Judge delays decision on standing
Jefferson City – Five breakaway agencies continued to argue that the Missouri Baptist Convention (MBC) lacks standing to sue, and the trial judge declined the MBC’s request to resolve the issue after a recent hearing.
Judge Thomas J. Brown, III, held a hearing Sept. 18, in Cole County Circuit Court here, on the MBC’s motion to strike the defendants’ (the five breakaway agencies) affirmative defense based on lack of standing under Missouri law (RSMo. 355.141.) Brown initially indicated a willingness to rule from the bench that the MBC had “standing to bring this case.”
Defense counsel appealed to the judge to reconsider and to take up the matter in later motions, called “dispositive motions.” Brown eventually relented, and withdrew his ruling, taking the matter under advisement. On Sept.19, he posted a docket entry, saying only that he was “overruling” plaintiffs’ motion to strike. He did not rule that plaintiffs’ lacked standing, but neither did he declare an interpretation of the law being contested (section 355.141).
During the hearing, Brown said on the record that he had no doubt that the Missouri Court of Appeals would hold that the MBC had standing (to sue), notwithstanding the defendant’s argument about Section 355.141.
“I’ve had some experience with this statute, and I know how the court of appeals has interpreted it in the past,” Brown told a courtroom full of lawyers and observers. “There is no way the court of appeals would find that the Convention lacks standing to sue.”
Michael Whitehead, MBC lead attorney, said he is encouraged by the court’s first impression, “although we regret the delay in nailing this issue down, once and for all, But it is important to recognize that this was not a final decision. It was a decision not to make a decision – yet. If the court wants to address this issue through a dispositive motion, we will file a dispositive motion, ask for another hearing soon, and press for a final decision on standing, so we can get to the merits.”
Jim Shoemake, attorney for Windermere, Word & Way and The Baptist Home, told the court that he wanted to file a motion for summary judgment within a couple of weeks, raising the section 355.141 issue. He urged the court to postpone ruling until the parties had filed dispositive motions and fully briefed them.
“Every day of delay causes us to lose ground, literally, at Windermere,” said David Clippard, MBC executive director, in a statement after the hearing. “We need a ruling on this procedural question, so we can get on to the merits of the case. Our lawyers are committed to getting that point before this judge to be sure he remembers the urgency of the situation.”
Missouri Statute Section 355.141 says that any challenge to the validity of a corporation’s actions based on the grounds that the corporation lacked the power to act, can only be brought by the Attorney General, a director, or a member of the corporation.
Attorneys for the breakaway agencies argue that the MBC’s lawsuit challenges the power to act by five corporations who changed their charters to exclude the right of the MBC to elect trustees. Hence, attorneys for the breakaway agencies say, the MBC is barred from bringing this suit, since they are not a member, director or the attorney general.
Convention attorneys say the statute does not even apply to this case, because this case does not challenge the power to act.
“We admit that the corporations had the ‘power to act,’” Whitehead said. “We contend that they used their power unlawfully. (Section) 355.141 does not immunize corporations from responsibility for breach of contract or violation of statutory duties. MBC has standing to protect the rights of generations of generous donors who gave to the Cooperative Program to create, maintain and use these entities.”