# LCMS Commission on Constitutional Matters Minutes_St. Louis Missouri_December 14 1989_S2
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

11. Adjudication Procedures - Interpretation of Bylaws 8.05,a and 8.07,b (Ag. 1873,A) : On October
16, the Commission on Constitutional Matters in a conference call had agreed to respond to a number of
questions raised by the President of the Synod with regard to the interpretation of Bylaws 8.05,a and
8.07,b. The response which was made is as follows:

1) The question you have asked is, "Are parties to a case, or a Commission on Adjudication that
receives a case, free to bypass or waive the provisions of Bylaw 8.05,a, and to move directly
into formal adjudication proceedings?" The clear answer is that none of those identified may
bypass or waive the provisions of Bylaw 8.05,a. The bylaw states, “ ... opportunity to settle
the matter shall be given." [Emphasis added.] The statement mandates action.
2) Your second question is, "If any party to a case submits a matter directly to a Commission on
Adjudication without following the provisions of Bylaw 8.05,a, is the Commission on
Adjudication obligated to refrain from hearing the case until such time as the provisions of
Bylaw 8.05,a have been carried out?" The response of the Commission is yes. Bylaw 8.07
read with 8.05 makes this obligatory. In developing the Rules of Procedure, the Commission
on Appeals has carried out this requirement. The Rules of Procedure state, “Anytime while
any case is in the informal settlement stage under Bylaws 8.05 and 8.07, any party may file
his case by submitting his intention to appeal and ground therefore in written form to the
Commission on Adjudication, whereupon:
a) The Commission on Adjudication, within 90 days of the receipt of such
appeal, shall rule whether or not the informal settlement efforts under Bylaw
8.05 have failed."
The above supports the view the informal efforts must take place. Furthermore, at the point of
notification, the "plaintiff'' is merely filing his case. The commission decides whether or when it
should be taken up. The wording of the Rules of Procedure indicates that the commission will
refrain from hearing a case until informal reconciliation efforts have been exhausted.
3) Your third question asks, "Of the three officers identified in Bylaw 8.05,a, which is the
proper officer to be given an opportunity to settle a matter involving a seminary president
and/or a seminary Board of Regents?" The Handbook is silent on which officer should deal
with an issue involving the President of a seminary and the Board of Regents. In this specific
matter, the decision making process involves both a terminating body, namely, the Board of
Regents, and the one who is terminated, namely, the seminary president, the President of the
Synod is neither of these and is therefore the only eligible officer among those identified in
Bylaw 8.05,a who is eligible to deal with this intra-synodical matter.
4) You have further asked, "Have the provisions of Bylaw 8.05,a been met when a Commission
on Adjudication determines that one of the officers mentioned in that bylaw has in fact had an
'opportunity to settle the matter,' even though that officer has received no specific charges in
writing nor any request from either party or from the Commission to attempt to settle the
matter?" The Commission replies, No. This is, of course, assuming that the officer identified
as being responsible for reconciliation has neither received specific charges nor a request
from either party or the Commission on Adjudication to settle the effort. The Commission
notes once again the mandating statement such as, "opportunity to settle the matter shall be
given . . . , . . . charges shall be submitted in writing to that officer." [Emphasis added.]