LCMS Convention Workbook St. Louis, Missouri — 2004, Page 347

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 347

a. The Dispute Resolution Panel shall meet in person, or by tele-
phone conference, within 30 days after its appointment, for the purpose
of selecting a chairman and secretary. After the chairman confers with
the parties to the dispute, the Dispute Resolution Panel shall choose a
location and a date for the formal hearing of the matter (Bylaw 8.09 a).

1. The hearing shall be private, attended only by the parties, and one
adviser of each party’s choice, should any party desire one (Bylaw 8.09
cl).

... The panel shall establish the procedure to be followed in the hear-
ing and the relevancy of evidence so that each party shall be given an
opportunity fully to present its respective position (Bylaw 8.09 c 1).

d. No party to a dispute nor anyone on the party’s behalf, shall either
directly or indirectly communicate with the reconciler or any member of
the Dispute Resolution Panel, Appeal Panel, or Review Panel without
the full knowledge of the other party to the dispute (Bylaw 8.21 d).
Also relevant is Rule of Procedure 36, paragraphs a and b:

(a) At the request of the parties or at the discretion of the panel, a
preliminary conference with the chairman of the panel and the parties
may be scheduled to arrange for an exchange of information and the
stipulation of uncontested facts to expedite the panel proceedings.

(b) In large or complex cases, at the discretion of the panel, a pre-
liminary hearing may be scheduled with the chairman of the panel and
the parties to arrange for the production of relevant evidence, to identify
potential witnesses, to schedule further hearings, and to consider other
matters that will expedite the panel proceedings.

Therefore, the answer to this question is: no. The rules govern-
ing attendance at the formal dispute resolution hearing are set forth
in Bylaw 8.09 c 1 quoted above. Any other meeting of a party to a
dispute with the Dispute Resolution Panel or a member thereof is
governed by Bylaw 8.21 d and Rule 36 of the Rules of Procedure,*
both quoted above. It should be noted that both parties to a dispute,
at all times, must have notice of any meeting of a party to the dis-
pute with the Dispute Resolution Panel or a member thereof and
be given the opportunity to be present at a time convenient to both
parties.

Adopted Oct. 2, 2002

Selection of Special Panel to Decide Bylaw 8.17
Request (02-2303)

A party to a dispute, in a September 3, 2002 letter, asked a se-
ries of questions regarding Bylaw 8.17 relating to the procedure to
be followed if a party to a dispute alleges that a member of a Dis-
pute Resolution Panel has actual partiality or the appearance
thereof.

Question 1: Must the Secretary of the Synod divulge the names
of the three panel members that will decide the issue of partiality?

Opinion: The bylaw is silent on this issue. However, since the
names of the members of the chosen Dispute Resolution Panel are
made known to the parties to the dispute, the Commission rules
that the names of the members of the disqualification panel should
likewise be made known to the parties to the dispute.

Question 2: Who determines the procedure to be followed by
the disqualification panel to reach a decision?

Opinion: The bylaw is silent on this issue also. The Commission
Tules that the panel itself shall establish the procedure it wishes to fol-
low to reach a decision. Thus, the panel may choose to reach a deci-
sion based on written materials submitted by the parties to the dis-
pute; the panel may decide to hold a formal hearing attended by the
parties and may follow the procedure used by a Dispute Resolution
Panel, if deemed necessary. The procedure to be followed should be
sufficient to allow the panel to make an informed decision.

Question 3: Who determines which panel member is to be
chairman and secretary of the panel?

Qpinion: Bylaw 8.09 a provides a procedure to be followed to
organize a Dispute Resolution Panel. It states:

The Dispute Resolution Panel shall meet in person, or by telephone
conference, within 30 days after its appointment, for the purpose of se-
lecting a chairman and secretary. After the chairman confers with the
parties to the dispute, the Dispute Resolution Panel shall choose a loca-
tion and a date for the formal hearing of the matter.

This same procedure is to be followed in organizing the dis-
qualification panel. The Secretary of the Synod may request one of
the disqualification panel members to be a convener for the sole
purpose of contacting by telephone conference the other two panel
members for the purpose of the panel selecting a chairman and sec-
retary and related matters.

Question 4: Is it appropriate for the Secretary to instruct the dis-
qualification panel to perform its duties in haste?

Opinion: The Secretary of the Synod may convey to the disqualifi-
cation panel his desire that it perform its function quickly. It is to be
remembered that the matter in dispute cannot be resolved until the
members of the Dispute Resolution Panel are chosen and the panel
can then begin its work. Thus, it is imperative that the disqualifica-
tion panel perform its work in an expeditious manner while fully
informing itself on all aspects of the question.

Adopted Oct. 2, 2002

Further Clarification of Opinion 02-2282
in Light of Related Constitutional and Bylaw
Provisions (02-2304)

A District President, in an August 28, 2002 letter, raised a series
of “matters of clarification in connection with various constitu-
tional and bylaw provisions” related to the Commission’s recent
opinion 02-2282 “which dealt with the power of the office of the
President of the Synod.”

Question 1: The Commission on Constitutional Matter states in
its opinion 02-2282 “...when an issue is of Synodwide concern and
having an immediate and ongoing negative impact on the Synod,
the President may choose to exercise his discretion [and his] right
and/or responsibility to call up for review an action of an investi-
gating officer carrying out the responsibilities of Bylaw 2.27 c...”.
Who determines whether an issue exists, and what sort of issue this
may be? Is this the decision of the President alone?

Opinion: The above statement from the Commission’s opinion
02-2282 is a paraphrase and not an exact quote. The Commission
opinion states: “Under extraordinary circumstances, such as when
an issue is of Synodwide concern and having an immediate and on-
going negative impact on the Synod, the President may choose to
exercise his discretion in fulfilling his duties under Article XI. The
President’s right and/or responsibility to call up for review an ac-
tion of an investigating officer carrying out the responsibilities of
Bylaw 2.27 c flows from his constitutional responsibilities and
powers.”

Article XI B of the Constitution sets forth the duties of the Pres-
ident of the Synod. They are applicable to every man who occu-
pies the office of the President. They begin when the man is in-
ducted into the office of President and do not-end until his
successor is inducted into office. They are to be carried out at all
times during his term of office. The Synod established a procedure
in the Bylaws for a member’s expulsion from the Synod in accord
with the mandate in Article XIII of the Constitution. That proce-
dure cannot negate the duties of the President set forth in Article
XI B. Thus, if there is authority for his actions under the provisions
of Article XI B (since they are applicable at all times during his
term of office), the President may use that authority in a phase of an
expulsion proceeding to which such authority is appropriate. The
authority of the President is found in Article XI B. He does not
have authority to overturn the decision made by the investigating
officer carrying out the responsibilities of Bylaw 2.27 c.

As stated above, the President’s authority under Article XI B is
constant during his term of office. In opinion 02-2282 the Commis-
sion used the phrase “under extraordinary circumstances.” This
phrase was an acknowledgement by the Commission that an unfet-
tered use by the President of the authority he possesses under Article
XI B could create chaos in the activities of the Synod enumerated in
the Bylaws. There are no restrictions in the Constitution on such use
other than the provision of Article XI A which states: “The officers
of the Synod must assume only such rights as have been expressly
conferred upon them by the Synod, and in everything pertaining to
their rights and the performance of their duties they are responsible

2004 Convention Workbook