THE GENERAL CONVENTION OF THE NEW JERUSALEM IN THE UNITED STATES OF AMERICA, INC., & others [Note 1] vs. EDWARD MACKENZIE & others. [Note 2]

GREENBERG, J. A by-law of the congregational [Note 3] Boston Society of the New Jerusalem, Incorporated (Swedenborgian) (the local church), directs that "[i]n the event that the [local church] shall cease to exist, all funds and holdings shall be transferred to the General Convention of the New Jerusalem in the United States of America" (the General Convention). The question put is whether, thus phrased, a "vote of disaffiliation" by a majority of the members of the local church establishes claims for relief against the local church on behalf of the General Convention to recover church assets. There are subsidiary issues concerning the validity of the General Convention's claims pursuant to the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), [Note 4] as well as claims for membership fraud and asset mismanagement, and claims pursuant to G. L. c. 93A against the local church and the other named defendants.

1. Background. We summarize the facts alleged in the amended complaint which, for purposes of reviewing the dismissal of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), we accept as true. [Note 5] Nader v. Citron, 372 Mass. 96 , 98 (1977). We do not purport to make a determination whether the facts alleged, and which we recite, are credible or susceptible of proof at trial.

The General Convention alleges that the local church has

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been affiliated with the General Convention since 1818. Sometime after 2002, the individual defendants, Kennedy and MacKenzie, became associated with the local church and its pastor. It is alleged that through a variety of nefarious means orchestrated by MacKenzie, they seized control of the local church's assets, caused the church to admit members in violation of the church by-laws and religious precepts, and looted the church's assets. [Note 6] Finally, it is alleged that in October, 2003, Kennedy and MacKenzie improperly caused the local church to disaffiliate from the General Convention by fraudulently enrolling unqualified new church members to rig the vote for the disaffiliation. The General Convention's amended complaint includes several causes of action, the primary one for declaratory relief alleging that, because the local church has "ceased to exist" under its by-laws, the local church's assets are to revert to the General Convention to be held in trust until another church affiliated with the General Convention can be established.

Facing that question, a Superior Court judge, pursuant to motions to dismiss, ruled, among other things, that the phrase "cease to exist" does not mean disaffiliation and dismissed the amended complaint. He also ruled that the General Convention and other named plaintiffs lacked standing to pursue their other claims. The motion judge also concluded that resolution of the claims for "fraud or other wrongdoing in the admission of new members . . . would necessarily intrude into matters of religious doctrine."

2. Jurisdictional issue. The threshold question facing the motion judge and this court today is whether this dispute properly belongs in the civil courts of the Commonwealth. We begin our discussion with the long-recognized principle that "the First Amendment [to the United States Constitution] prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization." Alberts v. Devine, 395 Mass. 59 , 72, cert. denied sub nom. Carroll v. Alberts,

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474 U.S. 1013 (1985), and cases cited. The judge relied on the recent Supreme Judicial Court case of Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 708-709 (2004) (hereafter Callahan), for the proposition that consideration of some of the counts presented here would impermissibly encroach on church decisions that involve "matters of doctrine, canon law, polity, discipline, and ministerial relationships." Id. at 708, quoting from Williams v. Episcopal Diocese of Mass., 436 Mass. 574 , 579 (2002). For its part, the General Convention correctly says that the Callahan case leaves room for the justiciability of property disputes that arise within both congregational and hierarchical churches. Callahan, supra at 700-701. In the recent case of Wooten v. Crayton, ante 187 (2006) (hereafter Wooten), we interpreted the Callahan case as not negating jurisdiction in all aspects of "a dispute between factions competing for control of a congregational church." Id. at 195.

As settled by Callahan, judicial intervention may extend only to matters that do not involve religious "doctrine, canon law, polity, discipline, and ministerial relationships." Callahan, supra at 708, quoting from Williams v. Episcopal Diocese of Mass., 436 Mass. at 579. Callahan, who had been the interim minister of the First Congregational Church of Haverhill, alleged that the defendant church breached its employment contract with him by not following its "own written procedures in carrying out [its] investigation and disciplinary proceedings" against him. Callahan, supra at 712-713. The court, however, refused to enter that thicket because "a church must be free to decide for itself what its obligations to its ministers are, without being subject to court interference." Ibid., quoting from Williams v. Episcopal Diocese of Mass., 436 Mass. at 581. Further, the court observed that the "assessment of an individual's qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference." Id. at 715, quoting from Alberts v. Devine, 395 Mass. at 72-73.

Here, the General Convention, acting through its former church leaders, asks, in its counts alleging membership fraud,

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for judicial review of the church's admission and recognition of new members. We may not undertake this analysis because of the absolute First Amendment protection recognized by Callahan and the long tradition of separation of church and State which preceded and informed the case. In this regard, the motion judge's reliance on Callahan was correct.

That conclusion, however, does not end our inquiry. The First Amendment does not prohibit the courts from deciding a property dispute involving a church as long as the courts do not intrude upon issues of church doctrine. See Jones v. Wolf, 443 U.S. 595, 602 (1979), quoting from Maryland & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970) (Brennan, J., concurring) ("[A] State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith"). [Note 7] Therefore, as long as the court refrains from delving into matters of church doctrine, polity, and internal operation, the First Amendment does not prohibit the court from exercising jurisdiction over property disputes.

As we have noted, the amended complaint sets out numerous causes of action, the most important of which is a declaratory judgment claim (count I) that the local church's by-laws require that, upon disaffiliation, the church's assets are to revert to the General Convention to be held in trust until another church affiliated with the General Convention can be established. We conclude this count presents an issue that is not barred from the

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court's consideration by the First Amendment. To the extent it is permitted by the First Amendment, church by-laws are to be interpreted in the same manner as any ordinary contract. See Mitchell v. Albanian Orthodox Diocese in America, Inc., 355 Mass. 278 , 282 (1969).

Our conclusion is fortified by our recent decision in Episcopal Diocese of Mass. v. DeVine, 59 Mass. App. Ct. 722 , 728 (2003), where we upheld the exercise of jurisdiction over a claim to enforce a diocese's own determination with respect to the parish church. We reiterated that although the First Amendment does not grant judicial authority to intervene in nonsecular disputes within a church, "[t]he State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively." Ibid., quoting from Jones v. Wolf, 443 U.S. at 602.

3. The by-laws. As the basis for dismissal of count I of the amended complaint, the motion judge concluded that the "plain language" of art. X, § 3, of the by-laws governing transfer of the local church's assets to the General Convention applies only if the local church shall "cease to exist," but not if it disaffiliates from the General Convention. [Note 8] On this basis, he ruled that no claim for relief exists because the assets remain under the lawful control of the newly elected lay leaders. For its part, the General Convention argues that the ruling is erroneous because the judge misconstrued the by-laws. There is an additional

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contention, not argued below, that even if the by-laws do not explicitly provide for a reversion to the General Convention, a trust should be implied to accomplish the same result. We need not reach this latter question because the failure to raise the issue below constitutes a waiver, see, e.g., Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562 , 565 (1976) (noting that an issue cannot be raised for the first time on appeal), and, as will be seen, the General Convention has set forth a viable and substantial claim of right of ownership of the local church's assets under the by-laws.

On the issue of construing the by-laws, the General Convention argues that the phrase "the religious body known as the Boston Society of the New Jerusalem, Inc. shall cease to exist" in the by-law essentially means cease to exist as a church affiliated with the General Convention. To support the argument, it alleges that art. X, § 3, was added to the by-laws "at the time when the General Denomination feared the church and its assets could be the subject of a takeover from a rival denomination known as the General Church." The local church, it alleges, "added this provision to ensure that the Church's assets would remain with The General Convention for the establishment of a new affiliated church should disaffiliation ever occur."

While the motion judge determined that the by-law was unambiguous as a matter of law, we disagree. It is settled by our decisions that "language is ambiguous where 'an agreement's terms are inconsistent on their face or where the phraseology can support reasonable difference of opinion as to the meaning of the words employed and obligations undertaken.' " Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645 , 652 (2004), quoting from Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989). In this case an ambiguity is present because the term "cease to exist" is "susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one." County of Barnstable v. American Financial Corp., 51 Mass. App. Ct. 213 , 215 (2001). See Vezina v. Mahoney & Wright Ins. Agency, Inc., 40 Mass. App. Ct. 218 , 223 (1996) ("The word was not defined . . . , and the judge properly treated it as ambiguous and subject to elucidation from the circumstances").

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The bottom line here is that where the provision is ambiguous, i.e., in reference to "ceasing to exist" and escrowing the assets of the local church for the establishment of another church affiliated with the General Convention, the fact finder is obligated to examine the subject matter of the particular by-law, the language employed, its context, and its history to ascertain the objectives that were to be accomplished. See, e.g., Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717 , 720 (1999); Cabot v. Cabot, 55 Mass. App. Ct. 756 , 761 (2002). As we determine that there is some ambiguity in the dissolution provision of the by-laws in the instant case, and then taking all the allegations in the relevant portions of the amended complaint as true and drawing inferences therefrom in the plaintiffs' favor, [Note 9] the amended complaint should survive a motion to dismiss on the first two counts. [Note 10]

4. Other claims. Standing on a different footing, however, are the allegations in the amended complaint of violations of G. L. c. 93A and RICO, as well as claims for fraud and mismanagement. We agree with the motion judge's determination that G. L. c. 93A does not apply to noncommercial, intra-organizational disputes. See, e.g., Riseman v. Orion Research Inc., 394 Mass. 311 , 313-314 (1985) (no G. L. c. 93A claim when dispute concerned internal corporate governance); Zimmerman v. Bogoff, 402 Mass. 650 , 662-663 (1988); Szalla v. Locke,

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421 Mass. 448 , 451-452 (1995); Newton v. Moffie, 13 Mass. App. Ct. 462 , 469-470 (1982) (no G. L. c. 93A claim where dispute was between partners, particularly where claim does not affect the public interest).

With respect to the remaining claims that deal with either the alleged mismanagement or misappropriation of local church assets by the individual defendants or with the admission by them of "unqualified" church members, the motion judge correctly concluded that these claims were either preempted by the Attorney General's superintendence of charitable organizations and trusts, Weaver v. Wood, 425 Mass. 270 , 275-278 (1997), cert. denied, 522 U.S. 1049 (1998), or required a consideration of church doctrine and are not justiciable under the Callahan case.

We agree with the motion judge's decision concerning the RICO claims that were dismissed with prejudice in the Federal District Court for failure to allege a pattern of racketeering activity. They are barred from reconsideration by the principle of res judicata. See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326-327 (1955) (res judicata applies where plaintiffs sue upon same cause of action litigated between the parties in a prior suit).

Chapin, as an individual plaintiff, claims that he has standing to pursue a claim of vote dilution because his interests in this claim are "distinct from any member of the public," quoting from Weaver v. Wood, 425 Mass. at 277. However, his claim rests in the alleged improper admission of new members. If we were to reach that claim, it would necessarily require an examination of the qualifications and admission of new members, which is prohibited under the First Amendment.

Accordingly, the allowance of the motions to dismiss is reversed as to counts I and II, insofar as the amended complaint states a claim cognizable under the local church's by-laws. That claim is remanded for further proceedings consistent with this opinion. The dismissal of the remaining counts (counts III through XI) is affirmed.

So ordered.