Reclaim News Report on Oakland 4 Church Trial

Editor’s Note: Reclaim News has been reporting regularly over the last several months on the LCMS lawsuit against the “Four Church Ladies from Oakland, California.” Here is their most recent report.

Judge Throws LCMS-CNHD Out of Court: Justice for Oakland 4

Forget about the trial.  The Judge told the LCMS-CNHD they had not right to sue four Oakland, CA women.

The LCMS-CNHD suit against Sharon Bowles, Mary-Ann Hill, Portia Ridgeway, and Celia Moyer for the church property of Our Redeemer Lutheran Church of Oakland, CA (case number RG07363452) has been thrown out of court on an Order on Summary Motions by Alameda County Superior Court Judge Marshall Witley.

The Judge ruled against the suit filed by Attorney Sherri Strand, LCMS Legal Counsel to the LCMS Board of Director as follows:

“Finally, nothing has been presented that amounts to authority that would compel the conclusion that where a ‘division’ occurs in congregation, the District is entitled to remove certain members and replace them, or that by voting to disaffiliate, the Defendants’ lost their membership the congregation.

Summary Judgment is therefore DENIED.”

This is what the LCMS paid at least a million dollars in legal fees from mission funds to hear the judge tell them, “Summary Judgment is therefore DENIED.”

This was a victory for C. F. W. Walther and congregational autonomy.  The LCMS has created such a labyrinth of contradictory CCM rulings on the authority of District Presidents; they actually beat themselves in court.

The Judge used the Handbook against the LCMS as follows in a small excerpt from his ruling:

————-

“The Defendants are four individual members of Our Redeemer who voted to disaffiliate Our Redeemer from the LCMS.  Plaintiffs’ contention that the District could deem these Defendants non-members of Our Redeemer is contrary to the governing documents and other evidence before the court.  The LCMS Constitution and Bylaws do not describe the LCMS or District as an authority with respect to membership status issues in the congregation.  The documents specifically provide that the LCMS is not an “ecclesiastical government” but acts only as “an advisory body” to member congregations (LCMS Handbook, Const. Art VII.1, Bylaw 1.7.2, Ex. B to Defs.’ Appendix.).  Congregations are members of the LCMS, but individual members in the congregations, with exceptions not relevant here, are not (Id. Art. V; Bylaw 1.2.1.).  A congregation’s membership in the LCMS gives the LCMS no interest in the property of the congregation (Id., Art. VII.2).

            The Plaintiffs cite to a District President’s power of ecclesiastical supervision over congregations, including the powers of supervision and investigation found in Bylaws 4.4.5 and 4.4.6.  These provisions gave District President Newton the power to supervise “the doctrine, the life and the official administration on the part of the ordained or commissioned ministers who are members through his district” and the power to investigate “continuing and unresolved problems in doctrine or practice” within congregations.  President Newton’s “supervisory” powers are limited to the ministers under the District’s control.  And while Bylaw 4.46 specifies the Newton may “investigate” doctrinal issues in a congregation, which is acknowledged as his authority for calling a meeting on April 30, 2007 (see Plfs.’ Ex. 36), nothing provides that Newton’s power to investigate included the power to adjudicate doctrinal issues, or to declare certain members of the church to be in or out.  Instead, if a District President found evidence of a “continuing, unresolved problem of doctrine or practice” in a congregation, the ultimate sanction would be expulsion of the congregation from the synod – whether after exhaustion of internal procedure or otherwise (LCMS Const. Art. XIII; Bylaw 2.14.).”

——————

Kieschnick’s appointees on the CCM ruled in CCM 267-04 that a District President doesn’t have to follow proper channels in an LCMS congregational constitution.   Obviously the Judge didn’t agree with their interpretation of the LCMS Handbook. 

In favor of the Defendants’ the judge ruled:

“Defendants’ request for summary adjudication of the individual Plaintiffs’ standing to sue for ejectment and declaratory relief (save Lee’s claim of improper removal from office) is GRANTED.”  [Lee’s removal as president was never a part of the motion for summary judgment.]

“Defendants’ request for summary adjudication of the issue of the District’s standing is GRANTED.  The District has no claim related to Our Redeemer’s property.  The District’s only claim to the property would arise if Our Redeemer were to dissolve or disband (ORC. ART. VII.).’

——————-

The Judge used Kieschnick’s deposition as evidence that the Defendants should not be sued. 

Through his own examination of the LCMS Handbook, Witley has amazingly accurate understanding of LCMS polity.

The Judge ruled just as Attorney Paul Nelson had pleaded, namely that Our Redeemer could not be a plaintiff in the suit, and that the LCMS-CNHD had no standing to sue for Our Redeemer Church property.

There is no question that the LCMS attempted to break these women financially with a false suit at a cost to them of $569,000.

The LCMS Board of Directors, President Kieschnick, and the COP could have at anytime instructed Attorney Sherry Strand, LCMS legal counsel to the Board of Directors, and the District President Newton to stop the suit.  They did not.

There is a lot more to be said about this suit, the money the LCMS owes these women, and not to mention significant punitive damages.

Kieschnick was drawn into a controversy in Yankee Stadium over District President David Benke’s prayer with Moslem clergy at the beginning of his Presidency, a controversy from which he never recovered.

Now, at the beginning of his Presidency, Matt Harrison may be drawn into litigation filed by the defendants over a false suit that was supported by the COP, for a dollar amount the LCMS has never dreamed it would have to pay.

In both cases the cause is a runaway COP whose first goal is to support, protect, and defend its own interests.

Now that the Convention has rewritten the LCMS Constitution, we will see what the courts do.

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View interview with Oakland Four

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

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

Our Redeemer Lutheran Church in Oakland CA is under siege by an LCMS District in a suit that is about nothing more doctrinally significant than taking the congregation’s property.  Our Redeemer Lutheran Church seeks donations to help pay for legal fees to defend itself from a suit filed by Attorney Sherri Strand, legal counsel for the LCMS Board of Directors, in behalf of the California-Nevada-Hawaii District of the LCMS.  Tax deductible donations can be sent directly to a new dedicated account.  Donations of any amount may be sent to:

Our Redeemer Lutheran Church

Account number 0536971270

Bank of America

4054 MacArthur Blvd.

Oakland CA 94619

Please send only checks and place the account number in the memo line.  All donations to this account are tax deductible.  For more information and eyewitness information to the depositions contact Dr. Sharon Bowles at [email protected]

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

Reclaim News Report on Oakland 4 Church Trial — 68 Comments

  1. @Krusty Kraut #50

    @Krusty Kraut #51

    In this case, an argument could be made for penance, $569, 000, that is.
    (Then, too, there is the question of those “mission” monies on the district’s (synod?) side of the suit. Even Lutherans say that sins forgiven may still have temporal consequences.

  2. Given the length of time this suit has being going on, the amount of money wasted over this suit, and the deleterious effects to missions programs from which the money was taken, whether the district president is repentant or not, the district (and synod) would be best served by having a new district president. It will be President Harrison’s responsibility to convey that reality to the (soon to be former) district president.

  3. After reading the complaint as filed, I don’t see why anyone is supporting these women. If the facts are as presented by the plaintiffs, the women were wrong on many issues and improperly seized the congregational assets. I hope they ultimately lose to the members of Redeemer.

    The District assisted the congregation. That seems to be a proper District role. Granted, the District itself has no claim on the Redeemer property, but the remaining members do.

    http://apps.alameda.courts.ca.gov/domainweb/html/casesumbody.html

    Case # RG07363452

    The complaint can be found by clicking the “Summary of Actions” link at the left side of the page.

  4. I ask everyone to apply their brakes and take a deep breath. Pr. Rossow posted an article that appeared in Christian News. It was writen by Rev. Jack Cascione. How many of you have read the August 30, 2010, Christian News? On the bottom left corner of the front page is an article, also written by the aforementioned Rev. Cascione. It begins, “The judge is scheduled to rule on the motion for summary judgment in California-Nevada-Hawaii District of the Lutheran Church-Missouri Synod (CNHD-LCMS) vs. four Oakland CA women on September 10, 2010.

    According to the very same person, Plaintiff’s motion for summary judgment has been denied and has not yet been heard. That is a legal impossibility. I have read Rev. Cascione’s articles on this subject and watched the video tape interview of Defendants Bowles, Hill, Ridgeway and Moyer. He, like Doctor of Law (honoris causa) Gerald Kieschnick, is NOT a lawyer and should not be relied upon to state what a court has done. Before anyone goes jumping to conclusions, perhaps we ought to see the actual written decision. Now I am sticking my head out. The written decision ought to be read by at least two attorneys. Unfortunately, I practiced law for two decades. Just to be certain, one of the other former attorneys who are now ordained clergy should also read it. We can then report not only what the court concluded, how it ruled and why but also, as pastors, tell y’all what long term consequences the ruling might have for LCMS and the Christian Church throughout the U.S. A Superior Court decision from Alameda County is effective only in that county but it may prove to be persuasive all over the nation. Years ago California broke with common law in finding landowners liable even to trespassers to remedy or give notice of known defects on real estate, (Rowland v. Christian) and soon it became national law. President Harrison and our new VPs need to pay close attention to this case and be ready to respond when judgment is published.

    By the way, no one should be stabbing Gerald Kieschnick with the rough draft testimony taken at a deposition. Until he signs it the transcript is unverified and legally amounts to little more than hearsay. Having been a deposed witness on several occasions I can tell you court reporters (my dad was one for about thirty years) make mistakes, always minor, but mistakes nevertheless.

    Synodical President Harrison probably doesn’t have the right to remove CNH DP Bob Newton. However, if the court finds that the suit was frivilous ad initio (from the beginning) expect that the Oakland Four will be seeking an order to have CNH and/or Bob Newton pay their attorney and court costs. Depending on how the judge words the decison, do not be surprised if the judge grants the Oakland Four punitive (aka exemplary) damages. That would be a very shameful stain for CNH and for its president. It also reflects very badly upon the rest of LCMS, particularly if Synod does not immediately take action against the CNH leadership responsible for bringing such an unwarranted suit. If punitive damages are awarded and it is established that Gerald Kieschnick was even peripherally responsible, he should be compelled to publicly repent. If not, LCMS and its current leadership will be justifiable seen as ratifying their outrageous behavior. This would not be vengeance. It is survival.

  5. Thanks Wesley. You are correct, I am merely passing on what came from Reclaim News. I have been hesitant to publish too much about this situation because it is rather complex, as you point out. I agree with you that all our readers need to be careful about drawing conclusions from all of this but we also thank Rev. Cascione for keeping this matter in the daylight in the LCMS.

    TR

  6. @Pastor Tim Rossow #56
    No, my thanks to you and to Rev. Cascione for keeping all of us informed. What we ought to learn from this is our need to have technical questions passed to those among us who are versed in that field. Gerald Kieschnick was right about one thing. The LCMS Ministerium is about the most well educated in the nation. We have among our pastors former physics professors, physicians and plasma physicists. The laity also has a wealth of expertise in a wide spectrum of technical subjects. Now if we can only get President Harrison to seek help from all who look to him to lead us in these troubling times.

    Lest I leave a wrong impression, allow me to say Rev. Jack Cascione has been sacrificing his time to comfort and counsel the Oakland Four as they face the financial Goliath that is CNH District. I have heard a rumor that he is also aiding them financially to the extent that he can on a pastor’s salary. Even if one thinks the Oakland Four are absolutely wrong, they (and Rev. Cascione) are standing for what they believe is right and Christ pleasing. As a consequence they are contributing to the growing body of cases that is defining the interface between the First Amendment’s freedom of religion and the courts’ Third Article subject matter jurisdiction, an area the U. S. Supreme Court has long neglected. At some point LCMS is going to have to objectively (as possible) decide under what conditions matters can be determined by secular courts without offending a biblical prohibition.

    What must be remembered here is that the party that brought the suit is a district of Synod. Under corporate law, CNH is a wholly owned subsidiary of LCMS which means LCMS is necessarily an unnamed party. All of us who are pastors and commissioned church workers are members of Synod and are arguably parties, even if against our wills.

    The question I have for DP Newton and then SP Kieschnick is whether they as bishops (overseers) of the church considered the risk that a suit brought by CNH District could result in Synod being put to shame by a judicial determination of misconduct. If they did not, then why not. This is the opposite side of the ecclesiastical oversight coin. It appears our leaders have been concerned about their power but not their responsibility. Who is overseeing the overseers?

  7. @Rev. Wesley T. Kan #55

    > According to the very same person, Plaintiff’s motion for summary judgment has been denied and has not yet been heard. That is a legal impossibility

    At least according to my personal experience here in exceptional MO (the US state), a request for summary judgement is asking the judge to sort of short-circuit the thing and end it early. Not getting summary judgement is only allowing the process to continue normally. One possibility here in MO is that even in a non-criminal case, part of the process could be a trial with jurors.

    So there may not be any contradiction above.

    I Am Not A Lawyer.

  8. @helen #35

    > It’s interesting that the Oakland laity should now be expected to be better Christians than the ordained DP who created this mess!

    This is how it works. As you know our religion is not a game where we rack up points and give penalties and handicaps. We exhort both DPs and errant congregations towards orthodox teachings and Christian behaviors.

  9. But here ‘on the ground’ if we ask questions about anything for which we don’t already have all the answers, we run the strong risk of being ridiculed, marginalized, and shunned.

    Yes this sometimes occurs today, just as Dr. Carl Vehse, Heinrich Fischer, and Gustav Jaekel were treated in 1839 by the Stephanites when the three men began to ask questions after Martin Stephan was deposed.

  10. But here ‘on the ground’ if we ask questions about anything for which we don’t already have all the answers, we run the strong risk of being ridiculed, marginalized, and shunned.

    This problem (along with the synodical bureaucracy’s obsession with secrecy) has occurred even with such laymen as seminarians. An example of this is provided in a 2009 letter written to the Rev. Herman Otten by the Rev. Dr. Martin Noland, in which he discusses his review and impressions of the official documents on the Otten versus Seminary case as it came before the LCMS Board of Appeals (1959-1960). The letter was published in the Christian News, Vol. 48. No. 3, Monday, Jan. 18, 2010, and posted under “Marquart’s Defense Exonerated Otten” at February 9, 2010, 12:46 PM, on the Christian Forum.

  11. @mbw #59
    A party brings a motion for summary judgment (M/SJ) which has the effect that you mentioned, “sort of short-circuit the thing and end it early. Not getting summary judgement is only allowing the process to continue normally.” The party bringing a M/SJ MUST state that there are no facts in controversy, the law is uncontroverted and movant (party asking for SJ) is entitled to a judgment in his/her favor as a matter of law. In other words, a M/SJ is brought because going to trial would be wasteful. You see, we are not talking about a jury trial following a motion. This is the hearing on the motion following disposition of the motion. That’s the impossibility. (Yes indeed, it is all confusing to the untrained layperson.)

    The legal impossibility is for a SJ to have been granted and a motion for SJ still to be heard on Friday. I think both Plaintiff (CNH Dist., et al.) and Defendant (Oakland Four) each filed a M/SJ which must be heard at the same time because to grant one is to automatically deny the other. Of course, a court could deny both upon determining that material facts are at issue (are still uncertain).

    What I suspect happened was that the hearing on both motions occurred, the judge might have given an oral ruling and on Friday the judgment will be rendered. Where I practiced law the winning side’s attorney has to prepare the court’s judgment, reduce what the court said to writing and, in possible, get the opposition to sign off. This is harder than a layman might think because judges misstate the law, leave out critical parts of what they needs to find or rule and the attorney who wins has the burden of making the judgment appeal proof). But without either documents or an attorney describing the the motions, their contents and the dispositions, no one can say what is happening with reasonable certainty.

  12. @Rev. Wesley T. Kan #63

    I found this line on the Alameda Court web page concerning this case:

    “Motion for Reconsideration Reservation Set for dept: 301 date: 01/14/2011 time: 10:00 AM”

    Any idea what this means?

  13. @Don Kirchner #65

    I already did that, silly goose.

    I was wondering if anyone here had any specifics regarding this particular case, as in which side requested it, etc. Both sides in the case had a motion for summary judgement denied.
    Just curious.

  14. A motion for reconsideration means something has been decided and someone wants a “second bite at the apple.” It might be a small change as to a single term or condition or it might be a bid for a complete reversal. Can’t say for sure without seeing the filed motion.

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