LCMS Convention Workbook St. Louis, Missouri — 2004, Page 324

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324 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

synodical President serves the Synod at its headquarters in St. Louis,
Missouri. Nothing in the bylaw indicates any intent that the synod-
ical President (or anyone else) be excepted from this provision.
Bylaw 4.73 requires that the President of the Missouri District su-
pervise the doctrine, life and official administration of those who
are subject to his ecclesiastical supervision. As part of that supervi-
sion, the President of the Missouri District is held to apply the pro-
visions of Bylaws 2.21 through 2.33 when necessary.

The Commission further notes that these provisions do not apply
to all grievances which might be brought against the synodical Pres-
ident, but only those listed in Bylaws 2.23, a. 1-3, and 2.27, a. Fur-
thermore, given the importance of the responsibilities of the synodi-
cal President and the disruption of the administration of Synod affairs
which would result from the application of these procedures to the
indocile President, it is to be expected that the President of the Mis-
souri District would exercise the utmost caution, discretion and good
judgment in exercising his responsibilities under these sections.

The 1992 opinion of this Commission was overlooked when the
1998 opinion was written. The 1998 opinion discusses Bylaws 2.41
d and 4.73. It does not discuss any provisions of the Synod’s Con-
stitution. The 1992 opinion discusses provisions of the Synod’s
Constitution and Bylaw 4.73, but does not mention Bylaw 2.41 d.

The Commission observes that the 1992 opinion is primarily
based on the Synod’s Constitution, whereas the 1998 opinion is
based on the Bylaws, without reference to the Constitution. A gen-
eral rule of construction holds that where a constitution and its re-
lated bylaws conflict, the provisions of the constitution will control.

The Commission further observes that Bylaw 3.915 d (1989
Bylaw 3.533 d) provides that “[a]n opinion rendered by the Com-
mission shall be binding on the question decided unless and until it
is overruled by a synodical convention.” The 1992 opinion was is-
sued prior to the 1992 synodical convention. There have been four
synodical conventions since that opinion was issued, and no action
has been taken to overrule it. The 1998 opinion was issued after
the 1998 convention, and thus there has only been one synodical
convention at which it might have been overruled, but no action
was taken to do so at the 2001 convention of the Synod.

Bylaw 2.41 d has changed slightly since 1992. Where the bylaw
in the 1989 Handbook reads, “An individual member of the Synod
who is serving an entity other than a congregation or
District...shall be subject to the ecclesiastical supervision of the
President of the geographical District in which the entity is located”
(emphasis added), the version of that same bylaw in the 1998
Handbook reads, “An individual member of the Synod who is serv-
ing an agency other than a congregation or District...shall be sub-
ject to the ecclesiastical supervision of the President of the geo-
graphical District in which the agency is located” (emphasis
added). Furthermore, 1998 Handbook Bylaw 3.51 a defines an
“Agency of the Synod” as “[a]n instrumentality other than a con-
gregation, whether or not separately incorporated, which the Synod
in convention or its Board of Directors has caused or authorized to
be formed to further the Synod’s objectives.” Subsection | of that
same bylaw separately defines “Synod” as “the association of self-
governing Lutheran congregations initially incorporated on July 3,
1894, and presently named The Lutheran Church—Missouri
Synod, and all agencies of the Synod as defined in Bylaw 3.51 a.”
Clearly, the Synod is not an agency of itself, but includes its agen-
cies under its larger umbrella. This change is significant. It could be
argued that this Commission’s 1992 opinion was weakened by its
failure to consider Bylaw 2.41 d, based on the rationale that the
synodical President was serving an entity other than a congrega-
tion or a District and thus should be under the ecclesiastical super-
vision of the President of the geographical District in which the In-
ternational Center is located (i.e., Missouri). It would seem that the
change in the bylaw has eliminated this argument, since the syn-
odical President is not serving an agency of the Synod as that term
is used in the present Bylaw 2.41 d, but rather is serving the Synod
itself, an entity that is separately defined in Bylaw 3.51 1.

After due consideration of both its prior opinions and of the past
and present wording of the Synod’s Constitution and Bylaws, this
Commission is of the opinion that its 1992 ruling is the correct one.
First, that ruling is grounded primarily in the Constitution, rather
than the Bylaws. Second, one bylaw that might have been seen to

2004 Convention Workbook

undermine that opinion has been changed and would no longer
have that effect. Third, the 1992 opinion has stood the test of time
in that four synodical conventions have been held since it was is-
sued, and it has not been overruled. Fourth, this interpretation re-
solves the conundrum created by the 1998 opinion where the Dis-
trict President would exercise ecclesiastical supervision over the
synodical President, who would in turn exercise ecclesiastical su-
pervision over that same District President.

This interpretation also answers the concern expressed in the
Commission’s 1998 opinion that the synodical President might be
harassed and hampered in carrying out his duties by constant
scrutiny of his actions through complaints made to the Missouri
District President. This interpretation does not make the synodical
President a law unto himself, exempt from accountability for his
actions. According to the 1992 opinion, there is a mechanism for
the Synod in convention to exercise authority over the synodical
President.

There are other bylaws that are implicated by the question of
ecclesiastical authority, including the dispute resolution provisions
of Chapter VIII of the Bylaws. That chapter is clearly intended to
apply to all members of the Synod. The provisions of the Constitu-
tion and Bylaws interpreted in this opinion are far from clear and
definitive on the issue presented. This commission respectfully rec-
ommends that the Synod’s Commission on Structure give consid-
eration to this issue to attempt to bring greater clarity to the inten-
tion of the Constitution and Bylaws.

Adopted Dec. 9, 2001

The Binding Nature of CCM Opinions (01-2241)

In a memorandum dated December 6, 2001, the President of the
Synod indicated that he is aware that the Commission has been “asked
to render an opinion regarding the question of the accountability of
the President of the Synod and whether or not he is under the ecclesi-
astical supervision of the President of the Missouri District, specifi-
cally in light of the apparent conflict on this matter between two pre-
vious CCM opinions, that of 1992 and that of 1998.” In connection
with this matter, he asked a series of related questions.

Question 1: Bylaw 3.905 d states, in part: “An opinion rendered
by the commission shall be binding on the question decided unless
and until it is overruled by synodical convention.” Has the 1992
opinion of the CCM been in fact overruled by a synodical conven-
tion? If so, at which convention and in which resolution did this
occur? If not, then on what constitutional basis would the 1998
opinion of the CCM become more authoritative than the 1992 opin-
ion, which preceded the 1998 opinion and is, therefore, still “bind-
ing on the question decided”?

Opinion: As noted in the Commission’s preceding opinion 01-
2240, 1992 opinion Ag. 1915 was not overruled by any of the con-
ventions that followed. The Commission also recognized that the
1992 opinion and a portion of 1998 opinion 98-2122 are in con-
flict. It concluded that the 1992 opinion “is the correct one” for rea-
sons given and, therefore, to be regarded as authoritative.

CCM records indicate numerous cases in which the Commis-
sion has agreed to reconsider its opinions. On rare occasion it has
also withdrawn or changed an opinion on the basis of further study
and consideration of the question presented.

Question 2: If the CCM renders an opinion that, in fact, the
1992 opinion of the CCM is still “binding on the questions de-
cided,” what then happens to a synodical member’s official charges
under Bylaw 2.27 that have been filed against the synodical Presi-
dent with the Missouri District President?

Opinion: The Commission has rendered the opinion (01-2240)
that the 1992 opinion of the CCM “is the correct one” and, there-
fore, binding on the questions decided. According to the 1992 opin-
ion, “[i]t would seem that the only recourse [for a synodical mem-
ber’s charges] is an appeal to the convention of the Synod ‘when
personal admonition fails to have the President of the Synod carry
out the responsibilities of his office as defined by the Handbook’”
(Ag. 1915).

Question 3: Since both the Constitution and the Bylaws clearly
state that the President of the Synod has supervision of all District