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LCMS Convention Workbook St. Louis, Missouri — 2019, Page 179

Scan: The Lutheran Church—Missouri Synod

Transcription machine transcription, uncorrected

I. OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
The Secretary of the Synod provided background for his
question:
Background: In a case where a district president fails to act,
CCM Op. 16-2791 finds unconstitutional the Bylaws’ present
direction of an accuser’s appeal for action to a Referral Panel
(e.g., Bylaw 2.14.5.3). In such a case (or when the district president declines to suspend, and the accuser appeals for action) it is
the President of the Synod who has the right and responsibility
to address such an appeal for action. 2016 Res. 12-14 requires
the Secretary of the Synod to initiate a Bylaw 7.1.2 process to
bring the Bylaws into conformity with the Constitution in this
regard, “in order to implement clear bylaw procedures regarding this aspect of ecclesiastical supervision.”
Referral Panels, however, are constituted not only when
a district president fails to act and an accuser appeals for action. They may be formed voluntarily by a district president,
in accord with Bylaws 2.14.5–2.14.5.1, for the Referral Panel to
make the decision whether or not to initiate formal proceedings.
Three questions, below, result from this observation.
Opinion Background: CCM Op. 16-2791 addressed the constitutionality of provisions that were in Synod’s Bylaws from
1956 until 2004. These provisions allowed for an appeal by an
accuser, if a district president declined to suspend a member or
failed to act. Between 1956 and 1989 the appeal of the accuser
was directed to the President of the Synod. After 1989 the
appeal was directed to the Praesidium of the Synod. The 2004
convention of the Synod eliminated an appeal to either the
Praesidium or the President of the Synod and instead allowed
for an accuser to appeal to a Referral Panel, should the district
president fail to act. The 2004 convention also defined its use
of “fails to act” in the new bylaw.
CCM Op. 16-2791 concluded that the 1956 convention of
the Synod interpreted Synod’s Constitution, specifically, Article
XI B 1–3, to grant the President of the Synod the power to initiate proceedings in the event that a district officer failed to act.
That same convention adopted bylaws acknowledging and facilitating that authority. Therefore, CCM Op. 16-2791 concluded
that the practice of the Synod as it existed between 1956 and
1989, which allowed an accuser to appeal to the President of the
Synod in the event a district president did not suspend a member, was constitutional. The opinion further determined that
this authority was inherent in the powers given to the President
of the Synod by the Constitution.
Regarding the practice of the Synod between 1989 and
2004, which directed that an appeal could be made to the Praesidium of the Synod, CCM Op. 16-2791 concluded that this practice was unconstitutional. The opinion notes that the decision to
initiate the process and to suspend or not to suspend is part and
parcel of ecclesiastical supervision, which the Constitution assigns only to the President of the Synod and to the district presidents. Because the decision whether or not to proceed and initiate the expulsion process was given in 1989 to the Praesidium
of the Synod, and because the Praesidium is not given ecclesiastical supervision authority by the Constitution of the Synod,
therefore, the practice between 1989 and 2004 of allowing an
accuser to appeal to the Praesidium in the event that a district
president declined to suspend the member, or failed to act, was
determined to be unconstitutional. (Prior to Op. 16-2791, the
Commission never specifically addressed the general constitutionality of referral to the Praesidium [see Op. 16-2791].)

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Referral Panels were implemented in the Bylaws in 2004,
after the period addressed by CCM Op. 16-2791. While these
were not a part of the original question of Op. 16-2791, the
opinion’s conclusion that referral to the Praesidium is unconstitutional (because it deprives the President of the Synod of
his authority to initiate proceedings in the case where a district
president has failed to act or declined to suspend) applies equally to those Referral Panels formed to deal with an accuser’s appeal for action. These Referral Panels are mentioned only in the
concluding section of CCM Op. 16-2791, where the opinion
states, “Moreover, this review finds the change of the Bylaws in
1989 and subsequently (namely, to remove the right of appeal
for action to the President, should district officials fail to act,
and to replace it first with an appeal to the Praesidium and then
with an appeal to a Referral Panel) to conflict with the Constitution of the Synod. This change unconstitutionally deprived
the President of the Synod of procedures for exercising a power
granted him in Constitution Art. XI B 1–3.”
Question 1: Does CCM Op. 16-2791 find unconstitutional the
use of Referral Panels in the manner described in
Bylaws 2.14.5–2.14.5.1?
Opinion: Bylaws 2.14.5–2.14.5.1 allow a district president to
form a Referral Panel of three circuit visitors, which conducts
an investigation and then makes the decision either to suspend
or not suspend. CCM Op. 16-2791 does not explicitly address use of Referral Panels as described in Bylaws 2.14.5 and
2.14.5.1.
Question 2: If CCM Op. 16-2791 does not apply to their
constitutionality, are they constitutional, as used
in Bylaws 2.14.5–2.14.5.1?
Answer: Bylaws 2.14.5–2.14.5.1 allow a district president to
form a Referral Panel of three circuit visitors, which conducts
an investigation and then makes the decision either to suspend
or not suspend. While CCM Op. 16-2791 does not directly address the use of Referral Panels in Bylaws 2.14.5 and 2.14.5.1
(likewise, 2.17.5 and 2.17.5.1), it does apply to them. Because
the decision to suspend or not to suspend is part and parcel
of ecclesiastical supervision, and because the Constitution
of the Synod does not give ecclesiastical supervision authority to Referral Panels, the use of Referral Panels as they are
constituted in Bylaws 2.14.5 and 2.14.5.1, 2.17.5, and 2.17.5.1
is unconstitutional for the same reason that CCM Op. 16-2791
declared that an appeal to the Praesidium of the Synod was
unconstitutional, namely, that they assign otherwise than the
Constitution itself assigns it the authority and responsibility to
make the decision to suspend.
Responsibility for ecclesiastical supervision is assigned by
the Constitution of the Synod only to the President of the Synod and to the district presidents. Bylaws appropriately provide
that, in the exceptional circumstance wherein the ecclesiastical
supervisor is disqualified because he has a conflict of interest or
is unable to act, the next qualified officer acts in his stead [e.g.,
Bylaw 2.14.4.1]). The Constitution, however, allows no delegation of this decision, in the ordinary case, to a Referral Panel or
to anyone else.
The commission notes that Bylaws 2.14.4 (a) and 2.17.4 (a)
do allow the ecclesiastical supervisor to appoint an investigation
committee. This committee after its investigation may make a
recommendation to him, but it remains the responsibility of the
2019 Convention Workbook