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President
Kieschnick published his objections about the
Bryan
Cave
legal opinion to all LCMS Congregations.
The Cave opinion explains that under the State of Missouri Laws of
Incorporation the LCMS Commission on Constitutional Matters (CCM) may have
no constitutional authority over the LCMS Board of Directors (BOD).
The BOD must be the final legal authority when the Convention is not
in session.
We now learn
that Kieschnick was present and did not object when the Executive Committee
of the LCMS Board of Directors voted to obtain the opinion from the Bryan
Cave Law Firm as follows:
Board Briefs
VII: Regarding Making Legal Opinions Public
“. . . when
the Executive Committee of the Board (consisting of the President, the Chief
administrative Officer, the Secretary, the Chief Financial Officer, and the
chairman, vice-chairman, and an at-large member of the Board) determined to
obtain a formal legal opinion, this decision was made without a contrary
vote.”
Source: http://www.lcms.org/pages/internal.asp?NavID=4809
President
Kieschnick also voiced no objection when the BOD voted not to release the
full text of the
Bryan
Cave
opinion to the public as follows:
“During its
November 2003 meeting in
Miami
, the Board discussed a proposed resolution to waive attorney-client
privilege and make the legal opinions public. After serious discussion of
the issue, however, this motion was defeated without a contrary vote. Even
those members of the Board who had dissented on other issues recognized, for
the sake of the legal protection of the Synod, that it would be unwise to
waive the Board's attorney-client privilege.”
Source: http://www.lcms.org/pages/internal.asp?NavID=4809
The letter from
attorney Martin Nussbaum [paid for by a secret client in behalf of President
Kieschnick] challenged the
Bryan
Cave
opinion because Nussbaum says that the First Amendment exempts the LCMS from
the State of Missouri Laws of Incorporation. The BOD responded as follows:
“The
class-action lawsuit against the LCMS Foundation eventually resulted in a
complicated settlement. In this case, as in the case of the lawsuit against
LCEF, the First Amendment provided absolutely no protection, although the
lawsuit against LCEF was eventually resolved without financial disaster.
We repeat: In both cases there was no protection under the First
Amendment. Had a First Amendment defense been relied upon (which is now
being suggested by some as the only defense our Synod needs), the results
could have been disastrous for the Synod.”
Source: http://www.lcms.org/pages/internal.asp?NavID=4809
Again the BOD
responds as follows:
“The Board,
however, is not responsible for ecclesiastical matters, and the First
Amendment is not a protection for all legal issues, as has been proved by
the Foundation and LCEF lawsuits. If it were, our Synod, along with every
other church body in the country, would not need to pay hundreds of
thousands of dollars each year for liability insurance, hundreds of
thousands of dollars each year on attorney's fees to try to avoid and
provide protection against lawsuits and to comply with government
regulations, and hundreds of thousands of dollars every year for accounting
services to ensure compliance with regulations and laws.”
Source: http://www.lcms.org/pages/internal.asp?NavID=4809
When Kieschnick
objected to the findings of the
Bryan
Cave
opinion, the Board of Directors obtained another legal opinion from
Armstrong Teasdale that agreed with the
Bryan
Cave
opinion as follows:
“In response
to constant criticism that the legal opinion, although obtained from a
top-rated law firm, was only one opinion and therefore not entirely
reliable, the Board sought a second opinion, again from a recognized and
very competent law firm, Armstrong Teasdale. Although this second opinion
supported the first, it failed to silence the clamor to have the entire
content of now both opinions made public.”
Source: http://www.lcms.org/pages/internal.asp?NavID=4809
According to
the LCMS Board of Directors Executive Session Minutes, (
February 19-21, 2004
) President Gerald Kieschnick refuses to deliver a letter in his possession
about Attorney Martin Nussbaum's legal opinion concerning the LCMS Board of
Directors.
The minutes
state about Kieschnick, "the failure to share with the Board the
original January 1st Nussbaum letter upon request. . . ."
If Kieschnick
were the President of a publicly held corporation, his published
misrepresentation of his actions on the Board and his open violation of the
Constitution would result in his immediate removal from office.
According to
the LCMS Handbook ,Article XIB1a-d the President is responsible for the
supervision regarding the doctrine and administration of all officers of
Synod while according Article XIF2 the BOD is the legal representative of
the Synod.
If the BOD were
to remove Kieschnick under its authority according to Article XIA2,
delegates would more than likely return him to office on a sympathetic vote.
The question
remains as to whether the 2004 Convention will have respect for the
Scriptures and its own Constitution. In
other words, will the 2004 Convention have respect for itself and for the
very reasons for which it was founded in 1847?
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