Judge clarifies order, denies amendment, requires new petition

Judge clarifies order, denies amendment, requires new petition

Staff

March 30, 2004  

JEFFERSON CITY – Cole County Circuit Court Judge Tom Brown entered an order on April 7 refusing to reconsider his March 11 order and denying the plaintiffs’ motion to amend the current petition.   Convention attorneys say the procedural issue of standing will now go to the Court of Appeals in Kansas City, while a new petition naming messengers 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," said Mike Whitehead, lead counsel for the Convention.  “Judge Brown was right a year ago when he allowed the churches and 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 issue that the defendants are trying so hard to avoid:  Did the agency charters give their word that MBC would elect their trustees? Are those promises enforceable?"

Brown ruled on March 11 that neither churches nor the MBC Executive Board have standing to file suit against Missouri Baptist 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 – Word&Way, Missouri Baptist Foundation, The Baptist Home and Windermere Baptist Conference Center. In his April 7, 2004, order, Brown expressly states that the petition by churches and Executive Board was dismissed as to all five institutions.

“It was important to have him say expressly what is the scope and basis for his ruling so it will be clear to the court of appeals," said Whitehead. “We believe his March 11 order was not clear on its scope and basis, and his comments at the 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 that they thought his order did apply to all defendants.

Charles Hatfield, a former assistant Attorney General for Missouri and now a member of the Stinson, Morrison & Hecker law firm, argued for the plaintiffs along with Whitehead. The Stinson 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 entities 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 for 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 party 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 so he allowed the amendment so the lawsuit could proceed with the proper plaintiff.

Clyde Farris, the St. Louis attorney who represents Missouri Baptist College, told Brown that he should not allow his March 11 order to be revised, and 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 further argued that the judge had no jurisdiction to permit an amendment if there was 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.  In the April 7 order, Brown 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.  An amendment may add a party which has standing and “cure the deficiency" of lack of standing, so 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.  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 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."