The following document is the emergency motion to stay judgment submitted to the United States Supreme Court. This particular document is addressed to Supreme Court Justice John Paul Stevens and is dated November 2, 2000.
TO: Honorable Justice John Paul Stevens:
1. The Relief Sought Is Not Available from Any Other Court or Judge. Petitioner made prior applications to both the District Court and the Seventh Circuit for a stay of the judgment pending appeal to the Seventh Circuit. The application to the District Court for a stay of enforcement of judgment pending appeal was conditionally granted by the District Court. The application to the Seventh Circuit for a stay of enforcement of judgment pending appeal was denied.
Petitioner made prior application to the District Court for a stay of enforcement of the judgment of the District Court pending review by certiorari after the decision of the Seventh Circuit affirming the decision of the District Court. Petitioner's application was denied on September 28, 2000. Thereafter, on October 30, 2000, petitioner filed an application for emergency order to stay enforcement of the judgment with the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit denied the stay on November 2, 2000, and reminded petitioner that a stay may be sought from the United States Supreme Court under Supreme Court Rule 23. The particular facts are as follows:
a. Prior Application for Stay of Execution of Judgment Pending Appeal in District Court Conditionally Granted: On July 13, 1999, petitioner filed an application in said District Court for a stay of enforcement of the above-mentioned judgment and order and to dispense with the bond or other security required to be filed by petitioner. By order entered November 10, 1999, the District Court granted petitioner's motion to stay execution of the judgment pending petitioner's appeal to the United States Court of Appeals for the Seventh Circuit and waived the filing of a full appeal bond on four (4) conditions, which were as follows:
(1) The Church to file a monthly inspection report by a mutually acceptable person who has inspected the condition of the properties;
(2) The Church to reasonably maintain the properties and continue to meet its monthly mortgage payments;
(3) The Church to maintain and provide proof of comprehensive insurance coverage for its two properties in amounts no less than their appraised values; and
(4) The Church to post a supersedeas bond for the amount of its ending cash reserves as of June 30, 1999 ($11,OOO).
b. Stay Order Modified: On February 10, 2000, upon motion of the plaintiff and over objection by petitioner Church, the District Court modified the terms of the stay order pending appeal in the Seventh Circuit by imposing additional terms, which were as follows:
(1) The Church to file monthly financial statements with the District Court;
(2) The Church to file the information required to be reported by employers on IRS Form 941 with the District Court in a format to be prepared by the Church; and
(3) The Church to deposit into the Court's escrow fund on a quarterly basis an amount equal to the estimated quarterly employment tax obligation for an employer based upon the information filed with the District Court.
c. Petitioner Church Did Not Comply with Additional Terms by Reason of its Faith and Religious Convictions: The petitioner, Indianapolis Baptist Temple, is a Baptist Church that adheres to the Church doctrine and Church polity of its historic roots as a New Testament Church which holds to the teaching that the New Testament Church is founded exclusively by the Lord Jesus Christ as His Church according to the scriptures of the Holy Bible. In accordance with the polity and doctrine of the historic New Testament Church, petitioner Church, Indianapolis Baptist Temple, is not structured or organized as a legal entity under State law and does not claim public benefits as a tax exempt public charity organized as a "Church" or other "religious institution" under section 501(c)(3) of the Internal Revenue Code.
In accordance with the faith and religious convictions of petitioner Church, the Holy Bible teaches that a New Testament Church is a special assembly of saved people called out by the Lord Jesus Christ as His Church. Under the doctrine of petitioner Church and other New Testament Churches, the number of New Testament Churches are many, and each is an independent, autonomous organism which is the visible body of Jesus Christ in a local community, (i.e., a local, visible Church).
Petitioner could comply with the original conditions of the stay order because the conditions only required notice conditions. Petitioner Church was doing and would do the terms required by these conditions for itself without a Court order. The conditions did not conflict with the faith and religious convictions of petitioner Church. However, petitioner Church could not and did not comply with the additional terms for the stay order by reason that the additional terms conflicted with the central tenet of the faith of petitioner Church that recognizes Jesus Christ as the only sovereign head of the Church in all things in accordance with the teaching of the scriptures. Further, petitioner Church could not and did not comply with the additional terms by reason that the additional terms conflicted with petitioner Church's religious convictions held in accordance with the central tenet of the historic doctrine of historic Baptist Churches, ( i.e., New Testament Churches), which requires the absolute sovereignty of the local, visible Church under the Lordship of Jesus Christ as the Holy, exclusive head of the local, visible Church. The application of this doctrine requires the complete separation of the local, visible New Testament Church from State and Federal authority, and forbids any entanglement of government in Church polity or Church ministries.
The additional terms in effect came into direct conflict with petitioner Church's faith and religious convictions by requiring petitioner Church to recognize another authority greater than Jesus Christ as an authority over the local, visible Church, its teachings and its polity by requiring petitioner Church to file financial statements for the Lord's treasury with the District Court and to pay employer taxes during the appeal period as if the petitioner were structured and organized as a tax- exempt public charity. Petitioner Church had to choose to whom it would obey, the Court order or the words and commands of Jesus Christ. Petitioner Church chose to obey the words and commands of Jesus Christ as revealed in the scriptures of the Holy Bible.
d. The Reasons Given by the District Court for Granting the Conditional Stay Pending Appeal: The reasons given by the District Court for its action granting the initial conditional stay pending appeal in the Seventh Circuit are contained in the order attached as Exhibit "F".
The reasons given by the District Court for its action modifying the initial conditional stay pending appeal in the Seventh Circuit by adding additional conditions are contained in the order attached as Exhibit "G".
e. Prior Application for Stay of Execution of Judgment Pending Appeal in United States Court of Appeals for the Seventh Circuit: After filing a timely Notice of Appeal with the United States Court of Appeals for the Seventh Circuit, petitioner filed a motion to stay enforcement of the judgment of the District Court in the Seventh Circuit titled, "Emergency Request for Expedited Hearing on Motion for Stay of Judgment After Prior Application to District Court." The Seventh Circuit denied the motion to stay enforcement of the District Court judgment pending appeal without opinion, but granted petitioner's motion for an expedited hearing on the appeal. The Seventh Circuit affirmed the judgment of the District Court on August 14, 2000.
The District Court did not take any steps to enforce the judgment of the District Court during the appeal period.
f. Prior Application for Stay of Execution of Judgment Pending Certiorari in United States District Court:
(1) The District Court held a post-judgment status hearing on August 23, 2000. Petitioner Church moved the Court to stay enforcement of the judgment pending a review of a petition for certiorari, which petitioner Church proposed to be filed in the United States Supreme Court before November 14, 2000, and to reinstate the initial conditions for the stay as granted on November 10, 1999.
(2) The District Court denied petitioner's motion to stay the enforcement of the judgment of the District Court on September 28, 2000, and ordered the Church to vacate and depart from Church properties by 12:00 o'clock noon on Tuesday, November 14, 2000.
(3) The reasons given by the District Court for its actions are contained in the Order to Vacate signed September 28, 2000, attached as Exhibit "E".
g. Prior Application for Stay of Execution of Judgment Pending Certiorari in United States Court of Appeals for the Seventh Circuit: On October 30, 2000, petitioner Church filed an application for an emergency order to stay enforcement of the judgment of the District Court pending review by certiorari with the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit denied the stay on November 2, 2000, by docket entry without opinion.
2. Reasons for the Relief Requested by this Application for an Emergency Order to Stay Judgment:
a. Petitioner Church will suffer irreparable damage caused by the seizure of its properties by the United States Marshal, using force as necessary, on November 14, 2000 , and the sale of the properties to satisfy tax liens in favor of the United States government if the relief requested is not granted.
b. This case involves grave Constitutional issues of paramount importance concerning the application of the Free Exercise Clause and the Establishment of Religion Clause of the First Amendment of the United States Constitution to protect the petitioner Church, its polity and its ministries from taxation by the government of the United States which can only be resolved by a decision of the United States Supreme Court.
c. The balance of the equities, pending a review of the judgment of the District Court by a review of a petition for certiorari, mitigate in favor of granting a stay, pending a review of the judgment of the District Court by certiorari.
3. Facts Relied Upon for the Relief Requested: The facts on which petitioner Church relies for obtaining the relief sought herein are as follows:
a. The judgment entered in this case by the District Court grants a tax liability against the petitioner Church for employer taxes assessed against the Church for the sum of $5,319,750.27 plus interest and other additions accruing after July 27, 1998, in favor of the government of the United States, and orders the foreclosure and sale of Church properties to collect the tax liability established by the judgment.
b. Petitioner Church cannot pay the tax liability by reason of its faith in Jesus Christ and religious convictions as a historic New Testament Baptist Church as explained above in paragraph 1(c). The sovereignty of the petitioner Church under the Lord Jesus Christ as the Holy and exclusive head of the Church as commanded by the scriptures of the Holy Bible is the central tenet of petitioner Church and prohibits petitioner Church from paying the tax. This central tenet requires the complete separation of petitioner Church from State authority and any State interference with its polity and its ministries.
c. Petitioner Church believes in the succession of local, visible New Testament Churches from one New Testament Church to another New Testament Church from the time that Jesus founded His New Testament Church during His earthly ministry pursuant to the scriptures of the Holy Bible to the present day. Petitioner, Indianapolis Baptist Temple, can trace its lineage from the founding of the Church in Indianapolis to an ancient Church called "Bing Joy, Africa" founded by Polycarp in A.D. 150. History teaches that Polycarp was baptized by the Apostle John in A.D. 95. The Holy Bible teaches that the Apostle John was baptized into the New Testament Church by John the Baptist and was present with the other disciples on the coast of Caesarea Philippi when Jesus revealed His Church in Matthew 16:18. Thus petitioner, Indianapolis Baptist Temple, can trace its roots as a New Testament Church to the first Church founded by the Lord Jesus Christ.
d. The government of the United States concedes the sincerity of the faith and religious convictions of petitioner Church.
e. The decision of the District Court rejected the Church polity of petitioner Church as a New Testament Church and imposed upon petitioner Church a legal nature as that of an unincorporated association. By doing so, the District Court imposed the Church polity of the universal, invisible, spiritual Church model adhered to by many Churches and denominations which requires the Church to have a legal entity to authenticate the legal nature of these Churches. The imposition of a legal nature for the New Testament Church as that of an unincorporated association is repugnant to the religious convictions of petitioner Church and the Church polity as a New Testament Church.
f. On the balance of equities, the loss of Church properties is irreparable and will interrupt and interfere with the ministries of the Church including the educational ministry which has provided Christian based education for grades K-12 for over 30 years. The Church has occupied the present properties for 50 years, and the sanctuary is currently a place of worship for over 1,000 people. The value of the petitioner Church properties is adequate to preserve the status quo by securing the respondent from loss resulting from a stay of execution . Further, in essence, petitioner is paying over $16,000.00 per month on the principal of its mortgage which would be applied to the tax liability should the judgment of the District Court be upheld upon certiorari. Petitioner carries property insurance on the properties and maintains the properties in good order so as to protect the properties from devaluation by physical deterioration and obsolescence.
g. Since the judgment includes (1) the foreclosure and sale of the Church properties as the security for payment of the money judgment; (2) the Church properties are maintained and insured against loss; and (3) the equity of petitioner in the property increases monthly by over $16,000.00 by petitioner's payment on the principal of the mortgage on the property, respondent's security interest in the property and respondent's interest in collecting the money judgment would not be impaired during the period of review on certiorari. The respondent would suffer no damages if the judgment were stayed on appeal. On the other hand, petitioner Church would suffer irreparable damages if the Church properties were sold at a foreclosure sale pending the review on certiorari if the decision of the District Court were reversed after review on certiorari.
4. Church Properties Sufficient Bond: Petitioner moves this Court to accept the Church properties as an adequate bond under the circumstances to protect respondent's security interest in the money judgment. The judgment is so large and the premium on a supersedeas bond is so excessive that requiring further bond would be a waste of money. Further, as discussed above, petitioner is precluded from posting a bond by reason of its faith in Jesus Christ and religious convictions requiring the absolute sovereignty of petitioner Church under the Lordship of Jesus Christ.
5. Petitioner Is Likely to Prevail on Review. The District Court and the Seventh Circuit erred by misinterpreting and misconstruing the law-fact patterns of cases and authorities decided and announced by this Court to support their respective decisions to find a tax liability of petitioner Church for employer taxes under the facts of this case.
The tax laws are unconstitutional as applied to petitioner Church because they lack substantive neutrality when applied to the faith and practices of petitioner Church and all other New Testament Churches in this Nation. The application of the tax laws to petitioner Church directly restrains the practice and faith of petitioner Church by requiring petitioner Church to recognize an authority with the power of a sovereign to tax the Church as a condition precedent to the practice of their faith when the recognition of such a sovereign is repugnant to faith and religious convictions and the polity of petitioner Church requiring the absolute sovereignty of the Church under the Lordship of the Lord Jesus Christ as the sole, exclusive and Holy head of His Church in all things.
The decisions of the District Court and the Seventh Circuit are not neutral to the practice of religion for they "in effect lack substantive neutrality" and criminalize the faith and practice of petitioner Church and other New Testament Churches in this Nation by imposing criminal and civil sanctions upon petitioner Church and other New Testament Churches for the practice of their faith and religious convictions in Jesus Christ and His Lordship as the exclusive head of the New Testament Church.
The decisions of both the District Court and the Seventh Circuit have imposed a "legal nature" to petitioner Church of that of a legal entity called an unincorporated association. The characterization of the Church as an unincorporated association or other legal entity is repugnant to the Church polity of petitioner Church, which is based upon the Biblical, local, visible Church definition of the Church, and the religious convictions, faith and practices of petitioner Church and other New Testament Churches in this Nation. In doing so, the decisions of the District Court and the Seventh Circuit have defined a "Church" for the purpose of the First Amendment Religious Liberty Clauses. In this regard, the decisions have established the universal, invisible, spiritual definition of the "Church" as the model State Church for this Nation by making a distinction between the "religious nature" of the Church and the "legal nature" of the Church. The Church polity of the universal, invisible, spiritual Church model and its many denominations makes a distinction between the "religious nature" and the "legal nature" of these Churches.
This result and effect of the decisions of the District Court and the Seventh Circuit is absurd in light of the history of this nation. The decisions put petitioner Church and all other New Testament Churches back to the place all New Testament Churches, called "Baptist Churches," occupied prior to the adoption of the First Amendment in 1789. If the decision of the District Court and the Seventh Circuit should stand, petitioner Church, Indianapolis Baptist Temple, will be the first victim of a renewed persecution of all New Testament Churches. The petitioner Church will be the first New Testament Church martyred for its faith and practices in the Lord Jesus Christ by the government in over 200 years in this nation. Many others will follow. This martyrdom brought on by the exercise of a Baptist Church of its faith in the Lord Jesus Christ can not be allowed to happen again in this nation.
History teaches that the purpose of the Religious Liberty Clauses of the First Amendment of the United States Constitution was to protect the Baptist Churches of that day from persecution by the State established Churches of that day. This case requires the Supreme Court to review the role that the Baptist Churches played in the adoption of the Religious Liberty Clauses and to revisit many Supreme Court cases when viewed from the perspective of the Churches who have been called throughout the history of the Church as New Testament Churches. The case also brings into question the application of the Religious Freedom Restoration Act . The application of the cases involving an individual or a legal entity qualifying for government subsidies as a tax exempt public charity must be distinguished from the application of the cases to a New Testament Church (i.e., existing as an assembly of saved people called the body of the Lord Jesus Christ in accordance with the scriptures of the Holy Bible) in order to bring order and stability to the current chaos caused by the decisions of the District Court and the Seventh Circuit.
6. Authorities for Application: This application is made pursuant to Rules 23, 22 and 33.2 of the Rules of the Supreme Court of the United States and Rule 8(a) of the Federal Rules of Appellate Procedure. The motion is based on portions of the original record in the District Court attached as Exhibits hereto and filed herewith as follows:
A. Judgment Order Including Foreclosure and Sale Entered November 10, 1999;
B. Entry Granting Plaintiff's Motion for Summary Judgment Entered June 29, 1999;
C. Entry Addressing Plaintiff's Motion for Partial Summary Judgment and Defendant Indianapolis Baptist Temple's Motion for Summary Judgment Entered January 19, 1999;
D. Decision of the United States Court of Appeals Decided August 14, 2000;
E. Order to Vacate Dated September 28, 2000;
F. Entry Granting Stay of Enforcement of Judgment Dated November 10, 1999;
G. Entry Modifying Terms of Stay of Enforcement of Judgment Dated February 10, 2000; and
H. Indianapolis Baptist Temple's Reply to United States' Opposition to Motion for Stay Filed August 18, 1999, with Declarations of Robert J. Sell, Certified General Appraiser, Real Estate Appraisal Services, Inc. (Exhibit A); Randall S. Steiner, Vice President of Bank One, Indiana; (Exhibit B); NBD Bank Response to Request for Production of Documents (Exhibit C); Declaration of Gregory A. Dixon, Pastor and Trustee of Indianapolis Baptist Temple (Exhibit D.).
_____________________________ Albert F. Cunningham (CSB 044200)