LCMS Convention Proceedings St. Louis, Missouri — 2016, Page 220

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Constitution provides that in exceptional situations a President could request a vice-president to represent him in this
function (Constitution Art. XI C 1), even in this case, final
accountability remains with the President (Bylaw 3.3.1.3 [k]).
Bylaws implementing the process of expulsion (under Constitution Art. XIII 2) also make allowance, should a President
be disqualified in some manner from dealing with a case, for
his role to be carried out by a vice-president (Bylaws 2.14.4.1,
2.15.4.1, 2.17.4.1). In these cases an exceptional circumstance
renders the President unable to act (or to act without partiality
or the appearance thereof), so the Bylaws provide a mechanism for effecting the necessary procedure, usually performed
by a president, through a vice-president.
Even with such allowances made, the constitutional case for
assigning the decision to initiate proceedings in the case of
district inaction to the Praesidium (including the vice-presidents) cannot be the same as that made from Constitution
Art. XI B 1–3 above for assigning the decision to the President
himself—for the simple reason that Const. Art. XI B 1–3 does
not apply to the Praesidium but to the President alone.
The constitutionality of the provision as enacted between 1989
and 2004, allowing an accuser to appeal to the Praesidium, was
accepted when it was enacted—although the record contains
no constitutional argument in favor. It was also reviewed by
the CCM in its Opinion 01-2242 (Jan. 11, 2002), which dealt
with a case seeking to expel a district president, in which the
President’s decision not to initiate proceedings was appealed
to the Praesidium. The question is narrow, but the commission’s approach is informative. The request asked (in part):
“Since both the Constitution and Bylaws clearly state that the
President of the Synod has ecclesiastical supervision of all District Presidents and of all officers of the Synod, including the
Vice-Presidents, under what constitutional authority would
the Synodical Vice-Presidents be charged with the responsibility of determining the continuation of the roster status of a
District President under Bylaw 2.27?”
The CCM responded as follows:
The President of the Synod has ecclesiastical supervision of District Presidents by reason of Article XI B of
the Constitution. However, ecclesiastical supervision
does not include the responsibility of determining the
continuation of the roster status of a District President. That matter is covered by Article XIII 2 which
provides: “Expulsion shall be executed only after following such procedure as shall be set forth in the
Bylaws of the Synod.” Bylaws 2.27 and 8.09 establish
the steps to be followed to expel a member from the
Synod. Under these Bylaws the President can either
decline to seek the expulsion of a District President
as a member of the Synod, or pursue such expulsion
by following the procedure set forth in Bylaw 2.27
c. If he does pursue such expulsion, the decision to
expel is not his but, rather, the decision of the Dispute Resolution Panel (or Appeal Panel, if there is an
appeal), which will consider the matter (Bylaw 8.09).

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U P O N T H I S R O C K • Resolutions

If the President of the Synod declines to seek the
expulsion of a District President as a member of the
Synod, the complainant has the option to appeal such
declination to the Praesidium of the Synod (Bylaw
2.27 b). Should the Praesidium decide to pursue the
expulsion from the Synod of the District President,
it must follow the same procedure in Bylaw 2.27 c as
the President would have had to do should he have
decided to pursue the expulsion. As in the case of
the President, the decision to expel is not that of the
Praesidium but, rather, the decision of the Dispute
Resolution Panel or Appeal Panel.
Therefore, the synodical Vice-Presidents in their
capacity as members of the Praesidium determine
the continuation of the roster status of a District President only in those very limited situations where the
Praesidium upholds the decision of the President of
the Synod that the alleged actions of the District President are insufficient to expel the District President
as a member of the Synod. (CCM Op. 01-2242, 11
Jan. 2002)
Here the CCM distinguished the comprehensive sense of ecclesiastical supervision (which belongs to the Presidents under Const. Art. XI B 1–3 and XII 6–8) from the decision to
expel (governed specifically by Constitution Art. XIII 1–2).
The former belongs to the President (and district presidents);
the latter, to such entities as to whom the Bylaws might assign
it in the procedure they elaborate under Constitution Art. XIII
2, that “expulsion shall be executed only after following such
procedure as shall be set forth in the Bylaws of the Synod.” In
such a view, there is nothing sacrosanct about the President or
district presidents alone making the decision to initiate formal proceedings, although theirs alone is the comprehensive
responsibility of ecclesiastical supervision, to which that decision ordinarily belongs.7
Both CCM reviews (Jan. 11, 2002 Op. 01-2242 and Oct. 21–
22, 2002 Op. 02-2283) of the 1989­–2004 provision, allowing
the Praesidium to act, were within the context of an already
exceptional situation, a district president being the accused.
Both seem to presume the provision’s constitutionality as that
sort of “very limited situation” in which implementing bylaws
(under Constitution Art. XIII 2) might provide necessary deviations from the constitutional pattern (e.g., a vice-president
acting in the stead of a disqualified President). That is not what
we have here. This provision, in the general or ordinary case
of an appeal for action against a member under district supervision, directed the appeal for action away from the constitutionally designated recipient, namely the President (by virtue
of the power given him in Constitution Art. XI B 1–3), to the
Praesidium, a recipient with no demonstrable constitutional
basis to receive such an appeal.
Ultimately, the language of Constitution Art. III, that
“[e]xpulsion shall be executed only after following such procedure as shall be set forth in the Bylaws of the Synod,” does
not enable bylaws to override, in the regular case, the design
of Constitution Art. XI B 1–3 that appeal for action should be
possible to the ecclesiastical supervisor of the whole Synod. In
“12. Ecclesiastical Supervision and Dispute Resolution”