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Also see US District Court of Northern Illinois rules against Haifan Baha'is
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April 23, 2008
Amici curiae, Reform Bahai Faith
https://fglaysher.com/bahaicensorship/USDistrictCourt07.htm
SECOND JUDICIAL DISTRICT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
DEBORAH BUCHHORN, for herself )
and for MINORITY SHAREHOLDER- )
MEMBERS OF THE SPIRITUAL )
ASSEMBLY OF THE BAH ' 'S OF )
ALBUQUERQUE, NEW MEXICO, )
)
Plaintiffs, )
)
vs.
) No. CV 2001-01978
)
)
TRUSTEES OF THE SPIRITUAL )
ASSEMBLY OF THE BAH ' S OF )
ALBUQUERQUE, NEW MEXICO, and )
THE SPIRITUAL ASSEMBLY OF THE )
BAH ' 'S OF ALBUQUERQUE, )
NEW MEXICO, a non-profit )
corporation, and
the )
NATIONAL SPIRITUAL ASSEMBLY )
OF THE BAH ' 'S OF THE )
UNITED
STATES,
)
an Illinois Corporation, )
)
Defendants. )
PLAINTIFF'S RESPONSE TO DEFENDANT TRUSTEES MOTION TO DISMISS
COME NOW Plaintiffs by and through their attorney of record
Yorgos Marinakis and for their response state as follows:
INTRODUCTION
By incorporating in the United
States, Defendant
Trustees agreed to follow the law of the land, but it is
clear from their Motion to Dismiss that they believe the law
of the land places them above the law. If the Bah '¡
wish
to undertake such civil jurisdiction over their members,
they must provide due process, which they have failed to
provide for seven years.
ALLEGED FIRST AMENDMENT ISSUES
There are simply and categorically no
first amendment
issues in this case. Churches are not immune from suit over
issues that do not involve religious doctrines:
"[w]ithout
regard to the governing structure of a
particular church, a court may, where
appropriate,
apply neutral principles of law to
determine disputed
questions that do not implicate
religious doctrine.
Jones v. Wolf, supra, 443 U.S. 595,
99 S.Ct. 3020, 61
L.Ed.2d 775. 'Neutral
principles' are wholly secular
legal rules whose application to
religious parties or
disputes does not entail theological
or doctrinal
evaluations."
It will be shown below that these "neutral
principles" are
well-established for religious nonprofit corporations. As a
general rule, Courts can decide secular legal questions in
cases involving some background issues of religious
doctrine, so long as courts do not intrude into
determination of doctrinal issues. When the canons of
Bah '¡ law are in conflict with the law of the land, the
canons must yield.
Defendant Trustees implicitly assert
(Motion to
Dismiss, page 9) that this Court cannot hear this case
because it involves an intangible or emotional harm to an
individual committed by a church. In fact, this case
involves violations of New Mexico State corporate law and
U.S. corporate common law, not simply offenses to someone's
sensibilities. Counts III-V allege violations of statutory
duties of corporate officers, Counts VI and VII allege
specific violations of filed corporate by-laws, and Counts
VIII and IX allege violations of U.S. corporate common law.
Count I alleges fraud and Count II alleges libel, not as
individual harms but as torts by a corporation upon a
minority set of member-shareholders.
Defendant Trustees assert
(Defendant's Motion, Section
B) that their actions are protected by the first amendment
as "ecclesiastical" or "internal," simply
because they are a
religious entity. If that were the rule, then the Catholic
Church could have claimed that a priest's decision to commit
pederasty was an ecclesiastical decision and therefore not a
civil matter.
Plaintiffs in actuality allege that
Defendant Trustees
oppressed and abused minority shareholder-member Plaintiffs,
while Defendants National Spiritual Assembly failed to act
upon Plaintiffs' appeals. This is simply a case of fraud
and oppression on the shareholders, committed by corporate
officers, which cases State Courts decide every day. The
fact that the corporation is a non-profit religious society
is irrelevant, because there are no background issues of
religious doctrine in this case. I will now justify that
statement.
One of the allegations relates to the
failure to allow
inspection of the corporate books. New Mexico law of non-
profit corporations clearly states that corporations must
allow its members to inspect all their books and records:
"All books and records of a corporation may be
inspected by any member, or his agent
or attorney, for
any proper purpose at any reasonable
time."
In denying shareholders access to corporate books and
records, the corporation has the burden to demonstrate
strong and articulable reasons for denying that access, such
as improper purpose. Defendant Trustees denied Plaintiff
Buchhorn access to their books and failed to demonstrate
strong and articulable reasons for doing so, having merely
informed Defendant Buchhorn that they needed the guidance of
the National Spiritual Assembly. Because the right to
inspect books and records by members was a right at common
law, Defendants National Spiritual Assembly and knew or
should have known that this action by Defendant Trustees
violated the law. Named Plaintiff Deborah Buchhorn's
purpose was proper: the "draft" Annual Report showed an
admitted 10% discrepancy in the books, and she wanted to
investigate it.
As another example, Counts III-V
allege breach of
duties of corporate officers and directors. New Mexico non-
profit corporation law clearly states the duties of
directors:
"A
director shall perform his duties as a director
including his duties as a member of
any committee of
the board upon which the director may
serve, in good
faith, in a manner the director
believes to be in or
not opposed to the best interests of
the corporation
and with such care as an ordinary
prudent person would
use under similar circumstances in a
like position."
These are the same duties set forth in section 8.30 of the
ABA Model Nonprofit Corporation Act (herein "Model
Act").
These are the "neutral principles" discussed above in the
first excerpt. According to that same Model Act,
nondirector officers with discretionary authority have the
same general duty of care and loyalty as directors. As
delegates of the board of directors, officers are
fiduciaries of the corporation and within the scope of their
delegated management functions are subject to the same
fiduciary duties as are directors.
According to the Model Act, to
determine whether a
director or officer discharged the duty of good faith, the
Court must
"look to the director's state of mind to see if it
evidenced honesty and faithfulness to
the director's
duties and obligations, or whether
there was an intent
to take advantage of the
corporation. A director of a
religious corporation in making a
good faith
determination may consider what the
director believes
to be: (1) the religious purpose of
the corporation;
and (2) applicable religious tenets,
canons, laws,
policies and authority."
(emphasis added)
This clearly implies that the Model Act applies to religious
corporations. Case law also permits the Court examine the
religious purposes or applicable religious laws:
"Civil courts adjudicate ecclesiastical matters only
when civil or property rights are
involved, and then
only when their determination is
necessary and incident
to the adjudication of civil or
property rights The
courts will inquire only as to what
are the rules and
decisions of the church and its
tribunals, and what
parties or factions adhere to them,
without questioning
their wisdom or propriety[.]"
There is, however, no need for
the Court in this case to examine the religious
purpose of the corporation. Defendant Trustees acted in a
manner that would qualify as
domestic violence. These actions are so far opposed to the
true interests of the
corporation as to lead to the clear inference that no one thus
acting could have been
influenced by any honest desire to secure such interests, but that
they must have acted
with intent to subserve some ulterior purpose, regardless of the
consequences to the
corporation and in a manner inconsistent with its interests.
Even if this Court finds that the
issues in this case involve religious doctrine, it
may still hear this case, because decisions by religious entities
may be the subject of civil
inquiry in cases of alleged fraud:
"a
civil court might be empowered to examine the propriety of such an
appointment [i.e., the ecclesiastical
decision of appointment to a Roman Catholic
chaplaincy] if it were a product of
'fraud, collusion, or arbitrariness.'"
This is precisely the situation in the instant case.
Defendant Trustees have made
numerous decisions that Plaintiff alleges were the product of
fraud.
Moreover, even if this Court finds
that the issues in this case are purely
ecclesiastical, it may still hear the case, because they may pose a
substantial threat to
public safety, peace and order:
"The courts may not intervene in purely ecclesiastical matters,
including church
disciplinary actions concerning the
conformity of church members to the
standards of morals required of them,
unless such actions pose a substantial threat
to public safety, peace or
order. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1972); Sherbert v.
Verner, 374 U.S. 398, 83 S.Ct. 1790, 10
L.Ed.2d 965 (1963); Paul v.
Watchtower of New York, Inc., 819 F.2d 875 (9th Cir.
1987), cert denied, _____U.S.____,
108 S.Ct. 289, 98 L.Ed.2d 249 (1987)."
The Bah '¡ are the world's second-most widespread
religion. Spiritual Assemblies,
similar to Defendant, are located in cities across the United
States. Widespread abusive
and oppressive behavior by these entities is plausible and may
represent a substantial
threat to public safety, peace or order.
Defendant Trustees claim that
Plaintiffs' membership in the Bah '¡ Faith
constitutes implied consent to their government, which confers upon
Defendant Trustees'
decisions an internal nature deserving of judicial deference
(Motion to Dismiss, page 6).
However, this situation invites abuse if the Local Spiritual
Assembly fails to follow its
own commitment to the laws, which Plaintiff alleges they have done
here. As discussed
above, this Court has the power to determine whether the
Bah '¡ have followed civil
and their own religious law.
Defendant Trustees implicitly asserts
"'religious questions permeate all of the
issues in this case.'" The Supreme Court of New Jersey
responded to such an allegation
by stating that it was the Court's duty not to refer civil issues
to a religious tribunal, but
to hear them:
"To the contrary, as we have noted, distinct civil issues should have
been reserved
by the court not merely because it
had the discretion to decide them, but also
because it had a duty to do so."
Plaintiff suggests that if this Court is concerned with the
first amendment issues that it
follows the recommendations of the Supreme Court of New Jersey, and
order the parties
to fully brief which issues are religious and which are civil:
"It is imperative, in order to avoid unconstitutional entanglements
of civil and
religious issues and to preserve the
right to civil adjudication of secular disputes,
for a trial court to specify which
issues are religious and therefore to be settled by
religious authority; and which issues
are civil and to be resolved by the
court Thus, when faced with cases
such as this, trial courts initially should
entertain full briefing and argument
by the parties as to what issues are 'religious'
and what are 'civil'; and as to what
is the proper authority to decide 'religious'
questions. By providing
complete and clear rulings on such questions before
referral to any religious tribunal, a
trial court will provide the parties and appellate
courts with a clear record for
informed review of any possible first amendment
issues."
ALLEGED PLEADING ISSUES
Plaintiffs' Complaint has complied
with the New Mexico
law of notice pleading, shareholder derivative suit
pleading, and fraud pleading. In New Mexico, the theory of
pleadings is to give the parties fair notice of the claims
and defenses against them, and the grounds upon which they
are based.
Notice pleading requires only sufficient detail so that
the parties and the court will
have a fair idea of the action about which the party is complaining
and can see the basis
for relief.
In a shareholder derivative action specifically, the
complaint must be verified, the
plaintiff must allege that she was a shareholder or member at the
time of the transaction
in question, and the plaintiff must allege with particularity the
efforts she made to obtain
the action she desires from the corporation.
In Complaints for fraud, the plaintiff must allege the
circumstances constituting fraud
with particularity.
Plaintiffs complied with all
these requirements. The Complaint contains
numerous specific incidents and factual allegations that involve
more than named
Plaintiff. Named Plaintiff verified the Complaint.
There is no requirement to name all
minority shareholders as Defendant Trustees claims. More
specifically, as to Defendant
Trustees' assertion regarding the libel claim (Motion to Dismiss,
Section F, page 11),
Plaintiff refers Your Honor to paragraph 31 of the verified
Complaint. As to Defendant
Trustees' assertion regarding the literature review claim (Motion
to Dismiss, Section G,
page 12), Defendants' literature review policy facilitated this
abusive situation by
preventing shareholders from communicating with other
shareholders. This policy is in
violation of U.S. law:
"[t]he
statutory right accorded a stockholder to communicate with other
shareholders regarding matters of
common interest as stockholders is much
similar to freedom of speech."
The fundamental position occupied
this right can be seen by the frequency by
which shareholders use it to justify their requests to inspect
corporate books and records
. In addition to enabling and facilitating the jeopardization of
reasonable expectations of
minority shareholders, this policy also in and of itself
constitutes oppressive behavior.
WHEREFORE, for these reasons, Plaintiff requests
that
this Court DENY Defendant Trustee's Motion to Dismiss.
Respectfully submitted,
Yorgos D. Marinakis
Attorney for Plaintiffs
P.O. Box 45923
Rio Rancho, NM 87174
505-459-4664
877-430-9550 (fax)
I hereby certify that a true
and correct copy of the foregoing
was mailed to:
Deborah D. Wells
on this ____ day of May, 2001.
____________________
Yorgos D. Marinakis
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