Delegate Newsletter -- No. 5

There are many different boards, commissions, councils, and committees functioning in the Lutheran Church – Missouri Synod (LCMS). Today, I would like to share some information about two of these groups that are embroiled in conflict. “The Board of Directors (BOD) is the legal representative of the Synod. It is the custodian of all property of the Synod, directly or by it’s delegation of such authority to an agency of Synod.” The Commission on Constitutional Matters (CCM) shall, “interpret the Synod’s Constitution, Bylaws and resolutions upon the request of a member (congregation, ordained, or commissioned minister), official, board, commission, entity, or agency of Synod.”

In simpler terms, the BOD oversees the financial and legal responsibilities of the non-profit corporation called the LCMS. The CCM interprets all of the written rules by which we work together as the LCMS. There are two very important parts of our LCMS Constitution and Bylaws that you need to remember as you prepare for convention:

1)      “An opinion rendered by the commission (CCM) is binding on the question decided unless and until it is overruled by a Synodical convention.”

2)      “To the extent of its responsibilities relative to the general management and supervision of the business and legal affairs of the Synod: It (the BOD) shall have the right to call up for review, criticism, modification, or revocation, any action or policy of a program board, commission, or council, except opinions of the Commission on Constitutional Matters.”

In other words, the CCM is charged with interpreting all the rules between conventions. The decisions of the convention are the binding decisions of the LCMS. In the areas of financial and legal management, the BOD can change or even revoke the work of other groups EXCEPT for the work of the CCM. The Constitution and Bylaws of the LCMS provide for the separation of powers so that no small group within the LCMS can control the whole church body.

Sadly, during the past few months, the BOD has created a Constitutional Crisis. In the November 2003 BOD meeting, the board passed two resolutions stating that 8 (eight) CCM rulings are “of no effect”, noting that in all eight of these opinions, the CCM exceeded their function for the LCMS. The BOD has taken unto itself the power of the LCMS convention, bypassing the President of Synod, the CCM and all other officers of Synod. In essence a majority of the BOD (there is a dissenting minority that is being silenced) has taken the power that is only granted to the LCMS convention delegates. This is the Constitutional Crisis that now faces our church. Why did the BOD create this Constitutional Crisis?

The BOD will cite a hidden legal opinion that supposedly shows the problems inherent in the CCM opinions. The problem with this legal opinion is the subterfuge that surrounds the opinion. The BOD will not release the opinion, named the Bryan Cave Opinion for the law firm that employs the attorney who wrote it. Worse yet, the full BOD did not vote for the opinion until after it was purchased by a small executive committee headed by Christian Preus, a lawyer and brother of First Vice President Daniel Preus.

There is another legal opinion. This legal opinion was paid for by an anonymous group of LCMS members, who “love their church” and were dismayed by the problems created by the first hidden opinion. The second legal opinion called the Nussbaum opinion (named for the lawyer who wrote it), was affirmed by two other prominent Missouri attorneys. The second opinion made it clear that the LCMS has been correct in the way we have been organized for over 150 years and there is no reason to change.

We may all continue to wonder why the BOD would order this legal opinion and what they are trying to accomplish through this legal maneuvering. Personally, I would still like to know why our current system of governance and our current paid legal counsel, are not good enough for the BOD requiring us to hire outside counsel that is now hidden from us. However, I do not need to speculate about the motives of the BOD. Rather I can allow the Constitution and Bylaws of the LCMS to speak. According to the LCMS Constitution and Bylaws CCM opinions are binding unless and until they are overturned by the convention. The BOD does NOT have the authority to state that CCM rulings are “of no effect”.  What will happen? How will this crisis be resolved? In our next issue, we will look at the things President Kieschnick must do to solve the crisis caused by the BOD.

By Rev. Jon Coyne – All quotes are from the 2001 Handbook of the LCMS and BOD minutes.