Kendysh v. Holy Spirit BAOC

• Decision Date: 18 June 1987
• Docket Number: Civ. A. No. 83-1906.
• Citation: 683 F. Supp. 1501
• Parties: Rev. Vasil KENDYSH, Secretary of the Consistory of the Byelorussian Autocephalous Orthodox Church, individually and as such officer and representative of the members of said denomination, Plaintiff, v. HOLY SPIRIT BYELORUSSIAN AUTOCEPHALIC ORTHODOX CHURCH, a Michigan Corporation, Bazyli Pleskacz, and Manufacturer's National Bank of Detroit, a National Banking Corporation, Defendants.
• Court: U.S. District Court — Western District of Michigan

683 F. Supp. 1501

Rev. Vasil KENDYSH, Secretary of the Consistory of the Byelorussian Autocephalous Orthodox Church, individually and as such officer and representative of the members of said denomination, Plaintiff, v. HOLY SPIRIT BYELORUSSIAN AUTOCEPHALIC ORTHODOX CHURCH, a Michigan Corporation, Bazyli Pleskacz, and Manufacturer's National Bank of Detroit, a National Banking Corporation, Defendants.

Civ. A. No. 83-1906.

United States District Court, E.D. Michigan, S.D.

June 18, 1987.

Valentine N. Horoshko, New York City, Gary Price, Birmingham, Mich., for plaintiff.

Cass S. Jaros, Michael R. Main, Michael D. Boutell, Christian C. Nilson, Eric C. Oppenheim, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JULIAN ABELE COOK, Jr., District Judge.

The trial of the instant cause was held from May 26 to May 28, 1987. Pursuant to Fed.R.Civ.P. 52, the Court now enumerates its "Findings of Fact" and "Conclusions of Law." The Court has jurisdiction under 28 U.S.C. § 1332.¹

FINDINGS OF FACT

The Plaintiff, Reverend Vasil Kendysh,² is the Secretary of the Consistory of the Byelorussian Autocephalic Orthodox Church (BAOC). The BAOC was founded in Germany in 1948, adheres to the tenets, canons, doctrine and tradition of the Holy Ecumenical Apostolic Church, and maintains parishes in the United States, Europe, Canada, and Australia. The Consistory is an intermediate administrative ecclesiastical judicatory of the denomination with duties that include a general responsibility for church property.

The Defendant, Holy Spirit Byelorussian Autocephalous Orthodox Church (Holy Spirit Church), is an ecclesiastical corporation which was organized under the laws of the State of Michigan on May 10, 1971, with its principal office at 14861 Collison, East Detroit, Michigan. The Defendant, Bazyli Pleskacz, is the Secretary of the Holy Spirit Church. The Defendant, Manufacturer's National Bank of Detroit (MNB), is a national banking corporation which conducts its business in the State of Michigan.

At the trial, Archbishop Mikalay,³ whom the Holy Spirit Church recognizes as its spiritual leader, and Joseph Sazyck, the current President of the Holy Spirit Church Council, testified that the Holy Spirit Church began in 1967 as a fellowship of likeminded people in the Detroit area who conducted religious services in their own private homes. In 1971, the group purchased a church building for $25,000,⁴ which was derived from contributions from persons who became "founders" of the Holy Spirit Church. Subsequently, the Holy Spirit Church acquired another parcel of realty,⁵ which was adjacent to the first parcel and served as a Rectory.⁶

In May 1971, the fellowship became incorporated under the title of the Holy Spirit Byelorussian Autocephalic Orthodox Church.⁷ Pleskacz, Sazyck, and Walter Bakunovich signed the Articles of Association on behalf of the Holy Spirit Church. Paragraph Fourth of the Articles of Association reads:

The members of said church or society shall worship and labor together according to the discipline, rules and usage of the Holy Apostolic Oecumenical Orthodox church in the United States of America (or other jurisdiction as the case may be), as from time to time authorized and declared by the NONE

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(Here Insert the name of the higher ecclesiastical body or bodies, if any, authorized to determine such question).

(Lines in original). The Defendants assert that this provision demonstrates their independence from the BAOC. The Holy Spirit Church adopted a set of By Laws, many of which reflect a strong affiliation to the BAOC. However, those provisions which relate to property (to wit, paragraphs 18 and 20), indicate that a retention of interest by the local parish was intended.⁸

On May 28, 1972, the BAOC convened a convention for the purpose of (1) formalizing the relationship between the BAOC and its various parishes throughout the world, and (2) selecting a primate of the Church.⁹ Notice of the convention was sent to each of the parishes one or two months in advance.

There was much dispute between the parties as to whether John Brucky and Bakunovich were convention delegates of the Holy Spirit Church or were merely interested individuals who had attended the sessions without official credentials. Bakunovich, in claiming to have paid his own expenses, asserts that he was not a representative of the Holy Spirit Church at the convention. However, Brucky noted that he and Bakunovich had exercised their voting privileges as convention delegates of the Holy Spirit Church. Although Brucky claims that his right to appear at the convention as a delegate was verified by a convention committee, he was unable to produce the letter which was ostensibly used by him to establish his credentials. Mikalay, who also attended the convention, testified that Kendysh had made Brucky and Bakunovich the Detroit representatives.

The Court finds Bakunovich's assertions on this point to be highly questionable. Although he and Brucky may not have been formally elected by the Holy Spirit Church to serve as delegates to the convention, it is clearly evident that they did act in such capacities. Certainly, there is nothing to indicate that Bakunovich objected to such a designation at the convention. This was a convention, which was convened to create, inter alia, a Constitution for the BAOC. It is not plausible to think that non-representatives or unofficial individuals would be allowed to participate in such an historic event.

Indeed, the minutes of the convention demonstrate that Brucky and Bakunovich were significant participants.¹⁰ For instance, page 4 of the minutes, which identifies all of the convention delegates, lists Brucky and Bakunovich from the "parish in Detroit." On page 1, the minutes indicate that Bakunovich was elected to the important role of Secretary to the convention. However, it should be noted that he did not recall such an election when queried during the trial. This Court finds his response to be devoid of credibility in view of the significance of the election and his obvious desire to minimize his role at the convention. Bakunovich and Brucky were also selected to serve on the BAOC Council at the convention. In addition, Brucky, as a lay delegate, was also unanimously elected to the presidium of the convention. The record certainly indicates that each of these men acted as if they had the authority to represent the Holy Spirit Church despite Bakunovich's disclaimer. Accordingly, this Court determines that Brucky and Bakunovich served as delegates to the convention as representatives of the Holy Spirit Church.

The minutes detail the deliberations by the convention delegates about the formation of a Constitution for the BAOC. On May 28, 1972, the convention adopted the following proposal:

That the convention accept the constitution of the BAOC in principle and delegate to the constitutional commission the task of formulating its contents, form and language in conformance to the spirit of the convention and with consultation of the delegates to today's convention and through a referendum.

All of the witnesses during the trial agreed that a Constitution¹¹ was only adopted in principle at the convention. A referendum was to follow after acceptable language had been agreed upon. Page 3 of the minutes also indicates that "Archbishop Andrew was elected as primate of the BAOC, hereinafter known as Metropolitan Andrew."

Work on the precise language of the Constitution continued over the next several years. On August 20, 1975, Andrew appointed Reverend Makeim Taupieka to serve as the priest for the Holy Spirit Church. Although it appears that Mikalay played an instrumental role in the appointment of Taupieka, the Holy Spirit Church accepted Andrew's ultimate authority to designate a priest. Indeed, Paragraph 5 of the Holy Spirit Church By Laws indicate that the authority rested only with Andrew.¹² The Defendants' apparent assertion (to wit, that the Holy Spirit Church actually had the essential authority over the appointment of the priest) is belied by the statements of Plezkacz who repeatedly said that he lacked any authority to oust Taupieka. He opined that only Andrew had such power.

The Statute was ultimately promulgated with a January 1, 1976 effective date.¹³ The Statute was signed by Andrew, Kendysh, and Vasil Rusak, as the Secretary of the BAOC convention. The Defendants assert that the Statute was improperly promulgated because it was never sent to the delegates for a referendum as required by the convention. Kendysh essentially admits this point, arguing only that the Holy Spirit Church and the other parishes, in failing to express any objections, acquiesced in the adoption of the Statute. This Court agrees with the Defendants and finds the evidence to be conclusive that no referendum was ever held on the Statute.¹⁴

According to the Statute, all local statutes of the parishes and dioceses were immediately cancelled and lost their effectiveness on January 1, 1976. Under Paragraph 29 of the Statute, control of local property was handled by the trustees:

The purchase or disposition of church real estate/property, land and buildings are to be carried out by trustees. (At least three persons) when property of the Consistory is involved, the latter appoints the trustees. In the Diocese, trustees are elected by the Diocesan Convention, in the Parish, by a meeting of the parishioners.... Trustees carry out transactions of purchase or sale in the name of the BAOC, as stated in paragraph 107 of these statutes ...

The property under control by the parishes become the property of the BAOC, as set forth in Paragraph 98 of the Statute:

All real estate, land, church buildings, chapels, other buildings, cemetaries, as well as all movable property and inventory—purchased or donated—funds in bank accounts or cash in current use under the authority and management of

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