# LCMS Convention Workbook_St. Louis Missouri_1981_S378 # Machine transcription, uncorrected — CHI Digital Archive (demonstration) CONSTITUTIONAL OPINIONS 377 convention and cannot be used to preclude the action contem- plated by a District to incorporate separately its District Church Extension Fund. The Commission on Constitutional Matters at this time is not ruling on the meaning and scope of the word “‘policy” as used in Bylaw 8.61. July 26, 1980 Supplemental Opinion re Separate Incorporation of District Church Extension Funds (As Applied to the Ohio District) A Subsequent to the issuance of its “Opinion re Separate Incorporation of District Church Extension Funds,” dated July 26, 1980, the Commission on Constitutional Matters, after receipt of additional inquiries and a request from the Lutheran Church Extension Fund—Missouri Synod, agreed at its meet- ing Oct. 23—24, 1980, to give consideration to additional issues that had been raised. The commission then requested briefs or other material from President J. A. O. Preus or synodical counsel, if the President deemed it appropriate, setting forth the synodical position, and also from the Lutheran Church Extension Fund— Missouri Synod, requesting that that body have its own counsel review the matter and present briefing on its behalf. The Ohio District, which had raised the question originally, was given a similar request. Additionally, the involved parties were again invited to make personal presentations before the commission. Various position papers, letters, resolutions, and statements were subsequently received. Oral arguments and presentations were made on Jan. 30, 1981, in a meeting of the Commission on Constitutional Matters. B The following is a review of some of the contentions, arguments, questions, and documentation received and reviewed. Asan attachment toa letter of Jan. 14, 1981, the commission has now received for consideration a resolution adopted by the synodical Board for Church Extension in June of 1978 conclud- ing with a single resolve: Resolved, That if any District, including but not limited to the Ohio District, assembled in convention, should approve the proposal to incorporate the District’s Church Extension Fund, the officers and the directors of such District are hereby directed to refrain from establishing such corporation until the Synod’s Board of Directors and Board of Church Extension have reviewed and approved the Articles of Incorporation, Bylaws, and proposed policies pursuant to which the said new corporation would conduct Church Extension functions within that District. This policy shall be applicable to all Districts of the Synod, including, but not limited to, the Ohio District. In this regard, this document was not previously made known to the Commission on Constitutional Matters, and it appears after further research that it apparently was not considered by the floor committee or by the delegates to the 1979 synodical convention in St. Louis, although it may or may not have been material to the consideration of 1979 convention Res. 4-01A and Res. 4-02. It has also been established that, apparently, this resolution quoted above was adopted by the synodical Board for Church Extension in Detroit several days before the June 1978 conven- tion of the Ohio District but was not furnished to the Ohio District until some time after its convention. Further, the Ohio District contends that its decision was made without any regard to the then proposed Lutheran Church Extension Fund—Missouri Synod (established as a separate corporate entity under the Laws of the State of Missouri on June 15, 1978) and certainly without any deliberate attempt to circumvent participation in an existing or proposed und. Then, as mentioned in the commission’s opinion of July 26, 1980, in what was apparently a “joint” session of the synodical Board for Church Extension and the newly formed Lutheran Church Extension Fund—Missouri Synod board of directors, a “policy” was adopted on March 2—3, 1979, and reaffirmed June 20—21, 1980 (after the adoption of the 1979 synodical convention Res. 4-02, permitting Districts not to join the new fund created by the Synod), prohibiting Districts from estab- lishing such a separate corporation. So the commission is now faced with the additional problem of what is the effect or the relationship, if any, of these three resolutions. The Ohio District indicates that it is not certain that it is bound by the June 1978 resolution of the synodical Board for Church Extension and suggests the March 2—3, 1979, resolu- tion of the “joint” “board” and “fund” may be controlling (as having superseded and replaced the June 1978 “Board” resolu- tion) and contends, together with its counsel, as hereinafter discussed, that its action does not violate any “policy” in that there is a clear distinction between the mechanics of the proposal of the Ohio District and, for example, the manner in which the LCMS fund was established as a separate corpora- tion by the Synod. The “board” and the “fund” (two separate boards are involved here although the same persons comprise both boards) apparently contend that all three actions should be considered, but further believe the March 2—3, 1979, resolution, reaffirmed June 20—21, 1980, should be more controlling in nature. However, counsel present for the “board” and “fund” indicates that the action of March 2—3, 1979, and June 20—21, 1980, may have been unnecessary and superfluous, and indicates that the June 1978 resolution should be considered as controlling. Parenthetically, an additional consideration is what authority, if any, the Lutheran Church Extension Fund— Missouri Synod may exercise in the area of controlling (estab- lishing policy) presently existing District boards as contrasted with “joint” actions of the “fund” and “board” and actions taken only by the “‘board.” (See Bylaw 8.61.) During the entire presentation of this matter some parties have continually requested that other involved parties, includ- ing the Commission on Constitutional Matters, furnish “authority” for permitting a certain action to occur, such as the separate incorporation of a District Church Extension Fund. Yet no one has presented any clear authority prohibiting the course of action which the Ohio District has adopted. No prohibition can adequately be deduced from conflicting policy statements. It should be noted in this connection that the first resolved of the Church Extension Fund resolution of March 2—3, 1979, enunciates the policy that Districts “not establisha separate corporation for... the growth of church extension activities.”’ This could be interpreted to mean that the Church Extension Fund opposes the growth of church extension activities! And certainly no statement prohibiting the proposed course of action of the Ohio District can be found in the Bylaws of the Synod. The Ohio District and its counsel contend that there is a clear and distinct difference between their proposal and actions of the Synod in ratifying the creation of the new synodical “fund.” Among other contentions, the Ohio District indicates that presently its assets or funds are comingled with the funds of the Ohio District and that some action needs to be taken increasing the protection of investors in the fund as well as making possible less complicated and less costly filing require- ments with the state Division of Securities—thereby also providing a more formal operation of the fund and providing additional protection for the integrity of the fund should there be any liability claim presented against the District. It is contended that the Ohio District Church Extension Fund corporation will not be an independent corporation such as the newly created Church Extension Fund—Missouri Synod. Rather, in Ohio, under the “non-profit” corporation law, the corporation is formed by “members” and in this case the Ohio District itself ‘‘will be the sole member.” Then the members of the Board for Mission and Church Extension of the District will serve as the board of directors of the Church Extension corporation, but unlike the new synodical ‘“‘fund,” the Ohio