Wednesday, May 23, 2012

Are These Articles Valid, Part 4: How do you "restate" something never stated?

For those who are new to this blog, this is not a philosophical question.  We're going through, in several posts, the "nuts and bolts" of the decision of the Minnesota South District of the Lutheran Church - Missouri Synod to sell the campus ministry properties in Mankato and Minneapolis.  Our focus has been on the Minnesota South District's own Articles of Incorporation which question if the officers of the corporation (Directors, President, and others) have ignored, violated - or even fabricated - the corporation's own governing documents.  This post concentrates on the "Amended and Restated Articles of Incorporation" filed by the District President in 2007.

Earlier posts have pointed out how the 2007 and 2009 amendments to the articles fail to meet the corporation's own standards and process for amendment, spelled out in Article IV.  But in 2007 we see the condition of invalidity brought to an even greater level (or depth, in this instance).

So the short answer to the question is, "You can't.  You have to state the thing first."

So how do you do this?

This is from page 1 of the 2007 articles filed for record with the Secretary of the State of Minnesota.  Then follow all the proposed article changes going back to the last valid Articles of Incorporation filed for record in 1966.  Among the many other problems with this document we can add the word "RESTATED".  It is impossible to "restate" articles that have never been "stated" with the secretary previously.  As demonstrated in an earlier post, the corporation filed no changes in their articles from 1966 until this interesting attempt in 2007.  Only articles that have already been validly and properly filed can be "restated", and that is done to aggregate several different sets of amendments into one document with the state government.

At the very least, this creates a mess.  The only articles that can be restated are the ones that were correctly filed in 1963 and correctly amended and filed in 1966.  Any proposed article changes from 1966 to 2007 cannot be restated, because they were never stated (filed for record).  The only valid amendments that could be filed would be those approved "by two-thirds majority of the delegates voting on said amendment, certified by the presiding officer, verified by the secretary of the corporation and recorded with the secretary of the State of Minnesota, according to law."

The problems multiply, because there are, logically, a limited number of options:

1. The only articles that can be restated are those already stated in 1963 and 1966.

2. The only amendments that can be filed for record are the those certified by the presiding officer.

3. The only amendments that this District President can verify are those after 1991, when he became the presiding officer.

4. The District President claims in his sworn affidavit in 2007, and again in 2009, that he has "the authority to sign this document on behalf of the corporation".

5. The only authority the District President can have in this case is from the Articles of Incorporation themselves when he is the "presiding officer" at a meeting to certify the amendment ("certified by the presiding officer", Article IV).

6. Unless he can demonstrate otherwise from the articles or some action by the voting members, his sworn affidavit is, at best, incorrect.

7. The last amendments "verified by the secretary of the corporation" were in 1966, which verification is lacking from the attempted filings for record in 2007 and 2009.

And, of course, all the other defects pointed out in previous posts.

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