FYI – Reclaim News Analysis of President Kieschnick’s Ash Wednesday Deposition, by Pr. Rossow

As many of our readers know, President Kieschnick has been deposed in a lawsuit involving the LCMS California/Nevada/Hawaii District and a parish in the San Francisco area. Reclaim News has provided commentary on part of the deposition which we have printed below.

We  kept our distance  from the early reports of this  story because frankly, there were so many twists and turns that it was a little hard to figure out where the clear blame was to be assigned.

We are publishing this report since it is somewhat self-contained. The reader does not need to know every last detail about the story to draw some conlcusions about the folks involved. One can read the quoted portions of the deposition below and the commentary provided by Reclaim News and get a feel for the convoluted mess into which President  Kieschnick has gotten himself. You can read for yourself and judge if his and LCMS attorney Sharri Strand’s responses to the questioning are so much corporate double speak and deflection.

For a full copy of the lengthy deposition click here.

February 23, 2010

Kieschnick’s Ash Wednesday Deposition Filled with Contradictions

Kieschnick’s deposition is unprecedented in the history of Lutheranism.   As a whole, Kieschnick’s February 17, 2010 deposition gives the impression that the LCMS is in a state of administrative chaos and is incapable of defining itself under interrogation.   Two of the defendants, Sharon Bowles and Portia Ridgeway, sat silently in the room and stared at Kieschnick during the entire deposition.

The 211 page, 7 hour deposition, given by Lutheran Church-Missouri Synod President Gerald Kieschnick on Ash Wednesday, exposes the strange and confusing labyrinth of LCMS policy manuals, CCM rulings, By-laws, Synodical Resolutions, and Task Force Reports, of which Kieschnick rarely can explain.

As Synodical President, Kieschnick was compelled to give a deposition in the California-Nevada-Hawaii District of the Lutheran Church-Missouri Synod lawsuit against Sharon Bowles, Mary-Ann Hill, Portia Ridgeway, and Celia Moyer of Oakland CA for their church property.

During the deposition taken by attorney for the Defendants, Paul Nelson, of Bullivant Houser Bailey’s San Francisco office, Kieschnick quoted numerous   citations from the LCMS By-laws but was either befuddled and/or evasive when asked questions about the meaning of what he just read.

Questions about the most basic issues of the LCMS such as mission funds, quotations from the Handbook, questions about the Districts being part of the LCMS, questions about the ELCA, supervision by District Presidents, what the LCMS believes, the LCMS call processes, LCMS Dispute Resolution Process, CCM Rulings, the LCMS Board of Directors, and Herman Otten were followed by continuous objections from LCMS General Counsel, Attorney Sherri Strand.

Even on points of Scripture, the very reason the Synod claims the suit was filed; Kieschnick could not quote the Bible passages in question.   He brought his Synodical Handbook, Synodical documents, and his Synodical attorney, but he didn’t bring his Bible.   Kieschnick is right, when he says, “This is not your grandfather’s Synod.”   All Synodical Presidents before Kieschnick could have quoted the verses in question from memory and most could have quoted them in Latin and Greek.   The irony is that Kieschnick’s staff just put together a book titled This We Believe for distribution to the Synod touting the LCMS’s firm doctrinal positions.   These are doctrines the LCMS President obviously can’t describe from memory.

Kieschnick’s problem is his and the Synod’s paper trail.   The art of deception requires an excellent memory.

At the beginning of the deposition (page 11), Nelson asks Kieschnick if he discussed this case with Robert Newton, the California-Nevada-Hawaii District President, who filed it.

(Throughout this news release, the rough copy of the deposition transcript is quoted with the expected typographical and conversational errors.)

Nelson: Have you had at any at any time since 2003 any discussions with district President Newton about this case?

Kieschnick: Yes.

Nelson: And when was the last time you had such a discussion?

Kieschnick: This would be a guess as well.   But it was probably a couple of years ago.

The suit was filed by Sherri Strand in December of 2007.   On pages 154-156 Nelson reminded Kieschnick that Sherri Strand, as Synodical Counsel, regularly reports to the LCMS Board of Directors about litigation in the Synod and wanted to know if Kieschnick heard about the lawsuit in question at the meeting of the Board of Directors.   This line of questioning drew an immediate objection from Sherri Strand who ordered her client not to answer the question.

Nelson: Do you have any policy either individually or as a board requiring the general counsel to report to the board on litigation that is being undertaken by agencies of the LCMS?

Strand: Same objections.

Kieschnick: My experience has been that the legal counsel [Sherri Strand] of the synod does report to the synod in executive session to the board of directors of the synod in executive session matters of litigation that are underway almost all of which involve the synod either as a plaintiff or most likely in most cases as a defendant.

Nelson:   Okay.

Kieschnick: I’m not aware of reports that come from the synod’s legal counsel to the board of directors that — that outline every litigation involved in which agencies of the synod are involved.   I don’t recall that.

Nelson:  Is this case litigation that has been so reported?

Strand: I’m going to object to the question to the extent it calls for communication of Attorney client privileged communication.

Neslon: I’m not asking the substance of any communication.   I’m just asking whether this case has been the subject of such communication.

Strand: Again I’m going to object to any testimony disclosing attorney client privileged communication.

Nelson: Okay.   Are you instructing him not to answer that question?

Strand: I’m telling him not to provide any attorney client privileged information.

….more discussion

Nelson: Okay.   Subject to that you can answer the question?

Strand to Kieschnick: No, I’m directing you not to answer the question with respect to any communication between you as president or you as part of the board of directors and president with respect to any communication I had with you or the board.

On page 157 Nelson reminds Kieschnick of the letter he wrote to Herman Otten on Sept, 9, 2009 stating, “Because the LCMS is not involved in this matter, and I am not privy to the details that give rise to the dispute, I have no further comment regarding this matter.”

Nelson: Did you in fact have knowledge that this suit existed in September of 2009?

Kieschnick: Not before receiving the letter from Mr. Otten.

Kieschnick’s letter actually appeared within less than a day after the four ladies complained about being sued by the LCMS on Youtube.

Oakland Four’ Sued by LCMS – Interview by Rev. Cascione (first half)

‘Oakland Four’ Sued by LCMS – Interview by Rev. Cascione (second half)

In reference to why Kieschnick published the letter, a mistake that may cause the Synod to lose its lawsuit, Kieschnick poured out his vitriol on Herman Otten, publisher of Christian News.   (Pages 165 ff)

Nelson: Okay.   And in the letter that’s before you he [Otten], was there some reason that you did not mention the fact that the California/Nevada/Hawaii District was involved in such litigation?

Kieschnick: The — as I recall the question that was asked by Mr. Otten was whether the Lutheran Church Missouri synod is involved in the lawsuit and the answer to that question is no, the Lutheran Church Missouri Synod is not involved in a lawsuit.

Nelson: But its district is?

Kieschnick: Yes.

Neslon: That’s the distinction you were drawing that the district is the Lutheran Church Missouri synod?

Kieschnick: The distinction I was describing that the Lutheran Church Missouri Synod is not involved in this lawsuit.

Neslon: And that’s because of the district is not the Lutheran Church Missouri Synod?   Is that the distinction were you drawing?

Kieschnick: It’s because the district is a separately incorporated entity that apparently obviously has become a plaintiff in a lawsuit.

Nelson: I’m just asking if there was a reason why you didn’t acknowledge that fact in the letter instead of simply answering the narrow question of, “Is the LCMS involved in the litigation?”

Strand: I’m going to object to the question as being repetitive and argumentative.   He’s already answered the question.

Kieschnick: Yeah.   Sure.   There is a reason.   This particular man [Otten] has a 40 year history of twisting anything that any church leader says to suit his own purposes.   And my response was to give an answer to the question he asked.

Kieschnick is hardly in a position to accuse anyone of twisting anything.   Otten doesn’t need a lawyer to tell him when he can’t answer a question.   It was Kieschnick’s September 9, 2009 letter that convinced Nelson how deeply involved the LCMS is in the suit against Sharon Bowles, Mary-Ann Hill, Portia Ridgeway, and Celia Moyer.   The Synod’s lawsuit includes a 6 page history of the LCMS, not the California-Nevada-Hawaii District, and a full page of the Synod’s structure, including the Office of the Synodical President.   The LCMS wants itself described in the suit but doesn’t acknowledge any involvement in the suit.

Kieschnick’s claim that Synod’s money is not being used in the suit is based on the doublespeak that District funds are neither Synodical funds nor mission funds.   We ask, “Where does the Synod get its money?”  We also ask, “Where is there a judge in the State of California who is going to believe that the Synod is not involved with this case when it is Kieschnick’s legal counsel, Sherri Strand in St. Louis, who sued Sharon Bowles, Mary-Ann Hill, Portia Ridgeway, and Celia Moyer in Alameda County, California?   Also, the headquarters of the California-Neveda-Hawaii District boldly displays the words, “Lutheran Church-Missouri Synod.”

Nelson’s question about a district being part of the LCMS drew a sharp response from Strand and gives a brief glimpse into how the LCMS chameleon becomes either a religious body or a corporation when necessary.   You have to guess which Synod they are talking about.   Watch this line of questioning beginning on page 162 as Strand argues that a District is only part of the Synod by By-laws but not by Corporation.

Nelson:  Isn’t the district in fact a geographical subdivision of the LCMS under its constitution?

Strand: I’ll object to the question as being vague and ambiguous.   If you’re talking about the definition of synod within the bylaws that you’ve been discussing all day or to the extent you’re talking about a legal entity to the extent you’re talking about a legal entity I will object on the basis that it calls for a legal conclusion.

Nelson: Sherri,.

Kieschnick: Synod is described –

Nelson: Article 12 [LCMS Handbook] it says the synod is divided into districts: One, geographical boundaries of which are determined by the synod and are altered by it according to circumstance.   Two, this constitution is also the constitution of each district of the synod however each district is at liberty to adopt such bylaws and pass such resolutions as it deems expedient for its conditions provided that such bylaws and resolutions do not conflict with the constitution and bylaws of the synod.   And then it continues.   My question sir under the constitution of the LCMS, isn’t a district a subdivision of the LCMS?

Strand:   I’m going to object to the question to the extent that the LCMS is not defined in your question.   Are you talking about the Lutheran Church Missouri Synod the Missouri Corporation or the Synod as defined in the bylaws we’ve been discussing all day?

Synod’s position is that the LCMS Corporation can sue individual members of a congregation for every nickel they have, but claim that the LCMS Church body with its By-laws doesn’t sue anyone.   If there are two synods, corporate and By-laws, are there two sets of financial books?   If only Kieschnick and Strand could have given Steven or the Apostle Paul some advice when questioned, what a different world this would be.   It was Strand who picked Ash Wednesday as the date for the deposition and “the temptation of Gerald Kieschnick.”

We wonder if Strand and Kieschnick understand what a debacle this disposition could become.   Nelson filed his motion for summary judgment on Friday, February19, 2010 after Kieschnick’s deposition.   Kieschnick actually asked Nelson if he could read it before it was filed.

Throughout the deposition Kieschnick kept explaining how he didn’t know about the suit and wasn’t familiar with the documents, to which Nelson finally began to lecture Kieschnick that he should familiarize himself with the facts of the case.   This drew outrage from Strand who explained that it wasn’t necessary for Kieschnick to do that.

The LCMS lawsuit appears to deceive the Court about who is actually filing the suit.   The corporate president claims he has no knowledge of the suit, though a District of the “Lutheran Church-Missouri Synod” is named on the front page.   It was Strand herself who asked Nelson: “Are you talking about the Lutheran Church-Missouri Synod the Missouri Corporation, or the Synod as defined in the bylaws we’ve been discussing all day?”

A corporation is an individual under the law.   Strand is arguing that the LCMS Corporation didn’t file the suit and that the California-Nevada-Hawaii District is not part of the LCMS Corporation, and the District filed the suit.   It is against the law for a plaintiff to deceive the Court by failing to state their identity.   At no place in the suit does the suit say that the District is not a part of the LCMS.   Rather the name LCMS appears at least 30 times in the suit.

Kieschnick also exposed the fact that when laypeople put their funds in the collection plate they are not giving money to the LCMS but a District Corporation that is not a part of the Synod.   This would mean that the entire Ablaze! movement is a fraud, because the Districts collect the funds in the name of the Synod, but they are not the Synod.

The Synod also has the difficulty of trying to explain why it is suing four ladies who are not part of the Synod.   However, if they never left the Synod, as the Synod claims, they are still members of the congregation and should have been offered dispute resolution according to Resolution 8-02A.

When asked about Resolution 8-02A (page 31-32) Kieschnick tried to explain it had nothing to do with the 90 LCMS pastors who filed a class action suit against Kieschnick in 2005 for voter fraud at the 2004 LCMS Convention.   The resolution states that members of the Synod cannot sue each other in court and must use the Synod’s dispute resolution process.   However, 8-02A does give the Synod the authority to sue individuals over property.

Nelson: Wasn’t this resolution [8-02A] enacted in response to a lawsuit that was brought against you?

Strand:   Object.   Calls for Argumentative.   Not relevant.

Kieschnick: The resolution was adopted because a majority of the delegates to the convention of our synod in 2007 felt it was meritorious and we decided to adopt it.

Kieschnick is caught between a rock and a hard place on 8-02A.   He promoted the Resolution at the 2007 Convention, spoke vehemently against Christians suing each other in court, but then, how does he explain the LCMS suing four ladies in Oakland CA?   His answer is, the Synod isn’t suing them, it is the District and the District is not the Synod.   Laypeople in the LCMS might believe him, and the Council of District Presidents is 100% in agreement, but what about the Alameda County Court?   Claiming the Synod is not suing these ladies could result in losing the suit for attempting to deceive the court.   In this entire process, not one of the 35 District Presidents has voiced any public objection and they continue to give Kieschnick their full support.

Nelson asked Kieschnick a line of questions (page 35) about the authority of CCM Rulings, particularly CCM 267 that says District Presidents don’t have to “follow proper channels” in LCMS congregational constitutions.   In the case of Our Redeemer Lutheran Church in Oakland CA, District President Newton called for a voters meeting without the elected officers of the congregation.   Kieschnick claimed he had never received any correspondence about CCM 267.

Nelson: Well, I had expected that you would — would know what CCM267 is.

Strand: For the record I’ll respond that in response to this document we did a search assuming that it was a CCM opinion that ended with 267.   It is an incomplete designation and there was a search for it but you might want to refresh his recollection or if you have a copy of it.

Nelson:   It relates to the circumstances by which a district president can meet with members of a congregation.   Are you familiar with that?

Kieschnick: Does that have to do with the bylaws that calls for or allows district presidents acting through proper channels to call for a meeting with a congregation?

Nelson: The one that says proper channels says anything the district president wants to do?

Strand:   I’ll object to the form of the question it’s vague and ambiguous argumentative.

Nelson: I’m trying to refresh his recollection that you requested I do.

Strand:   Not with argumentative tone and misstatements.

Kieschnick: There were no communications between myself or anybody else regarding that CCM opinion.

Anyone can find the CCM ruling in question listed on the LCMS website under Commission on Constitutional Matters.   Evidently Kieschnick claims to have no memory of a congregation that withdrew from the LCMS because CCM 267 nullifies congregational constitutions at the discretion of the District President.

We quote the following letter from the LCMS congregation that withdrew from the LCMS over CCM 267

“Dear Presidents Kieschnick, Hoesman, and Secretary Hartwig:

On September 13, 2004, the Redeemer Evangelical Lutheran Church Voters’ Assembly voted by closed ballot that Redeemer declares its independence from the LCMS.   Redeemer objects to the May 20-24, 2004, ruling from the LCMS Commission on Constitutional Matters [CCM] 267 (04-2387). This ruling, published at the end of this letter, is a violation of the LCMS Constitution. . . .

We the undersigned reject the CCM (267 04-2387) opinion which states that ‘The Bylaws do not define the term ‘proper channels’ and thus the procedure to be used in the investigation is chosen by the District President or his representative and does not necessarily require the initial contact or meeting to be with any particular person or group.'”

Kieschnick, at the request of the COP, responded to the congregation from St. Clair Shores MI, with a letter Nov. 29, 2004 stating that CCM rulings were binding on all parties and that there was nothing he could do about it.   The pastor and his wife, a Lutheran school teacher, were immediately removed from the LCMS roster.   They were removed because their congregation withdrew from the Synod over 267 in order to protect their church property from control by the Synod.   The suit against Our Redeemer Oakland CA is an example of that control.   Resolution 8-02A gives the Synod authority to sue congregations who resist the District President over property rights.

We can’t possibly cover 211 pages of deposition in one article.   The deposition covers in detail the confusion over congregational autonomy versus the District President’s supervision/authority over a congregation and makes fascinating reading.

At the end of the deposition Strand attempted to refocus the suit to the doctrinal issue over which the Synod claims it filed the suit.   Strand questioned Kieschnick about the validity of woman pastors.   However, when Nelson asks Kieschnick to give two Bible passages, Kieschnick can’t remember them and makes vague references to Corinthians and Timothy.   Was there ever a Synodical President who couldn’t quote these verses except Gerald Kieschnick?

Nelson: Let me ask just one more. Which of those documents referenced in the Confession is the one that provides that women cannot be pastors?

Kieschnick: It’s scripture themselves.

Nelson:   And which two citations to the scripture is that?

Kieschnick: Sorry?

Nelson: Which are the two scripture citations that are the basis for that position?

Kieschnick: I don’t have a scripture with me at this moment, but Paul’s injunctions and first Corinthians and also first Timothy.

Nelson: Okay. That’s all.   Thanks.

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