MBC attorney lauds Georgia court decision
MBC continues battle with five breakaway entities
By Don Hinkle
March 2, 2004
JEFFERSON CITY, Mo. (BP)–Attorneys representing the Missouri Baptist Convention lauded a March 17 decision by the Georgia State Court of Appeals in favor of the Georgia Baptist Convention and against Shorter College, whose dissident trustees are bent on picking their own successors. The Missouri lawyers said the Georgia case may be very helpful to accomplishing a similar result in the Missouri courts.
“The court of appeals decision in the Shorter College case is very important to Southern Baptists everywhere," said Michael Whitehead, a Kansas City attorney representing the Missouri Baptist Convention.
“It is a victory for truth and accountability to a state Baptist convention," Whitehead said. “Christian college trustees are bound by their word, and they must keep their promises, including the promise that the state convention shall elect its trustees. The Georgia convention has paid a heavy price to see this through. Missouri Baptists will be beneficiaries of this important legal victory, and we are grateful to Georgia Baptists."
Whitehead said Missouri Baptist Convention attorneys expect to file a motion to reconsider with Judge Tom Brown in Cole County, Mo., during the week of March 22, and they intend to bring the Georgia Baptist case to the court’s attention. They will ask the judge to reverse or modify his dismissal order on a college motion, and to grant leave to proceed with an amended petition naming individual Missouri convention messengers as plaintiffs.
“It is false to say the case is over," Whitehead said in reference to a media blitz by five breakaway Missouri Baptist entities touting rulings by Brown on March 11 and last November.
Georgia cases are not binding on Missouri courts, but they certainly may be persuasive authority, Whitehead said. “We are pleased that the decision came in time for us to share with Judge Brown when we file our motion to reconsider in the MBC case next week," he said.
The Georgia Court of Appeals adopted the same legal position that MBC attorneys have advocated in the Missouri case, namely that the convention is the “sole member" of the entity’s corporation, thereby giving the convention certain statutory rights to control charters, Whitehead said.
The Missouri case has dragged on for 20 months amid a series of procedural motions filed by attorneys representing the five renegade MBC entities — Windermere Baptist Conference Center, The Baptist Home, Missouri Baptist College, Word & Way newsjournal and the Missouri Baptist Foundation. Lawyers for the breakaway entities have filed thousands of pages of legal documents raising procedural arguments about such technical legal rules as capacity to sue, standing to sue and cognizable legal interest in the controversy.
The procedural motions have attempted to avoid the case’s central issue: Did the five institutions break their word and break Missouri law when they ignored their charter promise that the Missouri Baptist Convention would select their trustees?
“The [entity] defense lawyers will, no doubt, try to distinguish the Georgia case by focusing on some minor fact differences between the two conventions, but the basic principles are the same," Whitehead explained in comparing the Georgia case with the one in Missouri. “Under those principles, the state convention is the ‘member’ of the subsidiary corporation because of the right to select trustees, which in turn gives the convention certain statutory rights, e.g., the right to approve any charter amendments.
“Hundreds of ministries around the country rely on this principle, that a parent organization maintains control and accountability over subsidiary corporations by the right to elect the governing board. If disgruntled subsidiaries can simply divorce their parent organizations, then no denomination, local church or other ministry which works through subsidiaries can be safe from corporate piracy."
Brown initially ruled on Nov. 10 that the MBC was not the member of the college corporation. However, the Georgia Court of Appeals reached the opposite result regarding Shorter College.
“At some point, the Missouri Court of Appeals may have to decide this issue in our case," Whitehead said.
When Brown issued a March 11 order dismissing the Missouri convention’s case against Missouri Baptist College, the college and the four other entities immediately unleashed an unprecedented media blitz, claiming the convention’s legal case was “over" and that the entities had been exonerated. Leaders of the entities posted press releases on their websites and mailed letters and press releases to pastors and supporters.
The Word & Way mailed out a massive statewide special edition, devoting numerous articles to the lawsuit “victory" and the entities “ministry." The entities’ blitz was joined by press releases by the Missouri Cooperative Baptist Fellowship (CBF) by the new moderate convention, Baptist General Convention of Missouri, and by moderate organizations Associated Baptist Press, www.Ethicsdaily.com and www.MissouriBaptists.org.
Whitehead, however, said, “The case will proceed — perhaps with messengers, perhaps with a new case number — but the case will proceed until the courts rule on the core issue: Did each entity break its promise that MBC shall select its trustees? The entities should honor their word in their charters. We believe the court will ultimately enforce their promise to the convention, whoever the representative plaintiffs may be."
Gary Taylor, chairman of the Missouri convention’s legal task force and pastor of First Baptist Church in O’Fallon, agreed that the legal battle is not over and that the task force is committed to the core issue of the entities’ promise to the convention.
“The convention has directed that we get a final judicial ruling on that legal issue, and we are determined to honor the convention’s mandate, even if that means going to the court of appeals," Taylor said. “We remain committed to the goal of justice for more than 600,000 Missouri Baptists in more than 2,000 local churches who have given millions of dollars to build these institutions."
Whitehead noted that Brown’s March 11 ruling dealt primarily with the issue of who are members of the MBC: churches or messengers. “This was a procedural question of who can be named to represent this unincorporated association in court," he said. “Judge Brown has not even reached the question yet of what legal rights the association has and what promises the entities have made. We will argue that the MBC has statutory rights as a member of the entity corporations, and we will point to the Georgia case as an example."
The convention also will argue that it has contract rights, based on the promises in the charters that the MBC will select the trustees, Whitehead said.
Whitehead accused the five defendants of intentionally avoiding the real issue of whether they promised that the convention will elect their trustees.
“They have spent millions of dollars trying to avoid their promises by arguing about whether messengers or churches have standing to enforce their promise. Eventually we believe that the legal process will get past procedural questions about who can be the plaintiff and will hold the entities to their word. We’re getting closer every day."
The Georgia case shows how statutory "member" status provides one way to give the convention legal standing in court, Whitehead said. In addition to statutory rights, MBC has contract rights in the charters which are legal contracts, or promises. “That gives the convention representatives, whoever they may be, the contract right to demand that the entities keep their word.
“The Shorter trustees tried a different tack than the Missouri entities," Whitehead noted. “Shorter trustees dissolved the corporation and transferred assets to a new entity — whose trustees just happened to be the same renegade trustees. In Missouri, the former charters gave the MBC rights to control dissolutions, so the entity boards tried to amend the charters to remove MBC rights in the event of a dissolution. The Georgia court said the dissolution tactic was unlawful in Georgia, a ‘scam.’
Likewise, we believe that the Missouri charter changes regarding dissolution are unlawful."
The convention has until April 20 to seek reconsideration of Brown’s March 11 ruling or to file a notice of appeal to the Western District of Missouri Court of Appeals in Kansas City.