LCMS Convention Workbook St. Louis, Missouri — 2010, Page 280

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

280

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
Responsibilities of Appeal Panels
in Dispute Resolution Process (09-2572)

With a letter dated November 19, 2009, a pastor of the Synod
asked a series of questions regarding the responsibilities of an Appeal
Panel in the dispute resolution process in light of Bylaw 1.10.18.1
(a) and a statement in the Standard Operating Procedures Manual
accompanying the process which states, “The panel shall make its decision on the basis of the minutes and written decision of the Dispute
Resolution Panel and any documentary evidence that was received
and reviewed.”
Question 1: Does Bylaw 1.10.18.1 (a) (Handbook, p. 48) which
allows not only a Dispute Resolution Panel and Review
Panel for witnesses to testify and review records and
documents related to a dispute, also allow for an Appeal
Panel to have witnesses testify before it, and review
records and documents related to a dispute?
Opinion: Bylaw 1.10.18.1 (a) provides that “any member of the
Synod, officer of a congregation, or officer of any organization
owned or controlled by the Synod shall, when called upon” by one
of the three panels, including an Appeal Panel, must testify or produce records related to the dispute.
Question 2: Should the rules and procedures that are developed by
a smaller group of officials in the Standard Operating
Procedures Manual (SOPM) of the dispute resolution
process, as granted in Bylaw 1.10.18.1 (j), override and/
or conflict with any other bylaws as found elsewhere
in the dispute resolution section or any other bylaws
approved by the Synod?
Opinion: The Standard Operating Procedures Manual, “a comprehensive procedures manual for Bylaw section 1.10,” (Bylaw
1.10.18.1 [j]), does not override and should not conflict with any
bylaws approved by the Synod.
Question 3: (a) Does not the rules and procedures of the Standard
Operating Procedures Manual, of the dispute resolution process as granted in Bylaw 1.10.18.1 (j) in which
section 4.1 states:
The panel shall make its decision on the basis of
the minutes and written decision of the Dispute
Resolution Panel and any documentary evidence that
was received and reviewed.
greatly curtail the Appeal Panel Process in that it can
only make its decision solely on the minutes and decision of the original Dispute Resolution Panel and
only on any documentary evidence that was received
and reviewed by the first panel, even though Bylaw
1.10.18.1 (a) may grant the Appeal Panel other sources
of witnesses and/or records related to the dispute?
(b) Does not Bylaw 1.10.18.1 (a) allow an Appeal Panel
not only to look at the written record of the Dispute
Resolution Panel, but in spite of the SOPM rules/procedures, it may also call its own witnesses to testify and
review any records/documentary evidence that is related
to the dispute in order to seek the truth, and thus render
its final decision?
(c) Should not the procedures/rules as found in the
SOPM section 4.1 (Nov. 2008) be revised to conform
to the stated intent of Bylaw 1.10.18.1 (a)?
Opinion: The questioner is correct that the Standard Operating
Procedures Manual could more clearly reflect the provision of
Bylaw 1.10.18.1 (a) that allows an Appeal Panel to obtain testimony directly from members of the Synod, officers of congrega-

tions, or officers of any organization owned and controlled by the
Synod, such to be included in a proper understanding of the words
of the bylaw, “any documentary evidence that was received and reviewed.” On the rare occasion (given the 30-day requirement) that
an Appeal Panel is not able to arrive at its decision regarding the
granting of a reconsideration of the earlier panel’s decision without
additional testimony or records, Bylaw 1.10.18.1 (a) does grant that
opportunity. This lack of clarity in the Standard Operating Procedures Manual will be taken into consideration when the manual is
next reviewed by the commission (Bylaw 1.18.18.1 [j]).
Adopted Jan. 23–24, 2010
Reconsideration of Response to Second Question
of Former Opinion 99-2157 (09-2573)
Omnibus Res. A of the 2007 convention referred Overture 8-44
“To Request CCM Reconsideration of Opinion 99-2157 re Art. VII”
to the Commission on Constitutional Matters (cf. 2007 Proceedings, p. 169; 2007 Convention Workbook, p. 275). Opinion 99-2157,
“Questions re Rights of Individuals and Congregations” (Sept. 14,
1999), responded to seven questions submitted by a Dispute Resolution Panel.
This reconsideration of Opinion 99-2157 addresses the commission’s response to the second question: “What does the phrase ‘inexpedient as far as the condition of a congregation is concerned’ mean,
and how is it applied to matters relating to the right of self-government
of LCMS congregations?” The commission responded to that question with the following two paragraphs:
What then is meant by a “congregation’s right of self-government”?
Since 1854, conventions of the Synod have refused to adopt resolutions
which were thought to interfere with the “self-government” of the local
parish, explaining that the Synod “is an advisory body.” Historically,
four areas of self-government have been recognized: (a) the calling of
pastors, teachers, etc., from a list of those accredited by the Synod itself; (b) the owning and maintaining of congregational property without
granting any rights of it to the Synod; (c) church discipline; and (d) the
administration of a congregation’s programming and financial affairs.
Thus, in answer to the question to the commission, the phrase “inexpedient as far as the condition of the congregation is concerned” does
not refer to the Constitution and Bylaws of the Synod and is restricted
to resolutions adopted by a convention of the Synod which are nondoctrinal in nature. [For the complete text of the commission’s response,
see Appendix I.]

The fourth “whereas” paragraph of Ov. 8-44 states the reason for
the reconsideration request: “Whereas, Opinion 99-2157 of the CCM,
namely, ‘In answer to the question to the commission, the phrase
“inexpedient as far as the condition of a congregation is concerned”
does not refer to the Constitution and Bylaws of the Synod and is
restricted to resolutions adopted by a convention of the Synod which
are non-doctrinal in nature’ exceeds the intent of the Constitution as it
limits the second of the dual consequences mentioned above to what is
not doctrinal” (emphasis added). [Note: The “second of the dual consequences” referred to is the second sentence of Article VII, the first
sentence of Article VII being the first of the “dual consequences.”]
The phrase in question is taken from Article VII of the Constitution of the Synod, which reads:
Article VII Relation of the Synod to Its Members
1. In its relation to its members the Synod is not an ecclesiastical
government exercising legislative or coercive powers, and with
respect to the individual congregation’s right of self-government
it is but an advisory body. Accordingly, no resolution of the Synod
imposing anything upon the individual congregation is of binding
force if it is not in accordance with the Word of God or if it ap-

2010 Convention Workbook

2010 Convention.indb 280

4/15/10 2:40 PM