MBC’s lead attorney battle-hardened
Convention’s legal struggle with 5 breakaway agencies enters its 34th month
April 19, 2005
Immediately following the April 20 hearing involving the Missouri Baptist Convention (MBC) and its five breakaway agencies before the Western Division of the Missouri Court of Appeals in Kansas City, Pathway Editor Don Hinkle visited with MBC lead attorney, Mike Whitehead.
Q: Give Pathway readers your reaction to what the judges inquired about today.
A: Appeals cases are decided primarily on the written briefs filed by parties, not by the 15 minutes per side allowed for oral argument. Oral argument permits judges to ask clarifying questions about the facts and the law discussed in the briefs. I was pleased that we were able to clarify the issues that the judges questioned. The first question Judge (Harold) Lowenstein asked Mr. (Larry) Tucker, who represented the agencies, was whether anyone can bring this suit. Mr. Tucker said messengers could bring it, but only three days a year, while the annual meeting was in session. The judges seemed incredulous about this argument, as well they should be. Later, Judge Lowenstein asked Mr. Tucker: “Aren’t defendants really biting the hand that feeds them?” The panel seemed to understand the significance of the case.
Q: This is not just a so-called ‘preachers’ fight,’ is it?
A: What’s at stake here is the fundamental right of a religious denomination to maintain authority over its subordinate ministry corporations by reserving the rights to elect trustees and to approve charter amendments. The dishonest and deceptive breakaway of five subsidiary corporations, with ministry assets totaling about a quarter of a billion dollars, violated contract promises, statutory rights and fiduciary duties owed to the Missouri Baptist Convention and its Executive Board. The legal issues about corporate governance affect potentially every non-profit organization in Missouri that operates through subsidiary corporations. In addition, a multitude of other corporations’ ministry organizations around the country follow the Non Profit Corporate code, so corporations in other states could be affected as well.
Q: Why is it important for the Court of Appeals to reverse Judge Brown’s dismissal?
A: The appeal is primarily about procedure: who can be named plaintiff on the cover page of the lawsuit. We are more concerned about the merits of the case, whether the agency charter changes were unlawful, and the appeals court will probably not address that. It is important to get the procedural games stopped, so we can go back to Cole County and get to the merits. We think the best procedure is to permit churches to represent the convention, since churches exist year round, and that avoids the agency argument that messengers only act three days a year. But whether the Court of Appeals says churches or messengers should be plaintiffs, it is important that the judgment of dismissal be reversed. We must get past the cover page of the petition, and let the judge get to the “heart” of the dispute. Getting the Court of Appeals to resolve that issue up front means we can proceed to trial with this issue put to rest.
Cole County Circuit Court Judge Richard Callahan, in the messenger lawsuit that has also been filed in Cole County, will not proceed with some of the process until the Court of Appeals clarifies the issue of proper plaintiffs. So it’s important for the Court of Appeals to rule so that the underlying case can be amended or consolidated with the appeal case, so that the judge can address the merits of the case.
Q: Does the argument that the MBC can only bring a lawsuit during the three days that the annual meeting is underway strike you as odd?
A: We think it is absurd, and we hope the Court of Appeals will agree. However, we should note that, in the new messenger case before Judge Callahan, we filed the petition on Oct. 25, the first day of the 170th annual meeting of the Missouri Baptist Convention. We did that deliberately because we anticipated the agency’s argument. Now the agencies are arguing that filing on Oct. 25 was not good enough. They say the annual meeting didn’t start until 6 p.m., on Oct. 25 and we filed before at 4 p.m., before the clerks’ office closed. So they say we still missed it by two hours. Agencies’ arguments are limited only by their imaginations.
Q: Judge (Robert) Ulrich twice asked questions about the First Amendment to the U.S. Constitution. What do you think were the purpose of those questions?
A: Courts are reluctant to intrude into disputes that are essentially religious, doctrinal or faith-based. Missouri courts follow a principle of “church autonomy” rooted in the U.S. Constitution’s First Amendment, in which courts are deemed to lack jurisdiction to resolve religious doctrinal disputes.
Judge Ulrich asked whether there were any first amendment issues involved in this case. Mr. Tucker said no, and so did Dennis Owens. The Court has jurisdiction to resolve neutral rules of law, even as to religious organizations. There is nothing religious about interpreting the statutes on corporate charters, or interpreting charters which give the MBC the right to elect trustees.
Secondly, in our briefs we have mentioned that the Constitution of Missouri might be violated. Not a first amendment violation of the U.S. Constitution, but a violation of the Missouri Constitution which says every wrong must have a remedy. Any party who suffered wrong must be given access to the courts of Missouri to get justice. But as long as the court doesn’t interpret 355.141 to limit access only to the state Attorney General to bring this case, then we won’t have to worry about that Missouri Constitution being violated either. So otherwise it’s not a constitutional law case. It’s primarily a corporate law case.
Q: I noticed in the brief that you cited
the Georgia Court of Appeals ruling in the case involving the Georgia Baptist Convention and Shorter College. In that case, the Georgia Convention won at the Georgia Court of Appeals, and the case is pending before the Georgia Supreme Court. Do you think the rulings by the Georgia courts so far will have any impact here?
A: Absolutely. The Shorter College case is not binding precedent on the Missouri Court of Appeals, but it is certainly relevant, and persuasive. The courts are free to look at similar cases in other jurisdictions that have involved similar facts and similar points of law. The Georgia Court of Appeals found that because the Georgia Convention had the right to elect trustees of Shorter College, that made the Georgia Baptist Convention a statutory member of the Shorter College corporation. We made the same argument about all five corporations in Missouri. The trial judge in our case disagreed, and held that the MBC was not a member of the Missouri Baptist College corporation, even though we had the right to appoint or elect their trustees. We hope the Missouri Appeals Court will find the Shorter case to be persuasive, and that they will reverse Cole County Circuit Court Judge (Thomas) Brown’s order on this point as well.
Q: What is the significance of the June 1 hearing before Cole County Circuit Court Judge Callahan, which is the next step in court?
A: All the talk by the agencies about “messengers” or “churches” is a smokescreen for their real argument, which is that neither churches nor messengers have standing to bring this lawsuit. They say only the attorney general could bring this case – and he is representing the Secretary of State on the other side, and is not interested in bringing a case for the MBC. The defendants see this as their “nuclear option,” to slam the courthouse door on the Missouri Baptist Convention. Judge Brown did not expressly address this argument in our first case. Judge Callahan has agreed to take it up first. It is a very important hearing, in order to stop another one of the major procedural games the agencies have been playing.
Q: Observers of the court of appeals
have said, on average, the Western Division deposes of 90 percent of their cases — if they are in unanimous agreement — within 80 days. If one judge dissents, it could take five to six months. Does that sound like it’s accurate based on your familiarity with the court’s history?
A: Yes.. It could be three to six months. But the good news is that Judge Callahan has allowed us to proceed in the other case, doing some discovery that will permit us to ready for trial sooner, regardless of how the court of appeals rules. So we are not “on hold.” We are making important progress and covet the prayers of Missouri Baptists during the next few months. Pray for all the judges involved. And keep praying for a just result for Missouri Baptists.
Q: MBC was represented at oral argument by Mr. Dennis Owens. Share with our readers a bit about his background.
A: Mr. Owens could be called the “dean” of the local appeals bar. He is an appellate specialist, with 30 years experience, averaging 15-20 arguments per year before the Missouri Court of Appeals, the federal appeals courts, or the Missouri Supreme Court. He was named “best of the bar” in the appeals area by his peers in the Missouri Bar. He is a member of the Christian Legal Society in Kansas City. Our regular legal team drafted the appeal briefs, but we retained Dennis to handle the oral argument. Appeals work is a specialty among lawyers, and we preferred to let Dennis focus on what he does best while other members of the legal team are focused on moving the messenger case forward.