Five Lawyers Support Nussbaum Opinion

By James C. Rogers

Lawyer jokes abound, but the situation concerning lawyers in our LCMS is certainly no joking matter. The August 13-16, 2003 LCMS Board of Directors (BOD) minutes reported that “The Executive Committee of the Board met on July 10, 2003 to consider retention of special outside legal counsel to obtain an opinion regarding the authority of the Board of Directors under Missouri Not-For-Profit Corporation Law” (page 181). 

 Cave, Nussbaum and Teasdale

The rest is history.  The Executive Committee selected as “special outside legal counsel” the St. Louis law firm of Bryan Cave. Of note, the Bryan Cave opinion has never been released to the Synod. The BOD claims that the Bryan Cave opinion, written by Attorney Edwin Fryer, grants the BOD authority “to remove any officer [of the Synod] at any time with or without cause.”  In November 2003 the BOD, on the basis of this secret legal opinion, declared eight opinions of the Committee on Constitutional Matters (CCM) to be “of no effect.” 

 In February 2004 Attorney Martin Nussbaum of Colorado Springs, Colorado offered to the Synod a legal opinion that sharply disagrees with what the BOD claims the Bryan Cave opinion says. Subsequent letters from attorneys Carl Esbeck of Columbia, Missouri and Michael Whitehead of Kansas City strongly support Mr. Nussbaum’s position.

  In April 2004 Dr. Robert Kuhn, chairman of the BOD, sent a letter to every LCMS congregation in response to the Nussbaum opinion. In it he announced the BOD had requested a second outside legal opinion from Armstrong Teasdale of St. Louis that affirmed the original Bryan Cave opinion. Both the Bryan Cave and the Armstrong Teasdale opinions remain secret. Dr. Kuhn’s mailing also contained a letter from Attorney Fryer in which he referenced part of the Bryan Cave opinion and reaffirmed the authority he says the State of Missouri gives to the BOD. Mr. Fryer’s letter also severely criticized the “Nussbaum and Supporting Letters.” 

Nussbaum’s Reading of Law is Correct

Between the dates of May 15 and May 19, 2004 five LCMS attorneys from all parts of the U. S., from firms large and small, as well as sitting judges and ordained ministers, independently reviewed the publicly available documents and all reached the same conclusion—that Nussbaum’s reading of the law is correct. Each had read what the BOD claims the Bryan Cave opinion says; the Nussbaum opinion; the Esbeck and Whitehead letters; the LCMS Constitution, Bylaws, & Articles of Incorporation; applicable State of Missouri Non-profit Law; and appropriate case law touching on these matters.  

A “Manufactured Crisis”

As Rev. Milton Berner, an ordained LCMS pastor serving Immanuel Lutheran Church, Cincinnati, and also currently a sitting Judge Magistrate of Brown County, Ohio says, “It is fundamental to the authority of the Synod that the Synod’s members speak through and by its Convention. The Convention has, from the founding of the Synod, determined in what manner and to what extent it will delegate its authority, whether to the Board of Directors or to other boards and commissions of the Synod. And, for one Board to claim ultimate authority over another Board or Commission without the express authority of the Synod in convention is not admissible and would provoke chaos unless corrected by the Synod itself.”

He goes on to say that he has “grave questions regarding the real reasons underlying this manufactured crisis.”

Inappropriate to Keep Bryan Cave Opinion Secret

 Attorney Jeffrey Coyne, Chapel Hill, North Carolina, senior lecturing fellow at Duke University School of Law, says that since parts of the Bryan Cave opinion were referenced in the April 5, 2004 letter from Mr. Fryer to the LCMS, there is a substantial body of law that indicates “the selective invocation of privilege while placing the privileged material at issue may waive privilege.” In other words the BOD’s keeping the full Bryan Cave opinion secret is no longer appropriate.

In addition, Mr. Coyne states, “The Bryan Cave letter fails to address that which should be done and focuses on that which might be done.  By way of example, Enron Corporation received a number of opinions to the effect that it could create off-shore, special-purpose entities and move losing assets to those corporations. While the large firms representing Enron apparently gave guidance on what could be done, in retrospect what should have been done is quite substantially different.” He also says, “I cannot fault Bryan Cave for failing to instruct the LCMS Board of Directors in issues of theology, fairness and civility. An attorney opinion letter, no matter how capably and carefully crafted, is inherently limited. It deals only with the agenda of the client.” While Mr. Coyne does not say it, it seems to this author that the “agenda” of the client (the BOD) in this case was the desire for additional unprecedented authority over the CCM and the synodical President.

The “Brief Statement” Opposes BOD Majority

Attorney George Plauche is President of Faith Lutheran Church and a partner at Perret Doise, a multi-disciplined law firm in Lafayette, Louisiana.  He notes that “Although couched as a response to Nussbuam, Esbeck and Whitehead, Fryer’s April 5, 2004 letter invests most of its contents attacking the other three attorneys’ motives and professional repute rather than the contents of their analyses. . . . More importantly, the writer’s emphasis on personal attacks implies the inability of his legal analysis (which has yet to be shared) to stand on its own.” 

 Later, as Mr. Plauche speaks to the issue of whether or not State of Missouri law should trump synodical Bylaws concerning how the Synod governs itself, he quotes from A Brief Statement of the Doctrinal Position of the Missouri Synod (adopted in 1932):  “We condemn the policy of those who would have the power of the State employed ‘in the interest of the Church’ and who thus turn the Church into a secular dominion.” 

Don’t Use Secular Tools to Change Church Rules

Attorney Bradley Morton, Laguna Hills, California, practices law predominantly in the area of collective governance, including corporations, businesses and non-profit associations. He comments bluntly on the case law cited in the footnotes of the April 5, 2004 Bryan Cave letter: “These cases are not on point and not applicable to the LCMS matter.” He also writes, “It is legally inconceivable, in my analysis, that any government agency or court would become involved applying state secular law to change religious governance similar to the LCMS.” One court ruling he quotes clearly states, “The court found that the church autonomy doctrine ‘prohibits civil court review of internal church disputes involving matters of faith, doctrine, church governance and polity.’” 

Secular Law or the Bible?

Attorney Edward Schoenbaum, Springfield, Illinois, holds a theological degree from Concordia Theological Seminary and, as a full-time administrative law judge for the State of Illinois since 1987, he routinely reviews the legal arguments of attorneys. Mr. Schoenbaum writes, “I believe it would be helpful if we were, at the very least, to see all of the written communications from the Board of Directors asking specific questions which [Bryan Cave attorney Edwin] Fryer purports to answer.  I do not believe this would violate attorney-client privilege since these writings were not regarding any specific pending litigation.” He later says, “The Board recently has acted in such a manner to cause me to wonder if they believe the secular law of Missouri is more important to it than the Bible. It has clearly ignored Bylaw 3.183.2.”

Eight Legal Opinions Counter the BOD Majority

There you have it: Five Lutheran attorneys who agree with Nussbaum, Esbeck and Whitehead that the BOD has no authority to declare CCM opinions to be “of no effect.” Case law history indicates that the LCMS has the authority to decide how it should be governed, not the State of Missouri. In the light of the comments of these eight attorneys, look again at the legal opinion given by Bryan Cave. 

 Oh, that’s right. The BOD majority will not let you see the Bryan Cave opinion. Instead, consider if these BOD members should be reelected or allowed to continue in office. Please know that Betty Duda (who is up for reelection) has consistently voted against these power moves by the BOD majority, as have Jean Garton, Oscar Hanson and Edwin Trapp. 

 

Rev. James Rogers is Pastor of Lord of Life Lutheran Church, Chesterfield, MO.