LCMS Persists in Asserting Federal Jurisdiction of Concordia University Texas Case

Posted on by T. R. Halvorson

Introduction

The Lutheran Church—Missouri Synod filed a civil lawsuit against Donald Christian, Christopher Bannwolf, and Concordia University Texas, Inc. on September 1, 2023. As with most court cases, the filing of the complaint that begins the lawsuit is not the beginning of the story. It is a step in the middle of the story. The endnote[1] lists my essays and interviews about the context leading up to the filing of the complaint

A majority of the board of regents of the university, under the leadership and influence of the board chairman and the university president, threw off the control, doctrine, and ownership of the university by LCMS on November 8, 2022. Without authority, they amended the university’s governing documents, denied any control of the synod’s school by the synod, denied the right of the synod to elect and appoint members to the board of regents, and declared that they alone would determine the extent to which they would retain the doctrine of the synod.

I have summarized the counts of the complaint in a prior article[2] and will not repeat that here. This article is about the latest filing in the case, a amended complaint filed by the LCMS on February 29, 2024 in response to a motion to dismiss by the defendants. The motion is about the jurisdiction of the federal court and the amended complaint answers that as well as adds some other new material. The endnote lists my essay and interview about the motion.[3]

Federal Court; State Law

The LCMS filed the case in federal court even though its claims are governed by Texas state law. In a prior article I explained why this happened.[4] Federal jurisdiction is asserted on the basis of complete diversity of citizenship between the plaintiff and the defendants.

LCMS asserted in its original complaint that the plaintiff, as a Missouri corporation, is a citizen of Missouri. It asserted that the individual defendants Donald Christian and Christopher Bannwolf both are citizens of Texas. It asserted that Concordia University Texas, as a Texas corporation, is a citizen of Texas. If true, those assertions mean that there is a complete diversity of citizenship because all the defendants are Texas citizens and none of the plaintiffs is a Texas citizen.

That would support federal jurisdiction. There is an act of Congress that grants federal courts jurisdiction of a case even though the case is about state law when there is complete diversity of citizenship. This is to avoid any unfair bias of a state court in favor of its own citizens against parties who are all from some other state.

Motion to Dismiss

The defendants filed a motion to dismiss saying the court has no jurisdiction because a party that was not named as a plaintiff but should be joined in the case has citizenship in many states including Texas. Therefore, the motion says, there is no complete diversity of citizenship between the defendants (Texas) and all of the parties who should be plaintiffs (some of whom are Texans).

The motion depends on two senses of the word “synod.” In one sense, the synod is a Missouri corporation. In another sense, the motion says, the synod is an unincorporated association of congregations and rostered clergy. Some of the congregations and clergy are in Texas and are Texas citizens. The motion contends that the unincorporated association is the real party in interest at least as to some of the counts of the complaint. As such, the motion contends, the unincorporated association is an indispensable party that must be joined in the case. Once joined, the diversity of citizenship no longer would exist because while the defendants are all citizens of Texas, some of the congregations and ministers in the joined plaintiff unincorporated association also are citizens of Texas.

Key Part of Amended Complaint

Because the key to the motion to dismiss is the claim that there is a second sense of the word “synod,” a  key contention of the amended complaint is about the word “synod.” Against the claims of the motion, the amended complaint denies that there is an unincorporated association. It flatly asserts that no such association exists. It is like Sasquatch, the Loch Ness Monster, and unicorns.

Paragraph 15 of the amended complaint says:

The Synod in 1894 incorporated what is now known as LCMS, the Missouri nonprofit corporation.[6] Synod did so to carry out its property, business, and civil law functions, including the ability to sue and be sued. The Synod does not exist as a civil entity or unincorporated association.[7]

________________________

[6] The nonprofit corporation LCMS, originally formed in 1894 as the “German Evangelical Synod of Missouri, Ohio, and other States,” has had its governing documents amended in convention from time to time. This includes convention action to establish LCMS’s present name, which is identical to that of the Synod, to restate the articles in 1956, and to adopt the provisions of Missouri’s “General Not-for-Profit Corporation Act” in 1967. The Missouri nonprofit corporation LCMS has the same Constitution and Bylaws as the Synod, the church body or ecclesiastical denomination. The members of LCMS are the same members as the members of the Synod. The officers of LCMS are the same as those of the Synod. The Synod convention is the “ultimate authority of the corporation” (i.e., LCMS) just as it is the “legislative authority” of the ecclesiastical denomination (i.e., Synod).

[7] Any attempt to declare the member congregations of the Synod to constitute a purported unincorporated association, as has been already attempted by Defendant CTX in seeking to dismiss this action, would run roughshod over the Synod’s long-standing, definitive, and exclusive exercise of its rights to establish its polity and form of legal association in the free exercise of its religious beliefs and to incorporate and represent itself before the state, as LCMS.

That is the key amendment to the complaint. It exposes the basic claim of the motion to dismiss as a false dichotomy. There is no dichotomy between the Missouri corporation and a multi-state unincorporated association because there is no unincorporated association. Thus, the sense of the word “synod” posited by CTX, Christian, and Bannwolf is a smoke screen to cloud the simplicity that the only party in interest on the plaintiff’s side is the single Missouri corporate entity. There are no parties in interest on the plaintiff’s side who are citizens of Texas. Complete diversity of citizenship does exist, and therefore the federal court has jurisdiction.

Promisors and Oath-Keepers

There are some other parts of the amended complaint worth observing.

In the promissory estoppel claim, LCMS alleges that Christian, Bannwolf, and the CTX regents made multiple promises to the synod which they have violated. Among them were promises “that they would govern the university subject to the Synod Constitution and Bylaws.”[5] That promise embraces such obligations as:

  • Recognizing regents elected by the synod in convention.
  • Recognizing a regent appointed by the praesidium of the synod.
  • Review and approval prior to changing the governing documents of the university.
  • Management of the search process for new presidents of the university.
  • Prior approval of a candidate to be called as a new president of the university.
  • Full teaching and confession of the doctrines of the synod,
  • Continued recognition that it holds property for the benefit of the synod either in trust or with reversionary interest to the synod.

In new allegations about the breach of those promises, paragraph 63 of the amended complaint says:

Had it known that the CTX BOR would take such hostile actions against LCMS and Synod, as evidenced by its narrow understanding of the CTX governance documents, Synod would have long ago sought action from more friendly and oath-following CTX regents . . .. However, the Synod did not take such an action based on its detrimental reliance on the historical polity of the Synod and the relationship between the Synod and CTX, the obligation of the CTX BOR, whose very positions and governance responsibilities are set forth in the Synod Bylaws, to act strictly in accordance with and not to exceed the authority granted to them in the Synod Constitution and Bylaws, and all prior boards of regents of CTX openly and freely considering the CTX governance documents to include the Synod Constitution and Bylaws.

The narrow understanding is to read the university’s articles of incorporation as if they had no context within the constitution and bylaws of the synod and no context within the history and relationships for decades between the synod and the university. It is narrow to act as if the synod did not create the university; did not give it land, money, property, and guarantees of its indebtedness to acquire a new campus; and did not give it many other supports. It is narrow to take the position of regent, chairman, or president as if those positions were not in stewardship to the synod. A footnote to the new allegations of paragraph 63 says:

LCMS alleges that CTX, if allowed to separate itself unilaterally from the Synod, contrary to Synod’s polity, would use Texas law to defeat rightful church governance. LCMS as the civil law entity established by the Synod is the proper party to pursue civil remedies on behalf of Synod.

Title to Real Property

On the question of land title, consider Exhibit E to the amended complaint, which is an excerpt from the minutes of the synod’s board of directors on September 12, 1950:

7.  Austin – The Austin Board requests that titles to the local Synodical properties be transferred to the local Board of Control. Unless this is done great difficulty is experienced in procuring gifts for the school, since the local corporation is termed an empty corporation. Your committee recommends:

a.  To transfer the title of Synod’s property to the local Board of Control as trustees in Austin, Texas.

b.  To request the Austin Board to execute in favor of Synod, a declaration of trust.

We already knew that the real property of the university was deeded by the synod to the local university corporation. From these minutes we now know that this was at the request of the university. This was to help with contributions. It was not to dissolve all right of the synod in the property. The university corporation was to have legal title, and the synod was to have a trust interest. (As implemented later, instead of using the vehicle of a trust, a reversionary interest was used in the deed to the campus.)

Thus, for Christian, Bannwolf, and the CTX regents to wrest ownership of the campus property from the synod, rejecting any stewardship of the property for the synod, and rejecting any trust as it had asked for or any reversionary interest as was used is an even more disgraceful moral theft under the Seventh, Ninth, and Tenth Commandments than I had previously known.

CTX Policy Manual and Relation to Synod

In throwing off the doctrine, ownership, and control of the synod, the defendants were or should have been aware that they were acting against their obligations. Besides the evidence of this referred to in prior articles and interviews, an exhibit to the amended complaint provides more such evidence. Exhibit K is the Board Policy Manual: Policy Based Leadership, Concordia University Texas, Revised September 16, 2022.

In Policy 2.1, the manual says:

2.1 Board Governance

The Concordia University Texas Board of Regents accepts its authority and responsibilities from the Concordia University System of the LCMS and acknowledges a relationship with the Concordia University System as defined in The Synodical Handbook.

Observe the sequence. On September 16, 2022 the regents, chairman, and president reaffirmed their receipt of authority and responsibilities from the synod and the applicability of the synodical handbook, which is the document containing the constitution and bylaws of the synod. Just 53 days later on November 8, 2022 they threw off the control, doctrine, and ownership of the university by the synod. That is so close in time as to be a single tongue with two forks.

The actions on November 8 were too profound, too involved, and too grave to have been formulated after September 16. Indeed, they corresponded remarkably with the doctoral dissertation of the president’s right hand woman in 2013.[6]

Policy 2.1 was not a one-off policy. Many other policies in the same manual rely upon the relationship of the synod as the parental organization and the university under synod’s authority.

Policy 2.2 enumerates the responsibility individual regents must accept. While reading the following excerpts, remember that references to the LCMS handbook are references to the synodical constitution and bylaws and that Concordia University System (CUS) is an entity of synod.

2.2 Accepting Responsibilities

Members of the Board of Regents . . .

2.2.3 They shall become familiar with the areas that apply to Concordia University Texas in the current (1) LCMS Handbook, (2) Concordia University System’s Institution Policy Manual . . ..

Policy 2.5 addresses ownership.

2.5 Connecting with Owners

A primary responsibility of the Board of Regents is to represent the owners of Concordia University Texas. . . . The Board recognizes the legal owner of the Concordia University System and the University as the Lutheran Church–Missouri Synod (LCMS, Inc.).

Policy 2.9 addresses removal of a regent.

2.9 Removal of a Board Member

2.9.1 Board members may be dismissed only for cause, which include:

2.9.1.2 Persistence in violation of applicable synodical policies . . ..

Policy 4.9.3 addresses synodical doctrine in student life.

4.9.3 The President/CEO shall not fail to establish rules and procedures that deter illegal or immoral activities or activities in opposition to the doctrine and practice of the Lutheran Church – Missouri Synod.

Policy 4.10 addresses faculty.

4.10.2 The President/CEO shall not fail to strive to adhere to CUS policy on employment of Lutheran faculty (CUS Institutional Policy Manual 1.1)

4.10.5 The President/CEO shall not fail to assure that the faculty’s public teaching is in accord with the doctrine and practice of the LCMS.

Policy 2.4 is part of defining a policy-based board of regents that takes a relatively hands-off approach to actions by officers and management. Notice that, while these policies let go of much review of executive action, this policy retains review to assure compliance with synodical doctrine and practice.

2.4.3.2 Executive Actions

All Board actions governing actions of the University President/CEO shall be done through policy development when possible. Any actions taken or contemplated by the University President/CEO or any which may be or have been approved through the President/CEO, shall only be considered in light of the appropriate governing policies. The Board shall only review the policies for their compliance with the doctrine and practice of the Synod and their adequacy in regard to Christian ethics, prudence, and other governing documents, and shall not dictate what are appropriate President/CEO actions except for compliance with policies. The Board shall rewrite policies when appropriate

Policy 2.7 addresses election of officers. They are elected to three year terms and the election follows the triennial synodical convention where four regents are elected by synod.

2.7.2.1 Election of officers shall be held by secret ballot at the second regular board meeting of the calendar year, following the Synodical Convention. The elected officers shall take office at the end of the meeting at which they are elected.

2.7.2.2 Board officers shall hold office for three years.

Policy 2.10 address appointment of up to 8 regents by the board of regents, consistent with synodical bylaws and consistent with synod choosing all the other regents by its convention, Texas district, and praesidium.

2.10 Election of Appointed Members

The Board appoints up to eight (8) members to the Board for three year terms, renewable twice. Four (4) shall be appointed in the year there is no District or Synodical convention; two (2) shall be appointed the year of the District convention; and two (2) shall be appointed in the year of the Synodical convention. They shall assume office on August 1 of the year of their appointment. The Board Chairman shall appoint a committee to manage the nomination process as approved by the board.

Policy 3.1 addresses delegation of authority from the regents to the president.

3.1 Manner of  Delegating

The President/CEO shall be empowered to take all actions and make all administrative decisions that are deemed necessary to attain organizational outcomes except (a) actions which are un-Christian or inconsistent with the doctrine and practice of The Lutheran Church–Missouri Synod, . . ..

Later, that policy refers to the LCMS and CUS as “higher governing authority.”

3.1.4 Where approval for an action, other than an action specifically requiring Board approval, is required by a higher governing authority such as The Lutheran Church — Missouri Synod, Concordia University System or Concordia University Texas By-Laws or legal constraints, the President/CEO shall bring a recommended action to the Board.

Policy 4 is about limitations on the executive (president, CEO). The first is named the “Mega-Limitation.” Wast ist das?

Mega-Limitation:

Management of Concordia University Texas shall not act in a manner that is un-Christian, unethical, imprudent, or inconsistent with its charter documents or the doctrine and practice of The Lutheran Church–Missouri Synod.

Not only are the synodical constitution and bylaws in the LCMS handbook referenced like that in general terms, but many specific subsections are recognized as obligatory, such as:

  • 3.2.1.1 Annual Plans (LCMS Handbook 3.10.5.4.(a))
  • 3.2.1.2 Academic Programs (LCMS Handbook 3.10.5.4.(c))
  • 3.2.1.3 Annual Budgets (LCMS Handbook 3.10.5.4.(d))
  • 3.2.1.4 Fiscal Arrangements and Internal Transfer of Funds (LCMS Handbook 3.10.5.4.(e))
  • 3.2.1.5 Faculty Members, Appointments, Extensions, Sabbatical and Study Leaves (LCMS Handbook 3.10.5.6)
  • 3.2.1.6 Appointment of the Business Manager (LCMS Handbook 3.10.5.4.(i).(1))
  • 3.2.1.7 Regulations of Off Campus Activities by Staff and employees (LCMS Handbook 3.10.5.4.(i).(3))
  • 3.2.1.8 Policies on Student Life Activities (LCMS Handbook 3.10.5.4.(i).(8))
  • 3.2.1.9 Creation of and Appointments to Administration Positions (LCMS Handbook 3.10.5.4)
  • 3.2.2.3 Electing the prescribed members of its own Board (LCMS Handbook 3.10.5.

While not citing synodical bylaws by number, the policy manual cites the synodical bylaws by specific subjects in the following:

3.2.2.8 In accordance with the LCMS Handbook and the CUS Institution Manual, any

loan or financial or capital lease agreement for:

facility or equipment repairs

capital improvements

purchase of equipment

new building construction

Could people running a university be so dense as not to see the relationship between the synod and their positions as regents, chairman, and president? Could they get a passing grade on a college assignment to write about their duties to synod from their own policy manual? Theoretically, they themselves wrote their policy manual. Having just acknowledged the “mega-limitation” of the synodical “higher authority” when they revised their policy manual on September 16, 2022, then less than two months later they threw off that limitation and authority with an elaborate amendment of articles of incorporation, bylaws, and policy manual. They practically had to be writing both versions of the policy manual at or near the same time. This is like a business keeping two sets of books, one to show others what they are supposedly doing and another to keep track of what is really going on.

[1] I have written about the context leading up to this stage in the following essays and articles:

Pastor Todd Wilken has interviewed me about the context leading up to this stage in the following episodes of Issues, Etc.

[2] Complaint Filed in LCMS v. Christian, Bannwolf & Concordia University Texas, Brothers of John the Steadfast, September 7, 2023.

[3] Concordia University Texas Seeks to Avoid Federal Jurisdiction, Brothers of John the Steadfast, January 22, 2024.

0391. An Update on Concordia University Texas’ Attempt to Reject the Governance and Oversight of the Lutheran Church Missouri Synod – Tom Halvorson, 2/8/24

[4] Complaint Filed in LCMS v. Christian, Bannwolf & Concordia University Texas, Brothers of John the Steadfast, September 7, 2023.

[5] Amended Complaint, paragraph 61.

[6] Kristi K. Kirk, The Changing Nature of Church College Relations: A History and Case Study of Concordia University Texas, Ph.D. Dissertation, Capella University, 2013, ISBN: 978-1-3034-8365-3. ERIC abstract at https://eric.ed.gov/?id=ED562917. Full text available at ProQuest: https://www.proquest.com/openview/305bbea8c55b3204a080a7b98bf9b4f5/

2 thoughts on “LCMS Persists in Asserting Federal Jurisdiction of Concordia University Texas Case”

  2. Thanks again for all your work on this case, T.R.! It is all thorough and very helpful for the stakeholders, i.e., all members of the LC-MS, to understand what is going on.

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