LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — October 16–18, 2005, Page 14

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The amended bylaw, now Bylaw 3.2.5 (2004 Handbook), therefore reads:
(a) The Secretary of the Synod shall be responsible for gathering a list of nominees from
the board or commission where the vacancy occurs, the President of the Synod, the
district boards of directors, and the slate of candidates from the previous convention of
the Synod within 90 days of notification of the vacancy.
(b) A list of at least three but no more than five candidates shall be submitted as soon as
possible to the appropriate appointing body.
(c) This list shall be determined by the chairman and two members of the Committee for
Convention Nominations of the Synod as determined by the committee. The Synod’s
Director of Human Resources shall be consulted in developing the candidate list.
The first whereas paragraph of Resolution 7-14 makes it very clear that the Board of Directors is required
to fill the vacancies of boards and commissions elected by the Synod from the list provided by the
nominations committee. Bylaw 3.2.5 does not make provision for nominations from the floor.
It is helpful to note that a whereas paragraph is an integral part of a resolution. Special Standing Rule #7
of the 2004 convention of the Synod reads, “The preface, preamble, rationale, and whereas sections shall
be regarded as integral parts of resolutions and therefore subject to the same consideration and adoption
as the main motion” (Today’s Business, p. 9). The August, 1969 opinion of the Commission on
Constitutional Matters, “An Opinion on the Constitutionality of Denver Resolution 3-15,” also opined
that “the entire document—‘Preamble,’ ‘Whereases,’ and ‘Resolveds’—forms a complete unit.”
The actions of the Board of Directors as recorded in the minutes of the Board (August 19–20, 2005—item
66) in the filling of the vacancies on the Board of Directors of the Synod and the Board of Directors of
Concordia Publishing House are violations of Bylaw 3.2.5 and Resolution 7-14.
Question 2: If the LCMS Board of Directors acted in violation of Bylaw 3.2.5, should the election of
Peter Cage to the CPH Board and Walter Brantz to the LCMS Board of Directors be declared
null and void?
Opinion: Yes, any action or resolution by any officer, board, commission, district, or other agency of the
Synod that is in violation of the Synod’s Constitution and Bylaws is null and void. A June, 1974
Commission on Constitutional Matters opinion (Ag. 632) opined that all resolutions of districts that
provide for action which is in conflict with the Synod are unconstitutional and therefore null and void. An
August 13, 1976 opinion, “Opinion re Legality of District Conventions and Circuit Meetings Involving
Ineligible Participants,” also concluded that elections by illegally seated delegates are to be considered
null and void. Therefore, the positions in question remain vacant.
Question 3: If the above elections are declared null and void, should the LCMS Board of Directors be
required to fill the vacancies on these two boards with candidates provided by the
nominations committee?
Opinion: Yes. Article XI A 1 of the Constitution of the Synod states, “The officers of the Synod must
assume only such rights as have been expressly conferred upon them by the Synod, and in everything
pertaining to their rights and the performance of their duties they are responsible to the Synod.”
Bylaw 1.4.1 states in part:

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