LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — November 18–19, 2016, Page 3

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Background: In a case where a district president fails to act, CCM Op. 16-2791 finds unconstitutional the
Bylaws’ present direction of an accuser’s appeal for action to a Referral Panel (e.g., Bylaw 2.14.5.3). In
such a case (or when the district president declines to suspend, and the accuser appeals for action) it is the
President of the Synod who has the right and responsibility to address such an appeal for action. 2016
Res. 12-14 requires the Secretary of the Synod to initiate a Bylaw 7.1.2 process to bring the Bylaws into
conformity with the Constitution in this regard, “in order to implement clear bylaw procedures regarding
this aspect of ecclesiastical supervision.”
Referral Panels, however, are constituted not only when a district president fails to act and an accuser
appeals for action. They may be formed voluntarily by a district president, in accord with Bylaws 2.14.5–
2.14.5.1, for the Referral Panel to make the decision whether or not to initiate formal proceedings. Three
questions, below, result from this observation.
Opinion Background: CCM Op. 16-2791 addressed the constitutionality of provisions that were in
Synod’s Bylaws from1956 until 2004. These provisions allowed for an appeal by an accuser, if a district
president declined to suspend a member or failed to act. Between 1956 and 1989 the appeal of the accuser
was directed to the President of the Synod. After 1989 the appeal was directed to the Praesidium of the
Synod. The 2004 convention of the Synod eliminated an appeal to either the Praesidium or the President
of the Synod and instead allowed for an accuser to appeal to a Referral Panel, should the District
President fail to act. The 2004 convention also defined its use of “fails to act” in the new bylaw.
CCM Op. 16-2791 concluded that the 1956 convention of the Synod interpreted Synod’s Constitution,
specifically, Article XI B 1–3, to grant the President of the Synod the power to initiate proceedings in the
event that a district officer failed to act. That same convention adopted bylaws acknowledging and
facilitating that authority. Therefore, CCM Op. 16-2791 concluded that the practice of the Synod as it
existed between 1956 and 1989, which allowed an accuser to appeal to the President of the Synod in the
event a District President did not suspend a member, was constitutional. The opinion further determined
that this authority was inherent in the powers given to the President of the Synod by the Constitution.
Regarding the practice of the Synod between 1989 and 2004, which directed that an appeal could be made
to the Praesidium of the Synod, CCM Op. 16-2791 concluded that this practice was unconstitutional. The
opinion notes that the decision to initiate the process and to suspend or not to suspend is part and parcel of
ecclesiastical supervision, which the Constitution assigns only to the President of the Synod and to the
district presidents. Because the decision whether or not to proceed and initiate the expulsion process was
given in 1989 to the Praesidium of the Synod, and because the Praesidium is not given ecclesiastical
supervision authority by the Constitution of the Synod, therefore, the practice between 1989 and 2004 of
allowing an accuser to appeal to the Praesidium in the event that a district president declined to suspend
the member, or failed to act, was determined to be unconstitutional. (Prior to Op. 16-2791, the
Commission never specifically addressed the general constitutionality of referral to the Praesidium [see
Op. 16-2791].)
Referral Panels were implemented in the Bylaws in 2004, after the period addressed by CCM Op. 162791. While these were not a part of the original question of Op. 16-2791, the opinion’s conclusion that
referral to the Praesidium is unconstitutional (because it deprives the President of the Synod of his
authority to initiate proceedings in the case where a district president has failed to act or declined to
suspend) applies equally to those Referral Panels formed to deal with an accuser’s appeal for action.
These Referral Panels are mentioned only in the concluding section of CCM Op. 16-2791, where the
opinion states, “Moreover, this review finds the change of the Bylaws in 1989 and subsequently (namely,
to remove the right of appeal for action to the President, should district officials fail to act, and to replace
it first with an appeal to the Praesidium and then with an appeal to a Referral Panel) to conflict with the
Constitution of the Synod. This change unconstitutionally deprived the President of the Synod of
procedures for exercising a power granted him in Constitution Art. XI B 1–3.”

CCM Minutes – November 18–19, 2016 – Page 9