MBC’s lead attorney discusses Windermere appeals hearing
Q. Generally, how long does it take the Missouri Court of Appeals to render a decision? What is the quickest we could expect, the longest?
A. One lawyer in Camden County told me that he argued in the court of appeals at 9 a.m., and by the time he drove back to his office in Sunrise Beach, the court had faxed its opinion. He assumes they had written an opinion before the oral argument just based on the briefs.
I do not expect our case to be decided quite so fast. The last time the Missouri Baptist Convention (MBC) was here, the court issued its opinion in 30 days. That was fast. Two months might be more normal.
Q. What is the procedure for a court of appeals hearing? Do you speak? For how long? What kind of questions do the judges ask?
A. The Appellant (the party who is appealing from an adverse ruling in the trial court below) gets to go first, and gets to go last. The Appellant has the burden to persuade the court to reverse the trial court, so he gets to speak twice. The opening is 10 minutes. The rebuttal time limit is three minutes.
The Respondent (Windermere) goes second. He has a 10 minute time limit, with no rebuttal.
The judges have had the written briefs of the parties for several weeks. They normally have reviewed the briefs and have made notes of key questions about things that were not clear in the briefs.
Some judges ask very few questions. Others are fairly active. I expect we will have at least one judge of the three who will ask several questions.
Judges will know what the pivotal issues are. Their questions will focus on factual or legal issues that are likely to determine the outcome of the case.
Q. What is the central point that this case could turn on?
A. If a non-profit organization, acting as a parent organization, creates a subsidiary corporation in which the parent has the right to elect trustees, can the subsidiary change the charter unilaterally and steal control of the subsidiary and all its assets, without legal recourse by the parent?
A. The Non-Profit Code says that a person with the right to elect trustees shall be treated as a “member” of the corporation. This is statutory definition, and the law says that the court has no choice but to apply a statutory definition if it applies to a charter. A member has the right to approve charter amendments.
Q. What is the likelihood of an appeal by either side and what does that process entail? Generally, how much does an appeal to the state Supreme Court cost?
A. It is routine that the losing side in the Court of Appeals files a motion for transfer to the Supreme Court. The Missouri Supreme Court gets to vote to decide whether to grant the appeal. The cost of the appeal would be just a few hundred dollars normally. Most motions for transfer are denied.
When we won at the appeals court in 2005, our opponents filed a motion for transfer. The court denied the motion. I would exepct the same thing to happen here.
Q. What impact will the Windermere ruling have on the other four agencies?
A. If the court accepts our argument and holds that MBC’s right to elect trustees is enforceable, and irrevocable, then MBC should also win the other four cases where the charters also had an MBC – elects-trustees clause.
Three cases – Baptist Home, Foundation, and College – have charters which included “MBC must approve charter amendments.” Windermere did not have this clause, and the trial judge says MBC would have won at trial if Windermere’s charter had the approval clause. This means MBC should win the three cases with such an approval clause when we go back to Cole County after the appeal.
Q. How confident are you and the legal team?
A. We feel extremely confident in the strength of our legal case. We have consulted with several other lawyers with expertise in appellate work or non-profit work. Everyone agrees our case is strong.
Q. Is there a particular Scripture that you have leaned on and what part does prayer play in the case and this hearing specifically?
A. Prov. 21:1 reminds me that God is sovereign over judges and kings.
Q. If we lose Windermere, what impact could that have on other 501c3 operations in Missouri?
A. No corporation could safely do business through a subsidiary without the risk that board of the subsidiary, although elected by the parent, could break away and take assets.
Q. Does the Georgia Supreme Court ruling on Shorter College give us hope for victory?
A. Yes. The first two sentences of the Georgia Supreme Court opinion says:
“In 1959 Shorter College amended its charter to confer on the Baptist Convention of the State of Georgia the exclusive authority to name the school’s Board of Trustees. As a result of the grant of this power to choose the trustees, Georgia Baptist Convention assumed the status of a ‘member’ of the College.”
This is precisely the ruling we will ask our court to make.
Q. Who from our legal team will be present for the hearing and who will actually make the presentation and ask questions? If it is someone new, give us a little bio on the guy.
A. I will present the opening argument. Stan Masters will handle rebuttal. Also present at counsel table will be Mike Blanton of the Swanso Midgley firm. I expect that in the court room will be Jonathan Whitehead and James Freeman.
Q. Explain how the court of appeals hearing will transpire? How does it work?
A. The court clerk sets three cases at 9 a.m., and three cases on the 10:30 a.m. docket.
We are first up on the 9 a.m. docket. The court will call the case and I will step to the podium. I will start my opening remarks and I expect the court will interrupt me to ask questions. I have three blow ups of statute sections and a blow up of the Windermere charter page that gives MBC rights. When the court calls time on me, Windermere counsel will speak for 10 minutes. We do not know who will handle this argument. Eric Walter handled most such arguments before the trial court. Then Stan Masters will speak for our final three minutes and will answer any questions the court may have after hearing from the Windermere counsel.