JEFFERSON CITY — Missouri Baptist Convention (MBC) chief legal counsel Michael Whitehead was recently interviewed via email by the News Tribune of Jefferson City for a story marking the 11th anniversary of the MBC taking legal action against five breakaway agencies.
The story was published in the Sunday morning (Aug. 11) edition of the News Tribune. Seven questions were submitted to Whitehead for the story by News Tribune reporter Bob Watson. The same seven questions were posed to attorneys representing Windermere Baptist Conference Center, Missouri Baptist University, The Baptist Home and the Missouri Baptist Foundation. Very little of Whitehead’s email responses were published. Following are the seven questions posed to Whitehead and his answers in their entirety.
News Tribune: Why do you think this suit still is underway, 11 years later?
Whitehead: Judge Paul Wilson’s judgment against the Foundation on Dec. 31, 2010, explained why the case has dragged on for a decade. “This is a complex case involving many parties represented by some of the very best attorneys in the state. But, even in complex cases, there is sometimes a simple truth that cannot be ignored. In such cases, the Court’s duty is not to lose sight of that inescapable truth and to vindicate it to the extent the law allows. This is such a case.”
This is not just Baptists fussing with Baptists. It is not a religious debate, unless the issue is the meaning of the Eighth Commandment, “thou shalt not steal.”
Judge Wilson went on to say: “In October of 2001, the Foundation deliberately, repeatedly, and surreptitiously ignored the Convention’s right (to approve charter changes) solely for the purpose of circumventing and, ultimately, eliminating it.”
Judge Wilson referred to the breakaway board’s actions as trying to “cheat the Convention out of its rights” to approve or reject charter amendments.
A quarter of a billion dollars in assets were taken from Missouri Baptists. Big dollars mean big delay tactics by the breakaway boards to keep possession of these assets, and their jobs. MBC tried to resolve the matter quickly, and urged binding arbitration through Peacemakers. The agencies have had insurance to pay their legal fees, so they seem to have no incentive to resolve the matter quickly.
News Tribune: Have the main legal issues changed over the years, or is the original dispute still at the heart of the case?
Whitehead: Again, Judge Wilson’s opinion says it best. He branded several MBF legal arguments as “more than absurd,” “offensive,” “simply unconscionable,” and “obvious to everyone except these Defendants.” Several statutory interpretations offered by defense attorneys were repudiated by the judge with such phrases as: “turning (the statute) on its head;” applying a statute “in a way that is plainly contrary to the manifest intention of the General Assembly”; and missing what is “obvious to everyone except these defendants.”
While the Foundation opinion did not directly resolve the other cases, Judge Wilson referred to the other cases and the fact that other lawyers made many of the same arguments as the Foundation. The judge explained that his holdings in legal issues as to the Foundation should be treated as applicable to Missouri Baptist University and The Baptist Home also. MBC leaders hope that the broad scope of the court’s opinion will serve to accelerate the resolution of the other cases.
Judge Wilson observed that a prior court of appeals opinion in Windermere in 2009 said the Convention might have protected its rights if the charter contained an express right for the MBC to approve Charter changes. That clause was not in the Windermere or Word and Way Charters, because of a willful decision by Jim Hill, former MBC executive director, to cut it out of a lawyer’s proposed draft. The MBC-approval clause is in the charters of the Foundation, Missouri Baptist University and the Baptist Homes, and so the loss of the Windermere corporation should lead to a win and recovery of the other agencies.
By the way, the Court of Appeals said MBC could not get the Windermere corporation back but they did not say we couldn’t get the land back. That has been the objective in the Camden County case, which is currently on appeal in Springfield.
News Tribune: For various reasons, including election changes and presidential appointment, several Cole County judges have been assigned and then removed from the case. What difference, if any, has that made in finding a resolution to the legal disputes.
Whitehead: Judge Wilson plainly believed that justice delayed is justice denied, and he tried to accelerate the return of the agencies to the MBC by Jan. 30, 2011, and to make MBC whole for the legal fees it has spent the past decade. The fact that his well-reasoned opinion has been in legal limbo for almost three years now should embarrass anyone who cares about the administration of justice for hundreds of thousands of Missouri Baptist citizens.
In fact, all current Cole County judges have been assigned to the case at some time, and are now disqualified from serving. Retired senior judge Byron Kinder got the case in 2011, and he fully retired in 2013, just weeks before a hearing that would have moved the case forward. The Office of State Court Administrators recently appointed retired judge Frank Conley of Columbia, but he is recuperating from serious surgery in July. In view of his health challenges, MBC has filed a motion asking Judge Conley to recuse himself. We pray for his health, but we also pray for speedy justice.
News Tribune: Does this case have implications for others, or is this just an internal “Baptists Battle” that got dragged into court?
Whitehead: This is not just Baptists fussing with Baptists. It is not a religious debate, unless the issue is the meaning of the Eighth Commandment, “thou shalt not steal.” At stake is a fundamental right of a parent organization to keep ownership and control of its subsidiary ministry corporations. This case will impact all non-profit organizations that operate in a parent-subsidiary relationship.
Churches, hospitals, colleges, etc., across the country need to know whether a subsidiary division can get away with millions of dollars of non-profit assets by the secret stroke of a pen, changing the corporate articles without the parent’s permission.
Many lawyers have already changed their advice to clients in the non-profit sector about what language in a charter is necessary to prevent a breakaway by a subsidiary and the risk of losing millions of dollars in donated assets.
News Tribune: Why do you feel this “battle” remains important, 11 years later?
Whitehead: Stewardship. MBC leaders today have a duty of good faith to protect and speak for the generations of Baptists who gave to build Missouri Baptist institutions. We must speak for those who cannot speak for themselves.
News Tribune: If the public remembers only one thing about this case, what do you hope it would be?
Whitehead: Truth is important to God, and should be important to men and women. Trustees should be trustworthy. MBC leaders are stewards of the trust of Missouri Baptists who gave generously for generations to build and operate these ministries, intending that they remain under MBC accountability and control. Moms and pops gave sacrificially. Widows gave their mites. As stewards, MBC leaders today must seek justice for those who gave in trust in the past.
News Tribune: Why has the Word and Way not been given “press privileges” to attend and report on Executive Board meetings even after MBC dismissed its claim against Word and Way in 2010?
Whitehead: Word and Way was MBC’s in-house news journal when the editor and board decided they were out of step with MBC leaders and secretly changed their charter. A court has found that the charter change may have complied with corporate law, but the court did not call it right or fair. The Executive Board has chosen under these unique circumstances to dismiss the legal case, but not to give press privileges to Word and Way.