# LCMS Commission on Constitutional Matters Minutes_St. Louis Missouri_October 30 31 2020_S2
# Machine transcription, uncorrected — CHI Digital Archive (demonstration)

A panel may reject and not consider evidence or testimony from a witness that it deems unnecessary
or unhelpful to its consideration of the matter.
Question 2:

Does the phrase, “the ecclesiastical supervisor shall close the investigation, terminating the
matter,” Bylaw 2.17.5 (SOPM 2.3 c) mean that evidence from such a case may not be used
in a subsequent case?

Opinion:

No. See answer to Question 1 above.

Question 3:

If evidence from an accusation was gathered and considered by a district president,
resulting in no formal action, under a set of bylaws, and the bylaws were subsequently
amended in such a way that the admissibility of that evidence to a current case is
questioned, which bylaws pertain, those under which the evidence was gathered and
considered without further action, or those under which a current case is being heard?

Opinion:
The commission is unable to answer such a hypothetical question. Should the panel
encounter a specific question regarding the applicability of specific provisions that have changed over time
in a way that appears relevant to the facts at hand, the panel may inquire further.
55. Virtual Meeting of Hearing Panels (20-2956)
By the same e-mail, the hearing panel in a Bylaw section 2.17 matter also requested an opinion on the
following two procedural questions occasioned by the COVID-19 pandemic:
Question 1:

May one or more members of a Hearing Panel (under Bylaw section 2.17) attend a hearing
by electronic means?

Opinion:
The Bylaws and Standard Operating Procedures Manuals (SOPM) for Bylaw sections
2.14–17 do not prohibit a hearing panel, in an emergency situation (such as a weather emergency or flight
cancellation), from allowing a panel member who is unable physically to attend from joining the hearing
by electronic means.
The observation that such participation is not prohibited does not solve the manifold technical challenges
that could arise in attempting to render such participation as effective as physical presence would be. Such
participation would therefore be confined to the realm of strict necessity (i.e., it would be impossible or
highly imprudent, reasonably speaking, for the panel member to be present physically at the hearing) and
not of preference or convenience.
The commission also notes that the determination of a panel to proceed with a hearing in which one or more
members of the panel attends electronically (as opposed to proceeding without the member, his or her being
“unable to perform required duties,” 2.17 SOPM, Detailed Flowchart 4.3 [d], or rescheduling the hearing if
the number of members unable to attend physically would so necessitate) is a discretionary act which may
be reviewed for its impact on the provision of a fair and impartial hearing.
Question 2:

May the entire Bylaw section 2.17 Hearing Panel proceeding be conducted by electronic
means in such a way that no two members of the panel, neither the accused or the accuser
[sic, really “the ecclesiastical supervisor”], nor any of the witnesses are physically present
with each other?

Opinion:
Bylaw sections 2.14–17 and the corresponding Standard Operating Procedures Manuals
(SOPM) do not contemplate the possibility of a virtual hearing; rather they reflect the established practice,
heretofore without exception, of the panel and parties meeting at an established time in a given single place
(e.g., Bylaw 2.17.7.6). Considerations that may strongly favor this practice, even given modern
technological alternatives, include the non-verbal cues generally more readily observable in an in-person
setting and process security (recordings are prohibited, except as made by the panel for its own use; access
to the proceedings is controlled to prevent witness “contamination” or inappropriate “leakage” of sensitive
information; sensitive documents can be shared in-person and collected for the official record). A physical

CCM Minutes – October 30–31, 2020 – Page 40