Holy legal war: Baptist Convention lawsuit observes anniversary
Sunday, August 11, 2013
Eleven years. And counting?
Tuesday marks the 11th anniversary of the Missouri Baptist Convention’s filing a 52-page lawsuit against five church agencies, challenging their decisions to change their charters and remove themselves from the convention’s control.
“This is a complex case involving many parties represented by some of the very best attorneys in the state,” then Cole County Circuit Judge Paul Wilson wrote in December 2010, as he ruled on one part of the 15-count case.
Michael K. Whitehead of Kansas City, the convention’s lead attorney, said last week that’s one of the best reasons for explaining why the case has lasted so long.
But over the years, the parties on both sides also have accused the other side of delaying tactics, prolonging the battle and wasting money.
For instance, lawyer Tyson Ketchum of Kansas City, representing the Baptist Foundation, said: “The fact that the litigation ... is approaching its 11-year anniversary is an illustration, in and of itself, that the claims brought are causeless and unnecessary.”
That original, Aug. 13, 2002, lawsuit named the five agencies as defendants: the “Word and Way” newspaper and the Missouri Baptist Foundation, both based in Jefferson City; the Windermere Conference Center in Camden County; Missouri Baptist College (now University) in St. Louis County; and The Baptist Home in Ironton.
Secretary of State Matt Blunt also was included, because his office had accepted and filed the agencies’ new corporation charters. Cole County Circuit Judge Thomas J. Brown III granted Blunt’s motion to dismiss the secretary as a defendant in 2003.
The original lawsuit was filed by the MBC’s Executive Board and six churches, including Jefferson City’s Concord Baptist Church.
Although they see the issues differently, both sides generally agree the issues involve “stewardship” of the resources donated by Missouri Baptists over the years and the church’s ongoing mission work.
It’s the fine points of the legal disputes that are among the reasons the case has continued for so long but, at its heart, the basic battle involves the five agencies moves in 2000 and 2001 to change their corporate charters and remove the convention and the Executive Board from having control over the agencies’ operations.
The original lawsuit said those actions were a “breach of contract” with the MBC, which argued it had specific rights to operate and control the agencies, spelled out in each agency’s original charter, but those rights were broken by what the convention called “illegal” charter changes.
Whitehead explained: “A quarter of a billion dollars in assets were taken from Missouri Baptists” by the agencies — which sometimes have been called “break-away agencies.”
Brown dismissed the original case in March 2004, ruling that neither the MBC Executive Board nor the churches had standing to sue.
But the state appeals court in Kansas City partly disagreed, ruling in May 2005 that the executive board had legal standing to bring the case. So Brown allowed the MBC to substitute seven individuals for the six churches that the appeals court agreed didn’t have a legal right to bring the lawsuit.
When Brown lost his re-election bid in 2006, the case was transferred to Judge Richard Callahan.
He ruled in March 2008 that the convention was not a “member” of Windermere’s corporation — so the MBC had no legal rights to block the charter changes, and that it no contractual rights with Windermere.
In February 2009, a three-judge appeals court panel in Kansas City agreed.
The court’s 28-page opinion concentrated on the state’s laws about corporations, ruling that the convention expressly had approved a charter change in 1999 that clearly stated the new Windermere corporation “had no members.”
The state Supreme Court declined to hear the MBC’s appeal, and Windermere was out of the case.
“The Court of Appeals ... did not say we couldn’t get the land back,” Whitehead said last week. “That has been the objective in the (separate) Camden County case, which is currently on appeal in Springfield” — after the circuit court there ruled in favor of Windermere’s authority to sell part of its land to a developer, so that it could raise money to keep the conference center operating.
Word & Way had made similar charter changes, and the MBC voluntarily dismissed the newspaper as a defendant in April 2010.
During the lawsuit, the convention’s executive board had blocked the paper’s employees from covering meetings — and that prohibition continues.
Whitehead explained: “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.”
So the executive board has chosen “not to give press privileges to Word and Way,” he said.
When Callahan was named U.S. Attorney for Eastern Missouri, Gov. Jay Nixon named Wilson to succeed him as circuit judge, and Wilson inherited the Baptists’ case.
Wilson wrote a 40-page opinion in December 2010 that agreed with the MBC lawsuit’s Count VII, ruling that the Baptist Foundation had tried to “cheat the Convention out of its rights” to approve or reject charter amendments.
But the appeals court in Kansas City ruled last September that Wilson’s ruling didn’t answer other questions in the case, so his ruling wasn’t “final” for legal purposes. They sent the case back to Cole County.
The case had been assigned to Senior Judge Byron Kinder, who has retired earlier this year, so it was given to Senior Judge Frank Conley of Columbia.
But, because Conley had surgery earlier this year, the MBC has asked him to recuse himself.
“We pray for his health, but we also pray for speedy justice,” Whitehead said.
The Foundation, Home and University still are involved in the case.
Ketchum said: “Despite (its) losses, the Convention continues to pursue its cases. ...
“Not surprisingly, Convention and Executive Board witnesses have provided no testimony in this litigation to prove or even suggest that the Foundation has not properly operated its business since establishing an independent board in 2001.”
He added: “As the Foundation still serves Missouri Baptists, including the Executive Board, the litigation over the last 11 years has served no purpose other than to waste valuable assets on both sides and obstruct numerous ministry opportunities.”
But Whitehead sees victory in the rest of the case.
“Judge Wilson observed that (the 2009 Windermere) court of appeals opinion ... said the Convention might have protected its rights if the charter contained an express right for the MBC to approve Charter changes,” he said. “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.”
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