EUGENE D. MOSSNER

ATTORNEY AT LAW

5320 NOTTINGHAM DRIVE, N.

SAGINAW, MI 48603-2834

Phone: (989) 793-5210    Fax: (989) 793-6270

Email: legaleagle@chartermi.net

 

March 6, 2006

 

Board of Directors

The Lutheran Church-Missouri Synod

1333 S. Kirkwood Road

St. Louis, MO, 63112

Attn: Rev. Dr. Raymond L. Hartwig, Secretary

 

Dear Dr. Hartwig and Members of the Board,

I write this letter as a lifelong member of the Lutheran Church-Missouri Synod, as one who has been active in my local congregation most of my adult life, as a delegate to the most recent (2004) Convention of our Synod, and as an attorney who has practiced here in the State of Michigan since 1957, having served as President of the State Bar of Michigan in 1987-1988.

It has come to my attention, very recently, that in connection with the pending lawsuit against President Kieschnick, Vice President Diekelman and the Synod, the Board of Directors has appointed a special committee to attempt to resolve the litigation. In attempting to inform myself more fully concerning this matter I consulted Synod's website, and found the Minutes of the Special Meeting of the BOD held on January 13, 2006.

Initially, I must say, that from a legal standpoint I found the Resolution that was adopted less than clear. It seems to direct the committee to "proceed expeditiously…to attempt to discuss the issues raised in the lawsuit and to work toward a resolution through discussion and/or mediation…"  At best, this language appears to me to be rather ambiguous. The intent of the resolution, with its reference to Matthew 5:25, seems to be to try to settle the lawsuit "… through discussion and/or mediation…" but the question immediately came to my mind, "By what authority could such a committee, or even the Board of Directors, compromise or settle the current lawsuit, when the issues raised in the lawsuit deal with matters passed upon by Synod in Convention?"

The Constitution and By-laws of Synod, as I read them, provide for ways of changing Synodical decisions, but doing it by special committee or through action of the Board of Directors are not among the options specified.

As a trial lawyer of nearly 50 years experience, I have, of course settled many, many lawsuits. Most lawsuits are resolved in this manner. However, the settlement or resolution of the lawsuit must always be with the express consent, agreement and approval of the client. In this instance, who is the client? The obvious answer, dictated by logic, reason and common sense, is The Synod sitting in convention.

Since the pending lawsuit deals almost exclusively with important issues decided by the Synod in Convention, it goes without saying that such issues could not be compromised or mediated by a committee of four individuals or even the entire Board of Directors. They could not possibly overturn, modify or change what our church body has determined at its 2004 Convention. Plain and simply, that would be resolving the lawsuit without the consent or approval of the client.

I have heard from other sources, although I have no way of confirming this, that the Resolution of the Board, appointing the special committee was done against the advice of counsel. If this is true, then it is doubly unwise and, in my opinion, dangerous to attempt to take this course of action. The reason you employ legal representation is to advise and counsel you on what legal steps you should take during the pendency of litigation. If you are not going to follow their advice, of what use is it to employ counsel? What is their purpose?

In conclusion let me say that I have reviewed the By-laws of Synod outlining the duties and responsibilities of the Board of Directors, its authority and powers, and I can find nothing that even remotely suggests that it would have the right to change or alter what the Lutheran Church-Missouri Synod has resolved in a duly constituted Convention. As a delegate to this past convention and to several others I would be shocked and deeply offended if such action were attempted or taken. Therefore, I urge you in the most strongest terms to reconsider and rescind the Resolution passed at your January 13, 2006 meeting.

While settling lawsuits, as a general rule, is commendable, in my opinion it cannot and should not be done in this instance because the client -- the Synod in Convention -- has not given you permission to change, alter or modify what it has done.

Respectfully yours,

Eugene D. Mossner

 

CC: Council of Presidents, LCMS