Battle in Mo. continues over breakaway Baptist entities

by Staff                                                                                                    Vol. XVIII, No. 6, June/July 2005

While the court battle between the Georgia Baptist Convention and a breakaway entity, Shorter College, is being resolved by the Georgia Supreme Court in the convention’s favor, the battle continues between the Missouri Baptist Convention and five entities that changed their charters without convention approval to independently elect their own trustees.

After the latest hearing in the Missouri case before the Western Division of the Missouri Court of Appeals in Kansas City, the convention’s newsjournal, The Pathway, conducted a question-and-answer session with MBC lead attorney Mike Whitehead about the April 20 proceedings and the overall case. The questions were posed by Pathway editor Don Hinkle.

The appeals court hearing focused on a procedural question from the circuit court where the case was filed – whether churches or messengers could be legal representatives for the Missouri convention.

Q: Give Pathway readers your reaction to what the judges inquired about today.

A: Appeals cases are decided primarily on the written briefs filed by parties, not by the 15 minutes per side allowed for oral argument. Oral argument permits judges to ask clarifying questions about the facts and the law discussed in the briefs. I was pleased that we were able to clarify the issues that the judges questioned. The first question Judge (Harold) Lowenstein asked Mr. (Larry) Tucker, who represented the [convention’s breakaway entities], was whether anyone can bring this suit. Mr. Tucker said messengers could bring it, but only three days a year, while the annual meeting was in session. The judges seemed incredulous about this argument, as well they should be. Later, Judge Lowenstein asked Mr. Tucker: “Aren’t defendants really biting the hand that feeds them?” The panel seemed to understand the significance of the case.

Q: This is not just a so-called “preachers’ fight,” is it?

A: What’s at stake here is the fundamental right of a religious denomination to maintain authority over its subordinate ministry corporations by reserving the rights to elect trustees and to approve charter amendments. The dishonest and deceptive breakaway of five subsidiary corporations, with ministry assets totaling about a quarter of a billion dollars, violated contract promises, statutory rights, and fiduciary duties owed to the Missouri Baptist Convention and its executive board. The legal issues about corporate governance affect potentially every nonprofit organization in Missouri that operates through subsidiary corporations. In addition, a multitude of other corporations’ ministry organizations around the country follow the Non Profit Corporate Code, so corporations in other states could be affected as well.

Q: Does the argument that the MBC can only bring a lawsuit during the three days that the annual meeting is underway strike you as odd?

A: We think it is absurd, and we hope the Court of Appeals will agree. However, we should note that, in the new messenger case before Judge Callahan, we filed the petition on Oct. 25, the first day of the 170th annual meeting of the Missouri Baptist Convention. We did that deliberately because we anticipated the [breakaway entities’] argument. Now they are arguing that filing on Oct. 25 was not good enough. They say the annual meeting didn’t start until 6 p.m. on Oct. 25 and we filed before at 4 p.m., before the clerks’ office closed. So they say we still missed it by two hours. Their arguments are limited only by their imaginations.

Q: Judge (Robert) Ulrich twice asked questions about the First Amendment to the U.S. Constitution. What do you think was the purpose of those questions?

A: Courts are reluctant to intrude into disputes that are essentially religious, doctrinal or faith-based. Missouri courts follow a principle of “church autonomy” rooted in the U.S. Constitution’s First Amendment, in which courts are deemed to lack jurisdiction to resolve religious doctrinal disputes.

Judge Ulrich asked whether there were any first amendment issues involved in this case. Mr. Tucker said no, and so did Dennis Owens. The court has jurisdiction to resolve neutral rules of law, even as to religious organizations. There is nothing religious about interpreting the statutes on corporate charters, or interpreting charters which give the MBC the right to elect trustees.

Q: I noticed in the brief that you cited the Georgia Court of Appeals ruling in the case involving the Georgia Baptist Convention and Shorter College. In that case, the Georgia convention won at the Georgia Court of Appeals, and the case is pending before the Georgia Supreme Court. Do you think the rulings by the Georgia courts so far will have any impact here?

A: Absolutely. The Shorter College case is not binding precedent on the Missouri Court of Appeals, but it is certainly relevant, and persuasive. The courts are free to look at similar cases in other jurisdictions that have involved similar facts and similar points of law. The Georgia Court of Appeals found that because the Georgia convention had the right to elect trustees of Shorter College, that made the Georgia Baptist Convention a statutory member of the Shorter College corporation. We made the same argument about all five corporations in Missouri. The trial judge in our case disagreed, and held that the MBC was not a member of the Missouri Baptist College corporation, even though we had the right to appoint or elect their trustees. We hope the Missouri Appeals Court will find the Shorter case to be persuasive, and that they will reverse Cole County Circuit Court Judge (Thomas) Brown’s order on this point as well.