Sooner or later, the ‘Rebel Five’s’ spin machine will blow an engine
Don HinklePathway Editor
March 30, 2004
“It is better to be a poor man than a liar.”
— Prov. 19:22b
Missouri Baptists know a promise when they see it. They know when someone has given their word, and then broken it. A roomful of Harvard Law professors may come up with some elaborate legal, procedural defenses to justify breaking the promise, but it is a broken promise all the same. Plain and simple, that’s what happened when five entities commandeered by a handful of disgruntled trustees broke the charter promises of accountability to the Missouri Baptist Convention (MBC) and rode off with a quarter of a billion — yes that’s a “B” as in BILLION – dollars worth of ministry assets.
Because they did not like losing at the very political game that had put them in the trustee and staff positions they have come to adore. As Lord Acton said, “Absolute power corrupts absolutely.” No truer words have ever been spoken to describe the behavior at the rebel agencies, especially in recent days with an unprecedented amount of distorted, half-true and downright mendacious public statements.
A little history
Make no mistake Missouri Baptists, the blame for this legal battle, for its protracted length, for its procedural twists, belongs with disgruntled liberals and moderate accomplices who refuse to remain under the authority of the Convention, and further refuse any alternatives of church and restorative discipline. These people refuse to accept the fact that the majority of voting messengers to the MBC’s annual meetings (the church) chose to move the MBC organization in a more conservative direction. From the first day, the leaders and trustees — at Windermere Baptist Conference Center , The Baptist Home, Missouri Baptist Foundation, Missouri Baptist College and Word & Way — have rebelled against that church authority. Then they rejected the mildest of church restorative efforts: binding Christian arbitration. Rather than submit, they mocked 600,000 Missouri Baptists with stunning arrogance, in effect saying, “You can have the leftovers of the convention, but we’re going to pillage it first.” How could they do such a thing to Missouri Baptists who have nurtured these agencies with millions of dollars in tithes and other forms of support through the decades? How could they break their word to generations of Baptists, and break trust with the widow’s mite that was given to build MBC-accountable ministries?
They have tried to justify their rebellious behavior by claiming to protect the five institutions from “politics” and something called “ascending liability.” Their action and irresponsible rhetoric has matched the utter contempt they have for accountability to Missouri Baptists. It’s the old strategy of accusing your accuser of being what you are. They used politics – and some fanciful legal advice — as excuses to act just as they did – political. It is also interesting to note that no one with the five entities can name one instance where ascending liability has been imposed by a court against them or the MBC. In fact, the 1935 Missouri Supreme Court case that the defendants have built their legal strategy on, held that the Convention can’t be sued for the debts of one of its colleges. Even if they could make even a flimsy case on ascending liability, is breaking their promise to the MBC the answer? Of course not. Take away the MBC’s right to elect trustees and the first casualty will be accountability. It won’t be long until Missouri Baptists will see Wicca witch seminars at Windermere.
Even before the shockingly brazen statements cranked out of the five entities’ “spin machine” in recent days, I wondered how low they could go. Think back to November 2001 when they threatened to have MBC-elected trustees arrested for criminal trespassing if they attended an open meeting of The Baptist Home’s trustees. That was followed by a threat to sue — somebody, anybody, everybody, I guess — if the MBC did not release the $2.1 million in escrow that was earmarked (if they would return) for the “Rebellious Five.” Never mind that Missouri Baptists, assembled in convention, had overwhelmingly voted to escrow the funds. Their threat not only showed the lack of understanding their attorneys had of Missouri Baptist polity, but demonstrated their unwillingness – once again — to submit to the authority of the church.
Their frequently used, but perverted definitions of “soul freedom” and “autonomy of the local church” are no defense in this dispute. Entities do not have souls and when those now in rebellion agreed to serve as trustees, they willingly chose to operate within the body of Missouri Baptist churches and promised to let them elect all trustees – or so we all thought. As Gomer Pyle would say, “Surprise, surprise, surprise.”
Who are these guys anyway?
Then there is the involvement of people associated with the Cooperative Baptist Fellowship (CBF) and the new Baptist General Convention of Missouri (BGCM). Of course, not all of the trustees at the renegade agencies are liberals or moderates (there are still a handful of conservatives holding out) and certainly not all support the CBF or BGCM. But you have to wonder after a leading CBF attorney, sympathetic to the five agencies, filed an amicus curiae brief opposing the MBC’s lawsuit. An August 2002 Pathway study showed that nearly half of the 2,485 signatures on the brief were people affiliated with the CBF, Missouri CBF or BGCM. Wouldn’t you, if you were a new organization, like to suddenly wake up one morning and discover that you have a quarter of a billion – yes, that is a “B” as in BILLION – dollars worth of assets?
The attorney who filed the brief has served in a number of leadership roles in CBF, in Missouri and nationally. It is this same attorney who likes to keep his friends informed and preach to his choir on the Missoribaptists.org Web site. It is on that site that he launches one of the most despicable personal attacks I have ever seen on one of the leaders of the conservative resurgence in Missouri – Roger Moran. I do not know how anyone could not go read it and not weep over the public injustice that has been done to Moran and his precious family.
I am also reminded of Randy Fullerton, pastor of Fee Fee Baptist Church in Bridgeton , who told messengers at the MBC’s annual meeting in 2000 that it was wrong for The Baptist Home trustees to amend their charter so their board could become self-perpetuating. During the discussion about whether to incorporate Windermere with a new board, Fullerton assured messengers that Baptist Home action would not be repeated at other agencies. Then just months later, while serving as trustee chairman at Missouri Baptist College , Fullerton led his board to vote to do the same thing. Of course, Fee Fee is where the founding meeting of the BGCM was held.
The ‘spin’ starts here
But all of these shenanigans do not come close to matching the mendacious publicity (see stories on pages 13 and 14) generated by the five agencies and supporting organizations following Judge Tom Brown’s March 11 order. Brown said the MBC Executive Board and the six churches listed as plaintiffs on the MBC petition lacked standing because they are not “members” of the Convention. The judge had told all the lawyers in his chambers on Feb. 26 that what he expected was that the Convention would simply file a new petition naming messengers, and the case would continue where it left off, without having to duplicate effort. Within hours the five agencies and their supporters – mainly from CBF and BGCM circles – “hit the spin cycle” – full throttle.
Frank Shock, president and chief executive officer of Windermere, and Arthur Mallory, chairman of the board, immediately issued a public statement, declaring “this unnecessary lawsuit is over.”
Missouri Baptist College declared that “the Missouri Baptist Convention was found to have no standing to file suit against the University, ruled Judge Thomas Brown, on March 11.” Not quite true. The judge said the churches and the Executive Board lacked standing to represent the Convention. He did not say that the Convention lacked standing, regardless of who its legal representatives were.
But the college’s propaganda went even further, claiming that, “without standing to file a suit against the five defendants, the Convention’s lawsuit is over.” This is not true. It is not over until a judge rules on whether the trustees of the five agencies broke their promise to let the MBC elect their trustees. But a crowd that is willing to run off with a quarter billion – yes, that’s a “B” as in BILLION — dollars of ministry assets might also be willing to stretch the truth now and then.
Then there was the letter by Jim Smith, president of the Foundation, mailed statewide to Missouri Baptist pastors. “We are relieved that this unnecessary lawsuit is over,” he wrote. Unnecessary to make you keep your promise? “Over” for this week until the Convention files a new petition next week? How could he possibly think it is “over?” Interestingly Smith goes on to say the Foundation will “continue to serve all Missouri Baptists.” He must define “all” differently than I do, because I know he doesn’t want to serve “all” the Missouri Baptists like me who want the Foundation to keep its promises that the Convention will elect its trustees. We are the invisible, non-“all” Baptists that he wants to leave him alone. As you would expect, he says nothing about the donors who have left the Foundation because they no longer trust it. After all, why should they? The Foundation broke its word with the MBC, what is to keep it from doing the same to them?
Most of us were not surprised at the Word & Way’s massive mailing in which it tried to make it look like the case was over. Quite frankly, the pastors with whom I have talked, were, shall we say, “miffed” when members of their congregations unexpectedly found unwanted copies of the embattled paper in their mailboxes. This prompted some congregants to arrive at church full of questions for their pastor to answer (see story on page 14). Any wonder Word & Way’s circulation has plummeted from 65,000 to 17,000?
As Missouri Baptists would have expected, all of this “spin” was supplemented with articles published by the CBF-funded Associated Baptist Press and Ethicsdaily.com. In addition, the leader of the Missouri CBF, Harold Phillips, and executive director of the BGCM, H. K. Neely, decided to jump on the bandwagon with public statements of their own. Phillips put forth the much-used suggestion that somehow ministry is not being accomplished with all the distraction. I don’t know about the Missouri CBF or the BGCM, but the MBC has planted more than 60 new churches in the past year, thousands of people have come to know Christ as their personal Savior, hundreds of Missouri Baptists are serving as short-term missionaries through the convention’s partnerships with Romania, Iraq and Puerto Rico, and MBC staffers are traveling the state helping churches improve their Sunday Schools, Vacation Bible Schools, evangelistic efforts, music ministries and stewardship responsibilities. Missouri Baptists just set an all-time record for giving to the Lottie Moon Christmas Offering. One wonders which distracted organization Phillips is talking about.
This massive outpouring of publicity that would have impressed Joseph Goebbels for its breadth and ferocity, has gotten them little to nothing. What on earth were they thinking when they embarked on such foolishness? One can only speculate from this side of the aisle, but I suspect its purpose was to cause division among Missouri Baptists – particularly conservative – and spark a deluge of calls to the Baptist Building demanding that the Executive Board give up its cause to make the five agencies keep their word.
It didn’t work. There have been virtually no phone calls to the Baptist Building and only a handful of emails criticizing the Convention’s cause. That’s about it. The five entities fail to understand that people made up their minds about this issue long ago. That part of the battle is over. These are the people who cared enough about truth to turn the Convention around. They care enough about truth to require the agencies to keep their promises to the Lord and Missouri Baptists.
What exactly did the judge do March 11?
So what exactly did Judge Brown do to cause this latest public uproar? In simple terms, this: He held that the Missouri Civil Rule 52.10 requires an association which is not incorporated to be represented by its members. The MBC Constitution says “the convention shall consist of members named by the affiliated churches.” Convention attorneys said that either churches or the Executive Board should be able to represent the Convention. But the defendants protested and protested and insisted that the constitution should be read to require messengers to be members. The judge finally said he thought the simplest reading of the constitution is that messengers are “members” of the Convention, and therefore fit the requirement of Rule 52.10. The judge knows the case is not over, but that this procedural change should be made and then the case can continue.
Convention attorneys offered the judge a proposed amended petition that would name messengers as members, but the judge said he’d rather dismiss the petition and have the Convention re-file. Maybe this 20-month old case was messing up his averages on case processing time, and a new filing would “look better” to people who care about case processing statistics. At any rate, the judge and the lawyers fully expected the case to proceed with a new petition naming messengers. Nobody honestly thought the case is over. The college lawyer drafted a proposed order which the judge followed, which “dismissed the cause filed by these plaintiffs.” The judge has yet to say whether his order applies to the other four agencies. Indeed it might, but he has yet to say so and MBC attorneys have already asked him for reconsideration or clarification of that question.
This was nothing but a ruling on a procedural matter. The central issue in this case (Did the agencies break their promise to the MBC to let the MBC elect their trustees?) is yet to be argued. Trust me. It will be – whether before Brown or a state appellate court.
Should we be disappointed in Brown’s ruling? Yes. First because he ruled the opposite way in November 2002, when the defendants filed their first motion to dismiss, saying churches and Executive Board lacked standing. When the judge ruled for the Convention on Nov. 20, 2002, he permitted the case to continue with Executive Board and churches named as plaintiffs. It is frustrating that the judge would give the defendants “another bite at the apple,” and then change his mind to require a mid-course correction 16 months later. But it is only a “procedural bump in the road,” as our Legal Task Force called it, and the case will continue.
But more important, Baptists should be upset that these defendants are the ones causing all the expense, and the procedural wrangling, as they try to keep from ever reaching the “heart” of the case: the agencies gave their word, their promises that the Convention shall elect trustees.” That has always been the issue for Missouri Baptists, not “who is a member representative under Missouri Rule of Civil Procedure No. 52.10.” “Are churches or messengers better representatives?”
Most of us non-lawyers are saying, we don’t care, judge, pick one. But please get on with it, and don’t let these defendants squander more ministry assets blowing all this smoke. We need justice. We need an answer to the question, is their promise that the Convention would elect trustees and hold agencies accountable, an enforceable promise? We know they promised. We know they have an ethical, moral duty to keep their word. We need to know if the law will protect 600,000 Missouri Baptists and their ancestors who founded or nurtured these institutions. Judge, they are stealing the institutions of the Missouri Baptist Convention. Please force them to answer that question. Please protect the men, women, children and widows who have given generously for generations to Missouri Baptist Convention ministries. Please don’t let them get away with a shell game that says there is no one who can legally speak for the Convention. Don’t let Missouri Baptists be bamboozled out of a quarter of a billion – yes, that’s a “B” as in BILLION — dollars of ministry assets by these procedural shenanigans, designed to escape their promises.
The fact is that the procedural loopholes were the heart of the legal scheme to take away these agencies. The guys who set up these governing documents have studied and plotted and searched for all the loopholes and escape hatches they can think of. If the court gets to the promises, the renegade trustees and officers are sunk, and they know it. They are determined to spend whatever it takes to get the case tied up in procedural knots until they wear the Convention leaders out. But we are not going to wear out on truth, or on justice.
For most of us, the question is: did the charters promise that MBC would elect trustees? Did the agencies break that promise? The agencies have paid their lawyers many millions of dollars –yes, that’s many millions of dollars — they will never tell (It is interesting that the entities are always crowing about how the MBC has spent more than $1 million in legal fees, while not telling anyone that they have spent between $3 million and $5 million to do the same, much of it billed for asinine depositions like those that have been published in The Pathway.)
Strategy of the opposition?
Of course the five entities are content with filing procedural silliness as long as the judge will let them. They would also like to see this case “splintered” into multiple cases so they could file procedural motions in all the “splinters” indefinitely and try to bankrupt everyone. They will do this because they have no alternative. They will lose the case if it is ever argued on the central question: Did the entities break their promise to the MBC of letting the MBC elect their trustees. They probably never thought that conservatives would sue them. They have no hope of winning unless the MBC capitulates on its own. To that end, their strategy is to stall, bleed as much money out of the MBC for legal fees as it can, and use its media “spin” machine to spread distortions and half-truths to sow division among the MBC so that it will simply give up.
We should anticipate the five agencies “spinning” things in coming days. When the MBC files a petition naming messengers, the agencies will wail about “a new and different legal assault” but will probably not say much about their recent statements that “the case is over.” The “Rebel Five” will cry that they are being forced to “start from scratch,” knowing full well Brown has already stated that all discovery and depositions taken to this point will be carried over, whether the MBC files an amended petition or new petition.
MBC attorneys have already filed the necessary documents to amend the MBC petition as Brown directed and are ready to proceed to argue the motion on April 5. If Brown does not allow the MBC attorneys to amend the MBC’s petition by replacing the Executive Board and the six churches with “messengers” as plaintiffs, then this case will continue at the Western Division of the Missouri Court of Appeals in Kansas City where the court will finally read the charters. When it does, there is little doubt that our appeals court will come to the same conclusion the Georgia Court of Appeals recently reached in a similar case (see story on page 18) involving renegade trustees at Shorter College and the Georgia Baptist Convention: that the trustees’ action was “a sham.”