LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 10–12, 2012, Page 11

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Paragraph “N” of the ”General Regulations for Bylaws Section 2.14” (p. 10 of the SOPM) provides that
under these circumstances “the question shall be decided by a panel of three district presidents not
involved in the case, selected by blind draw by the Secretary of the Synod for this purpose.”
This special panel concluded that the district president selected by the accused did not have a conflict of
interest and could be a member of the Final Hearing Panel. The panel also concluded that the lay
reconciler member of the Final Hearing Panel should be disqualified because of residence in the same
district as the district president chosen by the accused. The panel indicated that this decision “in no way
reflects upon the qualifications, gifts, or impartiality possessed by lay reconciler in fulfilling an effective
role on the final hearing panel,” but that two members from the same district serving on a Final Hearing
Panel, even when one is chosen by blind draw, “may give the appearance of partiality.”
The accused asked a series of questions of the commission regarding procedures associated with the
formation of a Final Hearing Panel.
Question 1: SOPM guidelines state: “The standard for disqualification is actual partiality or the
appearance thereof….” (SOPM, p. 9). What is the proper definition of the phrase “actual
partiality or the appearance thereof”?
Opinion: Neither the Bylaws nor the Standard Operating Procedures Manual (SOPM) for Bylaws
section 2.14 provides a definition of “actual partiality or the appearance thereof.” Oxford Dictionary
defines “partiality” as “unfair bias in favor of one thing or person compared with another; favoritism.”
Such partiality can exist as a result of a personal relationship, a predilection or inclination to one decision
or outcome rather than to others, or the holding of a firm opinion on a question before it is presented for
consideration. Every tribunal that has to determine facts is concerned with the issue of partiality, because
fairness and the appearance of fairness are basic for trust and integrity in the process and the final
decision. The concept of partiality is used commonly in courts of law and in arbitration cases, where the
burden of proof is on the party alleging that the arbitrator or judge is impermissibly biased. An assertion
of partiality requires evidence of facts upon which to base the claim. In such cases an arbitrator or judge is
required to make full disclosure of possible conflicts of interest to the parties before the commencement
of the proceedings, revealing any relationship or transaction that he/she has had with the parties as well as
any other fact which would suggest to a reasonable person that the arbitrator or judge is biased and
interested in the outcome of the matter or which might reasonably support the inference of partiality.
Historically in the LCMS, the phrase “actual partiality or the appearance thereof” began to be used when
the 1992 Synod convention moved away from the “adjudication” and “appeal” process in the Synod and
initiated the dispute resolution process. The phrase became part of Bylaw 8.17 in the 1992 Handbook and
remained unchanged through the 2001 Handbook. In 2004 the Handbook was revised and reordered and
this section, unchanged from Bylaw 8.17, became Bylaw 1.10.16 and has remained unchanged ever since.
When the 2004 Synod convention established the present expulsion-from-membership bylaws (2.14–
2.17), the phrase used in the dispute resolution bylaws (Bylaw 1.10.16) was not carried over into the
expulsion-from-membership bylaws; however, the Commission on Constitutional Matters was then given
the responsibility for developing standard operating procedure manuals for each of these bylaw sections.
When providing a disqualification process for each of these bylaw sections, the commission intentionally
followed the process established for Bylaws section 1.10 dispute resolution matters, and the phrase
“actual partiality or the appearance thereof” has been used in each of those manuals since that time as a
guideline for disqualifications.
General Regulation “N” for Bylaws section 2.14 provides clarity to the meaning of “actual partiality or
the appearance thereof” as it describes the process to be followed by the district president or the Secretary
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