LCMS Convention Workbook St. Louis, Missouri — 2013, Page 331

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
guidance for a special panel regarding how the Synod understands
fairness and due process in the resolving of disputes.
For example, while Bylaw 2.14.7.8 applies directly to a Hearing
Panel, it may not be ignored by other panels, including special panels,
or in other stages of a Bylaw section 2.14 process. The Synod in its
commitment to and mutual covenant of fairness and due process, as
discussed in CCM Opinion 12-2659, has expressed in the Bylaws
and SOPMs its understanding of those requirements. Consistent with
CCM opinion 02-2303, where the Synod has not expressly spoken in
the Bylaws or SOPMs, special panels must view those understandings
and expressions of fairness and due process as governing their actions
to the extent applicable and adopt their procedures in view of those
understandings and expressions.
An overarching principle in the Constitution and Bylaws of the
Synod, as well as in the SOPMs for both the dispute resolution process
and the process for expulsion from membership in the Synod, is one
of due process, fairness, and impartiality. Thus, all hearings and all
investigations must be conducted in a fair and equitable manner.38
This means that while a specific process is not prescribed for a special
panel formed to determine if a challenged member of a Hearing Panel
or Final Hearing Panel should be disqualified, whatever process is
followed by such a panel to reach an informed decision must insure
fairness and impartiality to all parties to the matter so that its decision
is just and equitable. And, like any other phase of a Bylaw section
1.10 or 2.14 process, neither the decision nor the process of a special
panel may contradict the Constitution and Bylaws of the Synod or the
appropriate SOPM. In a 2.14 matter, if a party to the matter considers
the process unfair, that party is to call it to the attention of the Hearing Panel or Final Hearing Panel, as the case may be, for resolution.
Therefore, with regard to the questions from the Final Hearing
Panel with reference to the statement, “The Commission rules that the
[special] panel itself shall establish the procedure it wishes to follow
to reach a decision” from CCM Opinion 02-2303, the commission
responds as follows.
Part 1, Question 1: 	Does this sentence as stated as such mean that
a special panel can make up any procedure it
wishes, even stepping out of the general principles of the SOPM and bylaws of 1.10 and 2.14
procedures?
Opinion: No. A panel may not make up any procedure it wishes.
As indicated above, Opinion 02-2303 directed the panel to use a
procedure that was sufficient to allow it to make an informed decision. The opinion gave the panel authority to reach that decision
either on the basis of the written materials submitted to it, or to
hold a hearing following the procedure of a Dispute Resolution
Panel (which was the process for resolving all disputes at the time
of Opinion 02-2303).
It is unclear to the commission what the questioner means by the
phrase, “even stepping out of the general principles of the SOPM
and bylaws of the 1.10 and 2.14 procedures.” Both 1.10 SOPM Section IV, “General Regulations,” and 2.14 SOPM Section II, “General
Regulations,” deal with a wide variety of aspects pertaining to various
portions of the process.
Thus, while a special panel to resolve a dispute over disqualification determines its own procedure to follow in reaching an informed
opinion, its process must demonstrate impartiality and fairness to
all parties to the matter. And the process cannot contradict the Constitution, Bylaws, and SOPMs of the Synod. If a party to the matter
believes that the process was unfair, it may bring that concern to the

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Hearing Panel or Final Hearing Panel, which will investigate and
rule accordingly.
Part 1, Question 2: Does CCM opinion 02-2303 negate the general
SOPM guidelines and even the bylaws themselves as
found in 1.10 and 2.14 DRP procedures?
Opinion: No. See the answer to Part 1, Question 1 above.
Part 1, Question 3: Since the SOPM guidelines allow for a ‘special panel,’ how does the sentence in SOPM Section
II, paragraph Y, ‘Should the provisions of this manual
vary from the Constitution or Bylaws of the Synod, the
Constitution and Bylaws control and supersede’ affect
the phrase “shall establish the procedures it wishes to
follow…” as found in Opinion 02-2303?
Opinion: Regulation “Y” of the 2.14 SOPM states:
Panels and ecclesiastical supervisors are responsible for interpreting and applying the principles, regulations, and other provisions provided in this manual. General questions regarding the process may be
discussed with the Secretary of the Synod. Specific questions may be
directed to the Commission on Constitutional Matters, whose responsibility it is to maintain this manual in consultation with the Secretary of
the Synod and with the concurrence of the Council of Presidents. Should
the provisions of this manual vary from the Constitution or Bylaws of
the Synod, the Constitution and Bylaws control and supersede.

This regulation gives panels and ecclesiastical supervisors the
responsibility for interpreting and applying the principles, regulations,
and other provisions of the SOPM. It indicates that general questions regarding the process may be addressed to the Secretary of the
Synod and specific questions may be addressed to the Commission
on Constitutional Matters. The final sentence makes clear that the
SOPM may not contradict the Constitution and Bylaws of the Synod.
Since the phrase, “shall establish the procedures it wishes to follow…” comes from the commission’s Opinion 02-2303, rather than
from the 2.14 SOPM, Regulation “Y” of the 2.14 SOPM does not
apply to the question asked. The relation of the procedures of a special
panel to the Constitution, Bylaws, and SOPM are addressed in Part
1, Question 1.
Part 1, Question 4: Are CCM opinions meant to override the guiding
principles of the Bylaws, or merely interpret them?
Opinion: The function of the Commission on Constitutional Matters relative to the Constitution and Bylaws of the Synod is delineated in Bylaws 3.9.2 and 3.9.2.2.
3.9.2

The Commission on Constitutional Matters exists to interpret
the Constitution, Bylaws, and resolutions of the Synod and
ensure that the governing instruments of the Synod and its
agencies are in accord with the Constitution and Bylaws of the
Synod.
3.9.2.2 The Commission on Constitutional Matters shall interpret the
Synod’s Constitution, Bylaws, and resolutions upon the written
request of a member (congregation, ordained or commissioned
minister), official, board, commission, or agency of the Synod.

Part 2
The panel references Bylaw 2.14.7.8 (f); 2.14 SOPM Section II
Regulation “K” (e); and 2.14 SOPM Section II Regulation “Y.”
Bylaw 2.14.7.8 (f) states:
No party to the matter nor anyone on the party’s behalf shall 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.

SOPM Section II Regulation “K” (e) states:
(e) Except as specifically provided elsewhere in this manual, all evidence used by panels shall be taken in the presence of all panel members

2013 Convention Workbook