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[LCMSNews] Board: Letters raise questions


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Date Fri, 12 Mar 2004 22:08:02 -0600

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	March 12, 2004 .................... LCMSNews -- No. 28

	Board: Attorneys' letters raise
	many questions, 'stir things up'

	By Joe Isenhower Jr.

	The Synod's Board of Directors says in its new online "Board
Briefs VI" that recent letters from attorneys who disagree with the
outside legal opinions that the Board commissioned last year "have
raised many questions publicly and have stirred things up again [at] a
time when the Board hoped to help restore peace and unity."

	In a Feb. 3 letter to Synod President Gerald Kieschnick,
attorney L. Martin Nussbaum of Colorado Springs, Colo., takes issue with
the opinions obtained by the Board from the Bryan Cave and Armstrong
Teasdale law firms of St. Louis. Nussbaum, who specializes in
representing religious organizations, sent copies of the letter to the
Synod's Council of Presidents, Board of Directors, Commission on
Constitutional Matters and others.

	The outside legal opinions obtained by the Board deal basically
with the Board's authority under Missouri law. The Board has not made
them public but in February adopted a resolution referring them to the
Commission on Structure "for consideration [of] any necessary changes to
the Constitution and Bylaws so as to add clarity to ... the extent that
there is any ambiguity, inconsistency, confusion, or conflict with
Missouri law."

	The same resolution said the Board would withdraw two
resolutions adopted in November that declared eight opinions of the
Commission on Constitutional Matters to be "of no effect" if the
commission would withdraw those opinions, "so as to allow the issues
involved to be addressed by the 2004 synodical convention."

	In separate letters distributed with Nussbaum's letter, two
Missouri attorneys -- law professor Carl H. Esbeck of Columbia and
Michael K. Whitehead of Kansas City -- said they agree with Nussbaum's
analysis.

	In a subsequent letter to the same distribution list, Nussbaum
wrote March 10, "We have tried to show that the attempt by some within
the Synod to hand over to the Missouri legislature the ability to define
the governance of the Synod is not only contrary to the religious
beliefs important to the Synod, it is also neither required by the
Missouri Non-Profit Code nor permitted by either the Missouri Religious
Freedom Restoration Act or the First Amendment Doctrine of Church
Autonomy."

	In his 20-page Feb. 3 letter, Nussbaum had written that he "was
asked to analyze and comment" on three questions. Here are those
questions and summarized answers from Nussbaum:

	1. "Does the Missouri Non-Profit Corporation Act modify The
Lutheran Church--Missouri Synod's polity or allocation of authority?"

	"The answer ... is that while the Missouri Non-Profit
Corporation Act may appear to conflict with certain portions of the
Synod's polity or allocation of authority, these provisions of the Act
are almost certain to have no effect because of the repeated and
explicit deference which the Act itself gives to an institution's own
organizing documents and because of the even greater deference by the
Klix decision for the benefit of religious institutions."

	Of the "Klix decision," a 1909 Missouri case involving a Roman
Catholic parish, Nussbaum said, "This construction of Missouri
corporation law in a manner that accommodates the faith-defined polities
of churches and other religious institutions is not only commended but
required by the First Amendment Doctrine of Church Autonomy."

	2. "Does the United States Constitution and, specifically, the
First Amendment to the Constitution, limit the effect, if any, that the
Missouri Non-Profit Corporation Act can have upon The Lutheran
Church--Missouri Synod's polity or allocation of authority?"

	"Based upon our review of the cases articulating the First
Amendment Doctrine of Church Autonomy nationally, in Missouri, and in
cases involving The Lutheran Church--Missouri Synod itself, we think it
almost inconceivable that any court would attempt to refashion the
Synod's faith-based polity where it conflicted with provisions of the
Missouri Non-Profit Corporation Act."

	3. "What is the authority of the Commission on Constitutional
Matters vis-`-vis the Synod's Board of Directors?"

	"The answer ... is that until the synodical Convention passes
contrary resolutions, every officer, director, commission, and member of
the Synod is bound by CCM's opinions interpreting the organizing
documents or resolutions of the Synod."

	The Board of Directors says in "Board Briefs VI" that it
discussed the Feb. 3 letters from Nussbaum and the other two attorneys
during a March 4 telephone-conference-call meeting.

	"The Board decided that it had no choice but to once again
request the assistance of special legal counsel," it says. "Upon receipt
of that counsel, the Board will respond publicly to the letters in
'Board Briefs VII' and any other means that are necessary and
appropriate."

	Synod Secretary Raymond Hartwig told Reporter March 11 that he
expects the response from outside legal counsel "to come within a matter
of days."

	"Board Briefs VI" says that Nussbaum's statements in his Feb. 3
letter "are not true" when he says "that 'the Synod's Board of Directors
is apparently considering amendments to its theologically informed
organizational documents' and 'before the Synod hands over to the
Missouri Legislature the power to reshape synodical policy and
governance' it should study certain Bible passages."

	"They are also inflammatory," it says of those statements, "at a
time when many in the Synod, including the Board of Directors, are
interested in peace and unity based upon truth and good order."

	For "Board Briefs," go to www.lcms.org/?3990
<http://www.lcms.org/?3990>  on the Web.

	In his March 10 letter, Nussbaum asks a number of questions of
"those who are privy to the Bryan Cave report." Hartwig said that the
Board has "not had time to meet" to discuss that letter.

	A question in "Board Briefs VI" asks if it was "appropriate for
Mr. Nussbaum to distribute these letters across the Synod."

	"Although the Board of Directors is responsible for the legal
affairs of the Synod," the Board answers, "Mr. Nussbaum has never
directly communicated with the Board of Directors. He has communicated
only with the president of the Synod and has done so without the Board's
knowledge. He has refused to identify his clients who requested and paid
for his services. He has distributed these letters across the Synod at
the very time that the Board had taken steps to restore peace and unity
by allowing for a peaceful solution of these issues."

	Asked by Reporter about the Nussbaum letters and "Board Briefs
VI," Kieschnick reiterated in writing what he has said before about the
Board's action declaring eight CCM opinions "of no effect":

	* "I understand the concerns of the Board of Directors for
protecting the assets of the Synod and protecting the Synod from
litigation, liability and vulnerability. I am also concerned with the
adoption by the Board of resolutions that appear to be in conflict with
the Constitution and Bylaws of our Synod.

	* "It is my duty as President of the Synod to see to it that all
officers, including the Board of Directors, 'act in accordance with the
Synod's Constitution, to admonish all who in any way depart from it,
and, if such admonition is not heeded, to report such cases to the
Synod' (LCMS Constitution Article XI B 2).

	* "It is clear to me that the proper way to fulfill this duty is
to do so in a pastoral and evangelical manner. My approach in so doing
was reported in the December issue of the Reporter in these words: 'I
will be working with the Board of Directors and the Commission on
Constitutional Matters in an effort to resolve the apparent conflict
between these two important groups of synodical leaders.' That effort is
still under way at this time."

	****************************************

	If you have questions or comments about this LCMSNews release,
contact Joe Isenhower Jr. at joe.isenhower@lcms.org or (314) 996-1231,
or Paula Schlueter Ross at paula.ross@lcms.org or (314) 996-1230.

	****************************************

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