LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — November 18–19, 2016, Page 4

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Question 1: Does CCM Op. 16-2791 find unconstitutional the use of Referral Panels in the manner
described in Bylaws 2.14.5–2.14.5.1?
Opinion: Bylaws 2.14.5–2.14.5.1 allow a district president to form a Referral Panel of three circuit
visitors, which conducts an investigation and then makes the decision either to suspend or not suspend.
CCM Op. 16-2791 does not explicitly address use of Referral Panels as described in Bylaws 2.14.5 and
2.14.5.1.
Question 2: If CCM Op. 16-2791 does not apply to their constitutionality, are they constitutional, as used
in Bylaws 2.14.5–2.14.5.1?
Answer: Bylaws 2.14.5–2.14.5.1 allow a district president to form a Referral Panel of three circuit
visitors, which conducts an investigation and then makes the decision either to suspend or not suspend.
While CCM Op. 16-2791 does not directly address the use of Referral Panels in Bylaws 2.14.5 and
2.14.5.1 (likewise, 2.17.5 and 2.17.5.1), it does apply to them. Because the decision to suspend or not to
suspend is part and parcel of ecclesiastical supervision, and because the Constitution of the Synod does
not give ecclesiastical supervision authority to Referral Panels, the use of Referral Panels as they are
constituted in Bylaws 2.14.5 and 2.14.5.1; 2.17.5, and 2.17.5.1 is unconstitutional for the same reason that
CCM Op.16-2791 declared that an appeal to the Praesidium of the Synod was unconstitutional, namely,
that they assign otherwise than the Constitution itself assigns it the authority and responsibility to make
the decision to suspend.
Responsibility for ecclesiastical supervision is assigned by the Constitution of the Synod only to the
President of the Synod and to the district presidents. Bylaws appropriately provide that, in the exceptional
circumstance wherein the ecclesiastical supervisor is disqualified because he has a conflict of interest or is
unable to act, the next qualified officer acts in his stead [e.g., Bylaw 2.14.4.1]). The Constitution,
however, allows no delegation of this decision, in the ordinary case, to a Referral Panel or to anyone else.
The commission notes that Bylaws 2.14.4 (a) and 2.17.4 (a) do allow the ecclesiastical supervisor to
appoint an investigation committee. This committee after its investigation may make a recommendation
to him, but it remains the responsibility of the ecclesiastical supervisor to make the decision whether or
not to proceed.
Question 3: Does 2016 Res 12-14 either authorize or require the present Bylaw 7.1.2 process to address
the use of Referral Panels in the manner described in Bylaws 2.14.5–2.14.5.1?
Opinion: The title of Resolution 12-14 is “Regarding the Right of an Accuser to Appeal When a District
President or President of the Synod Fails to Act or Declines to Suspend.”
The first whereas states: “CCM Opinion 16-2791 has indicated that portions of the expulsion processes of
the Synod’s Bylaws are presently in an unconstitutional state with respect to Constitution Art. XI B 1–3
and Constitution Art. XIII 2.” The first “Resolved” states: “That the Synod in convention direct the Board
of Directors to act in this manner in order to implement clear bylaw procedures regarding this aspect of
ecclesiastical supervision.” While the focus of the attention of Res. 12-14 is on the right of appeal when a
District President or the President of the Synod fails to act or declines to suspend, it simply states that
CCM Op. 16-2791 found that portions of the expulsion process are in an unconstitutional state. The
resolution itself does not designate which portions those are; this is to be inferred from the opinion itself.
In addition, while the first whereas references only appeals to the President of the Synod, the title of the
Res. 12-14 also indicates a right of an accuser to appeal should the President of the Synod fail to act or
decline to suspend, broadening the scope of revision to be performed. By the same token, the Bylaw 7.1.2
process initiated by the resolution may include other unconstitutional aspects of the expulsion process, the
unconstitutionality of which proceeds from CCM Op. 16-2791.
While CCM Op. 16-2791 does not specifically address the use of Referral Panels in Bylaws 2.14.5 and
2.14.5.1; 2.17.5 and 2.17.5.1, the principle established by CCM Op. 16-2791 is that ecclesiastical
CCM Minutes – November 18–19, 2016 – Page 10