Mitchell v. Albanian Orthodox Diocese in America, Inc.

• Citation: 355 Mass. 278,244 N.E.2d 276
• Parties: Elias MITCHELL et al. v. ALBANIAN ORTHODOX DIOCESE IN AMERICA, INC., et al.
• Decision Date: 03 February 1969
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 276

244 N.E.2d 276

355 Mass. 278

Elias MITCHELL et al. v. ALBANIAN ORTHODOX DIOCESE IN AMERICA, INC., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1968.

Decided Feb. 3, 1969.

Harvey A. Silverglate, Cambridge, for defendants.

Nathan Robins, Boston (Samuel H. Lewis, Boston, with him) for plaintiffs.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This is a bill in equity brought by four members of the Albanian Orthodox Diocese in America, Inc. (Diocese), as representatives of all of the members of the Diocese, against the Diocese and four of its officers. The plaintiffs allege that the individual defendants 'have devised a scheme and entered into a conspiracy to perpetuate themselves in office, to deprive the plaintiffs and other regular members of the Diocese of the right to vote, (and) to foist upon The Diocese as Bishop, the defendant, Stephen Lasko,' all in derogation of the by-laws of the Diocese.

The defendants appealed from an interlocutory decree overruling their demurrer to the bill and from a final decree determining which members of the Diocese are entitled to vote at its annual meeting and ordering the calling of a meeting of the Diocesan Council. The judge filed 'Amended Findings of Fact, Rulings of Law, and Order for Decree' which he adopted as a report of material facts. The evidence is reported.

We summarize the judge's findings. The Diocese is a religious corporation organized in 1956 under G.L. c. 180. Comprised of eleven churches located throughout the United States the Diocese serves 'persons of Albanian descent or origin in the United States in their religious devotions in accordance with the Eastern Orthodox rites, customs, and traditions.'

Four days after its organization, the Diocese 'acting through its members, duly adopted * * * a code of by-laws.' The by-laws extended regular membership in the Diocese to charter members, 'the Bishop for the time being,' present members and 'any Albanian or person of Albanian descent or origin or who has intermarried with an Albanian or person of Albanian descent or origin who is received and elected to membership.' In order to 'qualify' for regular membership, one has to subscribe to the by-laws and sign a membership roll.

The by-laws provide for the payment by regular members of annual dues. A member who is in arrears in the payment of these dues is 'subject to having his name stricken from the membership roll by the Diocesan Council.' Notice is to be sent to members in arrears and 'if the arrears are not paid within thirty days after such notice is sent, the name of the member in arrears may be stricken from the roll.' The membership roll is declared to be 'prima facie evidence' of regular membership in the Diocese.

The governing structure provided by the by-laws for the operation of the Diocese consists of the bishop, the Diocesan Council of which the bishop is the chairman; an annual meeting of the regular members and an annual convention. The members of the Diocesan Council are the 'Bishop for the time being, * * * a Lay Vice-Chairman, a Clerical Secretary, a Lay Treasurer and a Lay Comptroller, four delegates elected by the (regular) members (at their annual meeting) and four delegates elected by the Convention, each clergyman * * * and each Chairman of the Board of Trustees of an affiliated church.' They are to 'hold office until their successors are duly elected as provided under the by-laws.' Should the bishop be 'unable to act or officiate by reason of sickness, disability or other cause, the secretary of the Diocese shall be the acting Bishop until the selection of a succeeding Bishop by a special Convention to be called to select a permanent acting Bishop.' At the annual convention held in 1959 the by-laws were amended to provide that "(c)andidates for the Bishopric must be approved first by the Lay delegates of the Convention by a two-thirds (2/3) majority vote. The candidate(s) who receive the 2/3 vote of the lay delegates are then submitted to the convention of the Clergy who have the right to elect a bishop by two-thirds (2/3) majority vote. * * *"

In addition to electing four members of the Diocesan Council, the regular members at their annual meeting elect four delegates to the annual convention. Both the annual meeting and convention are to be called by the Diocesan Council.

Bishop Fan S. Noli was the 'highest ranking officer' of the Diocese at the time of its organization and retained that position until his death on March 13, 1965. At that time the defendant Sotir Dilogika was the secretary of the Diocese and became the 'acting bishop' as provided by the by-laws. He called an 'extraordinary meeting' of the Diocesan Council for March 17, 1965, to prepare plans for the official interment of Bishop Noli. The defendant Stephen Lasko, although a member of the council, did not attend this meeting as he was in Albania. Dilogika called another extraordinary meeting of the council or March 26, 1965, to hear a report of Lasko, who had returned from Albania. Lasko's report was that he had been consecrated a bishop while in Albania. Subsequent to this meeting the individual defendants formed an 'Executive Committee' and as such called an annual meeting of the regular members. One hundred and fifteen persons, including the plaintiffs, whose names 'were never stricken from the membership roll by action of the diocesan council, and were at the time active regular members' did not receive notice of the meeting. There was no evidence that a special convention was called to select a 'permanent acting bishop.' The last annual meeting of the regular members was held in 1963.

We proceed directly to the merits. Walcott v. City of Cambridge, 351 Mass. 32, 33, 217 N.E.2d 723. JAMES J. DERBA, INC. V. HAMILTON SERV., INC., MASS., 243 N.E.2D 178^A.

It is the law of this jurisdiction that the courts do not interfere...