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[LCMSNews] Letters refute 3 lawyers' findings
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Mon, 19 Apr 2004 17:34:20 -0500
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April 19, 2004 .................... LCMSNews -- No. 40
Outside attorneys letter refutes
findings of 3 opposing lawyers
By Joe Isenhower Jr.
The Synods Board of Directors the week after Easter sent to
every LCMS congregation a mailing that responds to letters from three
attorneys who disagree with outside legal opinions obtained by the Board
The mailing includes an April 12 letter from attorney Edwin S.
Fryer of the Bryan Cave law firm in St. Louis and a cover letter from
Board of Directors Chairman Robert T. Kuhn.
Fryer, a partner in one of two St. Louis firms that provided the
Board of Directors with legal opinions regarding the Boards authority
under Missouri law, says in his letter that his firm categorically
reject[s] the substance of the conclusions in letter from the attorneys
who took issue with the opinions.
In his cover letter, Kuhn says the letter from Fryer disposes
of the false conclusions reached by the three opposing lawyers by
explaining why their conclusions are not apropos to The Lutheran
The Boards second legal opinion, from the Armstrong Teasdale
law firm, confirmed the conclusions of the Bryan Cave opinion, Kuhn
The letters disagreeing with the outside legal opinions were
sent to Synod President Gerald Kieschnick earlier this year from
attorneys L. Martin Nussbaum of Colorado Springs, Colo.; Carl H. Esbeck,
Columbia, Mo.; and Michael K. Whitehead, Kansas City, Mo.
When the letters from the three attorneys were made public,
causing question and confusion in the Synod, Kuhns cover letter says,
the Board of Directors decided that it had no choice but to request the
assistance of the Bryan Cave firm once again.
Fryer writes that Bryan Cave received the three letters in early
April and was asked to comment on them.
Having carefully reviewed the Nussbaum and Supporting Letters,
researched the assertions of law therein contained, studied the factual
assumptions upon which those assertions were made and weighed the
factual and legal limitations revealed by their authors disclaimers and
the advocacy roles they have assumed, we categorically reject the
substance of the conclusions in them insofar as they conflict with our
opinion, Fryer writes. In fact, the Nussbaum and Supporting Letters
are not written opinions of what the law is at all. Rather, they are
works of advocacy of what the law, in their authors view, ought to be.
Kuhn says in his letter that the Boards executive committee
engaged Bryan Cave to help it understand better its responsibilities
and authority under the Articles of Incorporation, Constitution and
Bylaws of our Synod and the laws of the State of Missouri, especially
since a number of recent decisions of the Board involving financial and
legal matters had been challenged through questions to the Synods
Commission on Constitutional Matters.
The Board in December said that eight opinions of the CCM are
of no effect. The CCM has affirmed those decisions.
In the letter, Fryer presents our opinion that, pursuant to
applicable Missouri nonprofit corporate law: The Board of Directors of
the LCMS has ultimate corporate authority over all secular matters,
subject only to the plenary power of Synod Members in Convention.
It would be contrary to Missouri corporate law, and well
outside the established norms of most states, for a nonprofit membership
corporation, including a religious corporation like the LCMS, to give
final decision-making authority with respect to any important secular
matter to any person or group other than the board of directors. This is
particularly true in that case of a group not elected by the members,
not charged with the fiduciary duties of good faith and loyalty and not
specifically identified in the Articles of Incorporation as possessed of
such authority. A footnote to that section says, The Commission on
Constitutional Matters, for instance, is such a group.
Kuhn says in his letter that, contrary to the constant
criticism from some within our Synod who continue to stir things up, the
Board of Directors is committed to restoring and fostering peace and
unity while also fulfilling its responsibilities for the property,
financial and legal business of the Synod.
Hartwig said that the letters from Kuhn and Bryan Cave would be
posted on the Boards Web page and would be the subject of its next
Board Brief. For the Boards Web page, go to www.lcms.org
<http://www.lcms.org> , click on Ministry Areas and then on Board of
If you have questions or comments about this LCMSNews release,
contact Joe Isenhower Jr. at firstname.lastname@example.org or (314) 996-1231,
or Paula Schlueter Ross at email@example.com or (314) 996-1230.
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