LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — December 10, 2012, Page 2

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between members of the Synod, while essentially the same, was thoroughly revised and became section
1.10 of the Bylaws. In addition, the Synod has now authorized the development of a detailed Standard
Operating Procedures Manual (SOPM) for each of these sections.
Regulation “N” of Section II of the 2.14 SOPM deals with the disqualification of ecclesiastical
supervisors or panel members. The fourth paragraph states:
Any party may challenge the eligibility of a panel member or hearing facilitator to serve. In the event that the
service of a panel member or hearing facilitator is challenged and the panel member or hearing facilitator
disagrees with the challenge, 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. In the event of disqualification
of a panel member, another panel member shall be selected in the same manner as the disqualified member was
selected.

Regulation “N” provides a mechanism to resolve the objection but provides no further guidance regarding
the procedure this special panel is to follow in reaching its decision.
The Bylaws of the 2010 Handbook do not prescribe a procedure for the process to be used by a special
panel to decide on the disqualification of a member of a Hearing Panel or a Final Hearing Panel.
However, the procedures laid out in various other sections of Bylaws 2.14.6–2.14.7.8 and 2.14.9.2 as well
as the 2.14 SOPM do provide 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. 1 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
1

See, for example, the commitment to fairness as described in, Bylaw 2.14 SOPM Section I Paragraph “N”:
“The ecclesiastical supervisor will make every effort to resolve disputed matters on a timely basis. He will also
make every effort to protect the integrity of the process, and will make every effort to be consistent and fair and
to guard against improper publicity.” See also Section II Regulation “P”: “Except as provided in this manual, no
party to a dispute nor anyone on the party’s behalf shall communicate, either directly or indirectly, with the
panel or a panel member without the full knowledge of the other party. All other communication shall take
place at joint meetings. A panel may decide at any time during the process not to accept any communication
outside of joint meetings or hearings. In the interest of the integrity, trustworthiness, and credibility of the
dispute resolution process in the eyes of all parties, the hearing facilitator and panel members shall take care
consistently to conduct themselves in a professional manner, maintaining objectivity and impartiality and
avoiding all appearance otherwise, treating all parties equally and fairly, and pursuing no relationship with any
of the parties to the dispute until after a final decision has ended the process.”

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