LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — November 20–21, 2008, Page 5

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interpretation from the Commission on Constitutional Matters (CCM)”], submitted two questions in an
October 8, 2008 letter to the commission.
Question 1: Is a Final Hearing Panel required to conduct a de novo hearing in which the matter is heard
anew as if it had not been previously heard and as if no decision had previously been made by the initial
Hearing Panel?
Opinion: The answer to this question is “no.” While the bylaws assume that the Final Hearing Panel will
conduct a hearing (e.g., Bylaw 2.14.8.2), Bylaw 2.14.8.1 (b) provides: “The procedures for the final
hearing shall be the same as prescribed in Bylaws 2.14.7.5–2.14.7.7.” There is no provision for any de
novo hearing in these bylaws. Rather, Bylaw 2.14.7.7 (i) provides: “The panel shall determine the number
of witnesses necessary for a full and complete understanding of the facts involved in the matter.” Also,
Bylaw 2.14.8.1 (c) states: “The chairman of the Hearing Panel shall provide the Final Hearing Panel with
a written statement of the matter and the Hearing Panel’s report, minutes, records, and proceedings.” This
is the material to be reviewed by the Final Hearing Panel unless it feels the need to hear from additional
witnesses. The Final Hearing Panel therefore is to determine for itself what further information, if any, it
needs to acquire in order to have a complete understanding of the facts at issue. It is up to the panel to
determine if it needs to hear from any additional witnesses in order to fulfill its bylaw responsibilities.
Question 2: May the parties call hostile/adverse witnesses during a hearing before a Final Hearing
Panel?
Opinion: The answer to this question is founded upon the understanding of the bylaws reviewed in the
answer to the previous question. It is up to the judgment of the panel whether it needs to hear from any
witnesses. While the bylaws provide that “each party involved shall be given an opportunity fully to
present its respective position” (Bylaw 2.14.7.7 [c]), the parties may not automatically call any witness,
hostile/adverse or otherwise, during a hearing before a Final Hearing Panel unless the panel has indicated
that it wants to hear from said witness.
65. Time Requirements for Dispute Resolution Process (08-2535)
In an e-mailed letter dated October 30, 2008, a congregation of the Synod involved in dispute resolution
submitted the following question regarding the right of the Secretary of the Synod as administrator of the
dispute resolution process to allow a Dispute Resolution Panel to exceed the 60-day time limit for
providing its decision.
Question:

In view of the fact that the Dispute Resolution Panel failed to make a decision for 60 days as
required by the LCMS bylaw, what LCMS bylaw allows the LCMS Secretary or any LCMS
official to suspend Bylaw 1.10.7.4 (b) and give an extension for that decision without any
agreement from the respondent? As stated another way, do the LCMS Bylaws allow any
official or even the CCM without bylaw authority to accept a Dispute Resolution Panel
decision after the panel has failed to make a decision within 60 days, and if so, what bylaw
can be interpreted to allow that exception?

Opinion: Bylaw 1.10.7.4 (b) requires: “Within 60 days after the final hearing, the panel shall issue a
written decision that shall state the facts determined by the panel and the reasons for its decision.” There
is no provision in the Bylaws for a suspension or extension of the 60-day obligation to issue a decision,
and no provision for any official of the Synod to grant such suspension or extension. Should the panel fail
to render its decision within that time frame, it would be appropriate to bring that issue to the attention of
the administrator of the proceeding.

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