The Baha'i Faith & Religious Freedom of Conscience


Summary of Hearing on Defendants' Motions to Dismiss in the case of
OF ALBUQUERQUE, NEW MEXICO, a non-profit corporation, and the
Illinois Corporation, Defendants. Case No. CV 2001-01978

July 18, 2001, 10:30 AM  Judge Scott in Albuquerque, NM

The Local Spiritual Assembly of the Baha'is of Albuquerque and The
National Spiritual Assembly of the Baha'is of the United States are
the DEFENDANTS.  Deborah Buchhorn is the Plaintiff.

The Plaintiff filed  a complaint against the Defendants for various
wrongs committed against her as a member of the Baha'i
Faith by the local and national institutions.

The Defendants filed a Motion to Dismiss the Complaint based upon
subject matter jurisdiction and failure to state a claim upon which
relief may be granted.  In addition the NSA brought a separate Motion
to Dismiss challenging the Court's personal jurisdiction of the NSA,
a non-citizen of New Mexico.

The Defendants' attorney argued first.

She said that the complaint was barred on First Amendment grounds,
that all of the plaintiffs (minority shareholder/members of the LSA
community) were not named as required by the Rules, that it was a
corporate derivative suit that was not appropriate, that it pleads
fraud but fails to plead with particularity as required by the Rules,
that the defamation action was barred by admissions of the Plaintiff,
and that it claimed an unspecified right to communicate that does not

The Defendants argued that the free exercise clause of the First
Amendment bars the claim.  The relief requested in the complaint
that: 1) seeks to remove the Trustees of the LSA from serving in that
capacity for 19 years, 2) enjoin the NSA an LSA from enforcing its
literature review policy; 3) seeks determination that Defendants'
secrecy practices violated the law; and 4) enjoin the Defendants from
following their secrecy practices.  These claims for relief
demonstrate that the complaint involves a religious

The US Supreme Court has ruled (in a number of cases cited in the
briefs) that civil courts must abstain from religious controversies.
The long line of US Supreme Court cases state that church government
must not be interfered with by civil courts, and there can be no
review or entanglement of the courts with religious affairs.

In the Baha'i Teachings, the Baha'is must obey the Institutions and
may not engage in backbiting or questioning of the decisions of the
LSA or NSA, for the sake of unity and harmony.  The Teaching of
'Abdul-Baha was that God would right any wrong as long as the
Baha'is remain united in obedience to the Institutions.  These are
the religious teachings of the Baha'i Faith and the secular courts
must not entangle themselves in it.

The Defendants next argued that the complaint is brought on behalf of
un-named minority shareholders of the LSA of Albuquerque.  The court
rules of procedure require that they all be named, and for that
reason the complaint should be dismissed.

Next, the Defendants argued that the complaint is improperly plead as
a derivative suit.  An appropriate derivative suit is where a member
of a corporation seeks to exercise a right that the corporation has
(but has failed to exercise that right on its own).  In this
complaint, the Plaintiff seeks redress for alleged wrongdoing against
her --- not wrongdoing against the corporation.  Thus, a derivative
action is not appropriate.

The next argument was that the complaint failed to plead fraud with
particularity.  That is, it must state facts showing the time, place,
and contents of the fraudulent communication, the identity of the
person making it, and what he obtained through the fraud.  The
complaint therefore fails to state a claim for fraud.

As for the defamation claim, paragraph 13 of the Plaintiff's
complaint admits that the Defendants did not defame her.

As for the alleged right to communicate, the Defendants argued that
it was vague and not specified as to what right this is.  The
Defendants know of no such legal right.

The Plaintiff's attorney argued next.

The Plaintiff argued that for many years she was oppressed,
defrauded,and abused in the manner of the Soviet KGB by Baha'i
leaders.  She appealed repeatedly to the NSA but received no relief.
Plaintiff argued that Baha'is have the belief that the Universal
House of Justice is infallible, but that they have misunderstood the
Arabic word used by 'Abdul-Baha which translates into "morally
immaculate" rather than infallible in the Papal sense.

American Baha'is view their Institutions as divinely guided and
therefore they are particularly susceptible to authoritarian control
techniques utilized by their leaders.  Most of the Baha'is view the
victims of the these authoritarian control techniques as being
sources of disunity in the community.

The Plaintiff next argued against the NSA's attempt to avoid personal
jurisdiction of the court.  She argued that the NSA and LSA are a
single entity.  The NSA asserts exclusive jurisdiction and authority
over the LSA, tells the LSA what their bylaws are to be, and states
in its own publications that the LSA is subject absolutely to NSA
authority and jurisdiction, and that the LSA must obey and sustain
the NSA.

As for the First Amendment issue, the Plaintiff argues that the
assertion of a religious privilege should be raised by a motion for
summary judgment instead of as an attack on the pleadings.  It is a
substantive defense and does not prevent a cause of action from being

The First Amendment protects the spiritual aspect of religious
teaching, except in cases of fraud (and this complaint is for
As for the temporal duties of the Baha'i leadership, the First
Amendment does not protect them.  If the court accepted the
Defendants arguments, then religions would not be accountable to any
court or anyone or anything else except their own religious laws.
The complaint deals with elections, inspection of books and records,
and fraudulent activity in operating the corporation --- these are
not religious issues.

The First Amendment does not protect fraud.

The Plaintiff's attorney said that he has a tape recording of
Defendants attempting to extract confessions out of Baha'is.  The
Defendants carry tape recorders.

He said the complaint details oppression by the Baha'i leadership
against the Plaintiff and that religious law must yield to violations
of state law against oppression.

As for the shareholder derivative suit, Plaintiff argued that it was
properly plead.  The LSA has multiple causes of action against the
NSA that the LSA has failed to assert.

The NSA ignored all appeals.  There is no rule that all of the
plaintiffs be named in a derivative suit.

As for fraud, NM law says that only the circumstances of fraud must
be plead with particularity -- not the evidence.

The Defendants next argued rebuttal.

There is no rational way to interpret the allegations of the
complaint and the request for relief other than that she is a Baha'i
that requires obedience to the LSA and NSA, and that resort to the
secular courts is not appropriate.  Religious dispute would entangle
the courts.

Defendant NSA next argued the NSA's personal jurisdiction question.
There is a 3 part test. Plaintiff has burden of showing that NSA
committed an act to submit itself to jurisdiction of NM court,
Plaintiff's cause of action arouse out of that act, and that the NSA
had sufficient minimal contacts with NM.  Act complained of in
complaint is how the NSA handled appeals and its literature review
policy.  NSA has offices in Illinois.  The acts complained of
occurred in Illinois.  The NSA has no office, bank account,
phone, no address in New Mexico. None of the NSA members are
residents of New Mexico.  There is no registered agent and no
meetings of the NSA in New Mexico.  The only thing plaintiff could
identify that NSA did in New Mexico was pay for media advertising to
introduce public to the Baha'i Faith. That is not an act under NM law
that subjects the NSA to jurisdiction here.  There is nothing to show
that Plaintiff's cause of action arouse of that act (advertising).
And there were no minimal contacts to satisfy due process concerns.

Judge Scott remarked that it appeared the NSA filed a general
appearance (suggesting that the NSA had waived its personal
jurisdiction challenge by failing to file special appearance).

Judge Scott took the case under advisement.  He will rule by mail.

This reporter  will follow up in a month to see if the order is on

Jeffrey Goldberg