LCMS Convention Workbook St. Louis, Missouri — 2004, Page 348

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348 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

to the Synod.” Yet, the President must give cognizance to the pro-
visions of the Bylaws for they express the will of the Synod through
their adoption by members of the Synod in convention assembled.
Therefore, when the Bylaws set forth defined responsibilities and
procedures, the President should give recognition to those responsi-
bilities and procedures and only use his Article XI B authority rela-
tive to those responsibilities and procedures under extraordinary cir-
cumstances and in a manner to support the provisions of the Bylaws.
The decision to use the provisions of Article XI B is that of the Pres-
ident and the President alone.

Question 2: Does opinion 02-2282 of the Commission exempt
the President of the Synod from the requirements of Bylaw 8.01
which states that the procedures outlined in Chapter VIII “...shall
be the exclusive remedy to resolve such disputes...” in the event
that the President, by means of a pastoral letter, publicly accuses
an officer of the Synod of violating the Constitution or Bylaws, or
doctrinal position, or resolutions of the Synod?

Opinion: Opinion 02-2282 does not exempt the President of the
Synod from the requirements of Bylaw 8.01.

Question 3: Since according to a previous Commission opin-
ion, only a convention of the Synod may consider resolving a dis-
pute with the President of the Synod, does this mean that the person
so accused by the President has no recourse for remedy until the
next convention of the Synod when a committee appointed by the
President will consider the dispute? If so, how does this agree with
the words of John 7:51? Does this deprive an officer of the Synod
to speak in his own defense to the same audience before which he
was accused?

Opinion: In opinion 01-2240 the Commission affirmed its 1992
opinion (Ag. 1915) that addressed the question of who has super-
visory responsibility over the synodical President. The 1992 opin-
ion stated: “It would seem that the only recourse is an appeal to the
convention of the Synod when personal admonition fails to have
the President of the Synod carry out the responsibilities of his of-
fice as defined by the Handbook.”

The issue posed by this question does not appear to deal with
the President carrying out the responsibilities of his office. Rather,
it asks what if the President falsely, in a public manner, accuses an
officer of the Synod of violating the Constitution or Bylaws or doc-
trinal position or resolutions of the Synod. A personal dispute in-
volving an officer of the Synod is not a matter to be decided by a
convention of the Synod. A dispute between two members of the
Synod is to be resolved under the provisions of Chapter VIII of the
Bylaws beginning with Bylaw 8.05.

The Commission does not respond to the question regarding
John 7:51 because such question is beyond the function of the
Commission.

As to the question of whether an officer of the Synod is de-
prived of an opportunity to speak in his own defense to the same
audience before which he was accused by the President of the
Synod, the Commission directs attention to its opinions 01-2243
and 02-2251 which addressed themselves to the issue of publicity
while a matter is in dispute. The Commission interprets the Con-
Stitution and Bylaws of the Synod. It has no authority to enforce
its opinions.

Question 4: The opinion of the Commission states that the ap-
peal process, which is designed to discover and correct the investi-
gating officer’s errors in fulfilling his responsibility under Bylaw
2.27 c, make the President’s need to call up the action of the inves-
tigating officer for review, or the need to report by a pastoral letter
such calling up for review “moot.” The word “moot” is defined as,

“subjected or subject to argument or discussion” (Webster’s Colle-
giate Dictionary). Does the use of this word in the CCM opinion
mean that the President may, despite the fact that the appeals
process has been followed, call up for review the decision made,
and claim that he is given this authority by Article XI of the Con-
stitution and Bylaw 3.101?

Opinion: The sentence taken from opinion 02-2282 is part of a
paragraph where the Commission pointed out that if all the parties in-
volved in the matter in dispute were to scrupulously follow the provi-
sions of the Bylaws, the President would have no knowledge as to the

2004 Convention Workbook

decision of the investigating officer under Bylaw 2.27 c until such
time as the Dispute Resolution Panel issued its decision. This would
occur because every party involved in the dispute honored Bylaw 8.21
e and did not give publicity to the matter. However, in opinion
02-2282 the Commission was required to furnish an opinion in a sit-
uation where the President was made aware of the decision of the in-
vestigating officer under 2.27 c in violation of the ban on publicity in
Bylaw 8.21 e and opinions of the Commission on Constitutional Mat-
ters. In such situations, the Commission ruled, the President may in-
voke the provisions of Article XI B. Thus, if the Bylaws and the opin- ©
ions of this Commission relative to “publicity” were followed by all
parties, there never would be a situation where the President would
have knowledge of the decision of the investigating officer before the
decision is rendered by the Dispute Resolution Panel and, therefore,
any opinion on what is to happen if the ban on publicity is violated
would never be necessary. It is in this context that the Commission
used the word “moot.”

As concluded in opinion 02- 2982, the President may invoke the
provisions of Article XI B of the Constitution relative to a decision
rendered by an investigating officer under Bylaw 2.27 c if he be-
comes aware of such decision prior to the time the Dispute Reso-
lution Panel renders its decision.

Question 5: The opinion of the CCM states that “...the presi-
dent would normally be expected not to choose to actively inter-
vene until that process was concluded.” The process referred to is
the dispute resolution process. Do the words, “normally choose”
mean that the President has freedom to choose to intervene at any
time, should he so wish, and that Article XI of the Constitution and
Bylaw 3.101 give him this option? According to this opinion, do
the words, “until that process has concluded,” mean that the Presi-
dent may exercise his freedom of choice to ask the Dispute Reso-
lution Panel or the Dispute Review Panel to reverse their decision,
because he considers it not to be in accord with his understanding
of the Constitution, Bylaws, doctrinal position of the Synod, or a
resolution adopted by the Synod in convention? If the President
may do so, how does this affect the meaning of Bylaw 8.09 e that
the decision of the Review Panel “. . .shall be binding and not be
subject to further review”? 6

Opinion: Article XI B of the Constitution states that the Presi-
dent has the supervision regarding the doctrine and administration
of (a) All officers of the Synod; (b) All such as are employed by
the Synod; (c)The individual Districts of the Synod; (d) All Dis-
trict Presidents. It further states that it is the President’s duty to see
to it that all the aforementioned act in accordance with the Synod’s
Constitution, to admonish all who in any way depart from it, and, if
such admonition is not heeded, to report such cases to the Synod.
Bylaw 3.101 gives the President the right to 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 resolu-
tions of the Synod.

The investigating officer under Bylaw 2.27 c is one of the indi-
viduals over whom the President has the supervision regarding
their doctrine and administration under Article XI B and one of
those whose actions he may call up for review under Bylaw 3.101.
The members of a Dispute Resolution Panel or a Review Panel
when performing their duties as panel members are not acting as
officers of the Synod, employees of the Synod, District Presidents
or an executive. They are panel members and as such are beyond
the authority of the President under Article XI B. However, Bylaw
8.09 d does provide that the President may request a decision re-
garding a reconsideration if a question of doctrine or practice is in-
volved in the decision of the Dispute Resolution Panel.

Question 6: In light of the opinion 02-2282, which gives the
President authority to call for a Review Panel to reverse its deci-
sion, does this give the Synod assembled in convention the author-
ity to call up for review any decision of a Dispute Resolution Panel,
or Review Panel, since the authority of the Synod is above the au-
thority of the President? Or is the Synod under the authority of the
President in this matter, even when assembled in convention?

Opinion: The question is based on a false premise. As stated in
the opinion to Question 5 above, the President does not have au-
thority over the Review Panel. Bylaw 8.09 provides that a decision