LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — October 30–31, 2020, Page 3

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

“face-to-face” meeting of the parties is required to begin dispute resolution (e.g., Bylaw 1.10.5) and
expulsion processes (except in the case of Bylaw section 2.17) for reasons that have withstood recent
scrutiny even in light of technology that, for one-on-one meetings, is otherwise quite reasonable (Op. 192914). While there is no similar explicit requirement that the hearing in a Bylaw section 2.14 or 2.17 matter
be “face-to-face,” some of the same practical implications and value judgments might surely be in play.
Decisions regarding the adjudication of disputes, especially regarding membership in the Synod and fitness
for ministry, ought be afforded the best reasonable means possible.
Standard operating procedures have contemplated certain specific uses of electronic means in connection
with these proceedings. Meetings ancillary to the main hearing, such as the one conducted by the panel to
finalize its opinion, are explicitly authorized to be conducted electronically (Bylaw section 2.17 SOPM,
Detailed Flowchart 4.6 [c], p. 43). Appeal Panels routinely (and almost exclusively) meet electronically
(id., Detailed Flowchart 4.9 [g], p. 47). Panels may also receive testimony electronically, at the discretion
of the panel (e.g., id., General Regulation K, p. 17). As noted above, a panel may determine to allow one
or more of its members to join the hearing electronically, although this should be limited strictly to cases
of necessity. These are circumscribed usages of virtual meeting technology, incidental to the main hearing
at which the evidence and testimony of the parties are to be given a “fair and equitable” hearing (Bylaw
2.17.7.2 [f]).
The commission cannot at present exclude the possibility that future circumstances might occur in which
law or reasonable care might render it impossible to physically assemble the required hearing—which
includes a panel of necessity drawn from various parts of the country—within 45 days or a “short delay”
(Bylaw 2.17.7.6). In such a case the interest of timely resolution begins to weigh against the customary
safeguards of a fair and full hearing afforded by an in-person meeting. Even so, for a hearing to be
conducted by electronic means, suitable procedures would first have to be devised to ensure, in light of the
many practical concerns noted above, the panel’s ability to conduct a fair and equitable hearing by such
means.
The commission is not in a position, by itself, to develop such procedures and render such safeguards,
which would need to be incorporated into the appropriate “comprehensive” Standard Operating Procedures
Manuals (Bylaw 2.14.10.3, etc.). It cannot, therefore, authorize such a hearing at this time.
Circumstances and perceptions of electronic means of procedural meeting, along with the technology
available, have changed rapidly as a result of the COVID-19 pandemic, and continue to evolve. The
commission has noted previously, however, the danger that the change of means of a deliberative
proceeding may very well change the essential character of a deliberative proceeding. The commission
being charged, together with the Council of Presidents, with maintaining “comprehensive” Standard
Operating Procedures Manuals for Bylaw sections 1.10 and 2.14–17 (e.g., Bylaw 2.14.10.3), is open to a
conversation with the Council about the wisdom and propriety of the use of electronic means for hearing
processes, but finds that—as suggested by Robert’s Rules (RONR [12th ed.] 9:30–32)—if such “are to be
authorized, it is advisable to adopt additional rules pertaining to their conduct.” The commission does not
here opine on whether such might, given suitable rules, be authorized without unacceptable jeopardy to the
process set forth in the Bylaws.
The commission does here opine that the Standard Operating Procedures Manuals as presently amended,
with the concurrence of the Council of Presidents, do not contemplate a fully electronic meeting of a
Hearing Panel in a Bylaw section 2.14 or 2.17 procedure, much less provide comprehensive procedures for
the same. This being the case, the use of fully electronic means for a hearing is not consistent with procedure
in place at this time. The panel thus needs to seek—in keeping with law and prudence, and adopting all
necessary reasonable safeguards, but also being mindful of the gravity of the matter at hand—to conduct a
hearing in the accustomed fashion in as timely a manner as circumstances will allow.

CCM Minutes – October 30–31, 2020 – Page 41