LCMS Convention Workbook St. Louis, Missouri — 2007, Page 320

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320 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

management and supervision of the business and legal affairs of
the Synod, the Board of Directors may also receive such reports as
it requests on the operations and policies of the program boards,
commissions, and councils. To the extent that the Board’s resolu-
tion attempts to seek input from the Board for District and Congre-
gational Services with respect to those fiscal functions, the resolu-
tion is appropriate. To the extent that it seeks to challenge the
judgment of the Board for District and Congregational Services as
to the theological appropriateness of the program or presenters of
the LCMS National Youth Gatherings, such a request would ex-
ceed the jurisdiction of the Board of Directors. Nothing in the re-
solve suggests that the Board of Directors, in this resolve, is at-
tempting to influence or control the program decisions, doctrine
and practice, or theological positions or articulations of the Board
for District and Congregational Services.

Effect of the Resolution

In summary, the Board of Directors does not have the authority
to pass resolutions dealing with “doctrine and practice” and “theo-
logical positions or articulations.” It is the responsibility of the
President of the Synod, together with all others to whom ecclesias-
tical responsibility has been delegated, to address concerns regard-
ing the doctrine and practice and theological positions or articula-
tions taken by the Board for District and Congregational Services
as a whole or in its implementation and development of program
and presentation for the National Youth Gathering. The Board of
Directors does have responsibility to review fiscal functions of the
Board for District and Congregational Services and to request ap-
propriate reports under Bylaw 3.3.5.5.

Adopted Nov. 28-29, 2005

Procedure for Filling Vacancies
in Elected Positions, Revisited
(05-2439; 05-2440; 05-2442)

As reflected in its November 18, 2005 minutes, the Commis-
sion on Constitutional Matters determined to revisit its Opinion 05-
2439; 05-2440; 05-2442: “Procedure for Filling Vacancies in
Elected Positions,” giving consideration to input from the Board of
Directors and the Synod’s legal counsel that was not available at
the time of the issuance of the opinion, despite the timely request
for such input. While the question presented is not one which per-
‘tains primarily to business, legal, finance, civil rights, or property
matters and therefore required to be submitted to either the Board
of Directors or the Synod’s legal counsel pursuant to Bylaw 3.9.2.2
(b), the Commission chose to solicit that input, as it has always
been able to do. The current issue relates to filling vacancies on
elected board positions of the Synod. While this issue may qualify
under a very broad definition of “legal,” by that definition almost
every issue to come before the CCM is legal. Surely this was not
the intention of the Synod. It is ultimately the responsibility of the
Commission on Constitutional Matters and not the Synod’s legal
counsel or the Board of Directors to interpret the governing docu-
ments of the Synod. The Synod has chosen the Commission on
Constitutional Matters and not the Synod’s legal counsel, the Board
of Directors, or the civil courts to interpret the Synod’s Constitu-
tion, Bylaws, and resolutions. The Commission appreciates the
input provided. It trusts that such input serves to focus and refine its
analysis and to provide the best service possible to the Synod.

Each of the questions submitted is properly within the scope of
the responsibilities assigned to the Commission under Bylaw
3.9.2.2, and each requires the Commission to consider the Constitu-
tion, Bylaws, and resolutions of the Synod. In fulfilling that func-
tion and considering the issue properly presented, the Commission
must consider whether particular actions of the Board of Directors
are consistent with those governing documents. While the Com-
mission has no enforcement authority, its opinions are of binding
effect on all within the Synod unless and until overturned by the
Synod in convention. No opinion can simply be ignored within the
Synod or treated as having no force and effect. It is the responsibil-
ity of the President and others with supervisory responsibility, and

2007 Convention Workbook

not the Commission on Constitutional Matters, to see to it that
those within the Synod abide by the opinions of the Commission.

The Commission reaffirms that Resolution 7-14 makes it very
clear that the Board of Directors (as well as all other entities filling
vacancies pursuant to the provisions of Bylaw 3.2.5) is required to
fill the vacancies of boards and commissions elected by the Synod
from the list provided by the nominations committee. This inter-
pretation is consistent with the past practice of the Synod and the
express language of Resolution 7-14, which recited: “Bylaw 3.63 b
[current Bylaw 3.2.5] requires that vacancies on synodically elected
boards and commissions be filled by the Board of Directors of the
Synod from a list of nominees...” This requirement applies to both
of the specific appointments raised in the question presented, 1.e., a
replacement on the Concordia Publishing House Board of Direc-
tors and on the Board of Directors of the Synod. Bylaw 3.2.5 does
not make provision for nominations from the floor. Instead, the By-
laws provide a detailed procedure for gathering a list of nominees
and the submission of a list of three to five names off of that list as
“candidates” to the Board of Directors. The clear intent of this de-
tailed procedure in the bylaw is that the vacancy can be filled only
from among the three to five candidates (or nominees). Otherwise,
this detailed procedure is at best a “hollow” exercise.

The Board of Directors (or, for that matter, any other entity fill-
ing a vacancy under Bylaw 3.2.5) does have opportunity to provide
input regarding possible nominees/candidates. Each provision of a
bylaw or resolution must, if possible, be given some reasonable
meaning. No word, clause, or sentence should unnecessarily be ren-
dered meaningless or superfluous. This is applicable when filling a
vacancy on the Board of Directors under Bylaw 3.2.5. The bylaw
provides that the source of a list of nominees shall be secured from,
among others, the board where the vacancy occurs. Thus, the Board
of Directors has input into the selection process for the list of nom-
inees for the vacancy on the Board of Directors. If the Board of Di-
rectors thereafter has the right to make floor nominations to the list
of candidates prepared in the prescribed manner, the candidate se-
lection process set forth in Bylaw 3.2.5 is meaningless. Although
nominees are sought from sources other than the Board of Directors
and a separate selection committee chooses a list of three to five
nominees, floor nominations by the Board of Directors would result
in the nominee of the Board of Directors being elected and the in-
terim steps of selecting candidates would be superfluous.

Having considered the additional input, the Commission reaf-
firms prior Opinion 05-2439; 05-2440; 05-2442.

Adopted Nov. 28-29, 2005

Proper Dissent and Dispute by
Members of the Synod (05-2444)

In a letter dated September 9, 2005, a series of questions were
addressed to the Commission by five district presidents and two
vice-presidents of the Synod regarding whether or not the Synod’s
Constitution and Bylaws provide actions available to persons who
have conflict with various actions taken by the Synod in convention
or by duly elected officers of the Synod other than by filing a law-
suit against the Synod and/or by the use of other avenues that are in
violation of the Constitution and Bylaws of the Synod.

Question 1: Is it in harmony with the Constitution and Bylaws (1.3,
1.4.1, 1.7, 1.8, 1.10, 3.1.1, and 3.1.6.2) of the Synod
for any member of the Synod or any group within the
Synod as an avenue or form of dissent or dispute to en-
gage in promoting non-compliance with the resolu-
tions of the Synod and making charges against the
Synod, the President, and others of the Synod by use of
lawsuits, publications, letters, or meetings and confer-
ences that are not in keeping with the polity of the
Synod as set forth in the Constitution and Bylaws?

Opinion: No, every member of the Synod (individual and congre-
gation) joins the Synod voluntarily and in doing so agrees to relate
to, live, and serve together with one another (“walk together’) in
harmony with the Constitution and Bylaws:
In joining the Synod, congregations and other members gbligate
themselves to fulfill such requirements and to diligently and earnestly