Outside attorney`s letter responds to opposing lawyers

By Joe Isenhower Jr.
The Synod’s 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 last year.
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 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 Board’s authority under Missouri law, says in his letter that his firm “categorically reject[s] the substance of the conclusions” in letters 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 Church–Missouri Synod.”
The Board’s second legal opinion, from the Armstrong Teasdale law firm, “confirmed the conclusions of the Bryan Cave opinion,” Kuhn wrote.
The letters disagreeing with the legal opinions were sent to Synod President Gerald Kieschnick earlier this year from attorneys L. Martin Nussbaum of Colorado Springs, Colo.; Carl H. Esbeck, a law professor in Columbia, Mo.; and Michael K. Whitehead, Kansas City, Mo.
The letters from Kuhn and Fryer are posted on the Board’s Web page and are the subject of its “Board Briefs VIII.”  For the Board’s Web page, go to www.lcms.org/bod.
“When the letters from the three attorneys were made public, causing questions and confusion in the Synod,” Kuhn’s 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.”
In an April 23 letter to Reporter, Nussbaum responded that his conclusions “are not wishful thinking.  They are based [on] a close reading of Scripture, Lutheran teaching, over 40 references to the Missouri Non-Profit Corporation Act, and 25 published court opinions — including nine from Missouri and 11 from the U.S. Supreme Court.”
Nussbaum said that his Feb. 3 letter to Kieschnick “concluded that the governance of The Lutheran Church–Missouri Synod has long been informed by Scripture and Lutheran doctrine; that Missouri corporation law repeatedly states that corporations have substantial discretion in how they organize themselves; and that the First Amendment doctrine of church autonomy guarantees that religious institutions shall control their own governance — especially when such governance relates to religious principle.”
In his letter to Reporter, Nussbaum mentions four specific civil cases as “authorities supporting my analysis … in which the Synod avoided liability when four civil courts approved its argument that the First Amendment deprives legislatures and civil courts of authority over the Synod’s determination of its own governance and ministry relationships.  These authorities are crowned,” he continued, “by the U.S. Supreme Court’s Kedroff decision holding that the First Amendment voids a state statute changing the governance of the Russian Orthodox Church.”
“It appears to me that a majority of the Synod’s Board of Directors is perhaps too eager to accept a legal opinion enlarging the Board’s own power,” Nussbaum writes.  “By doing so, a majoriy of the board has endorsed a position which diminishes the role of religious principle in the Synod’s governance.”
Kuhn says in his cover letter that the Board’s 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 Synod’s 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 foot-note 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.”

Posted April 30, 2004

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