May 7 Hearing Date Set for LCMS Suit against CA Women – Story from Reclaim News

(The following is quoted from a recent Reclaim News list-serve story. Since the LCMS is not reporting on this significant story we thought it would be good to keep our readers  updated. As we have said before, there are a lot of ins and outs, twists and turns to this story. We have not taken an editorial position on this yet and encourage readers to make their own decision on the implications of this matter. We do think it is important to get this information out to the synod. I was surprised the other day in a coversation with a synod/district  official.  He stated that he new nothing of this matter. That is why we deem it important to pass this information along.   As always, reader  comments are welcome.)

From Reclaim News:

Attorney for the Defendants, Paul Nelson, filed a 23-page motion for a Summary Judgment 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.   A hearing date has been set for May 7, 2010 in Alameda County, CA.

Legal Counsel for the Lutheran Church-Missouri Synod Board of Directors and Attorney for the Plaintiffs, Sherri Strand, already filed a motion for a Summary Judgment in February, hoping the judge would immediately hand the church property over to the District.   She was disappointed to learn that more time was given to the Defendants to file their own motion.   This was the first indication from the court that the Synod’s suit may be in trouble.

Nelson presents a litany of arguments explaining why the suit should be thrown out.   Most of his argumentation is centered on a major flaw in Strand’s suit, namely, the California-Nevada-Hawaii District of the Lutheran Church-Missouri Synod doesn’t have any standing under California law to sue anyone for their church property.

In order to justify the name of the Lutheran Church-Missouri Synod being on the front of the suit, Nelson writes: “The DISTRICT recruited four former church members as putative plaintiffs, misrepresented its motive as being to ‘preserve’ the church, and used the pretext of a ‘doctrinal dispute’ to try to wrest the church away from its majority members.”

Nelson also points out, “No Plaintiff ever was excluded or prevented from attending services at Our Redeemer; they were always welcome. (DF 59.) They have not attended services only because they were told not to do so by [District President] Newton, to prevent any reconciliation. (DF 59.)”

In other words, if the District allowed the Plaintiffs to reconcile with the Defendants, the District couldn’t put its name on the suit.   This action clearly shows the kind of farcical theatrics played out by the LCMS President and the District Presidents at the 2007 Convention in the promotion of RESOLUTION 8-02A “To Affirm Christian Resolution of Disputes.”   The only real purpose of the resolution is to forbid individuals from suing the Synod; but, the Synod is at liberty to sue any individuals it chooses.   However, in this suit the District added the cover of four recruited plaintiffs so the LCMS Attorney could conduct the suit from St. Louis in behalf of the District.

Our Redeemer’s Pastor, Rev. Monte Gusewelle, took a call to another church in 2002.   Initially the District told Our Redeemer that the congregation would receive mission status, but shortly after Gusewelle left, the District told the congregation to close with dignity and give their property to the District.   In his deposition, Newton admitted that he never supplied the congregation with a call list, even though the Synod was established for that express purpose.

The Synod’s claim for doctrinal reasons as a basis for the suit has a hollow ring now that the new interim President of Concordia University Ann Arbor is a Presbyterian.   Under oath, President Gerald Kieschnick would not agree with Article 12 of the LCMS Constitution that the Districts were a geographical part of the LCMS and stated that the Districts’ funds were not the Synod’s funds.   This leaves no other conclusion than that the purpose of all LCMS congregations is to support their Districts.   Unlike their original mission, the congregations now exist for the benefit of the Districts.

Nelson even shows where the District attempted to mislead the Court by misquoting Our Redeemer’s Constitution as if the Defendants were removed from the Our Redeemer Church roster.   He writes: “As discussed above, no Defendant ever was a member of the LCMS, and so could not ‘leave’ it.”

He further writes: “Conversely, none has had their membership terminated under ORC [Our Redeemer Constitution].   Church membership may be terminated under Article IV.B.4. only by, (a) moving away to a different church and (b) joining that ‘congregation outside of our fellowship,’ (c) going missing for a period of time, or (d) excommunication, where they have conducted themselves in ‘an unchristian manner’ and remaining ‘impenitent after proper admonition.’ Plaintiffs purposefully misquote subsection (b) as if it was a separate ground for termination.”

No members were removed from Our Redeemer Lutheran Church, either by the Plaintiffs or the Defendants.

In his deposition Kieschnick clearly stated that lay people were not members of the LCMS, only congregations and pastors.   He also stated that all congregations were autonomous and the Synod did not own church property.   Nelson then argues, if this is true, by what right does the LCMS claim to be a landlord removing the tenants from their own property?

“Ejectment is a landlord/tenant remedy for trespass that arises where real property is leased or granted with a right of reentry, and the tenant/purchaser defaults. (Civil Code § 793; Mossi v.”

If the Synod claims that the four Defendants are not and have never been members of the LCMS, by what right is the Synod a Plaintiff in the suit?

This is really the whole case.   If the District planned to help the Plaintiffs regain their church property, they had no right to have the name California-Nevada-Hawaii District of the Lutheran Church-Missouri Synod listed as a Plaintiff.   Of course, without Sherri Strand conducting the suit from St. Louis, the Plaintiffs would have never filed the suit.

President Gerald Kieschnick’s letter to Herman Otten claiming that the Synod was not involved in the suit, and subsequent deposition to this claim, became a major factor in Nelson’s motion.   Kieschnick’s further refusal to answer if he had discussed the suit with the LCMS Board of Directors raises serious questions about the Synod’s actual involvement with the suit.

It will be interesting to see what the judge decides as to whether the District has the right to remove people who are not members of the Synod from property it doesn’t own.

About Pastor Tim Rossow

Rev. Dr. Timothy Rossow is the Director of Development for Lutherans in Africa. He served Bethany Lutheran Church in Naperville, IL as the Sr. Pastor for 22 years (1994-2016) and was Sr. Pastor of Emmanuel Lutheran in Dearborn, MI prior to that. He is the founder of Brothers of John the Steadfast but handed off the Sr. Editor position to Rev. Joshua Scheer in 2015. He currently resides in Ocean Shores WA with his wife Phyllis. He regularly teaches in Africa. He also paints watercolors, reads philosophy and golfs. He is currently represented in two art galleries in the Pacific Northwest. His M Div is from Concordia, St. Louis and he has an MA in philosophy from St. Louis University and a D Min from Concordia, Fort Wayne.

Comments

May 7 Hearing Date Set for LCMS Suit against CA Women – Story from Reclaim News — 58 Comments

  1. @Alex #49

    We are also trying to have a constructive discussion on what should exist, right now in 2010, in church constitutions / articles of incorporation. I hope there are some attorneys lurking who can contribute constructively to this.

  2. @Alex #49

    > I’m also often confused by this seemingly complicated case. Is whatever party Sherri Strand is advocating wanting to dissolve the congregation? Pr. Rossow stated that they are not dissolved so I am also trying to remember how this discussion ties in to the case.

    Pastor Cascione seems to allege that the district is pressuring the congregation to dissolve.

    Despite my utter disavowal of any attempt to prove or even suggest criminality in the district or the synod, the interest of one or the other in congregational property is germane if any notion of dissolution has come up.

  3. @Alex #49

    > To assume that no beneficiary should ever be named for fear of such a temptation I do think is absurd though I don’t think that was the point of any comments even if some could be read that way.

    You see this correctly. One is reading that into what I said.

  4. Never said that you did say it, Mr. Whitener. It is the end result of your argument when you make a gross generalization and/or misconvert a particular proposition.

    Goodness, 8 of the last 9 posts are yours. You wouldn’t be trying to “win,” would you Mr. Whitener? 🙂

    Can we get back to the case at hand? And thank you for doing so, Alex.

  5. For example, in Minnesota South:

    “ARTICLE II

    Section 1. Denominational Name
    The name of the religious denomination to which this corporation belongs is THE LUTHERAN CHURCH—MISSOURI SYNOD.

    Section 2. The Relationship between Synod and District
    a) This corporation, as part of The Lutheran Church—Missouri Synod (the Synod) acknowledges its allegiance to the Synod and to the convention of the Synod (the convention).
    b) It submits to the authority of the Synod and the convention.
    c) It accedes to, recognizes, and accepts the doctrine taught and practiced in the Synod (Art. II) and also the Articles of Incorporation, Constitution, and Bylaws of the Synod, as currently in effect and as may hereafter be amended from time to time.
    d) In the event of any conflict or inconsistency between the organizational documents of this corporation and the Articles of Incorporation, Constitution, or Bylaws of the Synod, as may hereafter be amended from time to time, the Articles, Constitution, or Bylaws of the Synod shall control and govern.
    e) In the event this corporation is dissolved or its existence otherwise terminates or is terminated, all right, title, and interest in and to its property, whether tangible or intangible and whether real or personal, shall thereupon automatically vest in or be transferred to the Synod, and this corporation covenants and agrees to execute and deliver to the Synod such documents and instruments and to take such other and further actions as the Synod may deem reasonably necessary or desirable, in order to evidence and give full effect to the foregoing.
    f) The above provisions may not be altered or deleted without the approval of the Synod, in convention, or the Board of Directors of the Synod.”

    http://mns.lcms.org/LinkClick.aspx?fileticket=FskKvucoQJg%3D&tabid=99&mid=469

  6. I’m curious if the organization structure of the new church formed by these people allows the property to be distributed to the members (in other words, is not a nonprofit).

    This is really crucial.

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