Judge rules case not over, MBC legal battle to recover five rebel entities continues
By Bob Baysinger
March 30, 2004
JEFFERSON CITY – Cole County Circuit Court Judge Tom Brown made clear that his prior order of March 11 applied only to one of five defendants and did not dismiss the Missouri Baptist Convention case (MBC) as to the other four, in a hearing held on April 5. Brown took under advisement a motion filed on March 3 by Missouri Baptist Convention (MBC) attorneys to amend the petition, and a motion filed on March 24 to “reconsider, clarify and amend" a ruling he made on March 11 in the Convention’s declaratory judgment lawsuit against five breakaway institutions.
Mike Whitehead, who heads the MBC legal team, said he expects Brown to rule on the motion to amend before April 10.
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.
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 – and did not close the door on the MBC’s right to file an amended suit or file a new petition that would simply continue the original case under a new case number. Brown commented from the bench on April 5 that his March 11 order only applied to the College and not the others. Defense attorneys told the judge that they thought his order applied to all defendants, but Brown clearly disagreed.
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 Mike Whitehead, lead counsel for the Convention. The Stinson firm was one of three law firms which wrote preliminary opinion letters for the Convention in 2002, and Hatfield, whose office is in Jefferson City, has provided local assistance to the Kansas City-based legal team. All three of the law firms came independently to the conclusion that all five entities broke Missouri corporate law.
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. After hearing all counsel discuss Asmus, Brown told the attorneys that “we may have to revisit the order (of March 11)."
Whitehead said that attorneys for the breakaway agencies “were obviously not pleased to hear the judge say the case was not ended by the March 11 order, and that he would revisit the order as to its effect on other defendants."
The agencies declared total victory in the lawsuit after Brown’s March 11 decision. Brown said at the April 5 hearing that he did not intend for the ruling to apply to all five institutions – only the college.
“The judge seemed surprised that anyone would read his order and think it applied to the other agencies. He repeated that only the College motion was before him on February 26," Whitehead said.
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.
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.
Whitehead said Judge Brown now has several options.
“He may enter an order granting plaintiffs motion to amend the petition, in which case the proposed amended petition will be formally filed. The petition makes the same claims as the earlier petition, but names five messengers as members of the Convention. The judge may in addition, modify his March 11 order by stating that it applied only to the College. Or the Court may enter a clarifying order that expressly addresses all five defendants, and that states whether their charters give the Executive Board standing as to any of the five. If the judge does not grant our motion to amend by April 10," Whitehead said, “the rules may require that we file our notice of appeal with the Court of Appeals in Kansas City . We would then file a new petition naming messengers and pick up where we left off, while the Court of Appeals resolves the question of whether churches are members of the Convention."
“Either way, we are pleased with the judge’s confirmation that the prior order only related to the College. We are pleased that the judge was willing to consider an amended petition. An amendment is the most efficient way to reach the heart of the case which is the promises in the agency charters that the Convention shall select their trustees."