LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — December 21, 2017, Page 2

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documentary form. The SOPM also allows the panel, at its discretion, to hold a second hearing at which all
parties are to be present.
In determining whether or not to hold a second hearing, factors that ought to be considered by the panel are
to ensure that the procedure has the fact and appearance of impartiality, and the fact and appearance that all
parties involved had a full opportunity to present their position and evidence. Part of due process also
involves the prompt, full and sure resolution of the parties’ issues. Intentional delays in the process caused
by either party work to the detriment of the other. Sometimes such delays cannot be helped; however, the
hearing panel should take care to ensure that any absence of a party from a duly scheduled hearing is both
unavoidable and unintentional.
Another factor that would need to be considered by the panel is the weight of the evidence that has already
been presented to the panel verbally at the hearing and the weight of written documentation presented by
both parties. If, in the judgment of the panel, the evidence already received is so overwhelming as to one
side that reasonable minds would agree that a second hearing is unnecessary, the panel may decline to offer
such. However, it must be made clear to the absent party that the party has the right to present whatever
written information he or she chooses, prior to a deadline established by the panel.
Question 2:

In the circumstance of unexpected hospitalization, would the panel’s failure to allow the
absent party an opportunity to appear at a subsequent hearing be grounds for an appeal?

Opinion: Bylaw 2.14.8 generally disallows an appeal if the accused was not an active participant in the
hearing before the Hearing Panel: “The decision of the Hearing Panel may be appealed by the accused (if
an active participant in the hearing before the Hearing Panel).” However, the rationale under which this
language was adopted (2013 Res. 7-11, Proceedings, p. 185) reads (emphasis added):
At times, suspended members (not unavoidably detained) fail to attend the hearing which they
requested in order to appeal their suspension and expulsion from the Synod. According to current
bylaws, they may nonetheless request and be granted a second hearing before a Final Hearing Panel.
At question is whether such members should be provided opportunity to request a second hearing,
given their failure to use their first opportunity to present their case and given the significant
expenditures of time and resources required to call together a second panel. The Commission on
Handbook proposes the following additions to current Bylaw 2.14, 2.15, and 2.17 to remove
opportunity to request a second hearing (before a Final Hearing Panel) when the accused, unless
unavoidably detained, has failed to appear before the earlier Hearing Panel.
The rationale thus indicates that the intention of the (albeit unclear) bylaw language was to deny an appeal
only to members who were not unavoidably detained but nonetheless failed to appear.
Thus, the voluntary or involuntary nature of the failure to appear is to be considered by the panel in making
its determination regarding the granting of a second hearing, as part of its ensuring that the absent individual
received a fair hearing and had a full opportunity to present his or her position.
The bylaw language denying an appeal to absent parties was inserted at the same time that Appeal Panels
were interposed between Hearing Panel and Final Hearing Panel proceedings. In some respects, the Appeal
Panels address the issue intended to be corrected by this exclusion. An Appeal Panel can meet efficiently
and determine, according to clearly established standards (Bylaw 2.14.8 [d]), whether the Hearing Panel
proceedings satisfied fundamental requirements of fairness and that no gross miscarriage of justice would
occur if a rehearing were to be denied.
The intention of the convention in adopting the appeal exclusion was not to deny an appeal to those
unavoidably (involuntarily) detained from their first appearance. The commission therefore finds that,
should the absent party be denied a subsequent hearing by the Hearing Panel (active participation in which
would permit a subsequent appeal), the absent party may request an appeal and have the request considered
by an Appeal Panel. Such appeal, however, may be requested only on the grounds that:

CCM Minutes – December 21, 2017 – Page 87