Jr.:

If we do that, we have to give it a definition, do we not?

Potter Stewart:

Because the Illinois Supreme Court said it was arbitrary?

Albert E. Jenner, Jr.:

Because the Court said the only — that is correct Mr. Justice Stewart.

You have to stay out as Mr. Justice Frankfurter said so many times, you have to stay out of this religious thinking and may I just say one word to my —

William J. Brennan, Jr.:

Well, let me get to my coffee.[Laughter]

Albert E. Jenner, Jr.:

Well, he may have said that in other case.

I ask you, Your Honors to direct your, you will I know, direct your attention to all the issues in this case, but Article 16, turning to the reorganization of the diocese, Article 16 of the Constitution provides expressly that the Holy Assembly of Bishops may create diocese, it may reorganize dioceses, it may end dioceses.

Harry A. Blackmun:

Mr. Jenner, if you are right in that we can go no further than to identify which is the top decision-maker for the Church and having decided that and say that is really not at issue here at any time, having decided that, there is nothing then left I would think of the case from your approach, except disagreement with the Illinois Supreme Court’s definition, if that is what it was, of arbitrariness?

Albert E. Jenner, Jr.:

That is my position if Your Honor pleases and I think well supported by the cases and especially by the decisions of this Court and if there are no further questions, I will save what little time I have left.

Warren E. Burger:

Mr. Sullivan.

Leo J. Sullivan, III:

Mr. Chief Justice and may it please the members of the Court.

I would like to briefly divide my opening remarks into three general areas.

One, I would like to address myself to the division question.

Secondly, the hierarchical question which has been used in this case and then thirdly, the disciplinary proceedings against Bishop Dionisije, briefly, as to all three of them.

First of all, we see the issues in this case as far as this diocese is concerned as a Serbian Corporate Diocese really congregational in nature which established a constitutional relationship with the Serbian Orthodox Church in Belgrade, Yugoslavia and if I refer to the Serbian Eastern Orthodox Church of Yugoslavia from time to time as Belgrade, I intend any no more disrespect in that regard than when I refer to my own church as well.

So if I inadvertently use that term, please I am not, Your Honors, intending any disrespect.

Under the terms of the relationship which existed between the American Canadian Diocese and the Belgrade Church, the Belgrade Church was provided the spiritual leader.

The American, Canadian Diocese, however, was as to its administrative, legislative and property was and according from the constitution which is approved by the Belgrade Church, have full administrative freedom was to independently rule and regulate.

Leo J. Sullivan, III:

Now, I quote from what the Belgrade Church when it approved that constitution, we hope that you have “complete autonomous administrative freedom.”

It is the only diocese in the Serbian Orthodox Church which owns its property free and clear of any interest by the Serbian Orthodox Church.

Its Congregations, each have a constitution and the diocese has absolutely no interest in the property of the Congregations.

The American-Canadian Diocese controlled itself by means of a Church National Assembly, composed of some of the clergyman and representatives in the various congregations which they have from time to time called it Sabor (ph), and it and only alone could amend the constitution.

It is found in the Serbian Church Constitution, not in Article 14, which says these are the Diocese of the Serbian Orthodox Church and then lists all the dioceses in Yugoslavia, but it is in found in Article 15 (a) or it was found, it has not been found since May 10, 1963, but prior to that date, Article 15 of the Serbian Church Constitution said, in addition to those dioceses in a hierarchical respect is, sub paragraph 8, the American Canadian Dioceses of the United States of America and Canada.

In 1963, the Belgrade Church, the Holy Assembly of Bishops, acting within its authority removed, the American, amended Article 15 (a) and since then the American Canadian Dioceses has never appeared in this Constitution.

In its place it put three new dioceses that were West, Midwest, and Eastern.

It also at the same time, in effect, attempted to distribute the property of the three dioceses and place three spiritual leaders.

What was the dioceses to do?

Two alternatives; they could go along with it or they could insist upon maintaining their own existence, their own integrity and their own property.

They chose the latter.

The representations have been made.

There are no assets concerned here.

There are three large pieces of real estate, one which is, just as there are incidentally three new dioceses, one lying in the East in Pennsylvania, called Shadeland and I cannot recall how many acres, but it has become a cultural center who serves in that area as an old folks home.

The real estate in Libertyville, Illinois in Lake County which has a cemetery, the King Peter lies there, it has been there, it under the reorganized plan is to become the home of the Midwest Diocese and thirdly, there is a piece of substantial real estate in California owned by the diocese which they have accumulated over the years.

William H. Rehnquist:

Of course when you say that the diocese had the choice of keeping its own property, I suppose Mr. Jenner’s argument is that whether or not that was the diocese’s own property, it is something that has to be decided by the Church Courts?

Leo J. Sullivan, III:

No sir, the Constitution of the American-Canadian Diocese makes it quite explicit and quite clear that the diocese owns, I may not be able to quote it accurately, owns its own property and it is without rights of anyone else in it and —

William H. Rehnquist:

Are you contending that the American-Canadian diocese is a separate juridical entity, not just a branch of the Serbian Orthodox Church?

Leo J. Sullivan, III:

The answer to your question is yes sir.

Yes sir, in the sense of having its own existence, in the sense of autonomously regulating itself, in the sense of having its own church national Sabor, in the sense that really it existed when it had — as found by the Illinois Supreme Court.

William J. Brennan, Jr.:

Mr. Sullivan, I am looking at page 25 at the Illinois Supreme Court opinion, I mean appendix 25.

Leo J. Sullivan, III:

Yes sir.

William J. Brennan, Jr.:

The Plaintiffs argue and defendant does not dispute that the Serbian Orthodox Church is a hierarchical and Episcopal Church.

Moreover, the parties agree that in cases involved in hierarchical churches and decisions of the proper church in dealing with questions of discipline placed with ecclesiastical rule, no affecting civil rights are accepted as conclusive in this case before these civil courts.

You disagree with that?

Leo J. Sullivan, III:

I do disagree with all of it sir, but I —

William J. Brennan, Jr.:

(Inaudible) Do we not have to take it as —

Leo J. Sullivan, III:

Well, let me address myself to the hierarchical aspects.

William J. Brennan, Jr.:

It goes on to say all parties maintain at the sole limitation on this rule.

Civil Courts may entertain the narrowest kind of review that carries on the decision of the Church generally it is claimed to have resulted from fraud, collusion, or arbitrariness?

Leo J. Sullivan, III:

In agreement with that completely sir.

William J. Brennan, Jr.:

I know.

Leo J. Sullivan, III:

Okay.

Let me address to the hierarchical distinction Mr. Justice in that and really it is in rebuttable to what Mr. Jenner has said.

Now —

Harry A. Blackmun:

You got to the argument so far that this is not a case involving an hierarchical church?

Leo J. Sullivan, III:

Oh! Who was it Mr. Justice Holmes who said a word is —

Harry A. Blackmun:

(Inaudible) living thought, I know.

Leo J. Sullivan, III:

Yes (Voice Overlap) living right.

Alright, we do not —

Warren E. Burger:

So it is a little bit like the difference between the corporation and the partnership.

It is not just something a part of an mythology.

It is a world of honor.

Leo J. Sullivan, III:

Well, it is a world of theology and it is from a different discipline than ours and our discipline is jurisprudence.

Now, we have learned clergyman describe what hierarchical meant and we cited part of it in our record and what they said was, it has something to do with the ascendancy of a bishop, priest, and deacon.

Warren E. Burger:

Can the Midwest Group appoint its own bishops?

Leo J. Sullivan, III:

It could not before May 10, 1963 when then, prior to the date that they attempted to divide this.

Prior to the date that they took us out of there constitution, it had agreed with Belgrade that Belgrade would appoint its spiritual leader, that is to say its bishop.

But once they took us out of their constitution in a perfect way to amend this out, we could not amend ourselves up because they had to approve any amendments of our constitution, but they lacked the ability to amend our constitution.

Warren E. Burger:

What are the bishops currently?

Does Belgrade appoint the bishop?

Leo J. Sullivan, III:

To the American Canadian Diocese?

Belgrade does not because the American-Canadian Diocese does not exist in the Belgrade Constitution.

It has been removed since May of 1963.

They have three difference dioceses there.

They —

Potter Stewart:

Suppose you are right in that the Illinois Supreme Court is right, who will appoint the successor of the respondent Bishop here?

Leo J. Sullivan, III:

That will be up to the members of the Church National Assembly or Sabors.

Those members of the Illinois Religious Corporation which are the congregations that supported when they meet in their every three —

Potter Stewart:

But without reference to the assembly of Bishops in Belgrade?

Leo J. Sullivan, III:

I think they could choose, if they want it, they could choose a Serbian Bishop.

I think it is up to them to decide who they will look to now for spiritual leadership because their administrative leadership and their property and their legislative authority has always been intent and they had it in a smaller form when they look to the Russian Orthodox Bishop for guidance prior to 1921.

Warren E. Burger:

But have any bishops been appointed in these three categories now, these three geographical areas other than Belgrade authority?

Leo J. Sullivan, III:

In the three new dioceses, Your Honor?

No sir, those are three new dioceses which Belgrade has a perfect legal right to have, but they certainly are not successors to the American-Canadian Diocese.

Warren E. Burger:

My question is who has been appointing the bishops lately?

Leo J. Sullivan, III:

To the three diocese represented by Mr. Jenner, the Holy Assembly of Bishops of Belgrade, Yugoslavia.

Warren E. Burger:

That sounds something like hierarchical, does it not?

Leo J. Sullivan, III:

Yes sir.

In the religious sense, there is no doubt that the religious sense is defined by the religious men that they are hierarchical because they all say hierarchical refers to the flow of sanctifying grace from bishop to priest to layman, but what I think is causing some confusion in the case, now Mr. Jenner compared to Roman Catholic Church and I am quite familiar with that and they make us sort of file in here.

This diocese has never been like the Roman Catholic Church Diocese where the real estate is owned by the Catholic Bishop of Chicago and he absolutely has an obligation to respond to Rome.

This is the most unique diocese in the Serbian Orthodox Church and to say that this is wholly and flatly hierarchical is to ignore the clear provisions of the constitution in the practices over the years.

How do you explain that it is no longer — that they were never found in Article 14 of their constitution?

The relationship has always been one of independence over here in America as far as administration and control of the property is concerned and we look to Belgrade after the Russians finally found this too cumbersome to carry far the appointment of the bishop.

Potter Stewart:

What you are saying — it sounds like you are saying one or two things.

One, the Serbian interest may be hierarchical church, but we are not part of it?

Leo J. Sullivan, III:

Article —

Potter Stewart:

That may be one of your arguments.

The other one apparently is that it just is not hierarchical?

Leo J. Sullivan, III:

No sir, I hope I am not misleading you.

Without any doubt, those dioceses in the Serbian Orthodox Church found in Article 14 of the Serbian Orthodox Church are hierarchical and are strictly hierarchical and are as hierarchical as the amicus here, the Catholic Archbishop of Chicago.

(Inaudible)

Leo J. Sullivan, III:

No sir, we are not.

We are in fifteen.

Byron R. White:

Are you saying you are not part of a hierarchical church?

Leo J. Sullivan, III:

Today?

Potter Stewart:

(Inaudible) to the church I suppose?

Byron R. White:

But at least you are not part of —

Leo J. Sullivan, III:

But we have our church, whatever church —

Byron R. White:

Whatever church, to the extent that the Serbian Church is hierarchical, you are not part of that hierarchy you are saying?

Leo J. Sullivan, III:

Since they threw out us out, since they amended us out, yes sir.

Potter Stewart:

Since 1963, your relationship to the Church in Yugoslavia is more or less the same as the Episcopal Church of the United States as to the Church of England, is that it?

Leo J. Sullivan, III:

I am not too sure of that relationship, but it is one of respect.

It sounds close.

They threw us out.

Potter Stewart:

It is hierarchical, but one is not part of the other?

Leo J. Sullivan, III:

There is no —

Potter Stewart:

Probably they have the same root?

Leo J. Sullivan, III:

Yes sir.

Byron R. White:

Now what if you present — you assert that that is your claim, we are just not part of that hierarchy.

Now, let us assume however that the highest Church Court in that hierarchical Church, which you agree is hierarchical —

Leo J. Sullivan, III:

Yes sir.

I agree.

Byron R. White:

— the highest Church Court addresses this very question and decides that you are part of the hierarchy?

Leo J. Sullivan, III:

I do not believe they have ever, unless it is quite that in that manner.

Byron R. White:

Assume they decided that in this case?

Leo J. Sullivan, III:

Let us assume that they have sir.

I think that —

Byron R. White:

And you think that the courts must as a threshold issue address itself to and can completely get into the question of whether or not it is a hierarchical structure and to what extent it is?

That is the decision of the Church Court on whether it is hierarchical or not is not claimable?

Leo J. Sullivan, III:

I do not believe that the decision of the Church Court as far as it affects property rights need be enforced by a civil court of this country as long as the civil court of this country can pick up the constitutions that regulate the relationship between the two parties and make the decision without finding themselves in a doctrinal snare.

If you can find —

Byron R. White:

(Inaudible)

Leo J. Sullivan, III:

Mr. Justice, I hope it does.

Byron R. White:

It sound like it, is it not?

I just wonder to what extent a civil court is free to review the judgment of the highest court of a hierarchical church that this particular part of the church is part of the hierarchy?

Leo J. Sullivan, III:

Well, I think it must be able to ask the person who comes looking to a civil court for enforcement.

Byron R. White:

At the outset it seemed to indicate that the that issue was open to some extent anyway and —

Leo J. Sullivan, III:

Well —

William H. Rehnquist:

What if the Serbian Eastern Orthodox Church and Council of Bishops decide that the Lutheran Church in America is a part of the hierarchy of the Serbian Eastern Orthodox and the Serbian Eastern Orthodox Church goes to court and says we want to take over the following Lutheran Churches, would a court be entitled to inquire into that point?

Leo J. Sullivan, III:

Yes sir.

I think anyone making application to a court for civil court enforcement of a decision must one; demonstrate that we have jurisdiction and they must be able to demonstrate it.

They are going to get civil court enforcement by neutral principles of law and you said that in the Hull, the states better set it up that way and the churches better get it together that way.

I think then they would have to demonstrate it is a matter over which we have jurisdiction and then they would have to demonstrate that there was a good basis for their opinion.

Whereupon I think the defense — let us say they make the prima facie and there may be some other elements that they have to prove, then I think the defense is available for someone to come in and say that decision is absolutely fraudulent, that that position was obtained by the collusion of three ex-Lutheran members.

Byron R. White:

That is not the jurisdictional question per se of Mr. Justice Rehnquist?

Is that the issue in this case of whether or not you are part of the hierarchy or not or are you relying mostly on what you are talking there at the end of your answer?

Leo J. Sullivan, III:

I am not too sure.

Byron R. White:

That it was arbitrary or fraudulent?

Leo J. Sullivan, III:

The hierarchical aspects, we are called the hierarchal blanket drawn over the issues by the petitioners.

I believe we — our diocese is not the strictly Roman Catholic hierarchical diocese so that the class 3 Watson and Jones or paragraph 3 of Watson and Jones hierarchical rule does not apply to our diocese because there are in existence clear, easily read constitutions which involved no doctrinal disputes by which this question can be resolved.

Byron R. White:

Well, let us assume that you were one of the, let us assume that this diocese was one of those diocese within the —

Leo J. Sullivan, III:

Article 14 inside Yugoslavia?

Byron R. White:

Would you be here?

Leo J. Sullivan, III:

No sir.

Byron R. White:

Even, no matter how arbitrary the decision might have been?

Leo J. Sullivan, III:

If they sought civil court enforcement of it and we thought we could put up a defense of fraud, collusion, or arbitrariness, yes sir, then we would be here.

Byron R. White:

Well —

Leo J. Sullivan, III:

But there would be no question about the right of the Holy Assembly in that case because there is not another diocese in the Serbian Orthodox Church, it has a constitution.

Warren E. Burger:

Mr. Sullivan.

Leo J. Sullivan, III:

Yes sir?

Warren E. Burger:

Since 1963, has any bishop been appointed in this diocese?

Leo J. Sullivan, III:

The American Canadian Diocese?

Warren E. Burger:

Yes.

Leo J. Sullivan, III:

Yes sir.

Warren E. Burger:

And again, I thought I got this before, what was the source of this appointment, Belgrade or Chicago?

Leo J. Sullivan, III:

No, Libertyville.

They have a vicar bishop in addition to Bishop Dionisije who was elected, I should say nominated by the Holy Assembly of Bishops.

He was consecrated in the usual Orthodox manner by laying on of hands of Orthodox —

Warren E. Burger:

Since 1963?

Leo J. Sullivan, III:

Yes sir, now you are talking about the American-Canadian Diocese.

Yes sir.

Warren E. Burger:

So the bishop is now holding office got his authority out of Belgrade?

Leo J. Sullivan, III:

No sir.

Warren E. Burger:

Then, why do you not declare it out.

Leo J. Sullivan, III:

Maybe I have confused it.

The American-Canadian Dioceses of Libertyville which we represent and the congregations which have remained faithful to Libertyville and recognized Bishop Dionisije as a bishop, these are the ones I am talking about, they elected a vicar bishop who serves under Bishop Dionisije in, I think it was 1963 or 1964, I am not sure of the year, they nominated him really and then he was ordained by other Orthodox Bishops which as far as their concern makes ecumenical, takes a laying of hand of two Orthodox Bishops to make him an Orthodox Bishop.

Now, he serves as vicar bishop under Bishop Dionisije in the American-Canadian Dioceses.

Now, as to the three new dioceses, those bishops have been appointed by the Holy Assembly of Bishops, actually four because one passed away and they have not filled in the spot, so they made four appointments of bishop to their three dioceses in America.

Potter Stewart:

You do not question the validity of that?

Leo J. Sullivan, III:

No sir.

They have certain right to —

Potter Stewart:

As a separate church members?

Leo J. Sullivan, III:

Yes sir.

We cannot — you see when you talk about the American-Canadian bishop of the Serbian Orthodox Church, if we pick up their constitution we cannot find it in the constitution because they wrote out us out and they had an absolute right to write us out and one of our complaints about Justice, The Illinios Supreme Court’s opinion was they got down to the end of opinion, they said yes, these people had used the word repudiation because all of the sudden we are talking contract law, but these parties have split apart, but I find that there is an underlying religious unanimity that exists, and therefore, I am not going to give the natural effect to their acts that I would if the were voluntary association, a club or a union and we feel —

William J. Brennan, Jr.:

Who addressed them out?

The Trial Court or the —

Leo J. Sullivan, III:

The Illinois Supreme Court.

William J. Brennan, Jr.:

Well you (Voice Overlap).

Leo J. Sullivan, III:

We felt all issues necessary do justice are before the Court.

William J. Brennan, Jr.:

You did cross-petition, did you?

Leo J. Sullivan, III:

We filed.

It was known as a conditional cross-petition.

William J. Brennan, Jr.:

Oh did you, I beg your pardon?

Leo J. Sullivan, III:

And an issue arose because we came —

William J. Brennan, Jr.:

My apologies, I did not know you did.

Leo J. Sullivan, III:

I do not know it was allowed.

It was not specifically allowed Mr. Justice.

Byron R. White:

It was denied?

Leo J. Sullivan, III:

No sir, it was not denied either.

Leo J. Sullivan, III:

All they said was certiorari granted and we felt all issues necessary.

We wonder whether or not that one will make a footnote on federal practice —

(Inaudible)

Leo J. Sullivan, III:

We did raise that issue.

We felt that the Court went as far as it did.

Now, I would like to move to Bishop Dionisije briefly.

Bishop Dionisije, a member of the Serbian Orthodox Church elevated to Bishop.

In 1961, they adapted a penal code, penal procedures.

As an incident, in our view, to their efforts to — no matter what their motives were, to proceed against Bishop Dionisije, they sought first of all to suspend him, take the first step in the penal proceedings, then the second step they appointed an administrator who was just to keep the place from burning down while they proceeded with the penal proceedings.

Practically, there was a great stir in the country among the people because of the division of the dioceses and the Sabor I think was (Inaudible) in council fired off telegrams to Belgrade and said, “Look, give Bishop Dionisije a trial.

If he is guilty, he is guilty.

If he is innocent, he is innocent.

Let us take care of that issue.”

But as far as this division question is concerned we are going to move this Sabor forward and we want to find out, we are going to present this to the Congregations who are still with us and by the way, as far as we are concerned, congregations can come and congregatons can go.

We have no interest in their property.

There is anything much we can do about it.

We feel Belgrade acted with a great deal of haste.

A great many charges and accusations were thrown back and forth, heresy, heretic, systematic and were thrown by both sides, a great deal of mud, back and forth. Investigating Commission whose obligation it was to come over and follow the rules of penal procedure completely and totally ignored the rules.

They would not show him the charges.

They have issued findings of his guilt and as soon as they talked with him, they knew very well what the outcome, the result would be.

The sum in substance of it was —

John Paul Stevens:

Mr. Sullivan would you comment on the point they make at the end of their reply brief that their action really rested on his conduct after May 10, 1963 in refusing to participate and so forth?

Is that a sufficient basis for their action?

Do you understand the point I am saying?

Leo J. Sullivan, III:

Yes, I understand the point.

I have two answers to that and perhaps the most important answer is, earlier in the brief they say, “Aha! The Court gave this case a trial de novo.

They could not do that.

The Bishop Dionisije’s faction retried his guilt or innocence before the Court and then immediately in their brief they come back and say, but notwithstanding that, there was still plenty to convict him on.”

But let me answer the second part of that question.

His conduct after made attempt, when he failed to recognize the division, since every Court has held that the division was illegal, I would find it rather unconscionable to support a judgment against him because he was right.

Leo J. Sullivan, III:

I know it makes a tough situation.

Had they followed the rules, and strictly adhered to the rules, I think their judgment would be entitled to enforcement by this Court.

But as it stands now since they did not follow the rules, I think this Court has to say, I am sorry we are not going to enforce it.

Now, you are not reinstating him as a bishop because there is no desk in the Holy Assembly of Bishops meeting the hall for the Serbian, for the Bishop of the American-Canadian Diocese.

It is gone.

Byron R. White:

May I ask you to go back to passage in the Supreme Court of Illinois, the opinion that Mr. Justice Brennan referred to.

It says that on appendix 25, “Plaintiffs argue and defendant Bishop Dionisije does not dispute that the Serbian Orthodox Church is a hierarchical and Episcopal Church.

Moreover, the parties agree that in cases involving hierarchical churches is the decision of the proper church tribunals on questions of discipline, and so on are accepted as conclusive.

All parties maintain the sole limitation as the narrowest kind for fraud, collusion, or arbitrariness.”

Leo J. Sullivan, III:

Yes.

Byron R. White:

And then it goes on and decides in your favor within that narrow exception.

Leo J. Sullivan, III:

Yes sir.

Byron R. White:

Now, in you petition for certiorari, do you challenge that recitation that I just read to you?

Leo J. Sullivan, III:

No sir.

Byron R. White:

So we are accepting — we judge this case on the basis that this diocese is part of a hierarchical church?

Leo J. Sullivan, III:

Yes sir, in the context by which I have attempted to explain it that they looked to Belgrade for the spiritual leadership, but thy have always had it —

Byron R. White:

I just want to make — you have not challenged in your petition for certiorari this statement that I read you?

Leo J. Sullivan, III:

No sir, we have not.

Lewis F. Powell, Jr.:

Mr. Sullivan?

Leo J. Sullivan, III:

Yes sir.

Lewis F. Powell, Jr.:

Along that same line of inquiry, as I understand your position, you do not question the basic jurisdiction of the Mother Church in Belgrade to remove the American Bishop.

You do question and I understand to be the issue here, the way in which it exercised that jurisdiction, you said that if it had acted properly, it had the authority under Church Law to remove the American Bishop?

Leo J. Sullivan, III:

Absolutely, subject to the problem and really we have the Bishop Dionisije issue here and no matter what the Court sees fit to do on the Bishop Dionisije issue, the integrity and the fact that we have been thrown out of the Serbian Orthodox Church still remains and whether this — a civil court sees fit to enforce that decision of Belgrade regarding disciplinary proceedings against Bishop Dionisije has nothing to do with the fact that the Illinois religious corporation still exists and it may now have to look to somebody else for spiritual direction.

Now, it has already been recognized by the Patriarch of Alexandria who is known as the Judge of the Patriarch of the Orthodox Church, it is also recognized by other Orthodox Clergy and this may be evolutionary sort of thing.

(Inaudible)

Leo J. Sullivan, III:

And that by the way I warn you it is not in the record.

That is something just occurred within the last six weeks or so, the recognition by the Patriarch of Alexandria.

Would that be all Mr. Justice, members of the Court, may it please you?

Thank you.

Warren E. Burger:

Mr. Jenner, you have a few minutes left.

Albert E. Jenner, Jr.:

Thank you, if your Honors please.

One, the American-Canadian Diocese is still a part of the Serbian Orthodox Church.

It is not a separate diocese.

When the Holy Assembly of Bishops reorganized the American-Canadian Diocese because it was becoming so large and so difficult to administer as Bishop Dionisije himself pleaded to the Holy Assembly of Bishops.

Instead of signing more bishops over, they divided the diocese into three parts.

The very three parts of Bishop Dionisije had organized as an Episcopal Divisions and in doing so, in the order, the final boundaries of the newly established diocese’s revision of the existing church constitution for this territory in conformity with a newly created situation and all other questions relative to the clear ecclesiastical organization of these dioceses shall be studied by the Church National Convention here with the bishops in charge and there are motions submitted for final decision of the Holy Assembly of Bishops.

So what these holy men did, exercising sound judgment that will create three dioceses here to afford better administration.

You decide as stated in this order exactly what the boundaries of those three dioceses will be.

You review the constitution of the Canadian-American Diocese and recommend revisions of that constitution to apply to all three of the dioceses.

That is what these people in Yugoslavia, these holy men said, “You are over in America.

We have trouble understanding quite what your laws are, but you do it and that is what was done.”

Now secondly, the Illinois Supreme Court, the Illinois Appellate Court, every Trial Court that had considered this matter has said that the effort of Mr. Sullivan’s clients, Mr. Sullivan, a distinguished Illinois lawyer to withdraw the dioceses from the article structure was invalid and that this diocese is still there pending the ultimate disposition.

Now, litigation pending for 13 years, the ultimate decision of affirming the creation of the three dioceses as a reorganization administratively.

Now lastly, this diocese never had complete autonomy.

The constitution itself says for administrative purposes since the American-Canadian Dioceses and half a dozen others outside of Yugoslavia are mentioned in the article to which Mr. Sullivan refers, they have to have special provisions because we do not have, it is not the dioceses that are in Yugoslavia and we are close to them, we may administer them, we give you a large measure of administrative independence, but that constitution provides expressly and the constitution of the diocese provides expressly that all decisions of the Church Councils here must go to the bishop and be approved by the bishop and he in turn submit them to the Holy Assembly of Bishops for ultimate approval.

And all decisions with respect the this diocese and its administration, if the bishop disagrees, then those decisions made by the Sabors and the Councils do not go into effect until he agrees or until its submitted to the Holy Assembly of Bishops and the Holy Assembly of Bishops approve.

So you have this analogous situation in the moment and this is going to be a few more words, the Holy Assembly of Bishop being placed in this position with schismatic seeking to withdraw from the Church and those Holy Men in Belgrade are holding the American-Canadian Diocese as unit, pending disposition to this litigation, commenced by the schismatic in the Summer of 1963 and they having appointed now Bishop Firmilian as the administrator, pending the disposition to this litigation with the Holy Assembly in the hopeful deference to this Court and to all other courts until it is finally decided.

It is a sort of a morphacy (ph) that the diocese is a whole exist pending this litigation.

The division of the diocese also exists to bring eventually the council of the diocese and then it says council, it does not say there in that order that you shall call Sabors in each of the three dioceses, you shall call a council for the whole diocese, report back to us how you need this constitution revised so that this may all be settled and you may go on administering with three bishops instead of one bishop.

Thank you, Your Honors.

Warren E. Burger:

The case is submitted.