LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — September 21-22, 1973, Page 1

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347. Majority Presentation: At 2:15 p.m. Attorney Elam read the brief which had been received
approximately one hour before the meeting by the Commission. He and Chairman Otto then submitted to
questioning beginning at 2:22 p.m. Among the items treated were the following. One member felt that the
emphasis in the brief had been placed upon the first two questions almost to the exclusion of the third.
Another inquired whether the question of propriety revolved only around the four objections of Dr.
Tietjen listed on the bottom of page two of the "Statement of Facts." Attorney Elam stated that he had not
been present at the Board meeting. Asked whether in his opinion Dr. Tietjen had been given a fair
opportunity to meet the charges, he replied that he had no opinion on that. He stated that he had had
access to the actual letter containing the charges of the two pastors against Dr. Tietjen only that morning.
Questioned about the brevity of the time given to Dr. Tietjen between August 14 and August 17, Attorney
Elam stated that the amount of time needed depended upon the circumstances and cited one supreme
court case in which only one-half hour notice had been given. In answer to further questioning he
admitted that in his personal opinion the time given to Dr. Tietjen had been quite short. He opined that the
obligation to fulfill the requirements of Bylaw 6.79a "in the spirit of Christian love" again depended upon
the circumstances. It was also stated that the action of the Board was more in the nature of "directions"
instead of spontaneity. Reference was also made to the fact that the report of the two pastors was written
by hand on hotel stationery, that Dr. Tietjen did not even know that these men were in town, that
everything seemed to be done very rapidly. Otto stated that Pastor Biel had offered no specific reason for
objecting to the calling of a special meeting. He stated that he had no knowledge that these two pastors
would level charges when the notice of the meeting was sent. He stated that he had not given pause to
think that it might be advisable to consult an attorney. He ventured the opinion that this was a proper
agenda item to be included among the general statement of "New Orleans Resolutions and Related
Matters," and so ruled, with the result that his ruling was sustained in the Board meeting after it had been
challenged. He felt that for the future it should be clarified as to how a special meeting could be called
when there was no longer a chairman. Pastor Otto stated that he certainly was not one of those who had it
in mind that two pastors should bring charges against President Tietjen. Attorney Elam admitted that he
would not wish to be suspended from the bar on such short notice or even on long notice.
348. Minority Presentation: At 2:57 Attorney Richard Duesenberg distributed the outline of his talk and
proceded to expound his viewpoint. At 3:22 this part of the meeting was opened to questions. He stated
that there were other procedures by which the Board of Control could suspend the president. He
maintained that in his opinion the Resolutions 3-02 and 3-12 A of the convention were invalid. He
pointed to the argumentation of Mr. Donaho, an expert in parliamentary procedure present at the New
Orleans Convention. Attorney Duesenberg claimed that the convention had changed the method of
adopting resolutions from a two-thirds vote to a simple majority, but this was corrected. He maintained
that overtures calling for suspension should never have been printed in the Workbook. In the course of the
discussion however he did admit that the direction "shall" can mean "may" when a strict constructionist
application of shall would result in an absurdity. Attention was called to the allegedly ambiguous role of
the District President as a member of the Board of Control. It was brought out that the agenda was mailed
on July 31. It was suggested that Dr. Tietjen could only assume that the Board of Control would indeed
deal with matters of his own person, including Resolution 3-12A. But Dr. Tietjen stated that he would not
assume that these would include charges of two people whose letter was dated after the Board agenda had
been mailed. Duesenberg stated that it offended him that a Board should within 36 hours reverse the
judgment of a previous Board. This led to a discussion of the matter of prejudging a case and the
difficulty of finding anyone who had no views whatsoever in regard to the seminary issues. Tietjen
explained that in his view the charge was illegal because the provisions of "a" and "b" in the bylaw had
not been complied with and that even article "d" had been violated. He asserted that only a charge of false
doctrine could result in suspension and that only from teaching duties according to the bylaw. Duesenberg
claimed that there would be no problem involved in suspending an individual for an immoral life. The
question was asked whether Dr. Tietjen really had been unable to gather thoughts concerning matters
which had long been in controversy. He explained that he was at a Board meeting throughout the day. The