MBC files for summary judgment againist five breakaway agencies
By Bob Baysinger
August 26, 2003
JEFFERSON CITY – Missouri Baptist Convention (MBC) attorneys have filed five motions for summary judgment in Cole County Circuit Court against the five MBC breakaway agencies.
The summary judgment procedure allows the speedy disposition of some issues without the need for trial and would only dispose of a portion of the whole case against the five entities – Windermere Baptist Conference Center, Missouri Baptist Foundation, Missouri Baptist College, The Baptist Home and Word & Way. The convention seeks a court order to rescind the amended charters which made their trustee boards self-perpetuating. The five agencies are said to have combined assets worth more than $200 million.
Summary judgment is permitted by Missouri Rules of Civil Procedure where there is "no genuine issue of material fact" and a party is "entitled to judgment as a matter of law." According to Mike Whitehead, lead attorney for the MBC, the court cannot enter summary judgment if a fact isdisputed or if the rules of law are not clear.
MBC attorneys contend in the summary judgment filing that there are some facts in the case that are not genuinely disputed. For example:
- Prior to the charter changes by the five institutions, all operated under a charter that permitted the MBC to elect trustees and approve changes to charters;
- The right of the MBC to select college trustees creates certain statutory rights of membership which cannot be abrogated without MBC approval;
- Contract law also prohibits the institutions from extinguishing the rights granted to the MBC in charters.
The college also had told the court that none of the five Missouri Baptist churches who joined in the suit are members of the MBC, thus none can bring legal action on behalf of the MBC.
MBC attorneys disagree, stating: "This court is authorized to rule on the adequacy of the plaintiff churches to represent the interests of the Missouri Baptist Convention."
The five defendants have previously argued that whether or not they broke the law in amending their charters, they had a fiduciary duty to enact "the purported revisions." MBC attorneys countered that "a fiduciary does not have a license to steal."
Whitehead described the summary judgment motions as "an important procedural step which could allow the trial judge to decide some key legal issues in advance of a trial." A trial date is expected to be set early in 2004.
The motions were filed ug. 15, one year and one day after the filing of the original petition for declaratory judgment against the five breakaway agencies. The defendants have 30 days to file responsive briefs and affidavits.
Legal observers predict the motions could be scheduled for a quick hearing and a possible court ruling by the end of October.
The legal question at the heart of the year-long battle centers on whether the corporate charters of all five agencies guaranteed the MBC the exclusive right to select trustees and to approve charter amendments. The convention alleges that its membership rights are one reason why the five corporations could not lawfully amend their charters to delete the convention’s right to select trustees without convention approval.
Attorneys for the five agencies contend that the MBC does not have membership status with the agencies.
MBC attorneys are asking for a court ruling — based on corporate statutes and contract law – that the agency action was unlawful, null and void. If the convention suit for declaratory judgment is successful, MBC-elected trustees would be restored as the lawful boards, and the boards would be subject to former charters. The MBC-elected trustees have been meeting separately from the trustees who voted to become self-perpetuating.
"After nearly a year of motions, hearings, written discovery, document exchanges and depositions, we believe the case is ripe for at least partial summary judgment," Whitehead said. "The summary judgment order could significantly simplify and shorten the remainder of the case trial.
"It can also greatly reduce the legal costs for the remaining preparations for trial. Our goal has always been to obtain a court decision with the least expense possible. Unfortunately, where defendants have taken $200 million in assets, they can be expected to wage an aggressive legal battle to try to keep the property they have taken."
Bob Curtis, pastor of Ballwin Baptist Church, served as MBC president during the year most of the agencies broke away. Curtis told The Pathway he believes the MBC has acted properly and prudently with the legal action.
"Recovering the agencies will be expensive, but not as expensive as losing the agencies and the $200 million in ministry assets," Curtis said. "It is the right thing to do. God has entrusted these ministries to Missouri Baptist Convention churches, and we have a duty to the Lord and to these churches to expose the violations of these corporate charters and to bring these agencies back to accountability where they belong."
Curtis stressed that the MBC urged the agencies to resolve the matter out of court.
"They refused binding Christian arbitration," Curtis said. "We could not allow them to do whatever they wanted and not hold them accountable for their action."