LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — April 1–2, 2016, Page 15

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the extent reasonably possible under the facts and circumstances of the case. It is the responsibility of the
panel handling the case at the stage before them to engage the facts presented to them, to ascertain under
these facts whether due process has been preserved for the parties involved, and to the extent that they
determine that further action should be taken to render due process, take steps to do so.
The questions suggest not only that a variety of procedural irregularities may have occurred but also that
any number of them might suggest or even compel a procedural dismissal. The Commission on
Constitutional Matters has neither charge nor ability to investigate factual bases for these allegations. The
veracity and weight of those which may have bearing is a matter for the panel to decide, as well as the
decision whether due process has, at the conclusion of the process, been satisfied. Fundamentally it is an
issue of fairness.
There is no provision within the Synod Bylaw section 2.17 process to allow for a procedural dismissal
based on a failure to follow a bylaw requirement. The panel considering the matter must make provisions
so that the due process the bylaw intended to provide the accused can ultimately be effected. Nonetheless,
in the hope that clarification of the process itself may be of benefit not only to the member but also to the
panel before whom this matter is presently couched, the following responses are given:
Question 1: Can the notice of suspended status serve as the statement of the matter, and if so, can it do so
after the fact, without any notification that such was intended within the appropriate deadline
required by the governing documents, or must the suspension be lifted and the proceedings
canceled?
Opinion: The statement of the matter is to set forth the facts and state that the district president is
requesting expulsion of the member from the Synod. A notice of suspended status inherently indicates
that the district president is requesting expulsion of the member from the Synod in accordance with
Article XIII of the Constitution, the procedure for which Bylaw sections 2.14 and 2.17 (among others)
supply. A notice of suspended status could well be combined with a “statement of the matter,” setting
forth the facts of the case. The facts included must be such as, to the reasonable satisfaction of the district
president, “form a basis for expulsion of the member under Article XIII” (Bylaws 2.14.6; 2.17.6).
Question 2: Can a statement of the matter, which does not allege sexual misconduct, serve as the basis
for expulsion under Bylaw 2.17, and if not, must the suspension be lifted and the
proceedings canceled?
Opinion: Bylaw section 2.17 “provides the procedure to carry out Article XIII of the Constitution,
‘Expulsion from the Synod,’ as regards ‘offensive conduct’ of individual members of the Synod involving
sexual misconduct or criminal behavior.” Without further information, it seems that the definition of
“sexual misconduct,” as it relates to the relative appropriateness of Bylaw sections 2.14 and 2.17 in a
particular case, is at issue. One might conceive of a situation in which various parties might construe one
act as either sexual misconduct (to which Bylaw section 2.17 pertains) or as some other form of offensive
conduct (to which Bylaw section 2.14 would apply). Bylaw sections 2.14 and 2.17 provide the procedures
for expulsion of a member from Synod, but not the basis therefor, which is always provided in
Constitution Art. XIII.
“Use of this bylaw section [2.17] is reserved solely for addressing information or allegations of sexual or
criminal behavior misconduct that could lead to expulsion of an individual member from the Synod.
Information or allegations of a different nature or of lesser consequence shall be addressed using other
bylaw sections” (2.17 Standard Operating Procedures Manual (SOPM) IV 2.1)
The procedures of Bylaw section 2.17 differ materially from those of Bylaw section 2.14 only in that
there is no requirement of a “Matthew 18” face-to-face meeting between accuser and accused (cf. Bylaws

CCM Minutes – April 1–2, 2016 – Page 129