November 19, 2002
JEFFERSON CITY – Attorneys representing the Missouri Baptist Convention (MBC) want to subpoena a Cooperative Baptist Fellowship (CBF) leader involved in the formation of the new state convention in Missouri who supports the five agencies’ attempts to breakaway from the MBC.
MBC attorneys have filed and served discovery requests with Cole County Circuit Court Judge Tom Brown regarding attorney W. Bart Tichenor’s role in the dispute between the MBC and five rebel agencies where trustees have voted to become self-perpetuating. The filing includes a subpoena to take the deposition of Tichenor "in the near future."
The requests were made as MBC attorneys asked Brown Nov. 19 to strike Tichenor’s amicus curiae brief and attached documents from the court’s file. Tichenor, who filed his brief about a month ago, is not part of the legal team representing the five agencies, but filed his document so that he may "advise" the court on matters pertaining to the case if it proceeds.
MBC attorneys filed their motion to strike Tichenor’s brief on the afternoon of Nov. 18, the day before Brown heard arguments for and against dismissal of the MBC declaratory judgment petition that seeks to restore the five breakaway agencies’ accountability to the churches of the MBC.
The purpose of the motion, MBC attorneys said, was to prevent Tichenor from interjecting his arguments into the court record on the day of the hearing.
Brown ultimately overruled verbal arguments from the MBC attorneys at the Nov. 19 hearing and allowed Tichenor to present his case, however, Brown said he would take the motion for subpoena and discovery under advisement.
In the motion, G. Stanton Masters, a Kansas City attorney and a member of the MBC legal team, said Tichenor has been a material participant in the facts and events at issue in the lawsuit.
"Plaintiffs (the MBC) expect that discovery will show that the attorney (Tichenor) was a prime progenitor of the plot about which plaintiffs’ complain; that he has heavily shaped the legal theory and strategy of all the breakaway agencies; and that he is a leader in the new state convention which will be the prime beneficiary of the assets of the five agencies if their corporate coup succeeds," Masters said in the motion.
Masters pointed out that Tichenor’s amicus brief admits his own involvement in 1978 with a then moderate-controlled MBC committee examining the relationship between the MBC and the five agencies. Tichenor uses information from that involvement in his briefs as an argument against the MBC’s declaratory judgment petition.
"The attorney is incredibly eager for his knowledge and opinions to come before the court, even before the defendants have filed an answer," Masters tells the court in his motion to bar Tichenor. "It is a certainty that the attorney will be a major fact witness, adverse to plaintiffs in this case. Therefore, it is improper for the witness to seek to lobby the court regarding his point of view by way of a putative amicus brief."
Masters’ motion listed 13 reasons why Tichenor should be barred from participating as an attorney.
Describing Tichenor as an activist, Masters said the lawyer had used a website (MissouriBaptists.org), rally meetings, press releases and other methods to solicit amici clients "in order to gain access to the court and to have a presence in the court record in this case."
"On the day after plaintiffs filed their petition and before the defendants were even served, Tichenor posted on his website news releases about his amicus strategy and sample sign up sheets for people to let him use their names to file his brief," Masters’ motion states.
In addition, Masters reminded the judge of Tichenor’s prior involvement with the MBC.
Tichenor "has provided legal services for the Missouri Baptist Convention in years past, prior to a leadership change, and may have obtained certain facts and information by virtue of his confidential relationship with officers, directors and employees of the convention," Masters said. "Therefore, the attorney should be disqualified from representing interests adverse to the MBC, even through an amicus brief in this case."
Tichenor has also served as parlimentarian for the national CBF and is a former Missouri CBF moderator. He also participated in foundational meetings establishing the new Baptist General Convention of Missouri.
Masters pointed out to Brown that Tichenor is seeking to use the amicus brief in a way not permitted by law.
"The defendants raise procedural motions regarding standing and have yet to admit or deny the factual issues in the case," Masters said. "The defendants are represented by three major law firms who are well able to raise the issue of facts and law relevant to their case. In any event, it is certainly premature for the amicus to imply that he will raise issues that will not be adequately presented by the parties."
Masters cited a 1999 Missouri court case in Cole County (Hemeyer v. KRCG-TV) which determined that an amicus brief cannot inject issues into a case not presented by the pleadings and parties.
The MBC attorney charged that Tichenor’s filing of his brief is an effort to permit a non-party to participate in the litigation and to help in framing the issues.
Masters said the brief is an abuse of the process and allows non-parties to harass and distract the parties.
"The plaintiffs should not incur the burden or expense at this state of defending against extraneous arguments filed by an attorney who is campaigning to enlist hundreds of clients so he can tell his story in this lawsuit," Masters said.
Tichenor’s use of Baptist Home residents’ names as support of the amicus brief was also questioned by Masters. The Pathway first reported that at least a dozen names of Baptist Home residents appear on the brief and that Tichenor conducted briefings at The Baptist Home in October in search of support for his brief.
"Some of these persons may lack capacity to make such decisions voluntarily and discovery may lead to evidence showing that said persons were not fully aware of the attorney’s use of their names," Masters said. "In any event, it is improper for residents of the Home to be used in this manner in order to permit the attorney to participate in this case while the Baptist Home is already a party and duly represented by legal counsel."
Lastly, Masters told the judge that Tichenor claims to represent persons who disagree with the vote of the majority at the 2001 MBC annual meeting.
"If dissenters who lost a legitimate vote do not have standing to intervene and participate as parties under established rules of procedure," Masters said, "then such persons should not be permitted to participate in this case as amicus curiae."