If You're Going to Do It,
Then Do It Right

At its meeting of March 16, 2002, the AMC adopted an action1 that modifies the rules by which the Hearings Committee conducts its hearings. That action permits a hearing to be waived under certain circumstances and yet purports to allow a Hearings Committee to render a decision. The "Procedures and Rules Governing the Conduct of Hearings" (Rules)2 make clear that a Hearings Committee can render a decision only as the result of a hearing. The March 16 action conflicts with the Rules and violates the Bylaws, and at the same time paves the way for the Hearings Committee to become a star chamber.3

The argument for adopting the action explained what its intent was: "If the member doesn't contest the charges or refuses to cooperate in the process, though, a hearing should not be required. This would save time, effort, and expense to all involved."4

Although the March 16 action does not prevent a hearing from taking place, it seems clear that its intent is to do away with hearings under certain circumstances.
If a Hearings Committee attempts to impose a sanction without a hearing, then it is acting not as a Hearings Committee but as a star chamber.

But if there is no hearing, there can be no decision, and, hence, no sanction. If a Hearings Committee attempts to impose a sanction without a hearing, then it is acting not as a Hearings Committee but as a star chamber.

The Hearings Committee derives its existence and authority from Article IX, Section 5 of the Bylaws of American Mensa. Bylaws Section IX (5) guarantees a hearing to a member who has been charged with acts inimical to Mensa: "No member shall be suspended or expelled from American Mensa, Ltd. except following a fair and impartial hearing by the Hearings Committee at which hearing the member shall have the right to present his/her case." [Emphasis added.]

A member's being suspended or expelled comes about as the result of a sanction imposed by a Hearings Committee. A sanction5 is imposed as the result of a decision6 rendered by a Hearings Committee. A Hearings Committee is obligated to render a decision after the conclusion of a hearing7. A decision is based only on evidence presented at hearing8.

It follows logically, then, that if there is no hearing, no evidence is presented; if no evidence is presented, no decision can be made; if no decision can be made, no sanction can be imposed.

Taken literally, the March 16 action says that if a person accused of an act inimical to Mensa waives the right to a hearing, then nothing happens. There is no hearing.

Yet the March 16 action says that "the Hearings Committee may render a decision (Rule 12)." Rule 12 (footnote 7) says that a Hearings Committee can render a decision only after the conclusion of a hearing. The conflict between the action and Rule 12, to which it refers, is evident.

The apparent intent of this action was to permit a Hearings Committee to reach a decision in some way other than through a formal hearing in which the participants physically meet and evidence is presented. How this might be done and not be termed a hearing is not clear.

A Hearings Committee cannot investigate charges, it cannot prosecute, and it cannot defend. It can only hear evidence presented to it and then make a decision on the basis of that evidence9. In the absence of a hearing, the Hearings Committee cannot act.

The purpose of the Hearings Committee is to protect Mensa against harm from within the Society. It does so primarily by hearing charges of acts inimical and then imposing sanctions if appropriate. It has the authority to suspend or expel a member, which is to say that it can remove the problem.

It also protects the Society by the manner in which it conducts hearings. Although a Mensa hearing is not a court of law and is not obligated to follow legal procedures, it has in the past generally adhered to the American principles of giving the accused the opportunity to face his or her accuser, of giving the accused every benefit of doubt, and of placing the burden of proof of wrongdoing on the accuser. The accused is considered innocent until proven guilty. In short, it provided due process to the accused through the vehicle of a public (to Mensa members) hearing.

Due process disappears in the absence of a hearing. If the Hearings Committee does not provide due process as guaranteed by the Bylaws and Rules (footnote 7), it becomes a star chamber and no longer provides Mensa the protection for which it was created.

The obvious solution to the dilemma caused by the passage of the March 16 action is for the AMC to rescind it-but that's not the solution to the real problem. The real problem is a mindset that places a higher priority on saving "time, effort, and expense to all involved" than on carrying out a hearing for its intended purpose. It's not supposed to be easy to have a hearing. The decision to have a hearing should not be made lightly, and if a hearing is found to be warranted, then it should be done right.

—Richard Amyx
    dick@amyx.org

1 ASIE 2002-121 modifies Rule 5 by adding the following two provisions:

[If it is decided that a hearing should be held, the Hearings Committee shall promptly:]

5.B.5 (a) Instruct the liaison referred to in Rule 5.B.4 to ask the accused whether the accused contests the charges. If the accused does not contest the charges, the accused waives the right to a hearing, and the Hearings Committee may render a decision (Rule 12).

5.B.5(b) Notwithstanding the result of the inquiry referred to in part (a) of this section, failure by the accused to timely cooperate with a legitimate request by the Hearings Committee or by the liaison may result in waiver of a hearing, and the Hearings Committee may render a decision (Rule 12).

2 ASIE 1980-105, delineated in Appendix 5 of the ASIEs.

3 1. a former court of inquisitorial and criminal jurisdiction in England, primarily composed of royal councillors, that sat without a jury and that became noted for its arbitrary methods and severe punishments: abolished in 1641. 2. any tribunal, committee, or the like, that proceeds by arbitrary or unfair methods. (The Random House College Dictionary)

4 AMC Meeting Minutes 3-16-02, p. 18, Item 18, "Explanation"

5 Rules, Policy Statement 4. The function of the Hearings Committee is to . . . Impose sanctions, as specified in the Bylaws, if the accused is adjudged to have committed an act or acts inimical to Mensa.

6 Rules, 12 B:

B. The decision shall be in writing and shall include:

1. A general statement of the case;

2. A statement of the facts as found by the Hearings Committee;

3. A statement of each charge heard, together with the Hearings Committee's decision thereon, including its reasoning, and the sanction to be imposed, if any.

7 Bylaws Section IX (5) and Rule 12, A decision shall be rendered by the Hearings Committee as soon as possible after the conclusion of the hearing.

8 Rules, Policy Statement 3: The function of the Hearings Committee is to . . . Judge whether or not the preponderance of the evidence presented in a hearing shows the accused to have committed the acts alleged. . .

9 Rules, Policy Statements 1-4. Statements 1 and 2 say

The function of the Hearings Committee is limited. It is to:

1. Receive and review charges of acts inimical to Mensa brought before it;

2. Determine whether sufficient facts have been alleged to warrant the holding of a hearing on some or all of such charges . . . .

See footnotes 8 and 5 for Policy Statements 3 and 4.

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