LCMS Convention Workbook St. Louis, Missouri — 2013, Page 322

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322

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

(indeed, such is often required) with another district president. Additional factors would be required to create such “actual partiality or
the appearance thereof” as would become sufficiently substantive to
prohibit such service. The same is the case for any two members of a
panel. Any two panel members may have personal knowledge of and
a personal relationship with other panel members. As with district
presidents, this factor alone is considered by Bylaws section 2.14 and
its SOPM to be non-substantive and does not constitute “actual partiality or the appearance thereof.” Thus, any two members of a panel
are not prohibited from service on a panel solely because of personal
knowledge of and a personal relationship with other panel members
or for simply having the same district affiliation. And as General
Regulation “N” for Bylaw section 2.14 provides: “Circumstances that
are thought to or are likely to affect performance of duties and the
outcome of a formal process shall be disclosed” to the administrator,
who “shall share this information with the parties to the dispute.”
“N” continues, where the relationship between panel members is
challenged, “the question shall be decided by a special panel of three
district presidents not involved in the case, selected by blind draw
by the Secretary of the Synod for this purpose.” The panel selected
to determine such a challenge must consider these matters addressed
in this opinion in making its conclusion.
Concerns regarding an appearance of fairness or the independence
of panel members are different from the question of partiality. If the
Synod believes that two panel members coming from the same district leads to the appearance of unfairness or the potential for undue
influence between panel members, the Synod ought to address this
in convention.
Question 3: Can panel members be removed from their participation
in the formation of a final hearing panel beyond the
scope of “actual partiality or the appearance thereof”?
Opinion: No. See answers to Questions 1 and 2 above.
Question 4: Can Final Hearing Panels and/or special panels formed
to hear special issues/concerns make up rules and/or
extend the rules of the hearing panel process when the
rules are silent on a specific issue or do not presently
exist?
Opinion: Panels are required to function to the best of their ability and judgment under the provisions of the pertinent bylaws and
procedures manuals, to the extent they are applicable. While at the
time of the commission’s opinion 02-2303 the Synod had not yet
established standard operating procedure manuals (which must be
followed by all panels), that opinion gives guidance to a disqualification panel in regard to procedures to follow to make an informed
decision. See also answers to Questions 1, 2 and 5.
Question 5: If a panel member was removed based on the improper
use of the rules and procedures, thus creating a material
violation of the hearing panel process, should and/or
must that panel member be reinstated?
Opinion: The Bylaws contain no provision for an appeal following the removal of a panel member. However, paragraph “U” of
the “General Regulations for Bylaws Section 2.14” of the SOPM
states:
U. Right to Object: If any party learns that any provision of this Standard Operating Procedures Manual has not been complied with and
fails to object in writing within three (3) days after learning that the
provision has not been complied with, the party shall be deemed to
have waived the right to object. Issues raised in a timely manner
shall be considered and resolved by the appropriate panel (Bylaw
2.14.9.2).

2013 Convention Workbook

In an opinion regarding a Dispute Resolution Panel (DRP), the
commission addressed this issue on June 23, 1998, in Ag. 2109, in
answer therein to Question 7:
7. Do Bylaw 3.905 d and Bylaw 8.21 i require a CCM opinion to be
implemented by a DRP and require a DRP to change, modify, or
otherwise revise its decision in accord with a CCM ruling?
Bylaw 3.905 d states that a function of the Commission on Constitutional Matters (CCM) is to “interpret the Synod’s Constitution, Bylaws and resolutions…” It further states that “An opinion rendered
by the commission shall be binding on the question decided unless
and until it is overruled by a synodical convention.”
Accordingly an opinion rendered by the CCM must be implemented
by a DRP and, further, a decision by a DRP must be changed, modified, or otherwise revised to bring it into accord with an opinion of
the CCM.
Bylaw 8.21 i does set forth a procedure to secure a CCM opinion
during the dispute resolution process and it concludes with the sentence: “Any opinion received from the Commission on Constitutional Matters must be followed by the Dispute Resolution Panel or
Review Panel.”

While Ag. 2109 applies to a Dispute Resolution Panel, it also applies to a special panel to determine eligibility of a challenged panel
member to serve on a 2.14 Final Hearing Panel. Thus, if an error
regarding disqualification has occurred and timely objection has been
made, the error must be corrected.
(Adopted Aug. 10–12, 2012)

Service of District Presidents in Dispute Resolution
and Expulsion Processes (12-2652)
In a July 11, 2012 email, the Secretary of the Synod submitted a
question to the commission, offering the following by way of preface:
During the district convention year of the Synod’s triennial cycle, it
is possible that a dispute resolution or expulsion process will be underway at the time that a new district president is elected. It will be helpful
to me as administrator of these processes to receive the commission’s
response to the following question.

Question:

If a new district president is elected while the current/
outgoing district president is involved in a Bylaw section 1.10 dispute resolution process or a Bylaw section
2.14–2.17 expulsion process, does the outgoing president see the matter through to its completion even after
leaving office, or does the incoming president assume
responsibility for completing the process immediately
upon taking office?
Opinion: A review of the processes referenced discloses that the
responsibilities placed upon a district president therein are upon the
office and not upon the man. Consequently, when the process has
not been concluded before an individual leaves the office of district
president (for whatever reason), the responsibility for concluding
the process still needs to be fulfilled by a district president.
Synod Bylaw 2.14.1(b) indicates that “[t]he action to commence
expulsion of a congregation or individual member from membership
in the Synod is the sole responsibility of the district president who
has the responsibility for ecclesiastical supervision of such member.”
When an individual who has been elected district president ceases for
whatever reason to be a district president, he no longer has “responsibility for ecclesiastical supervision of such member.” To “commence
an expulsion” procedure does not mean that the individual who, as
district president, started the process is irrevocably tied to it until
its conclusion. Rather, it is only a “district president” who has been
authorized to act under the provision of this process.
Similarly, under the provisions for dispute resolution (Synod
Bylaw section 1.10, et seq.), in every reference in which a district