LCMS Convention Workbook St. Louis, Missouri — 2004, Page 329

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 329

Requests for Reconsideration
of Opinion 01-2243 (02-2251)

In letters dated January 29, January 30, and February 12, 2002,
a District President and two pastors formally requested that the
Commission reconsider its January 11, 2002, ruling regarding pub-
licity in dispute cases, raising several issues and offering their own
rationale and counsel. The Commission has taken into considera-
tion the points made and issues raised by the questioners and upon
reconsideration, rules that its opinion 01-2243 stands, for the fol-
lowing reasons:

(1) Opinion 01-2243 is consistent with other opinions of the Com-
mission since the Synod replaced the pre-1992 adjudication
process with the post-1992 dispute resolution process. In its July
8, 1999 response to a series of questions regarding the relation-
ship of Bylaw 2.27 to Chapter VII of the Bylaws (99-2151), the
Commission explained how the two fit together. After Bylaw
2.27 “triggers the procedure,” the process may move to Chapter
VIII and Bylaw 8.07, h. “In this case the ‘complainant’ is the
member who is contesting the expulsion, and the ‘report of the
reconciler’ is the District President’s ‘statement of the matter in
dispute.’” The Commission concluded: “Therefore, in response
to the question, Bylaw 2.27 and Chapter VIII of the Bylaws do
not operate independently of and without regard for each other.”
Instead, “Bylaw 2.27 ties into Chapter VIII of the Bylaws at
Bylaw 8.07, h. Bylaw 8.07, a—g, are not utilized in a Bylaw 2.27
action.” Therefore, the remaining paragraphs governing the
Chapter VIII process apply also to disputes originating with
Bylaw 2.27, including Bylaw 8.21 and paragraph e.

(2) Opinion 01-2243 recognizes a relationship between the two per-
tinent sections of the Bylaws that has long existed in the Hand-
book of the Synod. Over the years as the Handbook was revised,
including revisions to processes for addressing disputes of all
kinds, the requirement regarding publicity has not been signifi-
cantly changed. Portions of the former processes were carried
over into new processes, in particular the requirement govern-
ing publicity:

j. While a case is still undecided or while appeals are contem-
plated or pending, there shall be no publicity of the case by
any party to the proceeding (Bylaw 5.31 j; 1973 Handbook,
p. 124).

m. While a case is still undecided or while an appeal is

contemplated or pending, publicity shall not be given
to the issues in the case by any party to the case. A vi-
olation by a party may place the party’s stand in jeop-
ardy. At the request of either party the status of the
process and periodic progress reports on the process
may be properly disclosed by the chairman of the
commission to parties on a need-to-know basis
(Bylaw 8.51 m; 1989 Handbook, p. 134).

e. While a matter in dispute is still undecided or while an
appeal is contemplated or pending, publicity shall not
be given to the issues in the matter by any of the par-
ties involved (Bylaw 8.21 e; 2001 Handbook, p. 126).

1989 Bylaws 8.31 and 8.35 stipulate the kinds of “situations” to
which the adjudication process, including the above bylaw, apply. In-
cluded are disputes such as are covered by the current (2001) Chapter
VIII Dispute Resolution Process. Also included are “cases involving
expulsion under Article XIII of the Constitution,” covered by current
(2001) Bylaw 2.27, “Commencing an Action to Terminate Congrega-
tional or Individual Membership.” Both kinds of cases were included
under the same process. Requirements regarding publicity applied to
both kinds of cases. This is demonstrated by Commission on Constitu-
tional Matters’ rulings prior to 1992.

(3) Opinion 01-2243 is consistent with opinions rendered by the
Commission before the Synod replaced the pre-1992 adjudica-
tion process with the post-1992 dispute resolution process. Re-
garding a 1975 case in which charges of false doctrine were
made against a church worker, the Commission was asked on
two occasions to rule regarding the release of information. In a
February 21, 1975 ruling delineating the procedure to be fol-
lowed when a board of control has sustained a charge of false
doctrine, the Commission ruled: “6. Since the Board of Control
is obligated under Bylaw 6.79 to forward the accusation to the
District President, no publicity should be given the case beyond

the simple announcement by the Board of Control of the action
taken and of its basis (Bylaw 5.3], j).”

This was followed by an April 11-12, 1975 ruling (Ag. 809, 809
A and D) in response to a series of additional questions from the
board of control regarding the same case. Noting that it had for-
warded to the District President of the accused the “charge”
(Bylaw 6.79) or “accusation” (Bylaw 5.11) along with accom-
panying documentation, the board of control asked to what ex-
tent it remained a “party of the proceeding” (Bylaw 5.31, j). The
Commission responded that “the Board of Control has been in-
volved in the proceedings and therefore comes under the phrase
‘any party’ in the bylaw.” When asked whether the limitations
on publicity permit the board an opportunity to defend itself or
to deal with its accusers in keeping with the provisions of the
Eighth Commandment, the Commission ruled that “as of this
moment it would not be proper to initiate discussion of those
charges...which could lead to expulsion from the Synod.” When
said board noted that news releases and statements have already
placed into the public domain a considerable body of informa-
tion and asked whether “the public repetition of such informa-
tion at the present time, perhaps arranged in one report for the
sake of convenience, be regarded as objectionable publicity,”
the Commission ruled that “the circulation of such statements
by the Board of Control at this time would be inappropriate
under Bylaw 5.13 j.” When said board reminded the Commis-
sion that it had ruled that the board would be permitted to an-
nounce the basis of its action and asked whether the board’s
statement of its “basis” could include “such matters as a chrono-
logical and explanatory account of the procedures followed, the
charges, the opinion of the CTCR, and the findings of the Fac-
ulty Hearings Committee,” the Commission responded that “the
Board of Control may list simply the findings of the Board on
the basis of which the Board of Control has removed [the ac-
cused] from office.”

Correspondingly, a like response was given to inquiries regard-
ing publicity in a non-suspension case. In a 1989 dispute case
involving ‘a church worker and an agency of the Synod over a
decision made by the agency, the Synod’s Director of News and
Information was refused a copy of an appeal document submit-
ted by one of the parties to the dispute to the entity involved in
resolving the case. He indicated that it was his desire and inten-
tion to report factually and objectively in the light of reports on
the matter which had tended to circulate in the Synod’s
“grapevine.” At the same time, the chairman of the entity in-
volved in resolving the case argued that the release of such in-
formation would not only be contrary to the bylaw regarding
publicity (Bylaw 8.51 m), but it would also fail to honor Objec-
tive III, 9 of the Constitution of the Synod to “provide protection
for congregations, pastors, teachers, and other church workers
in the performance of their official duties.” The Commission re-
sponded that “a reporting of the naked fact that an appeal had
been filed was legitimate. However, any reference to substance,
etc., in its opinion, was not appropnate.” Therefore, the appeal
document was not released as requested.

In summary, the stipulation regarding publicity was carried over
from the old process when it was changed in 1992. In the old
process, requirements regarding publicity were applied to expul-
sion cases as well as to other dispute cases. The Commission’s
Opinion 01-2243 is consistent with prior rulings and practice and
therefore stands.

Finally, the Commission has also considered the additional is-
sues raised in the letters it received and offers the following addi-
tional comments in response:

1) Issue: If a complaint is made against a member of the Synod
and the District President concludes that the facts form a basis for the
expulsion of the member from the Synod, the District President would
have to discuss the matter with leaders of the congregation served by
the member and possibly the congregation itself. Would not the Pres-
ident of the District thereby be giving publicity to the matter?

Response: Bylaw 2.25 a states that when a formal proceeding
has been commenced against a member of the Synod that may lead
to expulsion of the member from the Synod, the member shall have
suspended status. Paragraph d of the same bylaw requires the Dis-
trict President to notify the congregation or other agency being
served by the member of the Synod of such suspended status.

2004 Convention Workbook