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The Lutheran Church Missouri Synod's Commission
on Constitutional Matters (CCM) ruled on August 20, 2002, that under
"extraordinary circumstances" the LCMS President has
unlimited authority to review the actions of any officer in the
Synod and to publish his opinions to the Synod.
The CCM ruling was given in response to questions from the Secretary
of the Synod concerning the constitutional authority of the LCMS
President.
The CCM's ruling shows that President Kieschnick was acting within
his constitutional authority when he publicly challenged Vice
President Wallace Schulz's suspension of Atlantic District President
Dr. David Benke. The CCM also shows Kieschnick was justified
in publishing his rejection of Schulz's ruling to the entire LCMS.
According to the CCM ruling these "extraordinary
circumstances" may inevitably be interpreted as applying to the
review of any member
congregation or pastor.
By this ruling the CCM justifies the protests against sainted
President Jacob Preus for speaking publicly about Concordia Seminary
and its President in the early 1970's. It also justifies
President A. L. Barry's public objections to the ELCA's agreement on
the Doctrine of Justification with the Catholic Church.
Under "extraordinary circumstances" the CCM believes that
the LCMS President has no limitations in his authority.
The CCM has not addressed the fact that Wallace Schulz was acting in
the capacity of the Synodical President when he made his ruling on
the Benke case. President Kieschnick was recused from ruling
on the Benke case by the Praesidium for conflict of interest.
For those who have difficulty interpreting the various citations by
the CCM from the LCMS Handbook, the CCM's decision is concisely
stated in the last paragraph of their ruling below. |
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Questions
re President's Duty to Call up for Review (02-2282)
Commission
on Constitutional Matters
August 20, 2002
http://www.lcms.org/ccm/02-2282.pdf
The Secretary of the Synod has submitted the following question to the
CCM:
Bylaw 3.101 B 5 requires that the President of the Synod shall "call
up for
review any action by an individual officer, executive, or agency which, in
his view, may be in violation of the Constitution, Bylaws, and resolutions
of the Synod and, if he deems appropriate, request that such action be
altered or reversed." It also speaks of "the President's
constitutional duty
to report to the Synod those who do not act in accordance with the
Constitution and do not heed his admonitions, as prescribed in Art. XI B
2."
Question 1: Does Bylaw 3.101 B 5 give to the President of the Synod the
right and/or the responsibility to call up for review an action of an
officer carrying out the responsibilities of Bylaw 2.27 c and request that
such action be altered or reversed?
Question 2: Does Bylaw 3.101 B 5 give to the President of the Synod the
right and/or the responsibility to report to the Synod via pastoral letter
the calling up for review of an action of an officer carrying out the
responsibilities of Bylaw 2.27 c if such officer does not heed his
admonitions?
Although the Secretary's letter references Article XI B of the
Constitution,
the two specific questions as posed deal only with the President's rights
and responsibilities under Bylaw 3.101 b 5 as it relates to review of an
action of an officer of the Synod acting under Bylaw 2.27.
Under Bylaw 2.27, the investigating officer is to thoroughly investigate
allegations, follow the guidelines of Matthew 18, and if he concludes the
facts form a basis for expulsion under Article XIII of the Constitution,
prepare and send to the concerned member a written statement of the case
and
a notification of the member's suspended status.
If the member contests expulsion, Bylaw 2.27 d then requires the
investigating officer to forward to the Secretary of the Synod the
statement
of the matter in dispute and a memorandum describing compliance with
Matthew
18. Under the dispute resolution process, a Dispute Resolution Panel is
then
formed under the provisions of Chapter VIII of the Bylaws, and the panel
eventually issues a decision.
Under Bylaw 8.09 c 4 d, that decision is then publicized as deemed
appropriate by the District or synodical President.
When a decision is issued by the panel, any party to the dispute, or the
President of the Synod (in recognition of the President's power and
responsibility under Article XI B 1-3), if a question of doctrine or
practice is involved, may request reconsideration, and the President may
request an opinion of the CCM or CTCR.
Assuming that all persons involved have scrupulously followed the
provisions
of Bylaw 8.21 e and the CCM's prior opinions, the President may learn of
the
basis of the action of the investigating officer only after completion of
the work of the Dispute Resolution Panel, when he is expressly required to
be apprized.
If the investigating officer has failed to follow his responsibilities
under
Bylaw 2.27 c, or erred in his interpretation of the doctrines of the
church,
the Constitution, Bylaws and resolutions of the Synod, the appeal process
is
designed to discover and correct such failures or errors, and the
President'
s need to call up the action of the investigating officer for review or
the
need to report by a pastoral letter such calling up for review would be
moot.
If the investigating officer under Bylaw 2.27 commits a procedural error,
primary responsibility for correction of that error is vested in the
Secretary of the Synod, who is to administer the Synod's dispute
resolution
process under Bylaw 3.143 o.
Were the President of the Synod to become aware, before announcement of a
decision of the Dispute Resolution Panel under 8.09 c 4 d, that an
investigating officer has misstated a doctrinal position of the church or
acted in violation of the Constitution, Bylaws, or resolutions of the
Synod,
a President of the Synod has responsibility to act. Article XI B 1-4 of
the
Constitution sets forth his duties. Subsection 1 imposes on him duties
regarding the supervision of the doctrine of the church and administration
of all officers of the Synod. Subsection 2 requires that he see to it that
all act in accordance with the Synod's Constitution and admonish all who
depart from it.
Subsection 3 provides that "the President has and always shall have
the
power to advise, admonish, and reprove. He shall conscientiously use all
means at his command to promote and maintain unity of doctrine and
practice
in all the Districts of the Synod."
Subsection 4 requires that the President see to it that the resolutions of
the Synod are carried out.
In fulfilling his duties, the President would normally be expected to rely
on the provisions of Chapter VIII of the Bylaws to correct errors
occurring
during the dispute resolution process. This is particularly so in view of
the responsibilities given others under Article XIII, and the bylaws
flowing
from that article. We previously recognized in CCM Opinion 02-2251 that
the
President's duty and power "to advise, admonish, and reprove is
tempered by
the provisions of Article XIII and the bylaws that flow from it."
Recognizing the procedural protections embodied in the dispute resolution
process, including the initial review by a Dispute Resolution Panel, and
subsequent appeal to an Appeal Panel, which may then form a Review Panel,
the President would normally be expected to choose not to actively
intervene
until that process has concluded. Following the initial decision of the
Dispute Resolution Panel, he may also, under Bylaw 8.09d, where a question
of doctrine or practice is involved, request at that time either
reconsideration, or an opinion of either the CCM or the CTCR.
Under extraordinary circumstances, such as when an issue is of synod-wide
concern and having an immediate and ongoing negative impact on the Synod,
the President may choose to exercise his discretion in fulfilling his
duties
under Article XI. The President's right and/or responsibility to call up
for
review an action of an investigation officer carrying out the
responsibilities of Bylaw 2.27 c flows from his constitutional
responsibilities and powers. Similarly, his right and/or responsibility to
report to the Synod via pastoral letter flows from his constitutional
responsibilities and powers under Article XI.
It should be noted that, since the Secretary of the Synod submitted the
question, he has not participated in the discussions leading to this
opinion. Dr. Norman Sincebaugh was hospitalized and unable to participate
in
deliberations, and was taken to his eternal rest while this question was
being considered.
Commission on Constitutional Matters
August 20, 2002
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