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Appeals court favors Baptist Convention in University, Home cases

February 20, 2019 at 6:05 a.m. | Updated February 20, 2019 at 1:56 p.m.

A three-judge panel of the Missouri Court of Appeals in Kansas City ruled Tuesday that Cole County Special Judge Karl DeMarce correctly ruled in favor of the Missouri Baptist Convention and its executive board in its long-running legal battle with Missouri Baptist University and The Baptist Home.

The decision is the latest in a case that began in August 2002 when the MBC, its executive board and six churches, including Jefferson City's Concord Baptist Church, sued five of its agencies - the Windermere Conference Center in Camden County; Missouri Baptist College (now University) in St. Louis County; The Baptist Home, Ironton; and the Word & Way newspaper and the Missouri Baptist Foundation, both based in Jefferson City.

That lawsuit accused all five agencies of violating contractual agreements with the convention by creating separate entities outside of the convention's control.

The agencies' charter changes occurred as part of an internal fight between moderates and conservatives for control of the MBC, the umbrella organization for many of Missouri's Baptist churches.

(As one result, Jefferson City's First Baptist Church was one of 19 Baptist churches around the state ousted by the MBC in 2006 under the convention's 2005 "single alignment" rule that required MBC churches to support only it and the Southern Baptist Convention.)

In a 2006 amended lawsuit, the MBC explained its case against the five agencies "involves 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 MBC asked the court for "a declaration that 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 other duties owed to the Missouri Baptist Convention."

Although the original suit named five defendant agencies, the case generally proceeded against them one at a time - with Windermere and the Word & Way winning their arguments that the convention couldn't control their charter changes, while the Baptist Foundation lost that argument and, in 2016, returned to MBC control.

Unless the appeals court grants a re-hearing, or the state Supreme Court takes the case and rules a different way, Michael Whitehead - a Kansas City lawyer who's represented the MBC from the beginning of the legal battle - told the News Tribune: "After nearly 30 judges have touched these case files, it looks like the final two cases are nearing closure. The Convention is eager to welcome Missouri Baptist University and The Baptist Home back into our family of churches."

Attorneys for the university and the home could not be reached for a comment for this story.

In the appeals court's 29-page ruling, Judge Anthony Rex Gabbert wrote for the three-judge panel: "We hold that we do not have authority to address many of the University's defenses because they concern ecclesiastical matters, and that all of the University's defenses were improperly pled."

Avoiding religious issues

The Baptist University's lawyers had argued the issues in the case were legal ones that the court could address, not simply church-related issues that courts historically have left to religious bodies.

However, the appeals court ruled, the university had raised church-related issues as part of its defense against the MBC's lawsuit.

"For example the University alleges that the Convention demanded that it and other affiliated universities refrain from teaching material that contradicted certain ideas which are clearly religious doctrine, such as the belief that the Earth was created in seven days roughly 6,000 years ago, or the belief that every living thing on Earth is descended from animals rescued from a flood on a vessel roughly 4,300 years ago," the court noted.

"The University is asking a court to consider whether the Convention anticipatorily breached a document stating, in part, that the University's purpose was the 'transmission of truth' by dictating curriculum related to creationism and the story of Noah's ark."

And that argument, the appeals court said, "requires a court to rule - at least implicitly - on the truth of the story of Noah's ark or Christian beliefs in creationism.

"We cannot conceive of a judicial inquiry which would impose on ecclesiastical matters more than this, nor can we find fault in the circuit court's unwillingness to even attempt to find neutral grounds upon which it could rule when the color and content of the University's allegations are so nakedly religious."

Legal standing

Both the university and the home had argued convention and the executive board didn't have the legal standing to file the original lawsuit 16 years ago.

The court noted it had explored these statutory provisions (about standing) at length" in its four separate opinions in the Windermere part of the case - and concluded that the language of Windermere's charter was different from the language used in the charters establishing the university and the home.

"With both Appellants, the third-party consent clauses (in the charters) clearly vest the Convention with 'fixed, unalterable, irrevocable' and 'enforceable contract rights for non-members' like the Convention," Gabbert wrote for the appeals court. "The Convention has standing to bring this suit."

Following court rules

The university also had argued that Judge DeMarce was wrong to find that its legal defenses "were inadequately pled as required by (Supreme Court) Rule 55.08."

But, Gabbert wrote: "We find that the University's defenses, both individually and collectively, are so convoluted no court could reasonably expect a plaintiff to reply to them, nor would any court consider them for their intended purpose of shielding a defendant from liability.

"As these pleadings clearly violate Rule 55.08's dual requirement of setting forth both short and plain statements of fact, (the appeal point) is denied."

The meaning of 'shall'

The Baptist Home had argued that state law in 1959 - when its charter originally was written - didn't allow for the kind of control the MBC claimed it had.

The court acknowledged the law at the time said: "An amendment shall be adopted at a meeting of the board of directors upon receiving the vote of a majority of the directors in office," and that today we understand "shall" to mean "required."

But, Gabbert wrote: "The word 'shall' was not always so rigidly construed. In the fourth edition of Black's Law Dictionary - the edition in publication when the statutory provisions at issue were enacted - the word is first defined as 'generally imperative or mandatory' (but) may be construed as merely permissive or directory."

Gabbert noted that would be the "equivalent to 'may'" as we use the word today.

So, the court ruled, the home's argument was wrong, and the MBC had the right to approve amendments to the home's charter.

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