LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — October 20, 1999, Page 7

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QUESTION: When a pastor has been found to have acted contrary to Article H of the Constitution, and
the pastor has been admonished and has refused to heed the admonition, does the District
President (or the Praesidium, if the matter is presented to them) have the discretion as to
whether to suspend the pastor? In other words, does the use of the word "shall" in Article
XIII of the Constitution mandate that the District President (or Praesidium) suspend the
pastor, or does the District President (or Praesidium) have discretion over whether to
suspend the pastor considering the use of the word "shall"?
OPINION: Bylaw 2.27, a, provides:
a. When, either by a written complaint of any person or by his own personal knowledge, facts
which could lead to the expulsion of a member from the Synod under Article XIII of the
Constitution are made known to the District President who has ecclesiastical supervision of such
member, the District President shall
1. thoroughly investigate whether the allegations can be substantiated.
This same bylaw further provides:
c. If the District President concludes that the facts form a basis for expulsion of the member under
Article XIII of the Constitution, the District President shall (emphasis added)
...1. provide the member with
...b. a written notification of the member's suspended status under Bylaw 2.25;
In addition, paragraph 2 of Article XIII provides:
2. Expulsion shall be executed only after following such procedure as shall be set forth in the
Bylaws of the Synod.
Nothing in the language cited above directly or implicitly suggests that suspension is a matter of
discretion. If a thorough investigation (which "shall" be performed by the District President) reveals
grounds for suspension, the District President must carry out the requirements of the bylaw and suspend
the member.
74. Questions Re Interaction between Bylaws 2.27 and 6.47 when Charges are Brought against a
Member of a Faculty (99-2164)
The Chairman of the Board of Regents of a synodical university, in a letter dated August 20, 1999, has
requested a ruling on the interaction of Bylaw 6.47 and Bylaw 2.27 in the case of charges of false doctrine
brought against a member of the university's faculty. The District President with ecclesiastical authority
over that faculty member has investigated the charges and states that the faculty member "is not guilty of
holding false doctrine nor is he engaged in persistent advocacy of false doctrine." The person who
brought the charges against the faculty member has raised the matter with the Praesidium of the Synod,
which has now posed questions to the faculty member.
The Board of Regents, having received notification of the complaint against the faculty member, explains
in its letter that it "feels responsible to determine its role in this matter." It asks the Commission to
“provide a ruling on the interaction between Bylaws 2.27 and 6.47."
The Commission discussed at length a draft opinion in response to this request. David Piehler was asked
to incorporate the Commission's discussion into a final draft to be reviewed at the Commission's
December 16 meeting.
75. Review of Proposed Indiana District Bylaw (99-2165)
129