LCMS Convention Proceedings St. Louis, Missouri — 2016, Page 216

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strating that the adopted provision “[did] not contradict”
the Constitution, but also that it was “consistent with” the
framework laid out clearly by the Constitution, that being
that the President himself ultimately has the responsibility,
under Constitution Art. XI B 1–3, to “promote and maintain unity of doctrine and practice in all the districts of the
Synod.” The 1956 convention adopted this mechanism (of
appeal in case of inaction of district officials to the President of the Synod, for him to act) as an organic clarification
in bylaw of a power the Constitution already granted the
President in essence.
In the case of the latter (1989–2004) provision, the record
provides no positive constitutional rationale. Bylaws already
adopted by the Synod in convention deserve the presumption of constitutionality, as the convention is the “principle
legislative assembly” of the Synod (Bylaw 3.1.1) and adopts
bylaws only after positive review by the Commission on
Constitutional Matters (Bylaw 7.1.1). Upon later review,
could they be shown to conflict with the Constitution, they
would, of course, be invalid. The commission’s two narrowly-focused reviews of this latter bylaw provision, as applied
in an exceptional case, avoided finding it in conflict with
Constitution Art. XI B 1–3’s assignment of these responsibilities to the President of the Synod by grounding the
provision instead under Constitution Art. XIII 2.
While such narrow reviews avoided finding the latter bylaw
provision in conflict with the Constitution, this latter provision and, importantly, the Referral Panels subsequently
adopted in its place [Bylaws 2.14.5–2.14.5.3, etc.], are certainly less consistent with the Constitution’s overall design
and framework than the former (Constitution Art. XIV).
Moreover, this review finds the change of the Bylaws in 1989
and subsequently (namely, to remove the right of appeal for
action to the President, should district officials fail to act,
and to replace it first with an appeal to the Praesidium and
then with an appeal to a Referral Panel) to conflict with the
Constitution of the Synod. This change unconstitutionally deprived the President of the Synod of procedures for
exercising a power granted him in Constitution Art. XI B
1–3. That this power to receive appeals for action, in case
of the inaction of district officials, is one of the means constitutionally “at [the President’s] command to promote and
maintain unity of doctrine and practice in all the districts
of the Synod” (Constitution Art. XI B 3) was the opinion of
the Synod in convention in 1956. It expressed this opinion
explicitly and with its unique and final interpretive power.
It must therefore be the opinion also of this commission.
Therefore be it
Resolved, That the following changes be made to sections 2.14,
2.15, and 2.17 of the bylaws:
PRESENT/PROPOSED WORDING
2.14 Expulsion of Congregations or Individuals from
Membership in the Synod
Preamble
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U P O N T H I S R O C K • Resolutions

2.14.1

Termination of membership in the Synod is a serious
matter involving both the doctrine and life of those
to whom it has been granted.
…
(b) The action to commence expulsion of a congregation or individual from membership in the
Synod is the sole responsibility of the district
president who has the responsibility for the ecclesiastical supervision of such member, or by the
President of the Synod under Bylaw 2.14.5.2.
…

Definition of Terms
2.14.2
The definitions of terms used in this bylaw are as follows:
…
(r) Referral Panel: A panel that may be formed of
three circuit visitors or district presidents, who
shall be selected according to these bylaws to
determine, according to the facts learned from
the investigation, whether or not to proceed.
…
Referral Panel
2.14.5
In the determination whether or not to initiate formal proceedings, the district president may form a
Referral Panel consisting of three circuit visitors of
the district.

2.14.5.1

(a) If three circuit visitors from the district are not
available to serve by reason of conflict of interest or otherwise, the district president may select
a sufficient number from other districts to form
the panel.
(b) This panel shall be formed by blind draw and
shall not include the circuit visitor of the accused
or the accuser. The blind draw shall be administered by the district president and audited by
witnesses.
After reviewing the accusation and the results of
the investigation, the Referral Panel shall make the
determination whether or not to initiate formal proceedings.

2.14.54.2 Whether made by the district president or the
Referral Panel, if If the determination of the district
president is not to initiate formal proceedings, the
district president he shall in writing so inform the
accuser, any other district president involved, and the
involved member, which shall terminate the matter,
unless the accuser presents the written complaint or
accusation to the President of the Synod as provided
below (Bylaw 2.14.4.3).
2.14.54.3 If the district president fails to act within 60 days after
receipt of the formal written complaint or accusation, the accuser may present a formal written request
to the district president for the forming of a Refer“12. Ecclesiastical Supervision and Dispute Resolution”