LCMS Convention Workbook St. Louis, Missouri — 2004, Page 346

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346 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

Opinion: Bylaw 1.09 a grants to the conventions of the Synod
the right to adopt doctrinal resolutions and statements in harmony
with Holy Scripture and the Lutheran Confessions. Doctrinal reso-
lutions come into being in the same manner as other resolutions,
as discussed in Bylaw 1.09 b. Doctrinal statements must be sub-
jected to the procedure provided by Bylaw 1.09 c, requiring pas-
sage by the Synod in convention and ratification by a two-thirds
majority vote of the Synod’s congregations. Doctrinal statements
and resolutions alike are to be honored and upheld until such time
as the Synod amends or repeals them.

Resolution 3-07A was adopted according to the procedure pro-
vided by Bylaw 1.09 b. It is a resolution that commends to the
Synod: for continued use and guidance the study developed by the
Commission on Theology and Church Relations, as was called for
by Resolution 3-03B of the 1998 convention, and the response pre-
pared by the Commission on Theology and Church Relations in
conjunction with the synodical President based on the reactions of
the Synod to that study.

Adopted Oct. 21-22, 2002

Dispute Resolution Process Panel Selection (02-2300)

A party to a dispute, in a letter dated August 26, 2002, ad-
dressed a series of questions to the Commission regarding the panel
selection process used by the Office of the Secretary of the Synod
in the administration of the Synod’s dispute resolution process. The
questions were submitted “with the understanding that since most
of these questions deal with the role of the Secretary of the LCMS
in his capacity as administrator of the dispute resolution process,
the Secretary will be excluded appropriately in the discussions and
decisions of the Commission on Constitutional Matters on a ques-
tion by question basis by the Commission.” The Secretary of the
Synod did not take part in the deliberations regarding this matter
or the opinions set forth.

Question 1: “If a party to a dispute has requested to be present
or represented in person at the time of the draw made by the Of-
fice of the Secretary of the LCMS in its capacity as Administrator
of the Dispute Resolution process to determine those eligible to act
as reconcilers in a case at the national level, must that request be
honored by the Secretary of the LCMS?”

Opinion: Bylaw 8.07 (h) states:

If the complainant requests formation of a Dispute Resolution Panel,
the Secretary of the Synod or his representative shall within 21 days se-
lect such a panel in the prescribed manner and then forward to each
panel member a copy of the report of the reconciler with its attach-
ments.

Bylaw 8.15 b 1 states:

Nine names shall be selected by a blind draw from the Dispute Res-
olution Roster.

The Bylaws make no provision for a party to a dispute to be
present in person or by representative at the time of selection of the
Dispute Resolution Panel. Accordingly, there is no right for a party
to a dispute to be present at the time of selection of the Dispute
Resolution Panel, which is done by the Secretary, in the presence
of a disinterested witness or witnesses.

Question 2: “If a nominated reconciler panelist is to be replaced
once the initial draw and selection process has transpired, should
not the Secretary of the LCMS proceed to draw three candidates
for the remaining panelist slot, or six candidates drawn if two spots
remain, so that .

a) the same selection process and elimination process affording
equal opportunity to disputants to know the potential selectees
and to discard for any reason an appropriate number of them be
continued in subsequent procedure as in the initial procedure?

b) the disputants would know after the Bylaw 8.17 continuing blind
draw the names of the next potential panelist(s)?

c) the selection process by blind draw indicated in Bylaw 8.16 c 4
being inexact as to methodology, said inexactness would best be
made exact by the most fair and reasonable approximation of the
Process more specifically designed in Bylaw 8.15 b 3?”

2001 Convention Workbook

Opinion: Bylaws 8.15 b 3 and 4, when addressing the nine
names selected by the Secretary from the Dispute Resolution Ros-
ter, state:

3) The list shall be mailed simultaneously to each party, who shall
be entitled to strike three names and return the list to the Secre-
tary of the Synod within one week.

4) The Secretary of the Synod will correct any problem in the panel
membership by a further blind draw for removals or additions
until the panel is constituted.

Thus the pertinent bylaws provide that each party to a dispute
has the opportunity to strike three names from the nine selected by
blind draw. However, the bylaws make no similar provision if it is
necessary to make further adjustment by addition or deletion to the
dispute resolution panel so that it meets the pastor/layman require-
ments of Bylaws 8.15 b or 8.16 c. Therefore, a member deleted or
added to the Dispute Resolution Panel is done by blind draw and
the parties to the dispute have no part in that selection process.

Question 3: “In a reconciliation panel proceeding and any pro-
ceedings such as a disqualification proceeding (Bylaw 8.17) flow-
ing from the initial proceeding, ought not the disputants be pro-
vided by the Secretary of the LCMS with any and all information
forwarded to the panelists from himself as well as from the respec-
tive disputants at the same time as the information is supplied by
the Secretary of the Synod to the panelists?”

Opinion: This question has two parts. The first is “a reconcilia-
tion panel proceeding” which the Commission assumes to be a Dis-
pute Resolution Panel, and the second, a “‘disqualification proceed-
ing” which the Commission assumes to be the three-member panel
to rule on disqualification (Bylaw 8.17).

Bylaw 8.07 f states:

f. Upon conclusion of the formal reconciliation meeting or meet-
ings, the reconciler shall prepare a written report which contains the ac-
tions of the reconciler, the facts agreed to, the facts remaining in dis-
pute and whether reconciliation has been achieved. Attached to the
report shall be:

1. the statement of the complainant as to informal reconciliation ef-

forts;

2. the statement of the matter in dispute;

3. any reply by the respondent.

The report and the attachments shall be forwarded to the parties 10
the dispute and the Secretary of the Synod or District as appropriate.

Bylaw 8.07 h states:

h. If the complainant requests formation of a Dispute Resolution
Panel, the Secretary of the Synod or his representative shall within 21
days select such a panel in the prescribed manner and then forward to
each panel member a copy of the report of the reconciler with its at-
tachments.

Thus, the bylaws require the Secretary to simultaneously for-
ward the same material to both parties to the dispute as well as to
the members of the Dispute Resolution Panel.

Bylaw 8.17 relates to a procedure to be followed when a party
to a dispute alleges that one or more members of a Dispute Reso-
lution Panel have actual partiality or the appearance thereof. The
bylaw states that if the panel member does not agree to the dis-
qualification, “the decision shall be made by a separate three-mem-
ber panel of reconcilers drawn for that purpose.” The bylaw is
silent as to the procedure to be followed by this panel. However,
since the bylaws require that the same material be forwarded to the
parties to the dispute as are forwarded to panel members after a
Dispute Resolution Panel is formed, the Commission rules that the
same practice must be followed upon formation of the three mem-
ber panel to rule on the allegation that an individual chosen to be a
member of a Dispute Resolution Panel is disqualified by reason of
actual partiality or the appearance thereof.

Question 4: “If a party in a dispute requests a face to face meet-

ing with a dispute panel once formed, should not that request auto-
matically be honored by the chairman of the panel?”

Opinion: Several portions of the Bylaws are relevant to this
question: