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Serbian Diocese v. Milivojevich

OPINION FILED MARCH 24, 1975.

THE SERBIAN EASTERN ORTHODOX DIOCESE FOR THE UNITED STATES OF AMERICA AND CANADA ET AL., APPELLEES,

v.

DIONISIJE MILIVOJEVICH ET AL., APPELLANTS.



Appeal from the Circuit Court of Lake County; the Hon. L. Eric Carey, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1975.

This is a direct appeal granted under Supreme Court Rule 302(b) (50 Ill.2d R. 302(b)) from a judgment of the circuit court of Lake County principally involving a dispute over the control of the Serbian Eastern Orthodox Diocese for the United States of America and Canada (hereinafter the American-Canadian Diocese or the Diocese) and the property and assets of that diocese. The parties, as they are presently constituted, are as follows:

Plaintiffs: Defendants:

Bishop Firmilian Ocokoljich Bishop Dionisije Milivojevich

Bishop Gregory Udicki Serbian Orthodox Monastery of St. Sava (monastery corporation)

Bishop Sava Vukovich

Serbian Eastern Orthodox Serbian Eastern Orthodox Diocese for the United Diocese for the United States of States of America and America and Canada (an Illinois Canada (the religious religious corporation) body in this country)

Plaintiffs sought, in part, to have the trial court find that Bishop Dionisije had been removed as bishop of the Diocese, that the Diocese had been reorganized into three new dioceses, and that the three bishops be granted control of the Diocese and its property. Defendants filed a counterclaim seeking, among other relief, an injunction to prevent the plaintiffs from interfering with the assets of the defendant corporations. The circuit court held, in pertinent part, that Bishop Dionisije had properly been removed as bishop of the American-Canadian Diocese, that the reorganization of the Diocese into three new dioceses was illegal and invalid, and that only Bishop Firmilian as the duly appointed administrator of the Diocese could exercise authority over the Diocese and its property. Both plaintiffs and defendants appeal the trial court decision.

This case was originally filed in 1963 by the present defendants, and the plaintiffs countered by filing a separate complaint. Both parties sought the same relief as was stated above. The trial court consolidated the actions and, based upon the pleadings, depositions and affidavits, granted the defendants herein summary judgment and dismissed the complaint of the plaintiffs. On appeal, the appellate court reversed the summary judgment and the order dismissing the complaint, and remanded the cause with directions for a full hearing on the merits. (Serbian Eastern Orthodox Diocese for United States of America and Canada v. Ocokoljich, 72 Ill. App.2d 444, appeal denied, 34 Ill.2d 631.) On remand and over defendants' objection, the trial court allowed the Serbian Eastern Orthodox Diocese for the United States of America and Canada, the religious body in this country, to be designated a party plaintiff.

The similarity of certain named parties involved in this appeal requires some clarification prior to any understandable recitation of the facts. In addition to the last-named plaintiff and the last-named defendant as previously set forth, there is the entity which is the subject of this controversy, the Serbian Eastern Orthodox Diocese for the United States of America and Canada (the American-Canadian Diocese). The trial court on remand made certain findings of fact as to the existence of these parties, namely, that the Illinois religious corporation is a secular arm of the American-Canadian Diocese, and that the religious body in this country is a religious body duly organized and existing since 1921. The trial court, thus, found that the religious body in this country was synonymous with the American-Canadian Diocese. We conclude, however, that these findings are contrary to the manifest weight of the evidence, and they are, therefore, set aside. (Turner v. Board of Education, 54 Ill.2d 68, 72-73; Kenny Construction Co. v. Metropolitan Sanitary District, 52 Ill.2d 187, 196.) It is unnecessary at this point to relate the facts which form the basis of our determination, since the factual recitation which follows amply discloses that basis. The American-Canadian Diocese and the Illinois religious corporation (the last-named defendant) are one and the same as of the time of the Diocese's incorporation in May, 1935. If a distinction is to be made between the organizational entity of the Diocese and the individual church members of the Diocese when viewed as a common group, the latter could properly be referred to as a religious body. We do not infer, however, that this latter entity is represented by any of the plaintiffs in this action. The subject of this controversy and a party defendant is the American-Canadian Diocese organized as an Illinois religious corporation.

The complete factual background essential for an understanding of this case is not in all respects certain, since the parties are in dispute concerning it, and the trial court entered its findings of fact only as to those facts upon which it based its decision. We will recite the complete factual background as we understand it from the record and the briefs submitted by the parties. However, as to the testimony of the numerous witnesses in the trial court, we will recite only that testimony we deem necessary for a complete determination of the issues on appeal.

In the 1890's, persons of Serbian descent migrated to North America, where they formed completely autonomous religious congregations throughout the United States and Canada. Until 1920 these Serbian Orthodox churches were under the jurisdiction of the Russian Orthodox Church, the oldest Orthodox church in this hemisphere. The Russian Orthodox Church, however, was burdened with its own requirements and was unable to care for the local Serbian needs. The minutes of early meetings of Serbian priests and people held in 1913 and 1916 indicate a strong desire by these people to have their churches in America under the jurisdiction of the Serbian Orthodox Church with its See in what is now Belgrade, Yugoslavia.

In 1913 a meeting of Serbian priests and people was called for the purpose of organizing the Serbian Orthodox Church in North America. During this meeting a constitution was drafted and accepted. Article 4 of this constitution provided that the Serbian Orthodox Church in the United States was to have its own Church National Representation and Church National Governing Body and that it would govern autonomously in matters of church, school, education and property.

In 1916 a Serbian Priests' Assembly was held and presided over by Bishop Evdokim of the Russian Orthodox Church. Business and problems facing the Serbian churches in America were discussed and resolved. A "Normal Constitution for the North American Orthodox Diocese" of 1909, apparently a constitution taken from the Russian Orthodox Church, was accepted by the priests' assembly with the necessary revisions to delete the references to the Russian Orthodox Church and refer instead to the Serbian Orthodox Church. It was also decided that several paragraphs would be added to this constitution to describe the duties of the Bishop's Aides. The 32 Serbian Orthodox parishes existing in the United States at the time of this meeting were divided into 4 presbyteries or divisions: Eastern, Middle, First Western, and Second Western. The Bishop's Aides were four Serbian priests elected to accept jurisdiction over the four presbyteries and to act as mediators between the bishop and the people.

In 1917 the Russian Orthodox Church sent Father Mardary Uskokovich (a Serbian educated in Russian Orthodox seminaries) to America with instructions to organize an independent Serbian diocese. Four years later the Holy Assembly of Bishops of the Serbian Orthodox Church sent a delegation to America to determine the status of the Serbian parishes. Apparently as a result of Father Mardary's efforts and the report of the delegation, the Serbian Orthodox Church recognized that the necessary structure was present in America for establishing a diocese, and designated a Serbian bishop to carry out the formal organization of a diocese. The designated bishop, however, did not become a permanent resident of the United States, and Father Mardary was appointed as Resident Administrator of the Diocese until his election as bishop of the Diocese by the Holy Assembly of Bishops in 1925.

In 1927 Bishop Mardary organized under the laws of Illinois a not-for-profit corporation named the Serbian Eastern Orthodox Diocese Council for the United States and Canada. The purpose of this corporation was to hold title to 30 acres of property in Libertyville, Illinois, which the bishop had purchased in 1924. The charter of this corporation was permitted to lapse, and, shortly before Bishop Mardary's death in 1935, the American-Canadian Diocese was incorporated pursuant to provisions of the Illinois Religious Corporation Act (Ill. Rev. Stat. 1973, ch. 32, pars. 176 through 188) under the name of the Serbian Eastern Orthodox Diocese for the United States of America and Canada.

Acting under his authority as diocesan bishop, Bishop Mardary called the First Church National Assembly meeting, also known as a Sabor, for September 1, 1927. The invitation to this assembly was sent to all of the known Serbian Orthodox churches in the United States and Canada with the stated purpose of uniting them under one constitution. At the assembly meeting the constitution of the Serbian Orthodox Diocese for the United States of America and Canada was drafted and adopted.

Article 1 of the constitution provides that the American-Canadian Diocese "is considered ecclesiastically-judicially as an organic part of the Serbian Patriarchate in the Kingdom of Yugoslavia." Article 3 states that "the jurisdiction of the Serbian Orthodox Diocese * * * includes the entire political territory of the United States of America and Canada, which as such by its geographical location enjoys full administrative freedom and accordingly, it can independently regulate and rule the activities of its church, school and other diocesan institutions and all funds and beneficiaries, through its organs, but in accordance with the laws of the constitution and in agreement with the laws of the United States and Canada." (Emphasis added.) Other pertinent provisions of the constitution provide that the bishop of the American-Canadian Diocese is appointed by the Holy Assembly of Bishops of the Serbian Patriarchate (article 9). When the seat of the diocesan bishop is vacated, the administration of the Diocese in spiritual and administrative matters is upheld by the Diocesan Ecclesiastical Court and the Diocesan Council until the appointment of an administrator by the Serbian Patriarch (article 13). The Diocesan National Assembly is the highest legislative and administrative authority of the American-Canadian Diocese with its executive and administrative organ being the Diocesan Council (article 5). The Diocesan National Assembly, which meets every third year in the month of September or on a day designated by the diocesan bishop (article 20), is composed basically of two delegates from every Serbian church-school congregation, all Serbian clergy, the diocesan bishop and the Diocesan Council (article 16). The diocesan bishop is the president of the Diocesan National Assembly (article 22) and the Diocesan Council (article 30). A function of the Diocesan National Assembly is to decide on changes and amendments to the constitution "with the approval of the Holy Bishops' Assembly of the Serbian Patriarchate." Article 23.

The constitution further provides that the property of the individual church-school congregation belongs exclusively to that congregation with no diocesan rights to it (article 147). All property owned by the American-Canadian Diocese is to serve "exclusively for the purpose designated by the statutes of this constitution and cannot be used for any other purpose." Article 149.

Following its adoption by the Diocesan National Assembly, the constitution was submitted for approval to the Holy Assembly of Bishops of the Serbian Orthodox Church. In 1928 the Holy Assembly approved the "autonomous administration" of the American-Canadian Diocese, but struck an initial provision which provided that the Diocesan National Assembly would elect its own bishop. It inserted the present article 9, which provides that the Holy Assembly appoints the diocesan bishop. The Holy Assembly also insisted that, as a condition for approval, all amendments to the constitution initiated only by the Diocesan National Assembly would require the approval of the Holy Assembly. The diocesan constitution, as then approved by the Holy Assembly of Bishops, remains, in substance, in force and effect today. It is undisputed that the Diocese thereby became the only diocese in the Serbian Orthodox Church with its own constitution.

In 1945, the property located in Libertyville, which had come to be called the St. Sava Monastery, was transferred to an Illinois not-for-profit corporation organized under the name of the Serbian Orthodox Monastery of St. Sava (monastery corporation). The bylaws of this corporation provide that it is an autonomous Serbian Church institution, and that it "possesses its own property which cannot be disposed of, sold, mortgaged or otherwise conveyed by any Serbian Church authority, without the consent and approval of the Diocesan Council, headed by the Bishop and the Diocesan Church convention." (Bylaw 2.) They further provide that the president of the Board of Directors is the canonical bishop of the Diocese "received as such by the Diocesan Council * * * Church Court and * * * Convention." (Bylaw 6.) In addition to the monastery corporation, two other not-for-profit corporations organized under the respective laws of California and Pennsylvania hold title to large parcels of property located in these two States.

The Serbian Orthodox Church with its See in Belgrade, Yugoslavia, is one of the 14 autocephalous churches resulting from the great schism in 1054 when the universal Christian church was divided into the churches of the west (the Roman Catholic Church) and the churches of the east (the Orthodox Church). In 1931 the Serbian Orthodox Church adopted a constitution which was substantially revised in 1947 due to changes in its relationship with the communist government of Yugoslavia. ...


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