LCMS Convention Workbook St. Louis, Missouri — 2013, Page 324

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324

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

party if the hearing panel determines that the questions
are not relevant to the issues before the panel?
Opinion: Every member may submit questions to the CCM under
Bylaw 3.9.2.2 and an answer will be provided in due course. However, such answers may not be issued before a pending hearing has
been concluded, will be of general application for future guidance,
and may not be available in time to provide any guidance to a pending panel. Because of the urgency and time limitations involved
in a Bylaw section 2.14 matter, the Synod has provided a separate
mechanism for the submission and resolution of questions which
may be important to the determination of such proceedings. Questions must be submitted through the hearing panels themselves.
A 30-day deadline is established in which a member may submit
questions to the panel as a matter of right, and all such questions
must be processed by the panel as provided by Bylaw 2.14.7.8 (k).
The panel is allowed to determine the final language of the question, allowing the panel to reconcile conflicting questions from the
parties and allowing the panel to assure that issues it believes will
assist its consideration of the matter are clearly presented. A 30-day
deadline is additionally imposed on the CCM to issue its opinion,
assuring that the matter is not unduly delayed.
The Bylaw Section 2.14 Standard Operating Procedures Manual
(SOPM) simply quotes Bylaw 2.14.7.8 (k) which reads:
(k) If any part of the dispute involves a specific question of doctrine
or doctrinal application, each party shall have the right to an opinion
from the Commission on Theology and Church Relations (CTCR). If
it involves questions of constitution or bylaw interpretation, each party
shall have the right to an interpretation from the Commission on Constitutional Matters (CCM).

In determining whether to submit a question to the CCM, the panel
may therefore first determine if any part of the dispute involves a
question of interpretation of the Constitution or Bylaws. If the panel
finds that any part of the dispute involves such an issue, substantive or
procedural, it must under this bylaw submit or pass along a question
fairly raising the questions presented to it by either party. If the panel
finds that the issue raised cannot possibly be relevant to the outcome
of the proceeding, it may decline to submit a question.
Question 3: If the scope of the Final Hearing Panel’s inquiry includes
fairness throughout the entire Bylaw section 2.14 process, including matters relating to the procedures of a
special hearing panel, what would be the consequence of
noncompliance with the SOPM, or any other perceived
lack of fairness, at a previous stage in the process?
Opinion: As described above, a hearing panel must always assure
fairness in a Bylaw section 2.14 process. A few examples of the
Synod’s insistence on fairness, and even the avoidance of the appearance of unfairness, may be helpful. Members of hearing panels
and hearing facilitators must be chosen by a witnessed blind draw
as provided by Bylaws 2.14.2 (j) and 2.14.7.2 (c). As required in
Bylaw 2.14.7.8:
• All hearings are held privately, attended only by the persons
involved and necessary witnesses.
• The panel is required to assure that each party involved will be
given an opportunity fully to present its respective position.
• Any member of the Synod, officer of a congregation, or officer
of any organization owned or controlled by the Synod is
required, when called upon by the panel to do so, to testify or
produce records related to the matter.
• No party to the matter or anyone on the party’s behalf is
allowed to communicate either directly or indirectly with the
panel or any member of the panel without the full knowledge
of the other party to the matter.
2013 Convention Workbook

• While the matter is pending, no party or panel member may
publicize the matter.
The seriousness of the need to maintain fairness is also reflected
in disqualification of individuals in both the dispute resolution process of the Synod and the expulsion process, not merely for actual
partiality but even the appearance of partiality. See Bylaw 1.10.16
and SOPM general regulation “N,” as well as CCM Opinion 12-2651.
There are many ways in which either fairness or due process concerns may arise in a Bylaw section 2.14 proceeding, and even more
ways in which some detail of SOPM regulations may be breached.
As with any human endeavor, errors occur. While every effort should
be made to avoid unfairness or procedural error, not every error or
breach or unfairness will have the same impact on the process. To the
extent that corrections can be made, they should be acknowledged
and corrected promptly. Until and unless the Synod provides specific
remedies or consequences for such errors, that is a responsibility of
the panel itself. To the extent that an error cannot be corrected or an
unfairness remedied, it is incumbent on the panel itself to consider
an appropriate remedy. This may involve consideration of whether
the parties were aware of and timely raised objections as provided
in Bylaw 2.14.9.2 14, or expressly waived such defect after it was
brought to the party’s attention 15. It must take into consideration
both the seriousness of the underlying issue and the seriousness of the
breach. It may involve consideration of whether the error was a single,
unintentional, and isolated breach or whether breaches were repeated,
systematic, fundamental, or even intentional. The panel may need
to consider whether the unfairness rises to the level of undermining
the integrity of the Synod itself, on whose behalf the panel is acting.
The Bylaws and the SOPM generally provide no absolute remedies. The panel itself must make that determination. Under some
circumstances, errors may be rendered moot by subsequent events.
Sometimes a remedy may involve simply an acknowledgement and
request for forgiveness. When warranted, the remedy may involve
dismissal of a single panel member or a request for the replacement
of the Secretary of the Synod as administrator. Where circumstances
warrant, the panel itself may initiate or suggest the initiation by others of a Bylaw section 1.10 dispute resolution process. But where a
panel deems proper, where an error or series of compounding errors
are serious enough or unfairness great enough, a panel may in good
conscience and fairness need to terminate the current process entirely.
If a member’s ongoing actions warrant, the initiation of a new proceeding raising ongoing issues would be in order. In the meantime,
the Synod’s integrity is maintained, the benefit of the doubt inures to
the member, and the opportunity for reconciliation continues.
(Adopted Nov. 2–4, 2012)

Revision of “Guidelines for Constitutions and Bylaws
of Lutheran Congregations”
Six years having gone by since the last revision of its “Guidelines for Constitutions and Bylaws of Lutheran Congregations” and
prompted by recurring questions and issues raised by district constitution committees and recent convention actions, the commission
reviewed the existing document and approved the following revision
to assist congregations in developing or revising their constitutions
and bylaws.

GUIDELINES FOR CONSTITUTIONS AND
BYLAWS
OF LUTHERAN CONGREGATIONS
PREFACE
Congregations, the basic units of The Lutheran Church—Missouri
Synod, join together to form the Synod and relate to one another through