Partial summary judgment hearing set for Nov. 10
In case involving the MBC, 5 breakaway agencies
By Bob Baysinger
Septmeber 23, 2003
JEFFERSON CITY – A key question in the Missouri Baptist Convention’s (MBC) legal battle to restore relations with five breakaway institutions may soon be resolved.
This question is: Is the MBC a "member" of the MBC’s five agencies with the right to approve charter changes made by any of the five entities – Missouri Baptist College, Word & Way, Missouri Baptist Foundation, Windermere and The Baptist Home?
Cole County Circuit Court Judge Tom Brown has set Nov. 10 as the date to hear arguments on that question from one of the institutions – Missouri Baptist College. The college filed a motion for partial summary judgment July 7, asking the court to declare that the MBC is not a member of the college corporation.
MBC attorneys contend that the MBC is the sole "member" of each of the five corporations, giving it the right to approve charter amendments and elect college trustees. A "member" of a not-for-profit corporation is similar in concept to a shareholder of a for-profit corporation.
A partial summary judgment permits the judge to rule on one aspect of a case without ruling on all issues. Although not decisive as to the entire case, a decision in favor of the MBC on the "membership" issue could have important ramifications upon the remainder of the MBC petition for declaratory judgment.
The "membership" issue is a key issue in the litigation against all five agencies. If it is determined that the MBC was a member of the Missouri Baptist College, similar reasoning would suggest that the convention is a "member" of The Baptist Home, Word & Way, the Foundation and Windermere.
MBC attorneys have also filed summary judgment motions, requesting a ruling on the membership issue as to all five agencies and on other issues..
"If the judge rules in favor of the MBC on the college’s motion, it would indicate that the court believes that we are the "member" of all of the agencies," said MBC attorney James Freeman.
The MBC legal team, headed by attorney Mike Whitehead, has also filed summary judgment motions, against each of the agencies, seeking rulings on some basic issues. The motions assert that the agencies’ charters gave the right to the MBC to elect trustees and to approve changes. The MBC’s right to elect trustees is a very important legal right which cannot be removed without MBC approval. Likewise, the MBC contends that the agencies’ charters are legally binding contracts, which cannot be amended without MBC approval.
Brown told MBC attorneys and an attorney for the college at a Sept. 18 hearing that he does not intend to intermingle the motions for partial summary judgment and will handle each of the requests separately.
In a related legal development, Brown ruled at the Sept. 18 hearing that the defendant’s counsel had no right to obtain copies of attorney-client privileged material in the possession of MBC attorneys. In 2002, before filing a petition for declaratory judgment, the MBC retained three leading law firms in Missouri to write legal opinions advising the MBC the five agencies’ actions violated state law. In August, 2003, the lawyer for the Foundation served subpoenas on the three law firms, seeking to depose the firms and obtain copies of the legal advice given. Judge Brown ordered the Foundation lawyer not to proceed with the depositions, because the opinion letters are clearly privileged under the law and the privilege has not been waived by the Convention.
Convention attorneys were forced to file a motion and brief with the court prior to September 18, and reply to the Foundation’s brief. Attorneys for all parties then met in Jefferson City at the hearing to argue the motions. The judge ruled in favor of the Convention’s legal position at the close of the hearing.
"The judge told the Foundation that they have no right to our attorneys’ files and that what the MBC’s lawyers told the MBC is not relevant to the issues," said Freeman. "That should have been obvious, but the defendant knew that we would have to spend money to file and argue motions to stop them. This tactic by the Foundation cost all the parties thousands of dollars in legal fees, just to prove the obvious. It is a classic example of defense tactics which make this case so costly to litigate. Rather than forcing the MBC to spend money on fighting over irrelevant discovery, maybe now the defendant agencies will allow us to concentrate on obtaining a court ruling on the real issue – did the agencies have the legal right to declare themselves self-perpetuating?"