LCMS Convention Workbook St. Louis, Missouri — 1998, Sheet 312

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APPENDIX II
OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Arrangement through Proper Channels

A District President had written to the Commission on Consti-
tutional Matters with a number of questions relating to a District
President’s intervention in a congregation which appeared to be in-
volved in ongoing conflict. The congregation had questioned ac-
tions which were taken by the District President and had done so on
the basis of the fact that he had, according to them, not arranged
for a visitation of the congregation “through the proper channels.”
The District President had, therefore, posed a number of questions
based on Bylaw 4.75 of the Handbook and Art. VII and Art. XII 7
of the Constitution of the Synod.

After reviewing a proposed response to the questions which had
been asked, the commission decided to respond as follows:

Referring to Bylaw 4.75 of the Handbook of the Synod, you have
asked the Commission to respond to the following questions:

1. Ifa District President has “evidence of a continuing unresolved
problem in doctrine or practice,” believes such an investigation
is needed in a congregation, notifies the pastor and president of
the congregation that an investigation will be conducted on the
basis of Bylaw 4.75 and then carries out that investigation with-
out the official approval of the pastor, congregation or its board
of elders, does that constitute conducting such an investigation
“through the proper channels”?

In such a case, may a congregation, its pastor or elders nullify
the results of a District President’s investigation of unresolved
problems in doctrine or practice in a congregation by alleging
that the investigation by the District President or his representa-
tives was not conducted with the approval of the Board of El-
ders or congregation?

In addition, in reference to Art. VII and XII 7 of the Constitution of
the Synod you have asked:

3. Does Art. VII nullify the right or responsibility of a District
President to arrange for and to conduct an official visit or inves-

tigation in accord with Bylaw 4.75?

Does Art. XII 7 in any way conflict with Art. VII or with Bylaw
4.759

What is the relationship among Bylaw 4.75, Art. VII, and Art.
XI 7?

To these questions the commission provides the following response:
1.

5.

It should be noted that Bylaw 4.75 says “arrange for an official
visit or investigation.” Assuming that “notifies” in line 3 of the
question is inadvertently brusque and not fully descriptive of the
procedure followed, the notification is here viewed as a final act
after prior requests to cooperate with arranging an investigation
have been rebuffed. Because the congregation is a member of
Synod and as such has agreed to Art. V, Art. VI, and Bylaw 1.05
d the notification is an adequate fulfillment of preconditions for
conducting the investigation. .

The results of an investigation conducted under the conditions
described above can be nullified only by showing them not to
be factual, whether by inaccuracy or by incompleteness or both.

In the exercise of its right of self-government, the congregation
has joined the Synod, thereby accepting Art. VI, Conditions of
Membership, and its further elucidation in Bylaw 105 d Bylaw
2.35, Bylaw 2.39, Bylaw 4.09, and Art. XII. Art. VII does not
nullify the right or responsibility of a District President to
arrange for and to conduct an official visit or investigation in
accord with Bylaw 4.75.

Art. XII 7 does not conflict with Art. VII, as explained in Bylaw
1.05, d: “Thus, while congregations of the Synod are self-gov-
eming (Art. VII), they, and also individual members, commit
themselves as members of the Synod to act in accordance with
the synodical Constitution and Bylaws under which they have
agreed to live and work together and which the congregations
alone have the authority to adopt or amend through conven-
tions.”

297

Art. XII 7 does not conflict with Bylaw 4.75. The latter pro-
vides guidance for the implementation of the former.

Art. XII_7 establishes a duty of the District presidents. Bylaw
4.75 provides some guidance for the implementation of that
duty. Art. VII provides no relief from compliance with Art. XII
7 and Bylaw 4.75, as noted in answer to question 4. It should
be noted that Art. VII provides possible relief from resolutions
of the Synod which are not in accordance with the Word of God
or which appear to be inexpedient (cf. use of “applicable” in
Bylaw 2.39 b) as far as the condition of a congregation is con-
cemed, but not from the Constitution and the Bylaws.

The commission further notes that the expression through proper
channels is used in describing how District presidents (Bylaw 4.75) and
Circuit Counselors (Bylaw 5.13 k) relate to member congregations. A
definition of “proper channels” is not given. However, the Scriptures
identify pastors as being made overseers of the flock by the Holy Spirit
(Acts 20:28), and the constitutions of the congregations designate an
officer (usually the president) as official representative of the congre-
gation. These two—pastor and official representative—are the proper
(suitable) channels (means of communication) by virtue of their offices.

In light of the relationship of a member congregation to Circuit and
District as described above, it would be assumed that the pastor and the
official representative of a congregation would cooperate with the Pres-
ident of the District or the counselor of the Circuit in which the con-
gregation is a member. That assumption is strengthened by Bylaw 5.19,
“Relation to Nonmember Congregations”: “The jurisdiction of Circuit
Counselors shall include nonmember congregations whose pastors are
members of the Synod, but for the purpose of official visits in such a
congregation the consent of the congregation shall first be secured.”

Adopted Sept. 16, 1995

Validity of Election and Succession of Officers

A letter had been addressed to the Commission on Constitu-
tional Matters with the following question:

If, between the time of an election and the time of installation, a
candidate becomes unable to serve (in the case of a fatal auto accident
or a paralyzing illness), has an election taken place? Does the next eli-
gible candidate serve (as in the case of a president, does a vice-president
take the office), is the office filled by appointment (as by a board of di-
rectors), is a new election required (a polling of the continuing elected
delegates), or is the office filled in yet another way?

Responding to this question, the following opinion was offered:

The commission would first note that Bylaw 3.963 outlines proce-
dures for the election of a President and in section b particularly states
that “the candidate receiving a majority of the votes cast shall be de-
clared elected” if he receives the majority of votes. It would thus ap-
pear that when one has received such a majority, an election has taken
place even though circumstances are such that the one elected cannot
carry out the responsibilities of the office because of death or a para-
lyzing illness.

The Bylaws are quite clear with regard to service of the First Vice-
President in case of prolonged iilness or disability on the part of the
President. Bylaw 3.107 gives the Board of Directors the responsibility
for determining when that condition exists.

In view of the fact that an election would have taken place if one re-
ceived a majority in the election of the President, Bylaw 3.127, Suc-
cession to Presidency, would respond to the situation in which a death
has occurred. It states that “the Vice-Presidents shall, in the order in
which they have been ranked, assume the presidency if the office is va-
cated or perform the duties of the President if he becomes incapaci-
tated.” This is in keeping with Constitution Art. XI C 2, which is
equally explicit.

Adopted Sept. 16, 1995

Constitutionality of Res. 7-18A

At the 1995 synodical convention, the delegates had adopted a
resolution relating to the issue of the certification of Herman Otten
as a pastor of The Lutheran Church—Missouri Synod. Since the
close of the convention, the question had been asked,