# Petitioners Brief — Le Duc v. Normal Park Presbyterian Church > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2201%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1944 - **Citation:** 323 U.S. 729 ## Text fon . PESSIMISM TE BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI. Opinion Below. The United States Cireuit Court of Appeals for the Seventh Cireuit rendered its opinion in this case on May 4, 1944. The opinion is set forth on pages 121 to 125 of the record, Jurisdiction. The judgment to be reviewed was entered by the Circuit Court of Appeals for the Seventh Cireuit on May 4, 1944. A writ of certiorari is asked under Section 240 of the Judicial Code (Act of March 3, 1911 ©. 231, § 240, 36 Stat. 1157 as amended February 138, 1925, ¢. 229, § 1, 43 Stat. 938). Statement of the Case and Questions Presented. For a statement of the case and of the questions pre- sented see pages 1 through 12 above. Specification of Errors. The Seventh Cireuit Court of Appeals erred: 1. In affirming the summary judgment of the District Court in cause No. 48C 24. 2. In not reversing the summary judgment of the Dis- treet Court in cause No. 48C 24. 3. In finding that the record is clear that petitioner 14 received a fair judicial hearing, brought about at his own behest, on the complaint presented to the General Assem- bly. 4. In not finding that the record is clear that petitioner neither requested nor received a hearing de novo or deter- mination on the merits of the issue of dissolution of his pastorate before the General Assembly. 5. In not finding that under the Constitution and Laws | of the Presbyterian Church the General Assembly has no original jurisdiction to hear and determine the issue of dissolution of petitioner’s pastorate. 6. In making findings of fact and conclusions of law directly contrary to the sworn statements of material fact contained in petitioner’s affidavits filed in opposition to respondent’s motion for summary judgment. 7. In failing to grant petitioner the right to a trial by jury of the issues of material fact raised by the affidavits filed in opposition to the motion for summary judgment. 8. In failing to reverse the summary judgment and remand the proceedings to the District Court with diree- tions to grant a jury trial of the material facets upon the merits in the District Court. ARGUMENT. The Presbyterian Church and all its judicatories are strict ly subject to its Constitution and Book of Discipline. That the Presbyterian Chureh in the United States of America is strictly governed by a written Constitution and Laws with whieh all church action must comply is \y yond any possible dispute. It is a matter of common knowledge that it was one of the chief purposes of thi Protestant Reformation in the Sixteenth Century to sub stitute a body of written law as the supreme and govern- ing authority in the Christian church to replaee the su preme authority which had previously been vested ex clusively in the Bishop of Rome. For more than three centuries the Presbyterian Church has been strictly and exclusively governed by its written Constitution or Form of Government and by its Book of Discipline, Even the General Assembly itself cannot violate the Constitution and Laws of the Presbyterian Church; for in the Presby terian Chureh the Constitution and Laws are supreme. The judieatories, including the General Assembly, are sub- ordinate to the Constitution, not the Constitution to the judieatories (Presbyterian Digest, p. 323-6). Petitioner cites three cases (out of scores) which trace the history of the Presbyterian Chureh for centuries past and establish the absolute supremacy of the Constitution Baers ANAT RA PBI AND SOLED ALIS R EG 0 OOP TI LIA ESE LN TTB NEE 16 and the Book of Discipline over the judicatories, including the General Assembly itself: Landrith v. Hudgins, 120 8S. W. 783; Gartim v. Penick, 5 Bush, (Ky.) 110; Boyles v. Roberts, 121 8. W. 805. II. The Civil Courts will protect petitioner’s right to his salary — and pension if he had been deprived thereof by uncon- stitutional ecclesiastical procedure. That a pastor’s right to his salary and pension is a civil contractual right (and not a mere ecclesiastical right) is beyond dispute. While it has long been recognized that no secular court will interfere in any purely religious dis- pute involving only doctrinal or ecclesiastical matters, it has nevertheless been equally well established that the civil courts will take full cognizance of all civil rights and claims, whether the same involve contracts or property, even though the defendant may be a church or other re- ligious organization. In considering whether a minister has been deprived of his civil contractual right to salary and pension, the civil court will examine the ecclesiastical law of the chureh in order to determine whether under its Constitution and Laws the ecclesiastical proceedings de- priving any minister of his rights have been in full com- pliance therewith. Wallace v. Trustees of General Assembly of the United Presbyterian Church of North America, 45 Atl. 84; 50 Atl. 762; Kelly v. McIntire, 197 Atl. 736; McDowell v. Wilson, 97 Atl. 100; Woods v. Humber, 282 S. W. 834; Marsh v. Johnson, 82 8. W. (2) 345; 17 Quinn v. First Evangelist Baptist Church, 135 Sou. 793; Yanthis v. Kemp, 80 N. . 976; Grupe Vv. Rudissellals4 Atl. 874; Kedrovsky v. Burdikoff, 146 Atl. 613; Taylor v. Jackson, 273 VF. 345; Schweiker v. Husser, 146 Ml. 399; Bouldin vy. Alexander, 15 Wall. 131; Papailion v. Manusos, 108 Til. App. 272; 113 HI. App. 316; Kvangelical Lutheran St. Paul’s Congregation v. Ilass, 187 N. W. 677; Vaughan v. Maynard, 170 8S. W. (2d) 897; Mason v. Lee, 50 So. 625; Trustees of Delaware, ete. Church v. Ennis, 29 Atl. (2d) 374. Many of the above cases involved the removal of a min- ister; and the civil courts uniformly held that they were required to investigate the ecclesiastical law in order to decide whether the minister had been deprived of his rights within that law. Where, as in the Wallace case, the Supreme Court of Pennsylvania found that the Gen- eral Assembly in removing the pastor had not aeted in compliance with church law, the Supreme Court did not hesitate to find and hold that the minister was therefore ‘still entitled to hold the pastorate of the Jamestown Chureh’’ and to retain all of his civil rights under his con- tract. In disposing of the defense of laches, the Supreme Court held on the seeond appeal (50 Atl. 762) (p. 764): ‘“Whatever foree this might have on the amount of dam- ages he (the minister) might claim from the Jamestown congregation, it does not stop him from having his dismis- sal from the latter congregation declared unlawful by the civil courts.’’ 18 In the case of Taylor v. Jackson, 273 F. 345, the Court of Appeals of the District of Columbia on appeal from the Supreme Court of the District considered the right of the plaintiffs to be restored to membership in the Florida Ave- nue Baptist Church. The Court said (p. 347): ‘‘No tem- poral rights of appellees being involved, our inquiry must be confined to an examination of the rules of the church organization, for the purpose of determining whether there has been a substantial compliance with those rules.’’ The: Court held that a church member who had not received a notice required by the church law had thereby been de- prived of his ‘‘opportunity to be heard’’ and that ‘‘the order expelling him therefore was void’’ (citing numerous decisions including Bouldin v. Alexander, 15 Wall. 131). Similarly the Supreme Court of Illinois in Schweiker v. Husser, 146 Ill. 399, held that the office of pastor is ‘‘a property right ... which a court of equity will recognize and protect,’? and examined with great care the church law to decide which of two contestants was entitled to the office. In doing so the Supreme Court was required to determine which was ‘‘the true and lawful General Con- ference of the Evangelical Association,’’ which was analo- gous to the ‘‘General Assembly of the Presbyterian Church’? in this ease. In examining into church law the civil courts give par- ticular attention to whether a full and proper hearing upon the merits of the controversy, after due and proper notice, has been accorded in the ecclesiastical courts. For cases in which the action of the church tribunals has been re- versed on the ground that a full hearing upon proper notice was not granted, we direct this Court’s attention to: Hatfield v. DeLong, 59 N. E. 483; 19 First Church of Christ Sctentist v. Rentzel, 218 N. W. 652; Powanda vy. Pido, 155 Atl. 90: Rock Dell, ete. Congregation v. Mommsen, 219 NX. W. 88; Woodrum v. Burton, 107 S. BE. 102. The foregoing cases not only show beyond any doubt that the secular courts will take jurisdiction of any con- troversy involving a civil contractual right, such as that of a minister to his salary and pension money, but will for that purpose examine ecclesiastical law to determine whether the action of the ecclesiastical judicatory was reg- ular and im conformity with the Constitution and Laws of the religious organization involved, These cases also show that the strictest compliance with the ecclesiastical procedures is required, especially where the issue is whether a full and proper hearing pursuant to notice has been had upon the merits of the controversy, The civil courts have not hesitated to overrule the action of the highest church judicatories, such as the General Assembly of the’ Presbyterian Chureh, if the ehureh lay has not been precisely and correctly followed and applied. The General Assembly itself upheld petitioner's rieht in this case to sue for his salary and pension in the civil courts. It said that if petitioner ‘‘honestly felt that he had a claim for salary, ... he could resort to either the ecclesias. tical courts or the civil courts to enforce his rights. Before either the Commission or Presbytery had attempted to aet on the dissolution of his pastoral relation he had resorted to the Civil Courts where his suit is. still pending. He does not ask this General Assembly to adjudicate his salary claim, and the determination thereof, by his volun- tary act, rests with the Civil Courts”’ (R. 97). Dasa eee ccsieien Dae 20 III. Petitioner’s pastorate was not properly dissolved under the Constitution and Laws of the Presbyterian Church. As indicated in the Statement of the Case above, the General Assembly found that Presbytery and Synod in this case had committed ‘‘inexcusable error’? and ‘‘in- credible errors’? which were ‘‘not mere technicalities,’’ but which denied petitioner the rights ‘‘aceorded him by our - Constitution’? by denying both petitioner and respondent ‘a hearing as required under the plain provisions of Chap- ter XII, Section 12, of the Book of Discipline’’ and as provided in Chapter XVII, Section 1 of the Constitution (R. 95-9). The General Assembly, however, purported to hear and dispose of the issue by dissolving the pastorate on its own account. As indicated in the statement above, there were insuperable obstacles to this action by the General Assem- bly: 1. The General Assembly had no power of original ju- risdiction to dissolve the pastorate because the Constitu- tion and Laws of the Presbyterian Church specifically vests such power exclusively in the local Presbytery (R. 95, 97; Constitution, Chap. XVII, See. 1; Book of Discipline, Chap. XII, See. 12, p. 417-8). 2. The General Assembly itself held that in order to dissolve the pastorate it was necessary for both petitioner and respondent to request the General Assembly ‘‘to dis- pose of the action upon the merits’’ (R. 96). The General Assembly found that both petitioner and respondent had made this request (R. 96, 99). So did the Cireuit Court 21 of Appeals (R. 124). But it clearly appeared from pe- titioner’s affidavit (R. 63), and the trial court itself cor- rectly found (R. 80), that “neither plaintiff (petitioner) nor defendant (respondent) ever requested the Perma- nent Judicial Commission of the General Asseinbly to con- sider, decide or dispose of his (petitioner’s) complaint upon the merits.”’. The trial eourt also correctly found that petitioner ‘further asserts in his affidavit that nei- ther he nor the Presbytery of Chicago nor the Synod of Illinois ever submitted the matters contained in his com- plaint here to said Permanent Judicial Commission or the General Assembly for decision, or requested said Perma- nent Judicial Commission or General Assembly to con- sider, dispose of or decide affiant’s (petitioner’s) complaint or the matters therein referred to upon their merits’? (R, 81). Thus upon two incontrovertible grounds the General As- sembly of the Presbyterian Church violated its Constitu- tion and Laws in (1) purporting to exercise original juris- diction, which it did not have, to dissolve the pastorate, and (2) purporting to find that petitioner and respondent had requested the General Assembly or its Permanent Judicial Commission to act upon the issue of dissolution, in place of the local Presbytery in which the sole power to dissolve the pastorate was vested by the Constitution and Laws of the Church. RY ETE ESET IM TSE RITE TT SE ITM IIT RIS LIS, Tig »)) a IV. The summary judgment in this case violated Rule 56 of the Federal Rules of Civil Procedure and the Fifth and Sev- enth Amendments. Rule 56 of the Federal Rules of Civil Procedure pro- vides that no summary judgment may be entered unless ‘‘there is no genuine issue as to any material fact and- that the moving party is entitled toa judgment as a matter of law.’ (Emphasis supplied.) It is obvious that the summary judgment entered in this case rests primarily upon the finding of fact by the Gen- eral Assembly that a full hearing was granted to peti- tioner before its Permanent Judicial Commission and that petitioner requested that the teneral Assembly take juris- diction de novo and dispose of the issue of dissolution upon its merits. The summary judgment cannot be valid if either (1) the General Assembly had no original jurisdiction to hear the issue of dissolution on its merits, or (2) if peti- tioner did not request such a hearing. Petitioner’s sworn affidavits in the trial court deny that the General Assembly had any original jurisdiction to hear the issue of dissolution upon its merits under Chapter XVII, Section 1 of the Constitution, and Chapter XI, Section 12, of the Book of Discipline of the Presbyterian Church (R. 95, 97). Plaintiff’s sworn affidavits show that petitioner never did request the General Assembly to con- sider the issue of dissolution on its merits (R. 63). This Court in the recent case of Sartor v. Arkansas Na- tural Gas Corp., 321 U.S. 620 (decided March 27, 1944, opinion by Mr. Justice Jackson) clearly stated that ‘‘Rule 56 authorizes summary judgment only where the moving 23 party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. American Insurance Co. v. Gen- tile Bros. Co., 109 Fed. (2) 732; Whitaker v. Coleman, 115 Fed. (2) 305.’’ All of the Cireuit Courts of Appeals have with perfect manimity (except for the single decision in the case at bar) ruled that ‘‘any substantial dispute as to a material fact forecloses summary judgment.’’ Associates Discount Corp v. Crow, 110 Fed. (2) 126; Houghton Miffin Co. v. Stackpole Sons, Inc., 113 Fed. (2) 627 (Second Cireuit) ; Wyant v. Crittenden, 113 Fed. (2) 170; Whitaker v. Coleman, 115 Fed. (2) 305 (Fifth Circuit) ; McElwaine vy. Wickwire Spencer Steel Co., 126 Fed. (2) 210 (Second Circuit) ; Miller v. Miller, 122 Fed. (2) 209; Toebelman v. Mo-Kansas Pipe Line Co., 130 Fed. (2) 1016 (Third Circuit) ; Ramsouer v. Midland Valley R. Co., 135 Fed. (2) 101 (Eighth Cireuit) ; Campana Corp. v. Harrison, 135 Fed. (2) 334 (Seventh Circuit) ; Dewey & Almy Chemical Co. v. American Anode Inc., 137 Fed. (2) 68 (Third Cireuit). It will be noted that, in Mr. Justice Jackson’s opinion above quoted, he makes particular reference to the right of parties to a jury trial, saying ‘‘the purpose of the Rule is not to cut litigants off from their right of trial by jury.”’ PST ELT 24 The Cireuit Courts for the Fifth and Eighth Circuits, in the Whitaker and Ramsouer eases above eited, likewise held that the litigants’ right to a jury trial should not be in- fringed by a summary judgment under Rule 56. Until the decision of the Cireuit Court of Appeals for the Seventh Cireuit in the ease at bar, none of the Cireuit Courts of Appeals have allowed a summary judgment to stand which was based upon a finding of material (essen- tial) fact which was squarely controverted by the opposing parties’ affidavits, as in the case at bar. The trial judge specifically found that petitioner’s aff. davits showed that petitioner never requested the Gen- eral Assembly or its Permanent Judicial Commission to pass upon the issue of dissolution upon the merits (RB. 80-1). It follows that the following statement in the opinion of the Cireuit Court in this case is absolutely in square con- flict with, and in defiance of, plaintiff’s affidavits: ‘Whatever the procedure, the record is clear that eventually plaintiff (petitioner) received a fair, judi- cial hearing, brought about at his own behest, on the complaint presented to the General Assembly. It is too late for him to complain now that the mechanies of procedure were not perfect.’’ The last sentence above quoted is somewhat astonish: ing in view of the vigorous condemnation of these very ‘‘mechanics of procedure’’ by the General Assembly it self (R. 95-9). It was just because these ‘mechanics of procedure’? were so unfair to petitioner, that the General Assembly purported to decide the case de novo at a hear ine before its own Permanent Judicial Commission. The key error in Judge Lindley’s opinion, therefore, is the statement that because petitioner ‘‘brought about at his own behest’’ a hearing before the General Assembly, “it is too late for him to complain now’? (R. (2.7). This statement, as we have shown, is erroneous, and is directly and squarely controverted by both petitioner’s affidavits and by the findings of the trial court. Tn view of the very close association between Judge Lind- ley and Judge Wham, both of whom sit in the same Dis- trict Court of the United States for the Eastern Division of Illinois, petitioner submits that Judge Lindley should have disqualified himself from sitting in this case. Judge Wham was actually a member of the Permanent Judicial Commis- sion of the Synod of Hlinois at the time that the Synod acted and was severely criticized for its improper ‘‘proce- dure’’ in this very case, Petitioner does not mean to imply any improper motive whatever on Judge Lindley’s part. But consciously or unconsciously, Judge Lindley was deal- ing in his opinion adversely to petitioner with a matter with which Judge Wham had an official connection; and petitioner, with complete respect for Judge Lindley’s in- tegrity, submits that in that particular situation Judge Lindley should have disqualified himself to sit on the Cir- euit Court, to which he is not regularly assigned, in this case. A petition for a writ of certiorari to the Cireuit Court of Appeals for the Seventh Circuit in this case is therefore respectfully prayed, to the end that petitioner shall be per- mitted a jury trial upon the merits of his case and shall not be denied his right thereto by a summary judgment which cannot stand if the facts as stated in petitioner’s affidavits and in the trial Court’s findings are true. Respectfully submitted, Cuirrorp Litres. Le Due, Petitioner, Pro Se, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2201%3A2. Public record. Not legal advice.