Opinion
DOCKET NO. A-2396-12T3
2013-09-27
SEUNG JOON LEE, Plaintiff-Respondent, v. JAE G. SIM, HEE B. SON, YONG J. KIM, BOO CHUN LEE, EASTERN KOREAN PRESBYTERY, and THE SYNOD OF THE NORTHEAST, Defendants-Respondents, and YU BONG KIM, CHUNG SUNG YI, DONG SOO LEE, CHARLES KIM, JI HYUN KIM and HOPE PRESBYTERIAN CHURCH, Defendants-Appellants.
Edward Sun Kiel argued the cause for appellants (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Mr. Kiel and David Stanley Gold, on the brief). Jae Y. Lee argued the cause for respondent Seung Joon Lee (Law Offices of Jae Y. Lee, LLC, attorneys; Mr. Lee and Crew Schielke, of counsel and on the brief). Masessa & Cluff, attorneys for respondents Boo Chun Lee and Eastern Korean Presbytery, join in the brief of appellants.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7560-12.
Edward Sun Kiel argued the cause for appellants (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys; Mr. Kiel and David Stanley Gold, on the brief).
Jae Y. Lee argued the cause for respondent Seung Joon Lee (Law Offices of Jae Y. Lee, LLC, attorneys; Mr. Lee and Crew Schielke, of counsel and on the brief).
Masessa & Cluff, attorneys for respondents Boo Chun Lee and Eastern Korean Presbytery, join in the brief of appellants. PER CURIAM
Defendants appeal, on leave granted, the denial of their motions to dismiss plaintiff Seung Joon Lee's complaint, which arose out of their efforts to oust him as pastor of defendant Hope Presbyterian Church (Hope Church). Defendants argue that adjudication of plaintiff's claims would impermissibly entangle the Judiciary in matters of church governance in violation of the Establishment Clause. For reasons explained herein, we agree and reverse.
Plaintiff alleges in the first lines of his complaint that "a small group of church officials," whom he refers to as the "Rogue Congregants," "initiated proceedings" to have plaintiff's "pastoral rights terminated by slandering and defaming" him, resulting in his relationship with Hope Church being imperiled.
Specifically, he alleges that the trouble started at a prayer meeting in which defendant deaconess Ji Hyun Kim announced that plaintiff "stole money." Subsequently, Hope Church elders, defendants Yu Bong Kim, Chung Sung Yi, Dong Soo Lee, and Charles Kim submitted a formal accusation to defendant Eastern Korean Presbytery (the Presbytery), the governing council within the Presbyterian hierarchy for the geographic district encompassing Hope Church, seeking to dissolve the Church's pastoral relationship with plaintiff. The accusation alleged that plaintiff had precipitated disputes within the church that had "led to the destruction of countless souls," driven the church "to the verge of dissolution," sinned against God and church members and proved his inability to be the church's spiritual leader. The accusation was based, in part, on an affirmation signed by defendants' deacon Jae G. Sim and his wife, deaconess Hee B. Sim alleging that plaintiff advised them that their $20,000 donation to Hope Church needed to be in cash. They later learned that donation had not been recorded in the church's records.
The Sims' name is sometimes translated as "Shim," and Hee B. Sim is named as Hee B. Son in the complaint and motions. The Sims' brief was suppressed and the correct spelling of the names is thus unclear.
Plaintiff further alleged that defendant elder Dong Soo Lee, treasurer of Hope Church, stood outside the entrance of the church on a Sunday morning as congregants were entering for services with a sign "which essentially state[d] that 'he who stole money must go.'" Plaintiff claimed that former pastor of Hope Church, defendant Yong J. Kim, conspired with the other individual defendants in circulating a petition "based upon the same false and defamatory announcements" for a congregational meeting to address plaintiff's continued role as pastor of Hope Church.
An alleged picture of this sign was attached to the complaint. The text, however, is in Korean, as are several other allegedly defamatory writings attached to the complaint, no translations of which were provided.
The Presbytery formed a three-person committee, the Committee on Ministry, which included defendant Boo Chun Lee, to investigate the allegations of the accusation. Following its investigation, the Committee on Ministry announced that it "did not find any objective proofs and evidence" but had decided "[i]n looking out for the best interests of the church and the pastor," that it would advise plaintiff to resign. The Presbytery thereafter appointed an interim pastor and Hope Church barred plaintiff from its property.
Plaintiff responded by filing a complaint with defendant Synod of the Northeast (the Synod), the intermediate council within the Presbyterian hierarchy of which the Eastern Korean Presbytery is a part, seeking original jurisdiction in the Permanent Judicial Committee and to stay further proceedings against him. The Synod dismissed the complaint and urged plaintiff to file a detailed list of the actions he claimed were improper with the Presbytery with a request for correction.
Plaintiff thereafter filed with the Presbytery a formal complaint for "remedial case," a request for vindication, and a petition for review of investigative procedures. Through these filings, plaintiff sought to enjoin the Committee on Ministry from further proceedings against him and from appointing an interim pastor for Hope Church. He demanded maintenance of the status quo, including that he be allowed to continue to preside over Sunday services. He also demanded that the Committee on Ministry "and/or the Rogue Congregants" produce any petition signed by Hope Church members, the accusation, and any investigation of the allegations of the accusation, in accordance with the Book of Order, a part of the Constitution of the Presbyterian Church (U.S.A.) containing the Foundations of Presbyterian Polity, the Form of Government, the Directory of Worship, and the Rules of Discipline.
In his request for vindication plaintiff stated:
I . . . feel that I have been injured by various rumors and false accusations of a small minority of disgruntled elders (the 'Rogue Congregants'), including, without limitation, Yu Bong Kim, Chung Sung Yi and Dong Soo Lee (and Charles Kim), and Jae G. Sim and Hee B. Son . . . alleging that I have committed offenses of misappropriating
money [from] the church. I request that the Presbytery designate an investigating committee to make inquiry and ascertain the facts and circumstances concerning the alleged offense(s).Plaintiff alleged in his petition for review of investigative procedures, that "there has never been a true investigative period," demanded the appointment of a new investigating committee and a reasonable opportunity to be heard, and repeated his demands for the production of documents.
The following week, plaintiff filed his verified complaint, repeating the same allegations made to the Presbytery, and complaining that the Synod and the Presbytery had ignored his requests for the production of documents. Plaintiff particularly wished to review the petitions signed by members of the Church. He claimed that the petitions did not contain the requisite number of signatures mandated by the Book of Order in order to convene a meeting of the congregation.
Accompanying the complaint was a proposed order to show cause with temporary restraints seeking to enjoin the congregation from meeting to consider dissolving his relationship with Hope Church. The Chancery Division judge denied temporary restraints and plaintiff thereafter withdrew his request for injunctive relief contained in count one of the complaint. The Chancery Division judge dismissed count one with prejudice and transferred the remainder of the complaint to the Law Division.
Defendants moved in the Law Division to dismiss the complaint on different theories, including lack of subject matter jurisdiction. In addition to the request for an injunction dismissed as a part of count one, the complaint included claims against the individual defendants as well as defendants Hope Church and the Presbytery for: defamation per se for alleging in the accusation and otherwise that plaintiff stole money (count two); interference with contract arising out of defendants' alleged interference with plaintiff's existing contract with Hope Church by attempting to terminate him as pastor and "failing to follow the rules and procedures of the Book of Order" (count three); interference with prospective economic advantage by the Presbytery and Hope Church through the individual defendants "acting within the course of their positions as Elders or leaders of Hope Church," by attempting to wrongly terminate him and "failing to follow the rules and procedures of the Book of Order" thus tortiously interfering with plaintiff's opportunities to serve as pastor to other churches (count four); and conspiracy among all defendants to "terminate [plaintiff] as the senior pastor for Hope Church (mislabeled as "count six"). Plaintiff cross-moved to amend his complaint.
The Presbytery and Committee on Ministry member defendant Boo Chun Lee filed a motion to dismiss for failure to state a claim. Hope Church and the remaining individual defendants, with the exception of the Sims, filed a separate motion to dismiss for lack of subject matter jurisdiction. Defendant Yong J. Kim joined in the motions made by the other defendants. The Sims do not appear to have filed any pleadings.
After hearing argument, the Law Division judge denied defendants' motions to dismiss and granted plaintiff's motion to amend his complaint. The judge found plaintiff's claims for defamation or tortious interference were not barred "simply because he was a member of the church," or "because perhaps the church tried to address [the claims] within its own policies and structure." The judge acknowledged that "[i]t could very well be that the issues involving the religious involvement of the church the ecclesiastical issues may be so intertwined with plaintiff's claims that his claims should be denied." She ruled, however, that "at this point it's an argument," which "now is so complicated and so extenuated" that dismissal prior to discovery is "beyond the realm of reasonableness."
The parties have failed to include plaintiff's amended complaint in their appendices as required by R. 2:6-1(a)(1).
We granted a motion for leave to appeal by Hope Church and several of the individual defendants and joined by defendant Yong J. Kim. Although the Presbytery and Boo Chun Lee moved to dismiss for failure to state a claim, they have joined in the arguments made by other defendants on appeal seeking dismissal based on lack of subject matter jurisdiction. Accepting all of plaintiff's allegations as true for purposes of our review, see Union Ink Co. v. AT&T Corp., 352 N.J. Super. 617, 627 (App. Div.), certif. denied, 174 N.J. 547 (2002), we now reverse.
Although the Presbytery had not joined the Church defendants' motion in the trial court, it is entitled to challenge the court's subject matter jurisdiction by joining their appeal. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000). Subject matter jurisdiction can neither be conferred by agreement of the parties nor waived as a defense, and a court must dismiss the matter if it determines that it lacks subject matter jurisdiction. R. 4:6-7; Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:6-7 (2013).
Our review of the trial court's determination of the purely legal issue of the existence of subject matter jurisdiction is de novo. Santiago v. N.Y. & N.J. Port Auth., 42 9 N.J. Super. 150, 156 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013). Although the First Amendment's Free Exercise and Establishment Clauses bar civil courts from deciding issues of religious doctrine or ecclesiastical governance, Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 108-09 (App. Div.), certif. denied, 188 N.J. 489 (2006), our Supreme Court has noted that "[t]he First Amendment does not immunize every legal claim against a religious institution and its members." McKelvey v. Pierce, 173 N.J. 26, 32 (2002). Instead, the analysis must be "fact-sensitive and claim specific" requiring the assessment of each claim "in terms of doctrinal and administrative intrusion and entanglement." Id. at 33.
Because the Court has stated unequivocally that the Establishment Clause prevents review by a civil court "where a minister seeks redress for termination . . . involving, at [its] heart, a church's core right to decide who . . . may propagate its religious beliefs," id. at 42, the trial judge erred in denying the Presbytery's motion to dismiss plaintiff's complaint as against it. Plaintiff's tortious interference claims against the Presbytery in counts three, four, and six are based entirely on the Presbytery's efforts to terminate plaintiff as the pastor of Hope Church. Plaintiff's sole allegation against the Presbytery in those counts is that it had "attempt[ed] to wrongfully terminate Pastor Lee, including without limitation, by conspiring with the Rogue Congregants and failing to follow the rules and procedures of the Book of Order[.]" Resolution of that question would unavoidably impinge on the Presbytery's core right to decide who may minister to its members and propagate its beliefs and would entangle the court in substantive issues of religious polity and practice in violation of the Establishment Clause and contrary to the Court's holding in McKelvey. Because the Establishment Clause is a complete bar to plaintiff's tortious interference and conspiracy claims, the complaint as against the Presbytery, should have been dismissed with prejudice.
The defamation claim does not include specific allegations against the Presbytery, which is named only in the demand for judgment in count two. Further, unlike plaintiff's tortious interference claims against the individual defendants, plaintiff does not allege defamation as a basis for his tortious interference claim against the Presbytery. Although plaintiff claims in his complaint that the Presbytery "is only named as a defendant in this lawsuit based upon the conduct of the individual defendants who are pretending to act on [its] behalf," and to permit the Court to grant the injunctive relief that plaintiff sought, the conspiracy and tortious interference claims in counts three, four, and six are unrelated to any injunctive relief and allege specifically that the Presbytery committed those torts.
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There is, however, no similar absolute First Amendment bar to plaintiff's claims against Hope Church and the individual defendants, all of which are based on allegations that they defamed him. To establish a cause of action for defamation, a plaintiff must prove that the defendant, acting without privilege,
made a false statement of fact about the plaintiff, while either knowing that the statement was false or failing to exercise due care to ascertain the truth or falsity of the statement; the defendant communicated the false statement to a person other than the plaintiff; and the statement at issue
had the capacity to injure the plaintiff's reputation.
[Abdelhak v. Jewish Press Inc., 411 N.J. Super. 211, 228 (App. Div. 2009).]
That defendants made the alleged defamatory statements as part of their effort to remove their clergyman does not render the dispute over their defamatory nature a necessarily ecclesiastical one. A court may be able to apply neutral principles of law to determine the truth or falsity of the statements in a way that would not implicate religious doctrine. See Elmora Hebrew Ctr., Inc. v. Fishman, 125 N.J. 404, 414 (1991).
At oral argument before the trial court, plaintiff focused his remarks on specific statements accusing him of theft. Accusations of theft are defamatory on their face. Lawrence v. Bauer Publ'g & Printing, 89 N.J. 451, 459-60, cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982); Berkery v. Estate of Stuart, 412 N.J. Super. 76, 90 (App. Div. 2010). The allegations against defendants in the complaint, however, are broader than the remarks on which plaintiff chose to focus at oral argument. Moreover, as plaintiff failed to provide certified English translations of the alleged defamatory statements, with the exception of the accusation, it is difficult to determine the proofs required to sustain his claims and to what extent a factfinder would be required to probe ecclesiastical issues such as the Book of Order's directives over a pastor's handling of church finances.
Nevertheless, even assuming that plaintiff's allegations were limited to theft which "are certainly cognizable by civil courts, regardless of whether such acts may also offend religious tenets," Elmora Hebrew Ctr., supra, 125 N.J. at 419, an essential element of a cause of action for defamation is that the defendant's publication of the statement to a third party was unprivileged. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009); DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004). A statement may be defamatory, but nonetheless not allow its victim a damage recovery because it is subject to an absolute or qualified privileged. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990).
Remarks made in the course of judicial or quasi-judicial proceedings, for example, are wholly protected from liability. Ibid.; Loigman v. Twp. Comm., 185 N.J. 566, 587 (2006). Such comments are absolutely privileged. Erickson, supra, 117 N.J. at 563. Courts also recognize the existence of a qualified privilege, however, which provides the speaker with a lesser degree of immunity that is overcome upon a showing of actual malice. Ibid. As explained in Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 375-76 (1959), a qualified privilege is afforded to bona fide communications on any subject matter where the communicating party has an interest or duty and where the information is conveyed to a party that has a corresponding interest or duty. Id. at 375; Patel v. Soriano, 369 N.J. Super. 192, 250 (App. Div.), certif. denied, 182 N.J. 141 (2004).
The test for whether a qualified privilege should be conferred is whether the circumstances justify the publication of defamatory information. Erickson, supra, 117 N.J. at 564. The relevant factors are: 1) the appropriateness of the occasion on which the defamatory information is published; 2) the legitimacy of the interest to be protected or promoted; and 3) the pertinence of the information to the recipient. Ibid. The determination of whether a privilege exists is a question of law. Lawrence, supra, 89 N.J. at 462; Zagami, LLC v. Cottrell, 403 N.J. Super. 98, 108-09 (App. Div. 2008). Once a court determines that the privilege exists, the determination of whether it was abused is a question for the factfinder. Patel, supra, 369 N.J. Super. at 251. The plaintiff bears the burden of proving abuse of a qualified privilege by clear and convincing evidence. Williams v. Bell Tel. Labs., Inc., 132 N.J. 109, 121 (1993).
It would appear from the translated documents in the record that defendants in this case may be entitled to claim a qualified privilege for any statements that plaintiff may ultimately prove defamatory. The legitimacy of a congregation's strong interest in the moral integrity of its pastor and the proper dispensation of its members' donations is beyond dispute. Information regarding the potential theft of funds was highly pertinent to both the individual congregants and the church hierarchy. Because the allegations of the complaint go beyond statements made in the accusation (and which were not translated into English), however, it is not possible to determine on this record whether all of the statements complained of would be subject to the qualified privilege. Further, even if the speakers were entitled to claim a qualified privilege for the publication of their statements, the question of whether that privilege was abused is a factual one, unless the evidence is so one-sided as to be resolvable on summary judgment.
The point of our discussion is that plaintiff's claims against Hope Church and the individual defendants before the trial court were not sufficiently defined so as to allow the court to determine whether they could be adjudicated without impermissibly entangling the Judiciary in matters of church governance. Although we would ordinarily agree that plaintiff could, by amendment, narrow his complaint to defendants' allegations of theft, which could be adjudicated without running afoul of the Establishment Clause, that course is presently precluded here by plaintiff's prior filing with the Presbytery.
Plaintiff's formal complaint for "remedial case" and request for vindication were based on the same allegations contained in his Superior Court complaint. Thus, plaintiff determined to submit the issue of the truthfulness of the allegedly defamatory statements to the judicial authority of the Presbyterian Church (USA), which is considering his claims. Neither the scope of plaintiff's injuries nor defendants' claims of privilege can be defined in advance of the Presbyterian Church's resolution of plaintiff's claims. Accordingly, adjudication of plaintiff's civil claims for defamation and tortious interference based on his allegations that the individual defendants and Hope Church falsely accused him of theft, must await the Presbytery's completion of its investigation into whether plaintiff employed Hope Church funds in a manner consistent with the Presbytery's view of his pastoral duties. See Chavis v. Nickerson, 183 N.J. Super. 458, 462 (App. Div. 1982) (endorsing application of principles of comity and deference in matters involving ecclesiastical determinations of church affairs). When that investigation is concluded, plaintiff can present whatever claims for defamation and tortious interference he may have against the individual defendants and Hope Church for adjudication in a civil court and defendants assert any claims of privilege they may possess.
Accordingly, we reverse the denial of defendants' motions to dismiss and remand for entry of an order dismissing the complaint as to the Presbytery with prejudice for lack of subject matter jurisdiction and as to Hope Church and the individual defendants without prejudice pending the Presbytery's resolution of plaintiff's claims.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION