LCMS Convention Workbook St. Louis, Missouri — 2010, Page 271

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
and Bylaws which ensure that such an action actually
is completed in a manner described in Matthew 18:15.
Opinion: See the answer to question 3.
Adopted Nov. 20–21, 2008
Final Hearing Panel Procedure (08-2534)
The secretary of a Final Hearing Panel, in accordance with Bylaw
2.14.7.7 (k) [“If any part of the dispute involves. … questions of
constitution or bylaw interpretation, each party shall have a right to
an interpretation from the Commission on Constitutional Matters
(CCM)”], submitted two questions in an October 8, 2008 letter to
the commission.
Question 1: Is a Final Hearing Panel required to conduct a de novo
hearing in which the matter is heard anew as if it had not
been previously heard and as if no decision had previously been made by the initial Hearing Panel?
Opinion: The answer to this question is “no.” While the bylaws
assume that the Final Hearing Panel will conduct a hearing (e.g.,
Bylaw 2.14.8.2), Bylaw 2.14.8.1 (b) provides: “The procedures
for the final hearing shall be the same as prescribed in Bylaws
2.14.7.5–2.14.7.7.” There is no provision for any de novo hearing
in these bylaws. Rather, Bylaw 2.14.7.7 (i) provides: “The panel
shall determine the number of witnesses necessary for a full and
complete understanding of the facts involved in the matter.” Also,
Bylaw 2.14.8.1 (c) states: “The chairman of the Hearing Panel shall
provide the Final Hearing Panel with a written statement of the
matter and the Hearing Panel’s report, minutes, records, and proceedings.” This is the material to be reviewed by the Final Hearing
Panel unless it feels the need to hear from additional witnesses. The
Final Hearing Panel therefore is to determine for itself what further
information, if any, it needs to acquire in order to have a complete
understanding of the facts at issue. It is up to the panel to determine
if it needs to hear from any additional witnesses in order to fulfill
its bylaw responsibilities.
Question 2: May the parties call hostile/adverse witnesses during a
hearing before a Final Hearing Panel?
Opinion: The answer to this question is founded upon the understanding of the bylaws reviewed in the answer to the previous question. It is up to the judgment of the panel whether it needs to hear
from any witnesses. While the bylaws provide that “each party involved shall be given an opportunity fully to present its respective
position” (Bylaw 2.14.7.7 [c]), the parties may not automatically
call any witness, hostile/adverse or otherwise, during a hearing before a Final Hearing Panel unless the panel has indicated that it
wants to hear from said witness.
Adopted Nov. 20–21, 2008
Time Requirements for Dispute Resolution Process (08-2535)
In an e-mailed letter dated October 30, 2008, a congregation of the
Synod involved in dispute resolution submitted the following question
regarding the right of the Secretary of the Synod as administrator of
the dispute resolution process to allow a Dispute Resolution Panel to
exceed the 60-day time limit for providing its decision.
Question: In view of the fact that the Dispute Resolution Panel
failed to make a decision for 60 days as required by the
LCMS bylaw, what LCMS bylaw allows the LCMS
Secretary or any LCMS official to suspend Bylaw
1.10.7.4 (b) and give an extension for that decision
without any agreement from the respondent? As stated
another way, do the LCMS Bylaws allow any official
or even the CCM without bylaw authority to accept a
Dispute Resolution Panel decision after the panel has

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failed to make a decision within 60 days, and if so, what
bylaw can be interpreted to allow that exception?
Opinion: Bylaw 1.10.7.4 (b) requires: “Within 60 days after the
final hearing, the panel shall issue a written decision that shall state
the facts determined by the panel and the reasons for its decision.”
There is no provision in the Bylaws for a suspension or extension
of the 60-day obligation to issue a decision, and no provision for
any official of the Synod to grant such suspension or extension.
Should the panel fail to render its decision within that time frame,
it would be appropriate to bring that issue to the attention of the
administrator of the proceeding.
Bylaw 1.10.4 (a) identifies the administrator to be:
(a) Administrator: The secretary of a district or of the Synod or an
appointee (Bylaw 1.10.6) who manages the dispute resolution process
but who does not take leadership, declare judgments, advise, or become
involved in the matter in dispute.

The administrator would be expected to make inquiry as to the
reason for the failure, and to encourage the panel to fulfill its responsibility. Should the administrator believe that the panel is neglecting
its duties, and the panel continues to fail to issue its decision, the
administrator should bring the matter to the attention of the President
of the Synod.
It should be noted that a failure of the panel to issue its decision within the time prescribed does not terminate the proceedings
or prohibit the reception of a decision not timely rendered. Unlike
the process set forth in Bylaw 2.14.2 (e), for example, which can
result in dismissal of a proceeding should the accuser fail to meet
the accused face-to-face within 30 days, the Synod has imposed no
such requirement for the delayed issuance of a decision as described
in the question submitted.
Adopted Nov. 20–21, 2008
Continuation of Candidate Status (08-2537)
The Secretary of the Synod, in a memorandum dated November
21, 2008, requested clarification of Bylaw 2.11.2.2 (a) regarding candidate status for church workers.
Question: Bylaw 2.11.2.2 (a) authorizes a district president to continue a candidate on the roster for a period not to exceed
four years. Does the bylaw allow the district president
to extend that status of such candidate member beyond
four years?
Opinion: No. Bylaw 2.11.2.2 describes who is eligible for placement on “candidate” status, i.e., a rostered member of the Synod
who is eligible to perform the duties of an active member of the
Synod in one of the offices of ministry specified in Bylaw 2.11.1
but who is not currently an active member or an emeritus member.
Paragraph (b) provides that such a candidate member is required
to file an annual report by January 31 of each year. Based on that
report and the district president’s evaluation of the criteria identified
under paragraph (c), the district president may, under paragraph (a),
continue the candidate status for a period not to exceed four years.
If no longer qualifying for candidate status, a member may, if
eligible, be continued on the roster as a non-candidate member pursuant to Bylaw 2.11.2.3.
Adopted Nov. 20–21, 2008
Binding Force Resolutions (08-2542)
Referencing CCM Opinion 08-2524, which referred to 2004 Res.
3-05A, “To Affirm Marriage as Union of One Man and One Woman,”
a pastor of the Synod in a letter dated December 30, 2008, asked the
commission whether other resolutions in the same category were
equally binding with similar attending disciplinary action.
2010 Convention Workbook

2010 Convention.indb 271

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