MBC to appeal some issues, Re-file new petition
By Bob Baysinger
Managing Editor
April 13, 2004
JEFFERSON CITY – The Missouri Baptist Convention’s (MBC) legal team will take up certain procedural issues to the Missouri Court of Appeals in Kansas City in the lawsuit for declaratory judgment against five breakaway agencies. Meanwhile, a new petition naming individual messengers is being prepared for filing in the lower court.
Cole County Circuit Court Judge Tom Brown entered an order on April 7, refusing to reconsider his March 11 order and denying the MBC’s motion to amend the current petition. MBC attorneys say the procedural issue of standing for the Executive Board and six churches will be taken up to the appeals court.
Mike Whitehead, chief legal counsel for the MBC, said a new petition naming messengers as plaintiffs also will be filed to permit the case to pick up where it was before March 11.
“We respectfully disagree with the judge’s interpretation of our MBC Constitution," Whitehead said. “Judge Brown was right a year ago when he allowed the churches and (MBC) executive board to proceed as proper plaintiffs. We believe the court of appeals will uphold the original ruling and will reverse this latest ruling.
“This case is not about procedure and standing, but about charter promises. In the court of appeals – or in the new petition – we will finally get to the issues that the defendants are trying so hard to avoid, namely: Did the agencies give their word that MBC would elect their trustees and are those charter promises enforceable?"
In his April 7 order, Brown expressly stated that the petition by churches and the executive board was dismissed as to all five institutions – Missouri Baptist College, Word&Way, The Baptist Home, Missouri Baptist Foundation and Windermere Conference Center.
Brown had ruled on March 11 that neither churches nor the MBC executive board have standing to file suit against the college regarding charter changes. He referred to language in the college charter as being insufficient to give the executive board standing.
Brown’s March 11 ruling did not expressly include the four other agencies.
“It was important to have him expressly state the scope and basis for his ruling so it will be clear to the court of appeals," Whitehead said. “We believe his March 11 order was not clear on its scope and basis, and his comments at a hearing on April 5 confirmed that.
“This case will continue in a higher court while the new petition is filed in the lower court."
Brown commented from the bench on April 5 that his March 11 order only applied to the college and not the other four agencies. Defense attorneys told the judge they thought his order applied to all defendants.
Charles Hatfield, a former assistant Attorney General for Missouri and now a member of the Stinson, Morrison & Hecker law firm, argued along with Whitehead at the April 5 hearing. The Stinson law firm (formerly Stinson Mag & Fizzell) was one of three law firms which wrote preliminary opinion letters for the Convention in 2002.
All three of the law firms independently concluded that all five agencies violated their charters and broke Missouri corporate law. Hatfield, whose office is in Jefferson City, has provided local assistance to the Kansas City-based legal team the past several months.
Hatfield reminded Brown about the 2003 case in his court (Asmus v. Capital Region Family Practice) where the Western District Court of Appeals in Missouri ruled that Brown’s refusal to grant a motion to amend to substitute the proper part was an abuse of discretion and a reversible error.
Brown, after hearing Hatfield’s presentation of the Asmus argument, acknowledged that he remembered the case as one that he had handled. He recalled that the Court of Appeals told him that he had to allow the amendment. Brown allowed the amendment in Asmus so the lawsuit could proceed with the proper plaintiff.
Clyde Farris, a St. Louis attorney who represents the college, told Brown on April 5 that he should not allow his March 11 order to be revised and advised the judge that he could not permit an amendment.
“They never had a right to bring this case," Farris said. “Neither the churches nor the MBC executive board had standing to file the original lawsuit and they do not have standing to amend the petition."
Farris also argued that the judge had no jurisdiction to permit an amendment if there were no plaintiff before the court with standing. Brown’s April 7 order adopted Farris’ language and argument that the Asmus case did not require the judge to allow an amendment if the judge provided a reason.
Brown’s April 7 ruling said the plaintiffs lacked a “beneficial interest" in the lawsuit.
Whitehead and Hatfield argued in written briefs that the court always has jurisdiction to rule on procedural matters – even when a court has ruled that the plaintiff lacks standing.
Whitehead said an amendment may add a party which has standing and “cure the deficiency" of lack of standing. He added that the court has power to grant an amendment even when the court lacks subject matter jurisdiction over the merits of a case.
“We believe that an amended petition would have been more efficient and less expensive, but the defendants have persuaded this judge on this procedural point for today," Whitehead said.
“We have known from the beginning that – with a quarter of a billion dollars at issue – the agencies would pay their army of lawyers many millions of dollars to argue side issues and try to avoid the heart of the case. But justice delayed will not be justice denied. We will be as persistent as the importunate widow in pleading with the judge until he gives us justice regarding the promises these agencies made."