Judge allows discovery to proceed, awaits court of appeals ruling
By Don Hinkle
April 7, 2005
JEFFERSON CITY – A Cole County Circuit Court judge April 5 directed that limited discovery could proceed in the new “messenger case” brought by the Missouri Baptist Convention (MBC), while the earlier “church case” is pending in the Missouri Court of Appeals.
The judge granted none of the six motions filed by attorneys representing five break-away MBC agencies, including motions that sought to dismiss the legal action brought by the MBC in its effort to retrieve the agencies.
Judge Richard G. Callahan conducted a hearing with attorneys for all parties, to discuss the five-inch stack of motions and memoranda that were before the court. The judge said he was inclined to wait for a ruling on a separate, but related case scheduled for oral argument on April 20 before the Missouri Court of Appeals, Western District, in Kansas City. One of the issues in that appeal is whether churches can represent the MBC in court, or whether only messengers can do so. Callahan expressed reluctance to rule on that issue in the messenger case and risk being contradicted by the court of appeals in the church case. He believed it was more prudent to wait for the appellate decision.
Callahan was willing, however, to permit limited discovery to proceed in the messenger case, as requested by MBC lead attorney, Michael Whitehead. He also directed the five agencies to file an answer in the case
In addition, Callahan set a June 1 hearing date on a motion regarding a key statute that both parties agree needs to be interpreted. The five agencies claim that R.S. Mo 355.141 means that only the attorney general can bring this lawsuit, and that neither MBC messengers nor churches have standing to be plaintiffs.
The hearing in Cole County was the latest in the more than two-year legal battle between the MBC and five of its agencies where trustees voted to become self-perpetuating without MBC approval. The five agencies, with assets worth more than $240 million, include Windermere Baptist Conference Center, The Baptist Home, Missouri Baptist Foundation, Missouri Baptist College (now University) and Word & Way.
“The MBC legal team was very pleased with the hearing on April 5 conducted by Judge Callahan,” said Whitehead. “Defendants filed six motions including motions to dismiss, but the judge granted none of them. He allowed MBC lawyers to proceed with some limited depositions. He also set a hearing date of June 1 on a key motion regarding standing of messengers to represent the MBC. It was important that the messenger case be permitted to take these forward steps, even while we seek a ruling from the Court of Appeals in the church case.”
The April 5 hearing involved the second of two cases now working their way through the state’s judicial system. In the first case the MBC Executive Board and six churches representing the Convention filed a petition for declaratory judgment on Aug. 13, 2002, in Cole County Circuit Court, asking the court to rule that the five agencies violated Missouri law by amending their charters to be self-electing boards of trustees without MBC approval. In November 2002, Cole County Circuit Judge Thomas J. Brown III ruled – without comment – against the five agencies’ motions to dismiss the case. Then on March 11, 2004, Brown reversed himself, ruling that the MBC Executive Board and the six churches did not have standing to file the action, because messengers, not churches, were representative members of the Convention. Further, Brown refused to allow the MBC to file an amended petition naming messengers as additional parties and said a new petition naming messengers would be required. It is that decision that the MBC has appealed to the state court of appeals.
Meanwhile, Callahan’s decision to allow discovery to proceed means there will be more testimony taken through under-oath depositions. Whitehead told the court that certain key figures had not yet been deposed, such as former MBC Executive Director Jim Hill, now interim executive director of the Baptist General Convention of Missouri (BGCM).