“We all have a vested interest in this case” – Clarity on the Oakland Situation from the Rev. Dr. Martin Noland

Yesterday we posted some news and commentary from Reclaim News on the intriguing situation with a congregation out in Oakland, California. The district is fighting to take the property away from the congregation.

It is a story with as many twists and turns as California Coastal Highway 101, not to mention a couple hundred pages of deposition of the synodical president,  and so it is difficult to follow. BJS regular Martin Noland has commented on the post from yesterday and left us with a gift of clarity for the current stage of this story. Here is his comment.

Pastor Rossow, et.al.,

First, thank you Pastor Rossow for giving us the information on this very important case. The full deposition is even more important, so thanks for including that. I did read the whole thing, thanks to your post here. It was much more helpful than the Reclaim News citation, which inserted comments without indicating whose statements were whose. But for those who don’t want to read hundreds of pages of legal transcripts, Cascione’s report is at least an introduction.

Second, in my opinion, attorney Strand did an excellent job representing her client’s interests. On the basis of her work here, I would hire her to represent me, if I ever needed an attorney.

Third, in my opinion, President Kieschnick did a fair job, but not an excellent job, as a witness. He was not a party to the case, so he was not “on trial.” The judges and jury in the case need to know how the administrators who run our church actually think about our ruling documents. The documents alone are not sufficient.

Fourth, it is rare in our history that we have a court case that specifically tests the relationship between the synod and individual congregations. For this reason, I think this is a historic case, and deserves scrutiny by every church-worker and laymen in the synod. Here we will get to see how external courts judge the relationship between the synod and congregations, based on our ruling documents and current administrators. Carl Mundinger argued, in “Government in the Missouri Synod,” that Article VII pertaining to the relationship between synod and congregations was the most important (because unique) of our constitutional provisions. Here in Oakland, California we will have a test case to see how it actually works. We all have a vested interest in this case, and LAYMEN NEED TO WATCH THIS CASE TO SEE TO WHAT EXTENT SYNOD HAS CONTROL OVER THEIR CONGREGATION.

Fifth, in reading the full transcript, it appears that one of the problems of the case is whether a district president can intervene in the internal affairs of a congregation when there is no excommunication involved (LCMS bylaw 1.10.2, 4th case) or no rostered church-worker affected (ibid., 1st case). The President of the Synod apparently, based on the transcript, believes that the district president can do this, although he seems to contradict himself on this point. This does not mean that the district president actually has that power, only that the president of the synod thinks he does, or is confused.

Sixth, we should not automatically blame the president of the synod for his confusion. The bylaws of the synod themselves may be confused, and confusing, and may be contradicting the constitution of synod. With regard to the Dispute Resolutions bylaws, which were adopted in 1992, I opposed their adoption, both at the floor committee meetings and on the convention floor, for several reasons. These reasons are laid out, to the best of my limited ability, in my 1994 essay “Law and Due Process in the Kingdom of the Left and the Kingdom of the Right,” in “God and Caesar Revisited” (1994 Congress on the Lutheran Confessions) and in my 1997 essay “District Presidents and their Council: Biblical and Confessional Limitations” in “Church Polity and Politics” (1997 Congress on the Lutheran Confessions), both available from Logia Books at: www.logia.org.

Seventh, I saw evidence in the transcript of the attorney for the Oakland congregation “piercing the corporate veil.” This is what the business about “synod, incorporated” and “synod in the bylaws” is all about. I sent a very lengthy letter to the LCMS Board of Directors back in the early 1990s about the reincorporation of synod. My concern then was, that if the purpose was to protect the national office assets from lawsuits, the way it was being done could be defeated by “piercing the corporate veil,” and that control over the “liberated” agencies and their assets would be weakened or lost. I got a terse reply ignoring my concerns. The Oakland attorney is now probing as to whether or not responsibility for the events in CNH district could be attributed to the national offices and the president, or to what extent. The synod as a whole, i.e., all members, have a vested interest in this case in order to see to what extent the agencies of synod are controlled or accountable to the main body.

Eighth, it is not possible for me or you to judge, on the basis of this transcript, who should “win” this case. We don’t have all the facts of this case before us to judge it, informally or otherwise. If Our Redeemer is not properly constituted, if it did not conduct its meetings properly, if it has lost or never had its own state incorporation, it could easily lose. If it has done all these type of things properly, and had no excommunications, then it would be very hard for CNH to make a case that it had a right to intervene in the internal affairs of a congregation. But there could also be any other number of things that could sway the case either way. You want a good lawyer when you have a case as complex as this. Both lawyers are very competent, so we are all about to get a great education in synod polity.

Finally, I wonder why the attorney for Oakland did not make more fuss about Constitution Article VII.2 “Membership of a congregation in the Synod gives the Synod no equity in the property of the congregation.” If that constitution articles does not apply to a case like this, when does it apply?

Yours in Christ, Martin R. Noland

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