JEFFERSON CITY, Mo. (ABP) — Despite a legal setback, Missouri Baptist Convention leaders will continue their lawsuit against five institutions that have removed themselves from the convention's control.
The convention's lead attorney in the case, Michael Whitehead, said he will continue to pursue the suit through several means. “We're going to tell the judge that we'll go through whatever procedural steps we have to go through” to continue the case, he said in a phone interview from his Kansas City office. He said that would include naming individual convention messengers as plaintiffs in the suit.
Cole County Circuit Judge Thomas Brown ruled March 11 that the suit's plaintiffs — primarily the convention Executive Board — lack the proper legal standing to assert their claim against the institutions.
The chairman of a convention-appointed task force overseeing the suit
wsuit demanded the agencies' trustee boards be returned to convention control. Because the MBC itself is an unincorporated association, convention leaders decided to name the convention's Executive Board and six sympathetic MBC-affiliated churches as the plaintiffs.
But Judge Brown said the convention's constitution and bylaws made it clear that only individual messengers — and not churches or the Executive Board — counted as “members” of the convention. Thus, the churches and the board lacked the standing to assert a legal claim on behalf of the convention. Brown's decision dismissed the suit against the agencies.
But in his statement Taylor, a former convention president and pastor of First Baptist Church of O'Fallon, said the legal setback was only “a procedural 'bump in the road,' not a roadblock.”
However, according to one Missouri Baptist attorney familiar with the case, it's a significant setback for the convention. “This was not a bump in the road; this derailed the train,” said W.B. Tichenor, a hearing officer with the Missouri Tax Commission.
Tichenor led an earlier effort to submit a friend-of-the-court brief signed by thousands of individual Missouri Baptists and dozens of MBC-affiliated churches that opposed the lawsuit. He said a new or amended claim naming individual messengers as defendants — the only options other than appeal — would open a whole different can of legal worms.
“You've got a serious legal question of who can act as the plaintiffs for the class of messengers,” Tichenor noted. “If the representatives of the class cannot fairly and adequately represent the interests of the entire class — this being all the messengers — then you cannot maintain the class action.”
The convention's messengers are elected each year by churches that cooperate with the convention. An individual congregation may elect whomever it chooses — and many send different delegations from year to year. Some churches never send messengers to the convention.
Tichenor pointed to a Missouri Supreme Court decision from the 1930s that said the MBC — then known as the Missouri Baptist General Association — was only composed of the messengers who sat for two to three days a year during the convention's annual meeting. So, Tichenor said, the justices ruled that the convention “can't sue or be sued.”
He also noted that messengers don't officially become messengers until they are enrolled and seated on the first night of the convention meeting. They then adjourn at the end of the meeting. “There's a very serious question that you can authorize temporary messengers of this unincorporated association to file suit,” he said.
Tichenor also questioned which convention's messengers would have the best claim to assert. “Is it the 2001 convention?” he asked, referring to the MBC annual meeting in which a majority of messengers voted to authorize the lawsuit. “Or is it the messengers to the convention that actually elected the trustees” of the agencies that then declared their boards self-perpetuating?
In addition, other messengers to those conventions who oppose the lawsuit could attempt to intervene in the case.
The new plaintiffs would also have to prove how the removal of the agencies' boards from convention control harmed them individually, Tichenor said. Since all of the agencies continue to serve all Missouri Baptists, that may prove difficult.
Noting that the convention has already spent at least $1 million pursuing the suit, Tichenor said such an approach would prove costly as well. “This is going to take lots of time — and time is money, when you're dealing with attorneys,” he said.
But Whitehead said Tichenor's concerns may be misplaced, given Missouri's legal precedent on class-action claims. “It is always the case that some people who don't want to be bound by a class action can opt out,” he said. “The judge will look at the record as to what was the vote of the majority at a regular meeting of the convention.”
Whitehead also said dismissing the suit on the basis that the messengers only exist for two to three days a year could have disastrous consequences. “It would be a catch-22, the perfect crime: You can never find who the Missouri Baptist Convention is on a given day, so you can take Missouri Baptist Convention property on that day,” he said. “If that is the law of non-profit associations, then non-profit associations have no rights under Missouri law.”
He also cited decisions about non-religious unincorporated associations — including one that Brown ruled on — that would seem to work in the convention's favor. “I do think the religious denominational nature of this is a bit of a wrinkle, but we're just telling him he should apply neutral principles of secular and civil law and not treat it as some kind of unique religious creature.”
Whitehead said that the convention will file a motion for Brown to reconsider his decision that included a request to file an amended complaint — using messengers as plaintiffs — under the same case number. The messengers named would be the pastors of the six churches originally named as plaintiffs.
If the judge denies that, Whitehead would file a new suit using the pastors as plaintiffs.
Either way, if Brown does not rule favorably on those motions by April 20 — the deadline for appealing his original decision to the Kansas City Court of Appeals — then the convention would go ahead and appeal. “It doesn't change the nature of the claims,” he said.
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