LCMS Convention Workbook St. Louis, Missouri — 2007, Page 339

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 339

Synod and must be reviewed by the Commission on Constitutional
Matters prior to implementation.

With respect to opinions of the Commission on Constitutional
Matters, the Synod has delegated to the Commission certain au-
thority and responsibility as set forth in Bylaw 3.9.2. The opinions
of the Commission are binding under Bylaw 3.9.2.2 (b) unless and
until overturned by the Synod itself in convention. Various opin-
ions have been challenged in the past, as also occurred at the 2004
convention. Overtures were submitted seeking to overturn specific
opinions during the last triennium. The convention did not approve
any such overtures. The Board of Directors is not authorized to take
any action, including settlement of civil litigation, the effect of
which would be the overturning of opinions which only the Synod
itself may do, or the amendment of Bylaw 3.9.2.2 (b), without the
processes provided in Bylaw 7.1.2 having been followed.

The Synod as a church body has determined the governance
structure it believes, consistent with the Scriptures, is most appro-
priate for carrying out the work of the church. The identification
and selection of its ecclesiastical leaders is perhaps one of the most
critical components of that structure. Only the Synod itself, pur-
suant to the processes under Bylaw 7.1.2, can effect any change in
the selection of the ecclesiastical leaders of the Synod.

Adopted May 1-2, 2006

Overture to District Convention Advocating
Division of the Synod (06-2464)

A district president in a letter dated March 9, 2006, provided a
copy of an overture submitted to his district convention advocat-
ing a “respectful separation” because of factions within the Synod.
The overture advocates that the district “affirm the desire to seek
and promote a respectful and fair separation” of the Synod and the
appointment of a “bipartisan” committee to investigate the possibil-
ity of such a separation.

Question: Is it in violation of the Constitution and Bylaws of The
Lutheran Church—Missouri Synod for a district in con-
vention to consider a memorial that deals with the divi-
sion of the Synod, including the division of the Synod’s
properties and assets as indicated by the attached memo-
rial?
Opinion: According to Constitution Art. XII B 12: “12. The dis-
tricts are independent in the administration of affairs which con-
cern their district only, it being understood, however, that such ad-
ministration shall always serve the interests of the Synod.” In
addition, Bylaw 4.1.5 states: “Jurisdiction with respect to every-
thing that is administered by or for the entire Synod resides in the
national Synod itself.” Therefore, it is in violation of the Constitu-
tion and Bylaws of The Lutheran Church—Missouri Synod for a
district in convention to consider a memorial that promotes a divi-
sion of the Synod, given the synodwide consequence of such a pro-
posal.

Adopted May 1-2, 2006

Authority of the President of the Synod (06-2465) -

In a letter received on March 13, 2006, the Board for Communi-
cation Services asked a series of nine questions regarding the au-
thority of the President of the Synod relating to Bylaw 3.3.1.3 (k).
The questions have been modified by the Commission to facilitate
a response.

Question 1: Does the President of the Synod have the authority
under Bylaw 3.3.1.3 (k) to direct an agency of the
Synod to hold in abeyance or to refrain from taking ac-
tion until certain questions are answered by the Com-
mission on Constitutional Matters?

Opinion: Yes. Under Bylaw 3.3.1.3 (k) and its requirements, the
President of the Synod has the authority to direct an agency of the
Synod to hold in abeyance or to refrain from taking action until
certain questions are answered by the Commission.

The President of the Synod is authorized by the Synod to exer-
cise executive power when, in his judgment, the affairs of the
Synod require the exercise of executive power and for a purpose

for which there is no specific directive of the Synod. Such power,
however, cannot be exercised until after consultation with the vice-
presidents, the Board of Directors of the Synod, or the Council of
Presidents, whichever in his judgment is most appropriate. Bylaw
3.3.1.3 (k) states:

(k) He shall be authorized, in the event that the affairs of the Synod
require the exercise of executive power for a purpose for which there
is no specific directive of the Synod, to exercise such power after con-
sultation with the vice-presidents, the Board of Directors of the Synod,
or the Council of Presidents, whichever in his judgment is most appro-
priate. Any member of the Synod shall have the right to appeal such ac-
tion to the Commission on Constitutional Matters and/or the Synod in
convention, whichever is appropriate. The Lutheran Church Extension
Fund—Missouri Synod is exempt from this bylaw.

Question 2: Does the Commission on Constitutional Matters have
the authority to determine the conditions under which
an agency’s policies may recognize the unique charac-
ter of that agency’s action in creating staff positions
which are below the executive officer and executive
staff level, or does that determination lie solely with
the Synod’s Board of Directors?

Opinion: The Synod has charged the Commission on Constitutional
Matters with the responsibility for interpreting the Synod’s Consti-
tution, Bylaws, and resolutions as its primary responsibility (By-
laws 3.9.2 to 3.9.2.2.4), such as interpreting Bylaws 1.4.6, 3.11.1,
and 1.5.9, including the phrase, “Every agency may create officer
and executive staff positions and fill the same in accordance with
its policies.”

Concerning the authority to “determine the conditions,” Bylaw
1.5.9 does not use that phrase. However, the authority of the Com-
mission does not include “recognizing,” as the question suggests,
“the unique character of the operations of each [agency].” That au-
thority is given to the Board of Directors, which approves the
human resources policies of the Synod (Bylaw 1.5.9).

Question 3: If an appeal is made to the Commission on Constitu-
tional Matters under Bylaw 3.3.1.3 (k) of the Presi-
dent’s exercise of his executive powers, asserting that
he has overstepped his constitutional authority, is the
Commission’s function during such an appeal limited
to the interpretation of the Synod’s Constitution, By-
laws, and resolutions as stipulated in Bylaw 3.9.2.2?
Or is there some stipulation in the Handbook of the
Synod that authorizes the Commission to determine
whether or not a situation actually required the exer-
cise of executive power or to determine whether the
use of executive power was justified?

Opinion: The authority of the Commission on Constitutional Mat-
ters is limited to the provisions set forth in Bylaw 3.9.2 to 3.9.2.2.4.
If and when questions concerning “executive power” and “constitu-
tional authority” are within the purview of the Commission, it must
carry out its responsibility given by the Synod.

Question 4: If an appeal is made to the Synod in convention under
Bylaw 3.3.1.3 (k), does the “right to appeal” mean that
the member or agency of the Synod has the right to
have the appeal presented to the convention, or can the
appeal be dismissed or impeded from being presented
to the convention?

Opinion: The national convention “is the principal legislative as-
sembly, which amends the Constitution and Bylaws, considers and
takes action on reports and overtures, and handles appropriate ap-
peals” (Bylaw 3.1.1). Appeals are presented to a convention or han-
died by means of an overture to a convention of the Synod. The
provisions for overtures must comply with Bylaw 3.1.6.2, which
sets forth who may submit overtures as well as the form of an over-
ture (3.1.6.2 [a]) and its limitations (3.1.6.2 [b] and [c]). It is only
on the basis of Bylaw 3.1.6.2 (b) and (c) that an overture (including
an overture that is an appeal) will not be accepted for convention
consideration or will be withdrawn from convention consideration
(note that the bylaw does not use the term “‘dismiss”).

All overtures that are accepted by the President in accordance
with Bylaw 3.1.6.2 must also be referred by him to convention

2007 Convention Workbook