Sunday, July 30, 2006

Lawsuit against President Kieschnick on again

Some time ago, several pastors and congregations of the Synod brought suit against the Synodical President and the CCM claiming they had overstepped their bounds of authority violating not only our church consitution, but the laws of incorporation under which our church body was incorporated in the state of Missouri. The suit was supposedly settled in past months. But now, according to Reclaim News, the lawsuit is on again because some member of the Board of Directors are convinced these issues need resolution. Reclaim News approaches issues from a very right wing conservative approach, and its commentary reflects such, but usually the information content is factual. Reclaim is headed by Rev. Jack Cascione, a former LCMS pastor, who has a history of being at odds with the moderate and liberal elements of the LCMS. From the story it would appear the divide between the LCMS Board of Directors and the President and his CCM continue to grow. It is this editor's opinion that said divide reflects a divergence of two methodologies for synodical union. Either union based on common agreement in doctrine and practice (including a common understanding of where there is liberty for unique practice and where the practice should be common) or union based on agreement to disagree and practice as each congregation and pastor sees fit as long as two things are in place: 1. we are not disagreeable and 2. we do not criticize the Synod or claim that another's practice is in error when examined in light of Scripture and Confessions.

For what it is worth, this editor knows Rev. Balfour and believes him to be an honorable dedicated churchman whose heart is in the right place. A man who leads by service. He reflects the spirit of the late Dr. Barry who held that we should focus on two complimentary stresses in our church -- sharing the Gospel and making sure the Gospel we share and uphold is the true Gospel of Jesus Christ. If Rev. Balfour is taking such a drastic step, I would be very suspicious that something must be very amiss and in need of dramatic attention.

The story from Reclaim follows:

July 29, 2006

"Four Directors Sue LCMS President Gerald Kieschnick"

Four Directors of the Lutheran Church-Missouri Synod, a church body of 2.5 million, have filed suit in the Circuit Court of St. Louis County Missouri against Synodical President, Dr. Gerald Kieschnick.

This is the first time in the history of American Lutheranism, (and perhaps any nation-wide American church body) that duly elected members of the Board of Directors have filed suit against their president.

The four plaintiffs are Rev. Edward Balfour, Elizabeth Fluegel, David Hawk, and Christian Preus who represent four of the current 13 board members. The seating of two more board members, by direction of the CCM, will now be suspended until the suit is settled.

Prior to the 2004 LCMS Convention, the LCMS Board of Directors purchased an opinion from Bryan Cave (a firm of more than 500 lawyers) stating that rulings by the LCMS Commission on Constitutional Matters (CCM) violate Missouri not-for-profit corporate law by claiming authority over the LCMS Board of Directors.

Missouri law states that ". . . all corporate powers shall be exercised by or under the authority, and the affairs of the corporation managed under the direction of, its board." Section 355.316

President Kieschnick's appointees on the CCM, after the 2001 Convention, decided that their rulings have authority over the LCMS Board of Directors (BOD). These rulings have resulted in the overthrow of LCMS government in a conspiracy perpetrated by the LCMS President, his appointees on the CCM, and the LCMS Council of District Presidents. The LCMS has more than 5 billion dollars in its pension, church extension, and foundation funds.

During the 2004 Convention, LCMS Legal Council, Leonard Pranchske assured the delegates that it was common practice in the State of Missouri for unelected commissions, such as the CCM, to have authority over Corporate Boards of Directors. Pranchske gave no examples. Shortly after the Convention, Pranchske's contract was not renewed by the BOD.

The directors intervened in an already existing class action suit filed by more than 100 plaintiffs in August, 2005. Many LCMS "conservatives"
including Attorney Robert Doggett of the Lutheran Concerns Association and "Consensus" claimed they won and settled the suit in May of 2006. The plaintiffs are to sign a statement of apology and withdraw all claims in the suit.

However, the four directors have intervened in the suit and seek action on Count II of the original class action suit.

There have been numerous objections throughout the Synod to CCM rulings since Kieschnick took office in 2001. Kieschnick kept review of all CCM rulings from the triennial 2004Convention.

The court's agreement with the four directors will result in numerous suits being filed against Kieschnick, and the Council of District Presidents (COP).

The 2004 Convention re-wrote the LCMS rules on Dispute Resolution recommended by the COP. Now, the removal of an LCMS President can no longer be initiated by any LCMS lay person, congregation, pastor, or District, but requires a 75% majority vote of the COP.

Formally, the LCMS had more than a 150 year history of congregation polity with the authority for church government residing in supreme congregational voters' assemblies. However, a long series of CCM rulings and district and convention resolutions have usurped all authority from the lay members. The LCMS is currently under the authority of the LCMS President and the Council of District Presidents.

Petition to intervene in points 8-10 state:

"8. Since 2002, CCM has engaged in the practice of issuing directives or orders which, although couched as 'opinions', are in reality mandates to the Board of Directors requiring the Board to manage LCMS in the manner directed by the opinion.

9. Interveners have questioned the legitimacy of CCM and its encroachment on what Interveners had always understood to be the prerogative of the Board to manage the corporation. Interveners have raised their concerns with other Board members. The majority of the Board, however, have refused to take action to address CCM's exercise of corporate governance.

10. Through CCM's gradual assertion of control, the Board of LCMS has been subordinated to the will of the five appointees who constitute CCM. Allied with the President, CCM's widening arrogation of authority has operated to shift the governance of LCMS from the elected Board and to place it in the hands of an officer of the corporation and his surrogates acting on their own and unresponsive to the authority of the Board. In essence, a super-board of directors has been created."

The LCMS has been shrinking by more than 25,000 members a years, every year that Kieschnick has been in office. While claiming to promote evangelism 38 missionaries have been recalled.

(Copy of actual filing is here)

Below is a summary of the issues pertaining to the lawsuit from the BOD website. (Read more here)

A lawsuit that was filed in the Circuit Court of St. Louis County, Mo., in August, 2005, by approximately 80 LCMS members against President Gerald B. Kieschnick, First Vice- President William R. Diekelman, and The Lutheran Church—Missouri Synod as a
necessary nominal defendant has been resolved with all claims dismissed.
The plaintiffs initiated the suit based upon their beliefs that the number of exceptions made for delegates to the Synod’s 2004 convention by the President of the Synod upon request of district boards of directors was excessive and not in compliance with the Synod’s Bylaw 3.1.2, and that certain official opinions of the Commission on Constitutional Matters (CCM) unlawfully restricted the authority of the Synod’s Board of Directors. The President and Vice-President denied all allegations of wrongdoing and moved to dismiss the claims. The Synod also filed a separate motion to dismiss the suit. The questions raised in the lawsuit regarding the exceptions were based upon the increased numbers of exceptions made for the 2004 convention compared to exceptions made for the Synod’s 1998 and 2001 conventions and upon incomplete information from an early report published by the Secretary of the Synod. Following the initiation of the lawsuit, an updated report was prepared by the Secretary and posted on the Synod’s website. The concerns regarding certain CCM opinions that address or impact the authority of the Board of Directors had been raised before and during the Synod’s 2004 convention and were the subject of a convention resolution (Res. 7-02A) that directed the President and the Board of Directors to appoint a committee to conduct a study and to report and make recommendations to the Synod’s 2007 convention. In January of this year the Synod’s Board of Directors adopted a resolution, “consistent with Matthew 5:25, in the best interests of the Synod, and with a desire for peace and unity,” to establish a committee of the Board to meet with representatives of the plaintiffs to
see if the matter could be resolved out of court. Accordingly, a committee of four Board members was appointed which, along with President Kieschnick and Vice-President
Diekelman, met and conferred with a committee of the plaintiffs until an agreement to
resolve the claims was reached. The Agreement includes a dismissal of all claims against President Kieschnick, Vice- President Diekelman, and the Synod. It also includes an expression of regret by the plaintiffs for the pejorative language contained in and resulting from the filing of the lawsuit and an apology to the Synod, the President, the First Vice-President, and all others offended by the lawsuit. No disciplinary action for participation in the lawsuit will be taken
against plaintiffs who sign the Agreement.In the Agreement the President commits to reaffirming his communications to the district presidents of the Synod regarding the implementation of bylaws governing visitation and electoral circuits. In the spirit of Bylaw 3.1.2, he will first direct individual visitation circuits not meeting bylaw requirements for electoral circuits to the remedy provided by the bylaw (to combine with an adjacent visitation circuit to form an electoral circuit). The Agreement also includes provisions related to the issue of the CCM opinions and the authority of the Board of Directors, the subject of Resolution 7-02A adopted by the 2004 Synod convention. The President will give priority to the Resolution 7-02A Committee
created by the 2004 Synod convention by referencing the committee’s work in his
convention report, by including it in the Convention Workbook, and by allowing ample time for the convention floor committee to which the committee’s work is assigned to present its report and resolutions to the convention. He will also recommend to the convention the approval of a standing rule that will allow 90 minutes of continuous consideration, presentation, and debate of the resolution(s) pertaining to the 7-02A Committee’s report and will schedule the floor committee’s report for presentation in a session of the convention early enough to allow for proper consideration of and action on its resolution(s) regarding the Resolution 7-02A Committee’s report.
In the interest of peace and harmony in the Synod, neither the plaintiffs nor the defendants will request of the other or of the Court payment of their attorneys’ fees and costs associated with the lawsuit. The resolution of this lawsuit was made possible by the recognition by all involved of the need to approach the task as fellow Christians intent upon resolving the matter for the good of the Synod and its proclamation of the Gospel. The parties to this matter support the agreements that have been made and the measures that will be taken to satisfy the concerns that have been raised. They have pledged to work together to effect the terms of the agreement.


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