Will there be an Appeal?

February 18, 2009

A couple of more articles are out about the recent appellate court victory for Windermere Baptist Conference Center. The Lake Sun Leader had an article recently, which was later reprinted by the WestSide Star. The piece begins by noting that the court decision "should put to rest the ongoing dispute between the Missouri Baptist Convention and the board that governs Windermere." It should, but the question is will it? The judges closely studied the merits of the case and offered a clear and unanimous decision (you can read the whole decision here or a summary of the arguments here). When the lawsuits were originally filed over six years ago, the promise was made by MBC leaders that there would be no appeal. The question now is will they appeal again?

The first response by the MBC's attorney, Michael Whitehead, was to push completely for appealing as he claimed in The Pathway that he was confident the decision would be overruled. Yet, can his opinion be trusted? After losing the circuit court decision last March, Whitehead expressed his confidence that the appeals court would overturn it (a position I critiqued at the time here). He was clearly wrong. Bill Webb has an excellent editorial in the recent Word&Way that points out that Whitehead said before the appeals court decision that a victory would be important because it was highly unlikely that the Supreme Court would hear an appeal. Webb then points out that Whitehead has now quickly changed his tune and claims the Supreme Court will want to look at it. Webb also noted that Whitehead claimed last fall that an appeals court victory could create a "domino effect" and quickly end the other cases. Whitehead now claims, however, that the other cases will be winnable and should be continued. How much time, energy, and money will be wasted if MBC leaders follow Whitehead's flip-flop?

It is also important to note that Whitehead is making the same legal argument against the appeals court decision as he did against the circuit court one, even though the appeals court judges clearly set the record straight in their decision. Whitehead claimed that the appeals court judges got it wrong about the Missouri Nonprofit Corporation Act:

We believe that the court's novel interpretation of the code is wrong. The text of the statute permits but does not require a 'convention approval clause.' Even an appeals court cannot just re-write a statute. Furthermore, it is rudimentary that a statutory definition of a term is binding on the court. The court cannot let the Windermere incorporator define the term 'member.' The legislature has done so, and it says a member is a person who has the right to elect trustees more than once.
This is basically the same argument he made in The Pathway after the circuit court decision. Yet, if Whitehead would actually read the Missouri Nonprofit Corporation Act he would find that the courts got it right and he is the one trying to rewrite it. He does not even have to read the Act, just the appellate court decision that quotes and explains it (see pages 6-8). The Act clearly states that just because one elects a trustee or director does not mean one is a member. Instead, articles of incorporation must state if there are any members and define who members are if there are any. Windermere's articles that were approved by the MBC clearly state that there are no members. That is part of why the appellate court judges criticized the MBC for misrepresenting the circuit court decision, using "convoluted" interpretations, and making "disingenuous" arguments. Now, Whitehead is making his same inaccurate claim about the Missouri Nonprofit Corporation Act that he used to convince MBC leaders to appeal the circuit court decision. So, does he really not know what the Act says or is he just making things up in The Pathway so that they will keep paying him to appeal? How many judges need to point this out before people stop trusting what Whitehead tells them? Four judges have examined the merits of the case and all four have concluded that the MBC does not have a case. Hopefully, more time, energy, and money will not be wasted appealing the decision.

As usual, the Baptist Press ran a version of The Pathway's article. I have criticized the Baptist Press in the past (such as here and here) for doing so since The Pathway has admitted that it makes no effort to get both sides of the legal stories as a journalistic outfit like the Baptist Press should. This time, however, the Baptist Press deserves recognition for actually including part of the statement that Windermere sent them. Although other parts of the story could be questioned, the Baptist Press at least gave both sides a voice.

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