Viravonga v. Samakitham
| Decision Date | 06 March 2008 |
| Docket Number | No. 07-362.,07-362. |
| Citation | 372 Ark. 562,279 S.W.3d 44 |
| Parties | Somboun VIRAVONGA (Khamla), Preecha Improm, Pan Hanshana, Terrakun Karnchanakphan, Thao Sayskoumane, Sy Lovan, Chintana Brandes, Phra Sagob Parisanto, Sam K. Phonekhanan, Phra Bouaphan Prathphan, Khamnang Sayakoumane, Appellants, v. Wat Buddha SAMAKITHAM, Oukham K. Khattachanh, Bounsa Sisoukrath, Bouasay Keobounhome, Sam Siripounsavath, Oulayvanh Maymoundok, Appellees. |
| Court | Arkansas Supreme Court |
Warner, Smith & Harris, PLC, by: James M. Dunn and Robert A. Frazier, Fort Smith, AR, for appellants.
Pryor, Robertson, Beasley, Smith & Karber PLLC, by: C. Brian Meadors, Fort Smith, AR, for appellees.
Appellants Somboun Viravonga and others appeal an order of the circuit court denying their motion to vacate the results of a board-of-directors election for Wat Buddha Samakitham, a Buddhist temple, and denying their motion to enjoin the newly elected board of directors from dismissing Abbot Phra Sagob Parisanto and other temple monks. We affirm the order of the circuit court.
In 1989, several members of the North West Arkansas Buddhist community came together to form Wat Buddha Samakitham, which is organized as a nonprofit corporation under Arkansas Code Annotated §§ 4-28-201-4-28-224 (Repl.2001 and Supp.2007). In 2005, a schism arose between two factions within the temple, with each alleging that it represented the true board of directors of the temple corporation. Appellants Somboun Viravonga and others comprised one faction. Appellees Oukham Khattachanh and others1 comprised the other. On June 3, 2005, appellees filed suit in circuit court and alleged that Phra Sagob Parisanto, the abbot of the temple since 1992, had violated various bylaws of the temple corporation and, more specifically, had dismissed the validly elected board of directors of the nonprofit corporation and attempted to appoint a new board of directors, all in contravention of temple bylaws. The appellants, as the competing faction, filed a cross-complaint and asserted that the abbot-appointed board of directors constituted the true board of directors and that the board of directors advanced by the appellees was self-appointed. At the heart of the initial dispute was whether the original 1989 bylaws of the temple were still in effect or whether those bylaws were effectively amended in 1992 or 1993.
Pending resolution of the matter, the circuit court appointed First National Bank of Fort Smith to take charge of the temple's bank accounts and to pay normal operating expenses. On May 8, 2006, a bench trial was held, after which the circuit court entered an order holding that the 1989 bylaws had never been validly amended and were still in effect.2 The circuit court, however, also found that there had been no proper board-of-directors election under the 1989 bylaws and ordered that such an election take place within sixty days, at which time the temple's funds would be released to the newly elected board of directors.
The circuit court initially believed that the two factions would work together to arrange a mutually agreeable election. This proved impossible, with the parties unable to agree on either an election date or a list of approved voters.3 On June 23 2006, another hearing was held, at which time the circuit court placed the corporation into receivership. At that hearing, the circuit court also approved a list of eligible voters, which consisted of the appellees' list as well as names kept by the temple and furnished to the courts by the appellants. Any objections to the compiled list were to be made within fifty days. On a related point, the circuit court announced that it was interpreting the 1989 bylaws, which permit the board of directors to remove "members," to permit a duly elected board of directors to remove the abbot and monks in authority. On July 10, 2006, the court appointed a special master, Bradley D. Jesson, to conduct the election of the board of directors according to rules and regulations established by the special master.
On August 4, 2006, the appellants moved the court to reconsider its definition of an eligible voter and to allow all people who visited the temple and worshiped there to vote in the election. Asserting that the 1989 bylaws used a religious definition of a member of the temple (one who attended and worshiped), the appellants argued that the question of who could vote was a religious one and not a secular one, which made a court-imposed voter definition based on compiled lists inappropriate. On August 7, 2006, the appellants' motion to reconsider was denied. Appellants then proffered signed statements from over four-hundred individuals who claimed to worship at the temple but who were not included in the circuit court's list of eligible voters. On September 5, 2006, both factions agreed on a master list of eligible voters, but neither party waived its objections to the definition of an eligible voter. The court order regarding the agreed-upon voting list also provided that any person who did not appear on the master list, but claimed the right to vote, would be allowed to cast a provisional ballot in accordance with procedures established by the special master.
On September 10, 2006, the election was conducted. The appellees' slate received the majority of the master-list or approved voters. The appellants' slate received a majority of the provisional voters. However, when the approved and provisional ballots were added together, the appellees' slate received a majority of the total votes cast. The ensuing report of the special master stated that 1,150 names were on the approved list and 629 voters from that list voted. The report also stated that 736 provisional ballots were cast. A recount of the votes cast by approved voters was performed on September 11, 2006, at the request of the appellants, and the results did not change.4
On September 15, 2006, the circuit court entered an order confirming the election of the board of directors. Also, on September 15, 2006, the appellants moved to vacate the election results, citing various problems and irregularities. After filing a notice of appeal, the appellants requested a stay to prevent the new board of directors from removing the abbot or monks. In that request, they argued that doing so would change the denomination of the temple from Dhammayut, the affiliation of the current abbot and monks, to another form of Buddhism. On September 29, 2006, a hearing was held, following which the circuit court found that the 1989 bylaws contemplated a Buddhist temple that was open to anyone who practiced the Buddhist faith, rather than a Dhammayut temple.
On October 3, 2006, the circuit court entered an order denying the motion to stay and the motion to vacate the election results. The court said:
The Defendant was unhappy with [the circuit court's definition of an eligible voter], and informed the Court that there were at least four hundred other people who were being disenfranchised by the Court's ruling, so the Court established a provisional vote, and said that those people could vote, and we would then count their vote and see if it made any difference in the ultimate disposition of the case.
Ultimately, a provisional vote was taken, and it made no difference in the disposition of the case. Evidently, while the Defendant's slate of candidates did prevail better on the provisional ballots, they did not secure sufficient ballots to win any of the seven Board of Directors' positions.
The Court thinks it would be a travesty of justice to allow this Board of Directors and/or this monk, or leadership of this church, to retain control of this temple.
Appellants first contend that, by creating a master list of eligible voters, the circuit court impermissibly imposed a secular definition of temple membership. The 1989 bylaws, they note, read that the bylaws were "created for all worshipped [sic] individuals who come to Wat Buddhasamakitham." Moreover, the articles of incorporation for the temple state that "[e]ach person of this Church in good and regular standing according to the By-Laws is to be an active member of this Corporation and ... entitled to one vote in all meetings of the Church." Because of this, the appellants argue that worship at the temple, not appearance on a mailing list or any other list, is the main qualification for membership at the temple and eligibility to vote for the board.
By limiting voting to members of the households of people appearing on certain mailing lists, the appellants continue, the circuit court disenfranchised over four hundred members of the temple. By doing so, they urge, the circuit court not only violated the Establishment Clause of the First Amendment to the United States Constitution and the corresponding provisions of the Arkansas Constitution, but also denied those members of the temple who did not appear in the voter list their right to the free exercise of religion under the same constitutional provisions. The appellants admit that these four hundred people were allowed to cast provisional ballots, but they argue that a provisional ballot was not the equivalent of a regular ballot and that the circuit court's secular definition based on lists may have suppressed voter turnout, because those who were not on the approved-voter list could not be sure that their votes would be counted.
Appellees respond that no one who met the appellants' religious definition of a member of the temple as found in the 1989 bylaws was, in fact, prevented from voting. Rather, people falling into this category were allowed to cast a provisional ballot. Even if these provisional ballots are included in the election results, they observe, the appellees' slate of candidates received the majority of votes. They contend, therefore, that any error in the circuit court's definition of a person eligible to vote was...
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