# LCMS Convention Workbook_St. Louis Missouri_1981_S379
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

378 CONSTITUTIONAL OPINIONS

directors will continue to be elected directly by the Ohio District
in convention.

It is further contended that the proposed corporation is
needed to clarify various legal and auditing procedures and is
necessary to give added protection to the investors—and has
been proposed for these reasons only—and therefore does not
violate any basic “policy” prohibiting a ‘‘separate incorpora-
tion” —but instead is merely the prudent exercise of aright and
duty to accomplish and achieve the objects of the Ohio District
and provide for a more effective and efficient program.

The District recognizes its obligation under Bylaw 8.61 as it
relates to the synodical “board.” However, it makes the
distinctions set forth in the immediate preceding paragraphs,
and particularly notes the fact that the Ohio District has
contemplated this change for several years before it was
aware that the new synodical “fund” had been suggested.

Further, the District concluded by suggesting that the
synodical “board” as well as the “fund” encourage and
promote similar incorporation in other states by other Dis-
tricts, where possible, as this would greatly facilitate such
District funds eventually joining the synodical “fund” should
a District exercise that option.

In addition to the above factors, counsel, submitting a
“brief”’ at the direction of the Board of Directors of the Synod,
contends generally that the incorporation should not be author-
ized and states that it would seem to be the essence of sound
structuring of the Synod that none of the existing entities
should be able to create additional entities unless the Synod
has expressly authorized such entity or class of entities,
providing for at least minimal regulation, adding, “Naturally,
it would not be necessary that each and every new corporation
be specifically authorized.” In summary, there is a large
concern that by authorizing the incorporation of the Ohio
District fund in this particular case under consideration, a
precedent may be established which would bring about a
profusion of such entities or corporations, all without proper
regulation and causing chaos. In that regard, and in view of all
that has been set forth in this opinion, the Commission on
Constitutional Matters holds that in taking into consideration
the many peculiarities of this unique situation, its holding
herein is to be limited to this particular case, and is not
necessarily to be considered as authority in other areas of
synodical life for encouraging, discouraging, authorizing, or
prohibiting similar actions.

Finally, the commission has devoted considerable discus-
sion and review to other provisions.

For example, it has examined Bylaw 2.87, especially the
“exception” set forth in the first sentence and then particularly
subsection “‘c’” thereunder. Since “property” does not include

any assets of the Lutheran Church Extension Fund—Missouri
Synod, and, since it is specifically provided “that property held
by an agency ina fiduciary capacity ...shall not be considered
or treated as the property of the Synod,” should not the Ohio
District fund be placed in this category? If so, what then is the
total effect of Bylaw 2.87 with regard to such District Church
Extension Funds? See also Constitution Article XII, Section 2
and Bylaw 3.07, particularly “b” and “‘c” thereunder.

C

Having considered all of the foregoing factors as well as
other provisions, the Commission on Constitutional Matters
has come to the following conclusions:

1. It hereby reaffirms its holding of July 26, 1980, regarding
the separate incorporation of District Church Extension
Funds.

2. In view of the uncertainties, possible contradictions,
conflicts, complexities, and definite lack of clarity, together
with the possibility of legal ramifications, the Commission on
Constitutional Matters most respectfully but most urgently
suggests that the Board of Directors of the Synod, under its
duties (Constitution, Article XI, F) for the general management
and supervision of all the business affairs of the Synod, review
this situation in its entirety and prepare or cause to be prepared
and submitted to the forthcoming 1981 synodical convention
all necessary Bylaw changes or other provisions to provide
guidance in this area, considering the previously adopted
resolutions of the Synod in convention on this point, especially
1979 Res. 4-02.

3. The commission is not unaware of the difficult position
in which the Ohio District now finds itself, particularly with
respect to the terminiation of the presently existing waiver
from the Division of Securities in Ohio which will occur in April
1981. In view of the foregoing, the commission reaffirms its
opinion that the Ohio District under existing synodical Bylaws
and convention resolutions may proceed with the incorpora-
tion of its Church Extension Fund.

4. The commission recommends that if the Synod in con-
vention in 1981, upon recommendation of the Board of Direc-
tors, should adopt restrictive legislation regarding the question
of corporations within the Synod establishing additional
corporations, the Ohio District be exempted (as in the case of
the Michigan District) from any such action as long as the
directors of the Ohio District Church Extension Fund continue
to be elected directly by the Ohio District in convention.

Feb. 19, 1981