LCMS Convention Workbook St. Louis, Missouri — 2001, Page 314

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314 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

ordained ministers or laypersons may be elected from any one Dis-

trict.

So long as District membership is held in different Districts of the
Synod, residence in the same state is of no consequence. A board mem-
ber may be an emeritus church worker who has upon retiring changed
his place of residency. His synodical membership, however, ordinarily
remains in the District where he last served, in accord with Bylaw 2.41
e:

An emeritus member not regularly serving any congregation or
other agency shall continue to hold membership through the Dis-
trict through which membership was held at the inception of the
emeritus status unless a transfer is approved by both the President of
that District and the President of the District to which membership
would be transferred.

Adopted Sept. 30, 1998

Role of Praesidium in Termination
of Membership Process (98-2114)

A letter was recetved on November 9, 1998. describing a situa-
tion tn which charges have been tiled against a District President
under Art. XIII of the Constitution. When the First Vice President
failed to investigate the charges within 90 days, the charges were
forwarded to the Praesidium of the Synod according to Bylaw 2.27
b. The Praesidium referred the matter back to the First Vice Presi-
dent, who has now referred the matter back once again to the Prac-
sidium, precipitating the following four questions.

1. Does the phrase “If after investigation” (Bylaw 2.27 b) mean that
when the Praesidium receives charges which allege Art. XIII vi-
olations against a member, including a District President, the
Praesidium is to. that is, must conduct an investigation (assum-
ing that the 90-day requirement has been fulfilled)?

The Commission answers that Bylaw 2.27 a requires that, when

“facets which could lead to the expulsion of a member from the Synod

under Article XIII of the Constitution are made known,” the matter is to

be “thoroughly investigate|d] whether the allegations can be substanti-
ated” (paragraph |). In a case in which the District President or Vice

President fails to act on the allegation within 90 days and the Praesid-

ium of the Synod is presented with the written complaint, it becomes

the responsibility of the Praesidium to “thoroughly investigate whether
the allegations can be substantiated.” The answer to this question is
therefore “yes.”

2. Is the phrase “If the Praesidium determines not to proceed”

- (Bylaw 2.27 b) to apply to a decision of the Praesidium following
an investigation (i.e., the Praesidium concludes, upon investi gat-
ing the charges, that there is no evidence to support said allega-
tions)? Or can the Praesidium dismiss the matter out of hand
without an investigation?

In answer, the Commission again notes that the words “If after in-
vestigation” (Bylaw 2.27 b) require that an investigation take place. A
determination “not to proceed” must therefore be made on the basis of
this investigation.

3. Does the phrase “which shall terminate the matter” (Bylaw 2.27

b) mean that the Praesidium of the Synod, having received and
investigated specific charges. is the final authority and has the
power to formally terminate the matter and is to do so only after a
proper investigation?

The Commission responds that the words “which shall terminate the
matter” assume that the entire procedure has been carefully followed,
including a proper investigation. In such case and after concluding that
the facts do not form a basis for expulsion of the member under Art.
XH of the Constitution, the Praesidium is the final authority and has
the power to formally terminate the matter.

4. Given the wording of this Bylaw, can the Praesidium of the
Synod refer the charges back to the same district officers who
failed to investigate the matter the first time?

The Commission responds to this question by reviewing the provi-
sions of Bylaw 2.27 a and b as these relate to the duties of the Praesid-
ium of the Synod.

Subsection a directs the Praesidium to decide the question of
whether the District President or the next appropriate District officer to
function has a conflict of interest. The Praesidium must decide the issue
of conflict of interest only if the matter is presented to it in writing by
one of the parties to the dispute. The Bylaw leaves open the question

2001 Convention Workbook

of how this decision is to be made, allowing for the referral of the
charges back to a District officer who failed to investigate the matter
the first time. The decision by the Praesidium is final and not subject
to appeal.

If the Praesidium concludes that there is nof a conflict of interest,
the Praesidium is to advise the appropriate District officer that he is to
proceed in accord with Bylaw 2.27 a |. If the Praesidium concludes that
a conflict of interest does indeed exist, it is to so advise the District of-
ficer of its decision and direct that the next qualified District officer is to
undertake the matter.

Subsection b deals with the situation where the District President or
the next qualified District officer to act has declined to suspend the ac-
cused member of the Synod or has failed to act within 90 days after re-
ceipt of the written complaint. If the complainant appeals such alleged
non-action to the Praesidium, the Praesidium is then to take the follow-
ing steps: First, it is to decide whether the appropriate District officer
has declined to suspend or failed to act within the 90-day period. If its
answer is “no,” it shall so notify the parties to the dispute of its deci-
sion and direct the appropriate District officer to continue performing
his duties under Bylaw 2.27. However, if its answer is “yes,” the Prac-
sidium is then to proceed to the second step, which is to thoroughly in-
vestigate the dispute. In so doing the Praesidium may utilize other per-
sons to assist it in its investigation.

Upon conclusion of its investigation, the Praesidium is then to pro-
ceed to the third step, which will depend on its findings. If it decides
the charges can be substantiated, it shall proceed with the matter in ac-
cord with Bylaw 2.27 a2 and c in the same fashion as the appropriate
District officer would have done had he concluded that the charges
could be substantiated. If it decides that the charges cannot be substan-
tiated, it shall so advise the parties to the dispute and the matter is ter-
minated.

Adopted Nov. 30, 1998

Discipline and Fellowship in Art. III
and VI of the Constitution (98-2122)

Two questions remained from a list of questions regarding dis-
cipline and fellowship submitted by a District President in a letter
received July 31, 1998, questions that the Commission delayed an-
swering at the time of its September 30, 1998, meeting to allow op-
portunity for further study. The first question asks for clarification
of Art. II of the Constitution:

|. How are the words “provide a united defense against schism, sec-
tarianism (Rom. 16:17), and heresy” (Art. II 1) to be interpreted?
A united defense against heresy, for example. would seem to
refer to a defense against permitting the introduction of heresy
within the Synod. A united defense against schism would also
seem lo reter to a defense against permitting schism within the
Synod (it might refer to a defense against the introduction of
schism within the one holy Christian and apostolic church), But
what aboul sectarianism? Is that a warning against other sects? Is
it a statement that the Synod will work to prevent itself from be-
coming a sect (instead of a part of the one holy Christian and
apostolic church)? Or is it a statement of intent thal the Synod
pledges itself to provide a united defense against any and every
spirit of sectarianism both within and outside of the Synod? Or
do these words mean something else allogether?

The Commission responds that the provisions of Art. IIT | are best
understood in the context of the preceding articles of the Constitution.
The Preamble links the members of The Lutheran Church—Missouri
Synod to the apostolic church (Acts 15:1-31), also noting that it is the
Lord's will that the diversities of gifts be used “for the common profit”
(1 Cor. 12:4-31). Art. Lidentifies the members of this’ Lutheran church
as a synod who walk together, which in the case of The Lutheran
Church—Missouri Synod has meant walking together in common faith
and practice. Art. II] establishes that the faith and practice of the mem-
bers of the Synod finds its normative basis in the common confession of
faith founded on the Holy Scriptures, “the only rule and norm of faith
and practice” (Art. II 1), and the Symbolical Books of the Evangelical
Lutheran Church, “a true and unadulterated statement and exposition of
the Word of God” (Art. II 2).

From these provisions Art III of the Constitution begins, “The
Synod, under Scripture and the Lutheran Confessions shall ...~ and fol-
lows with ten stated objectives of the Synod, the wording of the first of
which is the statement in question: “and provide a united defense
against schism, sectarianism (Rom. 16:17), and heresy.” It should be