LCMS Convention Workbook St. Louis, Missouri — 2004, Page 323

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 323

overall responsibilities to “supervise the doctrine, the life, and the of-
ficial administration on the part of the ordained or commissioned min-
isters who-are members through his District or are subject to his ec-
clesiastical supervision” (Bylaw 4.73). In doing so, District Presidents
may make use of the trained reconcilers in their Districts.

When either of the formal avenues of dispute resolution are cho-
sen, it is important that the action be clearly taken, either by con-
tacting the District or Synod Secretary for the assignment of a rec-
onciler or by making a formal written complaint to the District
President as required by Bylaw 2.27 a. When a written complaint is
made to a District President, he has 90 days to act. If he “fails to
act” or if he declines to suspend the member, the complainant may
present the written complaint to the Praesidium of the Synod
(Bylaw 2.27, b).

In large part the questions addressed to the Commission focus
on the “fails to act” issue. The Commission on Constitutional Mat-
ters has previously interpreted “fails to act” as follows (Ag. 2097):

The CCM interprets “fails to act” to mean that a District President
takes no action within 90 days of receiving a complaint. Such inaction
would mean no measures were initiated within the 90 day period to as-
certain the truth or falsity of the complaint allegations. The same crite-
ria would apply to the First Vice-President or next qualified District of-
ficer under Bylaw 2.27, 1. The words “fail to act” clearly prevent a
District President from stifling a complaint through the refusal to act,
i.e., by literally doing nothing. A complaint which is ignored by a Dis-
trict President for 90 days triggers the “fails to act” language. In that
situation, an appeal to the Praesidium is the proper procedure antici-
pated in the bylaw.

When, however, a District President receives a complaint, he may
take a number of actions which toll the “fails to act” language of the
bylaw. He may suspend the member. He may decline to suspend the
member. In each case he has acted. The District President may elect to
investigate personally or intervene through the efforts of his represen-
tatives. He may meet with the complainant or with the person against
whom the complaint is lodged. He may appoint a small committee to
assist reconciliation efforts. He may take these steps or any other rea-
sonable efforts to get to the heart of the complaint and be deemed to
have acted. Such efforts may extend beyond 90 days until a decision
concerning suspension is reached. At that time a complainant may ap-
peal if the District President declines to suspend.

If a District President has taken no action or ignored a complaint
for the 90 day period stipulated in the bylaw, it is appropriate for the
Praesidium to consider an appeal by the complainant under the “fails to
act” language of 2.27, b. When a District President takes action within
90 days, the “fails to act” language is tolled while the investigation or
reconciliation efforts are pending. An appeal made on a current case in
such circumstances should be properly denied by the Praesidium pend-
ing its prompt disposition by the District President.

The Bylaws are silent regarding the length of time a District Presi-
dent has to conclude action on a complaint. The clear intent of the
bylaw requires expeditious action by a District President when dealing
with such a complaint. A District President may not frustrate the pur-
pose of the bylaw by undertaking some action within 90 days and sub-
sequently refusing to act. The actions of a District President upon re-
ceiving a complaint must ultimately lead to a decision to suspend or not
to suspend. When a District President begins to act within 90 days and
subsequently fails to act, a complainant may properly appeal to the
Praesidium. The Praesidium shalt determine on a factual basis whether
the District President commenced and continued to act.

If you continue to believe that the District President in this case
failed to act on your complaint within the 90-day required period of
time as understood in light of the aforementioned CCM ruling, you
may present your written complaint to the Praesidium of the Synod.

The President of the District is not responsible to arrange meet-
ings between the complainant and the respondent. That responsi-
bility rests with the parties involved in the dispute (Bylaw 8.05)
and, later in the process, with the reconciler who is chosen (Bylaw
8.07 a, b, c, and d).

Adopted Jan. 11, 2002

Ecclesiastical Supervision of the
Synodical President (01-2240)

A District President has questioned the correctness of this Com-
mission’s opinion in 98-2122, dated September 30, 1998, which
opined that the President of the Synod is under the ecclesiastical
supervision of the President of the Missouri District. He has
pointed out that pursuant to Article XI B 1 d of the Synod’s Con-
stitution the Synod President is the ecclesiastical supervisor of all
District Presidents. He has also pointed out that this Commission
has previously issued an opinion on January 10-11, 1992, Ag.
1915, which found that the Missouri District President did not have
ecclesiastical supervision of the synodica] President. Can these two
conflicting opinions be reconciled? The Commission finds that they
cannot. Which opinion is correct? For the reasons stated below, the
Commission withdraws the pertinent paragraphs of its 1998 opin-
ion, 98-2122, and reaffirms its 1992 opinion, Ag. 1915.

Because of the importance of this question, both prior opinions
are reproduced herein. The 1992 opinion reads as follows:

69. Supervision of Synodical President (Ag. 1915)

A pastor had asked the question of the Commission on Constitu-
tional Matters whether on the basis of Bylaw 3.533, d the President of
The Lutheran Church—Missouri Synod was excluded from the respon-
sibility placed upon the President of the Missouri District in 4.73 of the
Handbook of the Synod. The further question was asked, “If he is ex-
cluded, to whom does a brother bring his concern when personal ad-
monition to have the President of the Synod carry out the responsibili-
ties of his office as defined by the Handbook?” The Secretary had
prepared a possible response for consideration by the Commission on
Constitutional Matters which stated:

{The pastor’s] question is not easy to answer. I would assume
that in some instances, such as if a synodical President were serving
as a pastor of a congregation in the district, the district president
would have responsibility for supervision.

However, if someone disagrees with the supervisory activity of
the synodical President, it would not seem that the district president
is in a position to exercise supervisory responsibility over the syn-
odical President. Article XI of the Constitution is quite clear in that
the synodical President has supervision of a district president, an of-
ficer of the Synod (XI,B,1,d). It is the Synod which has a right to
call its officers to account and to remove them from office in accor-
dance with Christian procedure. (XI,A,2). This is supported by
Bylaw 3.103, c which states, “Any member of the Synod shall have
the right to appeal to the convention of the Synod from his [the Pres-
ident’s] action.”

It would seem that the only recourse is an appeal to the conven-
tion of the Synod “when personal admonition fails to have the Pres-
ident of the Synod carry out the responsibilities of his office as de-
fined by the Handbook.” If the matter cannot wait until a regularly
scheduled convention of. the Synod, a request can be made to the
district presidents for the calling of a special convention. If three-
fourths of them agree, such a convention can be called. (VIII, B).

The one bylaw which may appear to contradict the above is
4.73. The question, however, is whether the President of the Synod
is “subject to his [the district president’s] ecclesiastical supervision.”
The previous argumentation provided would say that he is not.

The 1998 opinion reads in pertinent part as follows:

3. District President Fellowshi isciplin ions

(98-2122)

.... The District President finally also asked several questions re-
lating to Bylaw 2.41, d:

You also posed several questions to the Commission relating to
Bylaw 2.41, d, and the District membership and ecclesiastical su-
pervision of the President of the Synod.

“Must the President of the Synod be a member of a District of
the Synod under the provisions of Bylaw 2.41 d? Under the provi-
sions of the same Bylaw, does the President of the Missouri District
have the right (and in certain circumstances, the duty) to apply the
provisions of Bylaws, Chapter II, D. and E. (Bylaws 2.21 through
2.33) to the President of the Synod?”

In answering these questions, the Commission first observes that
the President of the Synod is under the ecclesiastical supervision of
the President of the Missouri District under Bylaw 2.41, d, since the

2004 Convention Workbook