Breakaway Entities Seek Rehearing in Appeals Court
June 17, 2005
KANSAS CITY – Five breakaway entities who lost a unanimous appeals decision on May 31 have filed a motion seeking a rehearing by the Kansas City appeals court, or a transfer to the Missouri Supreme Court for a new hearing. A three-judge panel had ruled in favor of the Missouri Baptist Convention and had remanded the case to Cole County circuit court where it should proceed to trial.
The Baptist Home, Missouri Baptist Foundation, Missouri Baptist University, Windermere and Word and Way complained in their motion that the 3-judge panel overlooked or “misinterpreted material matters of fact and law.”
“We fully expected the entities would attempt this tactic, which fits with their tactics of procedural delay in order to avoid the substantive merits of the case.” said Michael Whitehead, lead attorney for the MBC. “We will wait to see if the court of appeals wants to re-hear this case, or if they want to see this case get to trial as soon as possible, so a declaratory judgment can be rendered.”
The defendants’ motion lists seven legal “errors” allegedly made in the appellate opinion authored by Judge Robert Ulrich and joined by Judge Harold Lowenstein and Chief Judge Edwin Smith. Six of the alleged mistakes relate to the holding that the Executive Board can represent the Convention between annual meetings. In the seventh point, Defendants disagree with the holding that the Convention has “perpetual existence” and has legal rights year around, and not just during the annual meetings. The appeals court rejected the entities’ arguments regarding a 1935 decision by the Missouri Supreme Court, Farm and Home Savings and Loan v. Armstrong, which the appeals courts treated as out-dated and irrelevant.
"The five entities thought the Farm and Home case was their ‘silver bullet’ but the court of appeals said they were shooting blanks," Whitehead commented. "The breakaway trustees who put their faith in the Farm and Home case for their legal justification should be feeling pretty insecure after this appellate opinion."
The court of appeals may rule summarily on the motion, or may invite the Convention attorneys to file a reply brief. Most motions for rehearing are routinely denied in a few days, according to the MBC legal team. If that happens here, the Executive Board case will return to the Cole County circuit court and will likely be consolidated with the pending messenger case, and will proceed with pre-trial discovery and motions in preparation for trial.