LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — undated, Page 6

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Synod. It would work a concentration of power in the governing boards of the Synod and away from the
congregations and the Synod's convention as regards the administration of the Synod's affairs. It would have
significant implications regarding the separation of powers within the Synod, since the entities governed by
policies that were once in the Bylaws would be able to change those Bylaws at will. Existing checks and
balances would be removed. Finally, such a sweeping change in the Bylaws that removed language on a
wholesale basis would likely eradicate many existing understandings and interpretations of the Constitution
and Bylaws, since removal of the language on which those opinions and understandings are based would
give rise to the implication that the opinions were repealed.
II. Changes in Handbook Language in the Process of Reorganization
In the process of reorganizing the Handbook, the Commission on Structure made small changes in
language, which were apparently intended to clarify the Handbook without changing its meaning. However,
the CCM finds that some of those changes appear to have a potentially substantial impact, often of
uncertain extent, on the interpretation of the Bylaws. Four examples will illustrate the point.
Bylaw 8.03, c and g, which defines the terms "may" and "shall," are, in the present Bylaws, limited to
Chapter 8. The proposed Handbook removes that limitation and places those definitions in Chapter 1,
applying them to all the Bylaws. The CCM is aware that legal scholars have often differed about whether
the term "may" is mandatory or the term "shall" is permissive. Drafters of statutes and bylaws have often
been careless in the usage of these terms. The existing Bylaws are undoubtedly no exception. Therefore
applying these definitions to the entirety of the Bylaws, without careful study to confirm that no change in
the intent of the existing Bylaws will occur, could result in unintended consequences.
A second example of potentially unintended consequences results from the reorganization of present Bylaw
3.101 regarding the powers of the Synod's President. This bylaw was adopted at the 1998 convention.
Bylaw 3.101, A, 2, dealing with the power of the President to exercise ecclesiastical authority over the
doctrine taught and practiced at the Synod's educational institutions, was omitted from the proposed revised
Bylaws with the comment that it was "covered by Bylaw 3.3.1.3 (a)." That proposed bylaw, taken largely
from present Bylaw 3.101 B 2, omits any specific reference to the President supervising doctrine, referring
instead to exercising "oversight over their administration as it relates to adherence to the Constitution,
Bylaws and resolutions of the Synod." While this section implicitly deals with doctrine through its reference
to the Constitution, Bylaws and resolutions of the Synod, the omission seems likely to lead to questions on
whether a change in the responsibilities and powers of the President was intended by the revision.
Another example is present Bylaw 3.69, e, which requires all Synod boards and other entities to operate
under "synodical Human Resources policies" and provides that the boards, commissions, etc., may create
executive officer and staff positions and fill them "in accordance with such policies" (i.e., the synodical
Human Resources policies referred to in the earlier sentence from the same paragraph). This bylaw is
worded differently in the proposed Bylaws as 1.10.5 (a), to state that every entity may create and fill officer
and executive staff positions "in accordance with its policies." The grammatically correct interpretation of
this section indicates that the policies to be followed are those of the particular entity, not the synodical
Human Resources policies. This, of course, would be a significant change in the operation of the Bylaws
from their present form.
A final example is a substantive change made to Bylaw 6.45 when it was moved to proposed Bylaw
3.7.1.7.7. The existing version of the bylaw, which deals with investigation of complaints against university
faculty members, says "Any decision made pursuant to Bylaw 6.47 shall be final and binding on the parties
involved with no right of further appeal except as set forth in Bylaw 6.47 g." The proposed revision reads
"Any decision made shall be final and binding on the parties involved with no right of further appeal unless
provision for such further appeal is made in the Bylaws or policy and procedure" (emphasis added). This

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