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Missouri Baptist Convention files new petition by messengers
By Staff
October 26, 2004
Jefferson City — Attorneys for the Missouri Baptist Convention have filed a new petition in the legal effort to restore to the MBC family five breakaway corporations worth a quarter of a billion dollars. The new declaratory judgment action was filed on October 25,2004, in Cole County, Missouri, circuit court, naming five messengers as representatives of the Convention, as was suggested by the former judge, Tom Brown. Earlier this year, Judge Brown dismissed the MBC’s first petition on procedural grounds that the Executive Board and six churches did not have standing to represent the unincorporated association known as the Missouri Baptist Convention. State law requires that "members" of an association be the legal representatives in a legal action, and the judge said he interpreted the MBC Constitution to mean that messengers are "members." MBC attorneys had argued that messengers from affiliated churches are members of the annual meeting, but that the Executive Board and churches who send messengers can represent the association through the year. Before Judge Brown’s dismissal, MBC attorneys asked for leave to amend the first petition to add messengers as parties, but Brown instead dismissed the petition and suggested that a new petition be filed with messengers. MBC attorneys are appealing the judge’s refusal to pennit an amended petition. The Western District Court of Appeals in Kansas City has this case. Meanwhile, MBC attorneys have proceeded to file the new petition as suggested by the county judge, in order to keep the case moving toward a final ruling. The new petition names five individuals as plaintiffs. Each person has been a messenger at annual meetings since 1999. Each person is also a Convention-elected trustee for one of the five breakaway agencies. Two of the five persons are also Convention-elected officers over the past five years. The agencies have complained in the past that officers of the Convention or trustees of the corporations are necessary parties. The agencies claim now to be self-perpetuating, meaning that their trustees elect successor trustees, no longer the Convention. The five plaintiffs are as follow: 1. Dr. Robert Curtis is the pastor and messenger from Ballwin Baptist Church, Ballwin, Missouri, Curtis was also elected by the Convention to be first vice president during 2001 and president during 2002. As president, Curtis was an ex officio trustee of the Windermere board, according to its original corporate charter. 2. Dr. Mitchell Jackson is the pastor and messenger from Miner Baptist Church, Sikeston, Missouri. Jackson was elected by the Convention to serve as first vice president of the Convention during 2004. He has also been elected by MBC as a Baptist Home trustee. 3. Rev. James Plymale is a messenger from First Baptist Church, Villa Ridge, Missouri, since 2001, and was a messenger from First Baptist Church, Washington, Missouri, in the years 1999-2001. Plymale was elected by the Convention to be a trustee for Missouri Baptist College prior to 2001. Plymale voted against the self-perpetuating charter change in 2001 and was subsequently not re-elected by the self-perpetuating board. The Convention has continued to elect Plymale as a lawful trustee, but the College board refuses to recognize his office. 4. Lyn Heying is a messenger from New Oakland Baptist Church, Ralls County, Missouri, and was elected by the Convention to be a trustee of the Word & Way in 2003.
5. James Moore is a messenger from Concord Baptist Church of St. Louis, Missouri, and was elected by the Convention to be a trustee of Missouri Baptist Foundation in 2003.
"Rule 52.10 permits naming a few members who will adequately represent the other members of the unincorporated association," Michael Whitehead, MBC lead attorney said. "It is something like a ‘class action’ rule, which permits the court to certify a few members to represent the interests of all the class members. We have filed a motion asking the judge, first thing, to certify these five messengers as proper representatives under Rule 52.10." "We fully expect the opposing attorneys to try to ‘flip flop’ now, and to argue that messengers are not proper representatives either. But the judge has previously said that the agencies can’t have it both ways," Whitehead continued. "We will seek an early ruling by the court that the messengers have standing, so we can proceed to the heart of the case: Do promises in the agency charters that MBC shall elect or appoint trustees constitute a contract which is legally enforceable by the Convention? If so, then the agencies’ unauthorized amendments to become self-perpetuating breached the contracts." Each agency charter contained the right of the MBC to elect or appoint trustees. For example, the Baptist Home charter said: "This Corporation shall be affiliated with and subject to Missouri Baptist Convention. The members of the Board of Trustees of this Corporation shall be nominated and elected by Missouri Baptist Convention at the Annual Meeting of said Convention and shall automatically be removed upon withdrawal of the Approval by Missouri Baptist Convention or the Executive Board of Missouri Baptist Convention.
In addition to Whitehead, Stan Masters and James Freeman, the legal team includes John Holstein, fonner Missouri Supreme Court Chief Judge, now with the firm of Shughart Thomson & Kilroy, and member of Second Baptist Springfield; and Charles W. Hatfield, former assistant Missouri Attorney General, now with the firm Stinson Morrison Hecker, and member of First Baptist, Jefferson City.