Word & Way, ABP wrong about MBC’s legal case
It has been a long time coming, but Missouri Baptists are closer than ever to finally getting their day in court.
It has often seemed that “justice delayed is justice denied,” as the Missouri Baptist Convention (MBC) has had to fight delay tactic after delay tactic by defense counsel for the five breakaway agencies. It has been more than seven years since moderate trustees with the agencies – Missouri Baptist Foundation, The Baptist Home, Missouri Baptist College, Windermere Baptist Conference Center and Word & Way – first began to defy the 2,000 churches of the MBC and voted to go self-perpetuating, an illegal action that violated their governing documents. After over a year of inviting Christian arbitration, the MBC responded with its declaratory judgment action, asking the court to simply rule whether the corporate charters mean what they say. Attorneys for the agencies have taken a plethora of depositions and have filed a seemingly endless number of motions that have caused the cases to drag on for five years. That is about to change.
Cole County Circuit Court Judge Richard Callahan agreed May 4 to separate the five cases for trial in an effort to help him sort through the unique facts in the cases. It was agreed that the Windermere case would be heard first. Callahan said the idea of hearing one case first would be the best way for him to “get up to speed” on the facts and law before he rules on all the defense motions.
“By the end of one trial (Windermere), he will better understand the key facts and the law, and that will expedite his handling of the other four defendants,” MBC lead counsel Michael Whitehead explained. Jury selection is set for Oct. 12 and the trial is scheduled to begin Oct. 15. It is not known how long the trial will last, but Whitehead said May 22 it could last between five to eight days.
“MBC attorneys urged that the judge set Windermere to be the first trial because of the land transactions which have put the assets at risk,” Whitehead said, noting that development work has not resumed since the MBC filed a second lawsuit in Camden County in November 2006. He added that development work could resume, however, at anytime.
Callahan was appointed to take over the case involving the MBC and five agencies earlier this year, following the departure of Judge Thomas Brown, II, who was defeated in a November 2006 election.
As Oct. 12 approaches, and certainly after the trial begins, Missouri Baptists should watch and read carefully the media accounts of the trial. The Pathway will be working closely with the MBC legal team to provide Missouri Baptists with accurate information as the trial unfolds. Missouri Baptists can trust their newspaper to keep them informed.
The issue of media accuracy surfaced recently when Word & Way and the Cooperative Baptist Fellowship (CBF)-affiliated Associated Baptist Press (ABP) published an article containing incorrect information. The incident was of such importance, that MBC lead attorney Michael Whitehead felt it necessary to write a letter July 28 to Word & Way and ABP, informing both that their articles – and accompanying headlines – contained erroneous information regarding the July 18 hearing in Cole County Court.
“The Missouri Baptist Convention’s Executive Board has abandoned its contention that trustees of five institutions acted illegally when they changed charters to elect their own board members,” stated the lead paragraph to the Word & Way and ABP articles.
“MBC has not abandoned this contention,” Whitehead wrote to Word Way and ABP. “We always have contended – and still do – that the action by the boards in amending their charters without MBC approval was illegal.
“What was discussed at the hearing was whether we contend that the board actions were outside their ‘powers’ as a non-profit board. The law calls this ultra vires. MBC has never claimed that the boards’ actions were ‘ultra vires.’ Defense attorneys argued that MBC has made ‘ultra vires’ claims. This was the issue before the court. We have not changed positions.
“State law gives corporations ‘powers,’ including the power to amend charters,” Whitehead explained in his letter. “But when a corporate board has made certain promises in its charter, amendments which remove those promises may be a breach of contract.
“The charters promised that MBC shall elect or appoint trustees. Changing to a self-perpetuating board, without MBC approval, is a breach of that promise,” Whitehead wrote.
Breach of contract is an illegal act, not an ultra vires act, he said. It is a technical distinction that makes a difference in whether Missouri law allows for only the state attorney general to bring such legal action instead of the MBC. MBC has always contended that it does have the right to seek redress in court. Callahan agreed in his July 18 ruling.
“Now we proceed to trial,” Whitehead concluded in his letter.
To that Missouri Baptists shout: “Amen!”