LCMS Convention Workbook St. Louis, Missouri — 2004, Page 345

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

tion of a synodically approved document, where the interpretation is
not plainly or knowingly erroneous, especially where the superior
himself has not been formally found in error and disciplined?

Qpinion: The Constitution and Bylaws of the Synod do not
allow or contemplate the expulsion of a member of the Synod on
the basis of an action taken with the full knowledge and approval of
the appropriate ecclesiastical supervisor. For a thorough treatment
of this issue, see Opinion 02-2309.

Adopted Jan. 20-21, 2003

Questions re Disqualification of President
in Dispute Resolution Process (02-2297)

A pastor of the Synod, in an August 23, 2002 letter, asked a se-
nies of questions following CCM opinion 02-2282, contending that
“while the CCM dealt with a synodical President’s authority to in-
terject himself into a Bylaw 2.27 procedure under the authority of
Article XI B 1-3 of the Constitution, the Commission did not ex-
plicitly apply this decision to a case in which a synodical] President
is disqualified from a Bylaw 2.27 proceeding.”

Question 1: “Is a synodical President who is disqualified from
participation in Bylaw 2.27 a and b also subject to disqualification
in regard to Bylaw 2.27, subsections cf, as well as other duties of
that ecclesiastical supervisor discussed in Chapter VIII as part of
the dispute resolution process? If a synodical President is disquali-
fied from further participation in Bylaw 2.27 c-f and chapter VIII,
is he not then also unable to call up for review any decision made
by the next qualified officer acting in accordance with these By-
laws.”

Opinion: Bylaw 2.27 g provides that when complaints are
brought against a District President, the President of the Synod must
proceed in the same fashion as a District President in investigating
whether the allegations can be substantiated. If the President is dis-
qualified, the next qualified officer of the Synod functions in his
place throughout the remainder of the process as it continues into
Chapter VIII of the Bylaws and the President remains disqualified.

In opinion 02-2279, the Commission ruled that the President of
the Synod nonetheless continues to have “ecclesiastical supervi-
sory responsibility under the Constitution and Bylaws of the
Synod...even though he may have been disqualified on the basis
of Bylaw 2.27 a 1.” Accordingly, the Commission ruled in opin-
ion 02-2282 that “under extraordinary circumstances, such as when
an issue is of Synodwide concern and [is] having an immediate and
ongoing negative impact on the Synod, the President may choose to
exercise his discretion in fulfilling his duties under Article XI. The
President’s right and/or responsibility to call up for review an ac-
tion of an investigation officer carrying out the responsibilities of
Bylaw 2.27 c flows from his constitutional responsibilities and
powers.”

Therefore, while a synodical president may be disqualified from
participation in Bylaw 2.27 and Chapter VIII of the Bylaws for rea-
sons given in Bylaw 2.27 a 1, he may, due to his constitutional re-
sponsibilities and powers, call up for review a decision made by
the next qualified officer who is carrying out the responsibilities of
Bylaw 2.27 and Chapter VII.

Question 2: “Tf, in a specific case, a disqualified synodical Pres-
ident calls for a review of a decision made in accord with Bylaw
2.27 or Chapter VIM, are there not fwo functioning synodical pres-
idents? Should not the synodical President be prohibited from ex-
ercising his normal constitutional authority in a case in which he
has been disqualified, since another officer is effectively function-
ing as the synodical President in that case?”

Opinion: Again, the President of the Synod continues to have
ecclesiastical responsibility under the Constitution and Bylaws of
the Synod, even though he may have been disqualified from car-
rying out the specific functions of the President of the Synod de-
scribed in Bylaw 2.27 and Chapter VIII. The next qualified officer
has not assumed the office of the President but has been given re-
sponsibility for only those specific functions due to the President’s
disqualification. Therefore, there are not two functioning synodi-
ca] Presidents.

345

Question 3: “Is not Bylaw 2.27 g complementary rather than
contradictory to the Constitution Article XI B? If so, should not the
next qualified officer be functioning as the synodical President for
(and throughout) a specific complaint and resolution process, thus
upholding both the Bylaws and Constitution and avoiding a con-
flict of interest on the part of a disqualified synodical President?”

Opinion: Bylaw 2.27 may be said to be complementary to Arti-
cle XIII of the Constitution, providing the procedure whereby ex-
pulsion from the Synod may be executed. The President of the
Synod, even when disqualified from carrying out the functions of
his office provided by Bylaw 2.27, retains the overall responsibility
and power of his office under Art. XI B.

Question 4: “Does Bylaw 3.51 k prohibit applying ‘‘to call up
for review” in Bylaw 3.101 B 5 to cases of ecclesiastical supervi-
sion?”

Opinion: Bylaw 3.51 k provides a definition for “supervision”
for the Bylaws of the Synod, specifically, “to have authority over,
to direct actions, to control activities.” It also provides that “the de-
finition of ecclesiastical supervision shall be determined exclu-
sively by those Bylaws pertaining to ecclesiastical supervision.”
Bylaw 3.101 B 5 occurs under Section B, which outlines the Pres-
ident’s administrative powers and duties. If the President is con-
vinced that his concerns regarding an action by an individual offi-
cer, executive, or agency may be in violation of the Constitution,
Bylaws, and resolutions of the Synod and that such concerns are
administrative in nature, he may act according to the bylaw to the
extent of requesting that such action be altered or reversed. ,

Adopted Oct. 21~22, 2002

Question re Filling of Vacancy on
Commission on Constitutional Matters (02-2298)

In an August 22, 2002 e-mail letter to the chairman of the Com-
mission, the President of the Synod asked the following question
regarding the process for filling the vacancy on the Commission
on Constitutional Matters resulting from the death of Commission
member Norman Sincebaugh.

Question: “In consideration of the circumstances..., is the Pres-
ident of the Synod acting within Bylaw 3.903 if, in consultation
with the Vice-Presidents of the Synod, he appoints one of the re-
maining eight candidates [from the original appointment process]
to fill the vacancy created by the death of Dr. Sincebaugh, or does
the process of selection of candidates need to begin anew?”

Opinion: Bylaw 3.903 c requires that vacancies on the Com-
mission on Constitutional Matters be filled by following the pro-
cedure set forth in Bylaw 3.903 a, namely, the initial appointment
procedure. The Commission rules that the process must therefore
begin anew. Candidates for the open position on the Commission
must be nominated by District boards of directors and be presented
through the office of the Secretary to the Council of Presidents. The
Council of Presidents must then elect five candidates and present
them through the office of the Secretary to the President of the
Synod. The President of the Synod, in consultation with the Vice-
Presidents of the Synod, must then appoint one of the candidates
to the open position. The Commission encourages all who are in-
volved in the process to proceed as expeditiously as possible.

Adopted Aug. 28, 2002

Status of ‘The Lutheran Understanding
of Church Fellowship” (02-2299)

In a letter dated August 26, 2002, a pastor of the Synod called
attention to a recent resolution of the Synod, 2001 convention Res-
olution 3-07A, in light of Bylaw 1.09 c.

Question: ‘‘Given the requirements stipulated in the Constitu-
tion and Bylaws of Synod regarding how a document or statement
becomes the doctrinal position of the Synod, does ‘The Lutheran
Understanding of Church Fellowship,’ commended to the Synod
under Resolution 3-07A from the last synodical convention, qualify
as such?”

2004 Convention Workbook