Judge rules MBC not a ‘sole member’ of Missouri Baptist College corporation
November 18, 2003
JEFFERSON CITY – The trial judge in the Missouri Baptist Convention (MBC)-agency lawsuit ruled in favor of Missouri Baptist College on one limited motion involving its former charter language, while the parties continue preparing briefs and arguments on 15 other pending motions addressing the major issues remaining for trial.
Cole County Circuit Court Judge Tom Brown ruled Nov. 10 that the MBC is not the sole member of the Missouri Baptist College corporation, based on his interpretation of language unique to the college charter. The college had filed a motion for summary judgment on July 7 asking the court to rule that the college has no members.
Clyde Farris, representing the college, argued that the MBC had approved a college charter change in 1997 which said the convention would “appoint" trustees, and did not use the term “elect" trustees like the former college charter and other agency charters. Farris quoted from a letter by Nashville attorney James Guenther, who represented the college and advised the word change in 1996. Convention attorneys had argued that the words “appoint" and “elect" were legally equivalent, and that the parties intended no change in the right and process of selecting trustees. They argued that the right to “elect" trustees conferred certain rights upon the convention as a statutory “member" of the corporation, even though the changed charter also contained the language that the “corporation will have no members."
“They approved it. This is one of the things they have admitted," Farris said. “By this act, the MBC waived any right to come back and say it is now a member of the college."
Mike Whitehead , lead attorney for the MBC legal team, argued at the hearing that state statutes say that membership rights may exist “regardless of what a person may be called in the charter". Even though the college charter used the word appoint and said it has no members, Whitehead argued, the court should find that the voting rights of the convention to select trustees make the convention the “sole member" of the college corporation. Under the legal concept of “sole membership," the convention’s statutory rights could not be changed without convention permission.
“While we were disappointed with the judge’s ruling, we are not discouraged. This is only one of several legal arguments we have made as to why the college’s action was inappropriate, and this decision does not affect our strongest arguments regarding the college charter." Whitehead said after the hearing. “Furthermore, this very limited ruling does not affect our case as to the other four corporations. We remain convinced that Missouri law will ultimately vindicate the rights of the Missouri Baptist Convention and its Executive Board, and will return all five agencies to the MBC family."
Whitehead said the college is the only one of the five breakaway agencies that used the term “appoint" in its charter instead of “elect." The charter states that the college’s board of trustees “shall consist of 27 persons appointed by the Missouri Baptist Convention."
“Because of that unique difference we have known from the beginning that the college charter was the most difficult one for us to persuade the court to apply the concept of sole membership," Whitehead said. “We have always had several arguments as to why the charter changes were unlawful as to all five entities. The college charter was unique and the judge declined to apply to the “sole member" statutory rights there. We will still argue that the Convention is the “sole member" of the other four corporations, and that the charters of all five corporations give MBC certain contract rights which can’t be eliminated without MBC approval."
Whitehead said it is the MBC’s plan to press forward with the other motions that will soon be before the court.
“There are still 15 motions that are pending. We have filed five motions for summary judgment. The agencies have filed five motions to dismiss, much like they filed last year, which the judge summarily denied. Then the agencies have five cross motions for summary judgment against the MBC," Whitehead said. “The judge will need to sort out procedurally how he’s going to take up these motions. All of that will involve a lot of briefing work and more hearings over the next couple of months.
“This hearing was nothing more than the first inning of a 16-inning ball game called “dispositive motions," Whitehead added. “We knew we could lose an inning now and then, but we don’t lose heart. The rest of the ball game on these motions has yet to be played over the next few months."
The court set Dec. 4 as the next date on which parties shall file responsive briefs to some of the pending motions.