LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — April 1–2, 2016, Page 16

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2.14.3 [c]–[e] and 2.17.3[d]). Were a misuse of the Bylaw section 2.17 procedure instead of the Bylaw
section 2.14 procedure to result in the expulsion of a member as a “gross miscarriage of justice” (Bylaws
2.14.8 [d] [3]; 2.17.8 [d] [3]), an Appeal Panel and Final Hearing Panel could overturn the expulsion.
Again, however, an alleged misapplication of Bylaw section 2.17 to a situation that is even plausibly in
the consideration of the district president a case of “sexual misconduct” is no grounds for acquittal by the
hearing panel.
Question 3: Where the statement of the matter fails to allege facts supporting the allegation, must the
suspension be lifted and the proceedings canceled?
Opinion: The hearing panel must determine (1) whether the allegation amounts to a member acting
contrary to the Confessions and to the conditions of membership or persisting in offensive conduct, and
(2) whether the facts (“substantiated information of an alleged accusation” Bylaw 2.14.2 [f]) of the case
demonstrate the allegation. Also subject to the hearing panel’s review is whether appropriate procedures
were followed in the expulsion. There is, however, no provision for “dismissal” apart from the hearing of
the
case.
The written “statement of the matter” is to contain facts such as to the district president “form a basis for
expulsion of the member under Article XIII.” Testimony before the panel may establish further facts,
which may demonstrate the case to the satisfaction of the panel, even if such facts were not included in
the original “statement of the matter.” Such facts would be included in the “official record of the case,”
which might be examined by the appeal panel upon request for appeal (Bylaw 2.14.8).
Question 4: Does the panel have the authority to require the district president to file a detailed set of
verifiable facts supporting the allegations, and if such verifiable facts are not provided
according to the appropriate timeline given in the governing documents, must the suspension
be lifted and the proceedings canceled?
Opinion: The district president’s statement of the matter (the same document given both to the member
and, through the Secretary of Synod, to the panel (Bylaw 2.14.6 [b] and Bylaw 2.14.7.1, “the statement of
the matter”) is to set forth the facts of the matter, that is, “substantiated information of an alleged
accusation,” “factual assertions involved in an accusation with a request for expulsion from membership”
(Bylaw 2.14.2 [f], [s]). There is no provision for a dismissal on the basis of an allegedly inadequate
“statement of the matter.” The panel proceeds under the stipulations of Bylaws 2.14.7.8 (a)–(l); 17.7.8
(a)–(l).
Question 5: Is the accused entitled to a statement from the supposed victim concerning allegations
against him, or, without such statement, must the suspension be lifted and the proceedings
canceled?
Opinion: The accused receives the “statement of the matter,” which is to include such facts as, to the
satisfaction of the district president, merit the member’s expulsion from Synod. The panel shall “establish
the procedure to be followed in the hearing and the relevancy of evidence so that each party to the matter
shall be given an opportunity fully to present its respective position.” “The panel shall determine the
number of witnesses necessary for a full and complete understanding of the facts involved in the matter. It
shall question persons involved and witnesses directly and may also permit the parties to the matter to do
so” (Bylaws 2.14.7.8 [b], [j]; 17.7.8 [b], [j]). The absence of “a written statement from the ‘supposed
victim’
concerning
allegations”
is
not
of
itself
a
basis
for
acquittal.
“Ordinarily, a formal written complaint shall be signed and dated, the ecclesiastical supervisor also
verifying that the required consultation has taken place. In situations in which a victim of sexual
misconduct is reluctant or refuses to put a complaint in writing, the ecclesiastical supervisor shall proceed
CCM Minutes – April 1–2, 2016 – Page 130