# Opposition Brief — Grady v. Sovereign Order of Saint John of Jerusalem, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1147

## Text

Supreme Court, U.S.
; FILED
YY JAN 26 1998
No. 97-883
+k
In The ‘
Supreme Court of the United States
a
October Term, 1997
JOHN L. GRADY
Petitioner,

vs.

SOVEREIGN ORDER OF SAINT JOHN OF JERUSALEM,
INC.; SOVEREIGN ORDER OF SAINT JOHN OF
JERUSALEM - KNIGHTS OF MALTA,

Respondents.

On Petition for Writ of Certiorari to the
Supreme Court of Ohio

RESPONDENTS’ BRIEF IN OPPOSITION

EDWIN VIEIRA, JR. HUGH J. MOORE, JR.

13877 Napa Drive Counsel of Record

Manassas, VA 22110 DOUGLAS E. PECK

(703) 791-6780 WITT, GAITHER & WHITAKER, P.C.
1100 SunTrust Bank Building
736 Market Street

Chattanooga, TN 37402
(423) 265-8881

Attorneys for Respondents

utz

A DIVISION OF COUNSEL PRESS

144249 (800) 274-3321 + (800) 359-6859 tng ao .\

i
STATEMENT PURSUANT TO RULE 29.6

Respondent Sovereign Order of Saint John of Jerusalem,
Inc. is a non-profit corporation and has no parent company or
nonwholly owned subsidiaries.

TABLE OF CONTENTS

Statement Pursuant to Rule 29.6 ...........-00005:
Table Of ComtemtS .....ccccccccccccccccccseveces
YY fe rrrrrrrrrrrrrrrrry TT yt
Reasons for Denying the Writ ............-.+0++5:

I Determination Of The “True Order” Is A Non-
Justiciable Question. ..........---+eeeeeee

II. Grady’s Challenges To The Registered Trademark
Have Been Appropriately Dismissed Pursuant To
The Lamhe Act. ....cccscccccccccssecsss

III. Grady’s Constitutional Rights Have Not Been
Hafringed. ......cccccccccccccsscccesccses

Cometeshee ... cc cccccsccsccsenssceccuceesecsses
TABLE OF CITATIONS

Cases Cited:

Benevolent and Protective Order of Elks of the U.S.A. v.

Improved B. & P.O. of Elks of the World, 122 Tenn.
B68 CITED) «nc cccccccccsscesceseseseovesses<

Bouldon v. Alexander, 82 U.S. (15 Wall.) 131, 21 L. Ed.
OD CRIED 5 occ cccccccsecccsasavsasnyddovenens

Page

ii

12

15

ii

Contents

Page

Grand Lodge of 1.B. & P.O. Elks of the World v. Grand
Lodge, Improved, 50 F.2d 860 (4th Cir. 1931) .... 6

Jandron v. Zuendel, 139 F. Supp. 887 (N.D. Ohio 1955)
RAMEE Gaus WOKS VaUSaas cdc Wesictacscwee am 83

lowa Farmers Union v. Farmers’ E. & C. Union, 247
es cea cccesccee 6
Lindstrom v. Tell, 154 N.W. 969 (Minn. 1915) ...... 5

Lutheran Free Church v. Lutheran Free Church (Not
Merged), 141 N.W. 2d 827 (Minn. 1966) ........ 4,5
Nance v. Busby, 18 S.W. 874 (Tenn. 1892) ......... 2

National Board of YWCA v. YWCA of Charleston, S.C.,
wae ay ee, ee Gee, ESTE) ...........0005. 5
Partin v. Tucker, 172 So. 89 (Fla. 1937) ............ 3
Piletich v. Deretich, 328 N.W. 2d 696 (Minn. 1983) .. 4
Purcell v. Summers, 145 F.2d 979 (4th Cir. 1944) .... 5

Second Baptist Church of Reno v. Mount Zion Baptist
Church, 466 P.2d 212 (Nev. 1970) .............. 3

Serbian Eastern Orthodox Diocese v. Milivojevich, 426
U.S. 696, 49 L. Ed. 2d 151 (1976) ............. 23

iv

Contents
Page
Smith v. Church of God, 326 F. Supp. 6 (D. Md. 1971)
, abadn wed bbe ewold S50Us Bak ake s sens Net CEN SD 2
Sovereign Order of St. John of Jerusalem, Inc. v. Grady,
119 F.3d 1236 (6th Cir. 1997) ........ ee eee eee 3

United States Constitution Cited:

ee. nr ee rere eens ee a 12, 13

|

This case centers around the right to use a registered
trademark, “Sovereign Order of St. John of Jerusalem - Knights
of Malta.” This mark is a collective membership mark, and is
used to show membership in the group bearing that name (the
“Order”). This mark is owned by the Sovereign Order of St.
John of Jerusalem, Inc. (the “Corporation”). The Corporation
has no parent or subsidiary corporations, and has no affiliated
groups other than the Order itself. Collectively the Order and
the Corporation are referred to as the “OSJ”. John L. Grady
(“Grady”) is an expelled former member of the Order.

In his Petition, Grady argues at length that his claims
depend upon an adjudication of who or what group in the
current embodiment of “the Order,” and that failure to make
such a finding misconstrues the Lanham Act and denies Grady
his Constitutional rights of free speech and religious freedom.

As set forth in detail below, each of these contentions is
without merit.

The determination of the “true Order” is a non-justiciable
question which the District Court correctly refused to consider.
The prior decisions denying Grady’s challenges to the
registered trademark were correct, and do not misconstrue the
Lanham Act. Finally, Grady is free to exercise his Constitutional
rights of expression and worship, so long as he does so in
accordance with other recognized limitations. Intentional
misuse of another’s registered trademark is not a privilege
granted to Grady by the Constitution or otherwise.

2

REASONS FOR DENYING THE WRIT
I.

DETERMINATION OF THE “TRUE ORDER” IS A
NON-JUSTICIABLE QUESTION.

Grady’s contention on page 50 and elsewhere in his Petition
that examining the legitimacy of the lineage of his group and
of the Respondent Order is necessary for a full adjudication of
this case is incorrect. The determination of which group is the
“true Order” is, in fact, a non-justiciable issue. In a dispute
among the members of a religious organization with an
“hierarchical” polity, a civil court may inquire only whether
such a polity exists, what its supreme authority is, and what
decision that authority has made. Serbian Eastern Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 709, 49 L. Ed. 2d 151,
162 (1976). Where expulsions or lapses from membership of
former members in an hierarchical religious organization are
involved, the courts may not investigate the religious doctrines
underlying the expulsion, and may not question the procedures
the organization employs to expel dissidents, to affiliate or
disaffiliate with other groups, or to select officers. See Serbian
Eastern Orthodox Diocese, 426 U.S. at 708-10, 49 L. Ed. 2d
at 162-63; Nance v. Busby, 18 S.W. 874, 879, 881 (Tenn. 1892).
The lower courts’ decisions in this case are fully consistent
with this basic legal principle.

The polity of the OSJ is hierarchical both internally, with
the Order’s ultimate, unreviewable authority in the General
Chapter of Knights; and externally, with the Corporation
exercising supervisory control. See Smith v. Church of God,
326 F. Supp. 6, 9 n.6 (D. Md. 1971); Jandron v. Zuendel, 139
F. Supp. 887, 888-89 (N.D. Ohio 1955). Therefore, the courts
lack authority to “review” the General Chapter’s or the
Corporation’s interpretation and application of “the ancient

ee
Ne ee ee

3

acts, precedents, and the inherited power and authority of the
Order to confer or grant letters patent or diplomas of
membership” or to “disturb th{e Corporation’s] interpretation
of the [OSJ’s] law from which th[e Corporation] claim[s] to
derive [its] authority to grant or deny” membership. Affidavit
of Leonard J. Messineo, Jr., District Court File No. 6, Ex. A,
art. EIGHTH, { 7; Jandron, 139 F. Supp. at 889.

Therefore, the courts “must take the fact of expulsion [of
Grady] as conclusive proof that [Grady and the other former
members] are not now members” of the Order and are “not
entitled to any rights or privileges * * * from membership
therein.” Partin v. Tucker, 172 So. 89, 91 (Fla. 1937). Grady’s
subjective views to the contrary have no evidentiary value.
Second Baptist Church of Reno v. Mount Zion Baptist Church,
466 P.2d 212, 216 (Nev. 1970). Further, the courts may not
entertain any argument that the Corporation or General Chapter
were “arbitrary,” that they did “not follow[ their] cwn laws
and procedures in arriving at [their] decisions,” or that those
decisions or procedures went “beyond their jurisdictions.”
Serbian Eastern Orthodox Diocese, 426 U.S. at 712-24, 49 L.
Ed. 2d at 165-71. Rather, the courts must accept as binding
and enforce those decisions as final and unreviewable. Bouldon
v. Alexander, 82 U.S. (15 Wall.) 131, 139-40, 21 L. Ed. 69, 71
(1872). Clearly, the Sixth Circuit has done so in this case. In
support of their ruling that Grady had no right to use the
registered trademark the court specifically found that “the
Corporation’s Board of Directors expelled Grady from the
Order in 1983. Despite his expulsion, [Grady] continued to
use the trademark... .” Sovereign Order of St. John of
Jerusalem, Inc. v. Grady, 119 F.3d 1236, 1239 (6th Cir. 1997).

Note that Grady does not claim to have separated himself
from the OSJ and formed some other, different, and independent
“sect.” Rather, he claims to be the leader of the Order itself,

4

and to have displaced the validly pre-existing officers thereof.
Numerous civil cases have decided the membership vel non
of individuals in religious organizations. For example, in
Piletich v. Deretich, 328 N.W. 2d 696 (Minn. 1983), “certain
members” of a church

stopped participating and paying dues and thus,
under the church’s by-laws, [were] no longer
members. ... The majority faction ... continued
to operate and maintain the church property.

When the dispute resulted in litigation, the court refused to

dispose of the matter on the ground that the
controversy is doctrinal in nature and therefore
beyond the purview of the courts. ...

...[T]his action . . . would accurately be termed
a matter of property ownership and membership
qualification, to be determined by documents and
proceedings of the ... church government. Since it
is not a doctrinal matter ..., there is no first
amendment barrier to resolution by the civil courts.
We proceed, therefore, to a determination on the
merits.

On the nierits, the court found the dissidents were not members,
because they “chose to leave the church,” and “ceased to pay
dues as required.” Jd. at 698, 700, 702. This holding likewise
applies to Grady.

Nonmembers — including former members — of a
religious organization cannot falsely hold themselves out as
members or officials, immune from judicial control. E.g.,
Lutheran Free Church v. Lutheran Free Church (Not Merged),

5

141 N.W. 2d 827 (Minn. 1966) (injunction against use of name
by dissidents). “[A] religious, benevolent or fraternal
organization is entitled to protect the use of its name against
those who secede.” National Board of YWCA v. YWCA of
Charleston, S.C., 335 F. Supp. 615, 621-22 (D.S.C. 1971);
accord Benevolent and Protective Order of Elks of the U.S.A.
v. Improved B. & P.O. of Elks of the World, 122 Tenn. 141,
145-46 (1909). A fortiori, a religious organization is entitled
to protection against persons expelled, or whose memberships
have lapsed or otherwise been forfeited. See Lindstrom v. Tell,
154 N.W. 969, 971 (Minn. 1915).

The reason for the decisions in cases such as these is that

[t]he right to use the name [of a religious
organization] inheres in the institution, not in its
members; and, when they cease to be members of
the institution, use by them of the name is misleading
and, if injurious to the institution, should be
enjoined. No question of religious liberty is
involved. Men have the right to worship God
according to the dictates of conscience; but they
have no right in doing so to make use of a name
which will enable them to appropriate the good will
which has been built up by an organization with
which they are no longer connected.

Purcell v. Summers, 145 F.2d 979, 987 (4th Cir. 1944)
(emphasis supplied).

Members dissatisfied with an organization have
a right to withdraw and organize a new order; but

they ha[ve] no right ... to adopt the name of the
original order, or to hold themselves out as a branch

6

of that order. To do so constitutes a fraud upon the
original order and upon the public, and, if allowed,
would result in enabling the rival organization to
appropriate to itself the advantages which the original
order had built up through years of effort. A more

glaring example of unfair competition could not well
be imagined.

Grand Lodge of 1.B. & P.O. Elks of the World v. Grand Lodge,
Improved, 50 F.2d 860, 864 (4th Cir. 1931) (emphasis supplied).

Clearly, where (as here) dissidents “were formerly
associated with [the order] and are no longer associated,” the
evil is especially serious, for “[t}he former association makes
[the dissidents’ misrepresentation] much more injurious to [the
order] than if the same wrong were committed by a stranger.”
lowa Farmers Union v. Farmers’ E. & C. Union, 247 F.2d 809,
816 (8th Cir. 1957). The lower courts’ injunction prohibiting
Grady from using the registered trademark is fully appropriate
and consistent with this authority.

GRADY’S CHALLENGES TO THE REGISTERED
TRADEMARK HAVE BEEN APPROPRIATELY
DISMISSED PURSUANT TO THE LANHAM ACT.

This case is factually far less complex than Grady asserts.
The record establishes the following facts:

1. In 1979, Grady joined the OSJ. Sovereign
Order of St. John of Jerusalem, Inc. v. Grady,
119 F.3d at 1239.

2. The OSJ as then organized included two

7

aspects — the “Order” and the “Corporation.”
Id. at 1238.

The Corporation owns the mark “Sovereign
Order of St. John of Jerusalem - Knights of
Malta.” This mark is a collective membership
mark, denoting membership in the Order. /d.
at 1238-39.

The Corporation, acting through its officers
and directors, licenses the mark to approved
members of the Order. Jd. at 1237.

Since December 31, 1982, Grady has not been
a member of the Order. /d.

Although he applied for a license, his
application was denied and Grady is not
authorized to use the mark. /d.

continued for well over a decade to use the
name, marks and symbols of the Order, and in
1991 claimed to have “reconstituted” the Order
with himself as its leader. Jd.

Following a trial in which the jury found
the mark and from claiming membership in
the Order. Id. at 1239-40.

Grady'’s challenges to the validity of the registered
trademark and the actions of the Corporation in licensing the
use of that mark are wholly without merit. Indeed, many of

the factual premises used to support his theory of the alleged
“takeover” of the Order are incorrect, and other material facts
are omitted from his recitation. Grady’s Petition proceeds from
the erroneous assumption that the Order and the Corporation
are fundamentally at odds, and that the actions of the
Corporation were unauthorized or otherwise improper. Petition
at 30-31, 61-62. Indeed, on page 21 of the Petition, Grady
asserts that the Corporation “was virtually unknown to the
membership of the Order.” This is surprising in that on page
26 Grady correctly notes that only seven months after he joined
the Order, all members were advised that the Supreme Council
had directed the Corporation to proceed with licensing the
membership to use the registered trademark. Further, though
Grady admits on page 34 the Corporation did proceed with
the licensing requirement announced on page 26, he claims
on page 62 that such licenses have not been issued. Indeed, as
the Sixth Circuit found, Grady’s application for a license from
the Corporation was denied, following which he was expelled
from the Order. 119 F.3d at 1239. Grady has made no attempt
to explain these internal inconsistencies in his Petition. Quite
simply, Grady is a disgruntled former member of the Order
who, for reasons he alone may know, refuses to accept the

its head. Although his Petition contains numerous misstatements
and omissions, the most significant are the following:

1. Although Grady objects to or questions the
validity of various prior acts of the OSJ, it is
clear that the Corporation was organized and
affiliated with the Order well before Grady
the owner of the registered trademark for many
years prior to Grady’s connection to the Order.
119 F.3d at 1238-39.

9

Grady never held any office or position in the
Corporation, and thus has never had standing
to challenge the Corporation's acts, pursuant
to 8 Del. Code § 225. In addition, as a
nonmember of the Order, Grady lacks standing
to challenge the Order’s delegation of authority
to the Corporation. See Capetola v. Orlando,
426 F. Supp. 616, 617, 194 U.S.P.Q. 319,
320 (E.D. Pa. 1977). During the time Grady
was a member of the Order, he never
challenged the Corporation's authority. Indeed,
during the 1981 General Chapter, Grady voted
to approve the Corporation’s actions in
expelling several members of the Order.
Affidavit of Salvatore T. Messineo, District
Court File No. 5, ¥¥ 48-58; see also Sovereign
Order of St. John of Jerusalem v. Messineo,
572 F. Supp. 983, 985-987 (E.D. Pa. 1983)
(ruling on preliminary injunction)(detailed
discussion of the role of the Corporation in
the OSJ and the General Chapter of 1981).

A challenge_to the Corporation's actions was
filed by Thorbjorn Wiklund, a former director
of the Corporation who was expelled in 1981,
and others who claimed Wiklund was the
properly elected head of the OSJ. Sovereign
Order of St. John of Jerusalem - Knights of
Malta v. Salvatore T. Messineo, et al., No. 83-
0032 (E.D. Pa.). By Stipulated Judgment and
Consent Decree entered 10/26/93, the
Corporation's actions were affirmed and
validated. Jd.

As a result of that litigation, Willund’s

10

purported expulsion of the Messineos, relied
upon in Paragraph 12 of Grady’s factual
history, was declared invalid. Jd.

Contrary to the assertions in Paragraphs 7-11
in Grady’s factual history, the authority of the
Corporation over the Order has no connection
to Romanoff’s appointment as Imperial
Protector or his actions in 1981 (or at any other
time), but derives from the Corporation’s 1956
Certificate of Incorporation, articles THIRD,
{ 2, and EIGHTH, 7. Affidavit of Leonard
J. Messineo, Jr., District Court File No. 6, Ex.
A; Affidavit of Salvatore T. Messineo, District
Court File No. 5, {¥ 6-8. Romanoff was
unknown to the leaders of the OSJ and the
Corporation in 1956. Affidavit of Aleksei
Nicholaevich Romanoff, District Court File
No. 27, { 13. Grady has proffered no evidence
the Corporation did not obtain or could not
have obtained its authority from the Order.
Affidavit of Leonard J. Messineo, Jr., District
Court File No. 22, ¥¥ 9-18.

William von Peters, an original co-defendant
with Grady in this action, has renounced and
disaffirmed his actions related to the
Association of Family Commanders of
Hereditary Knights of Saint John. von Peters
now says that the actions of this Association,
culminating in the “reestablishment” of the
Order under Grady, were improper and of no
effect. In contradiction to page 55 of the
Petition, von Peters does not recognize Grady
as the head of the Order nor does he believe it

11

is headquartered in Tennessee. Order of
November 1, 1995, District Court File. No.
136.

Benjamin von Stahl, the other original co-
defendant in this action, has likewise
renounced and disaffirmed his actions related
to the Association, and acknowledged that he
has had no authority over the Order since
1981. Order of November 1, 1995, District
Court File No. 135. Of the original three
founders of the Association, only Grady
continues to assert that his actions were valid.

The validity of the registered trademark was
challenged at length in William H. Coleman,
II v. Sovereign Order of St. John of Jerusalem,
Inc., Cancellation No. 14,038 (Trademark Trial
and Appeal Board, original Petition filed
October 8, 1983). The Second Amended
Petition was denied by Opinion dated June 14,
1990. Coleman appealed the Board’s decision
to the Eastern District of Pennsylvania, which
entered summary judgment against him.
William H. Coleman, II v. Sovereign Order of
St. John of Jerusalem, Inc., No. 90-5301 (E.D.
Pa. Feb. 9, 1993).

Although Grady has on many occasions
claimed “fraud” in the granting of this
trademark, he has never presented any proof
on this issue. Even his Tender of Proof before
the District Court makes only conclusory
allegations of wrongdoing, without providing
any factual basis to support this claim. 119

12

F.3d at 1240, 1241. Fraud was also alleged by
Coleman in the trademark cancellation action
noted above, and rejected by both the Board
and the District Court.

10. Prior to his expulsion from the Order, Grady
filed the required application for licensure with
the Corporation. This application was rejected.
119 F.3d at 1239.

Other persons, notably Wiklund and Coleman, have had
far greater standing to challenge the actions Grady raises in
his Petition. All such challenges have failed, and properly so.
As the jury found, Grady used the registered trademark for
more than a decade, knowing that such use was an
infringement. He has had a full hearing, both at trial and on
appeal. The issues he now raises are all invalid, and form no
basis for another rehashing of his unsupported allegations of
wrongdoing.

Ii.

GRADY’S CONSTITUTIONAL RIGHTS HAVE NOT
BEEN INFRINGED.

Grady also asserts that the decision below denies his

Constitutional rights to worship as he pleases and to freely

express himself. These assertions are also wholly without
merit.

Grady is free to follow whatever religion he chooses, and
to worship accordingly. He is likewise entitled to freedom of
expression as set forth in the First Amendment. These rights
do not, however, confer upon Grady the privilege of infringing
another's registered trademark. It is that privilege alone which

13

Grady seeks, and which the lower courts have properly denied
him. It has been held that in reviewing such an injunction
“religious freedom is not at issue” because an injunction would
never deny the dissidents the right to practice their religious
beliefs “in whatever manner they choose,” but instead would
simply prevent them “from appropriating to themselves the
good will and identity” of an organization to which they do
not belong. Jandron v. Zuendel, 139 F. Supp. 887, 889 (N.D.
Ohio 1955).

Further, after full consideration of these claims, the District
Court properly concluded that the First Amendment prevented
the courts from disturbing Grady’s expulsion from the Order:

Finally, in Part C of the third counterclaim, the
defendants allege that their First amendment rights
to freedom of religion have been violated by the
actions of the Plaintiffs. Defendants have presented
no evidence that any religious freedom has been
violated. Indeed, there is no evidence that the Order,
in any of its incarnations, is a religious organization
at all. By evidence presented by both sides, the Order
is a lay organization. While apparently associated
with the Catholic church historically, the Order does
not even require that its members be Catholic. Since
membership in the Order is not an inherently
religious act, Part C of the third counterclaim must
fail.

Even if the Order were a religious organization,
it is clear that it would be legally able to police its
own membership and policies. In Paul v. Watchtower
Bible & Tract Soc’y, 819 F.2d 875 (9th Cir.), cert.
denied, 484 U.S. 926 (1987), the Ninth Circuit held
that the Jehovah’s Witnesses were entitled to engage

14

in their practice of shunning former members of the
church. Jd. at 876. This holding was reached on the
ground that imposing tort damages on the church
for actions taken pursuant to religious belief would
create an unconstitutional burden on the free exercise
of religion. Jd. at 880. In Grunwald v. Bornfreund,
696 F.Supp. 838 (E.D.N.Y. 1988), the Eastern
District of New York noted that “federal courts will
not interfere with the decisions of a religious body
adjudicating the relationships of members in that
body; as a matter of jurisprudence federal courts will
defer to the decision of the religious body.” Jd. at
840. Indeed, “it is contrary to the first amendment
for a court, either federal or state, to engage in an
examination of ecclesiastical doctrine, and unless
such examination cannot be avoided, a court must
defer to the decisions of a religious body.” Jd. Thus,
the Order would be free to handle its own
membership in a way that it saw fit, including the
expulsion of the defendants. If it saw fit to
disassociate itself from the defendants, and to force
them to practice their “religion” elsewhere, the courts
of the land would be prevented by the First
Amendment from interfering. Put as simply as
possible, the considerable ecclesiastical wrangling
engaged in on both sides, even if this Court were to
find the Order to be a religious body, is beyond the
purview of this Court.

Memorandum of October 12, 1995 at 6-7.

In short, Grady can worship however he pleases and
express himself as he sees fit, within the limits recognized by
our system of jurisprudence. Grady has knowingly infringed
upon another’s registered trademark for more than a decade.

15

As shown by his Petition, he would gladly continue his
infringement in the future. Indeed, he seems to feel it is his
right to do so. Such conduct cannot, and should not, be
tolerated.

CONCLUSION

Grady’s claims are all without merit. As an expelled former
member of the Order, Grady has no right to continue to use
the Order’s name, marks and symbols. The injunctions issued
against him are appropriate and his Petition should be denied.

Respectfully submitted,

HUGH J. MOORE, JR.

Counsel of Record

DOUGLAS E. PECK

WITT, GAITHER & WHITAKER, PC.
1100 SunTrust Bank Building

736 Market Street

Chattanooga, TN 37402

(423) 265-8881

EDWIN VIEIRA, JR.
13877 Napa Drive
Manassas, VA 22110
(703) 791-6780

Attorneys for Respondents

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1801%3A2. Public record. Not legal advice.