The Baha'i Faith & Religious Freedom of Conscience

 

Also see US District Court of Northern Illinois rules against Haifan Baha'is - April 23, 2008
Amici curiae, Reform Bahai Faith
https://fglaysher.com/bahaicensorship/USDistrictCourt07.htm


New Mexico LAWSUIT against bahai institutions for FRAUD & LIBEL 3/2/2001 Deborah Buchhorn
New Mexico LAWSUIT - Response to Motion to Dismiss 5/2001 Yorgos D. Marinakis, Attorney
New Mexico LAWSUIT - Attorney's Statement 5/26/2001 Yorgos D. Marinakis, Attorney
New Mexico LAWSUIT - Amicus Curiae 7/13/2001 FG

See my comments at New Mexico Lawsuit Annotated


See also Summary of Defendants' Motion to Dismiss 7/18/2001 Jeffrey Goldberg

  
  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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