From Going Forward Sep 03
Suggested removals (by SR)
From Going Forward Mar 04

Alternatives to original text (SR).
[Non-textual suggestions].
Comment on Neuner's first responses.

Explanatory comments
Explanations of second comments

1. All areas of dispute not relegated to the Ombudsman in Article VII, section 2 of these Bylaws may be referred to a Hearings Committee for settlement.

"The Hearings Committee process may be invoked when an act inimical to Mensa has been committed." "Act inimical" must be defined to exclude clearly matters of opinion. There should be an actual act, and an actual harmful result, not a speculative one. The Hearings Committee should not be directed to “settle disputes.” Its sole charge should be to judge whether an “act inimical to Mensa” has been committed, by whom, and what, if any, sanctions should be applied. Most disputes in Mensa are of a political nature, which should not be settled by judicial procedures. The concept of “acts inimical to Mensa” has been removed from this draft entirely. To insist that Hearings Committees be restricted to handling something left vague in the current Bylaws, and undefined in both current and draft versions of the Bylaws, is a reactionary approach to dispute resolution. The description of the nature of disputes in Mensa is a statement of opinion with which people may disagree.

The Hearings Committee process may be invoked when an act inimical to Mensa has been committed.
[“Act inimical” must be defined to exclude clearly matters of opinion. There should be an actual act, and an actual harmful result, not a speculative one.]

Ducking the term “acts inimical” does not help. The characterization of “vague” is itself vague and there is no consideration of the value of vagueness in certain circumstances (such as this one).

I need to supply a long essay explaining what the nature of a constitutional document (such as the Bylaws) is and how modulating specificity and generality among various levels of documents solves many real problems. Briefly, the demand for specificity responds to the would-be lawyers' illusion – arising from a psychological demand for closure – that facts can be determined by words, that verbal definitions have context-free meanings. The better view is to accept the fundamental mismatch between word and fact by using vague language productively

“Acts inimical” are not to be defined ultimately by documents but by actual effects in real circumstances. Nevertheless the term, in all its vagueness, is necessary as a place-holder (a metaphorical pronoun) for a concept that drives the hearings procedure.Without the term, there is no basis for holding hearings or for evaluating behavior of the the Hearings Committee..

The Hearing Committee should not be directed to “settle disputes”. It's sole charge should be to judge whether an “act inimical to Mensa” has been committed, by whom, and what, if any sanctions should be applied. Most disputes in Mensa are of a political nature which should not be settled by judicial procedures.

Click here to go to a letter explaining the rationale for this recommendation in more general terms.

2. A Hearings Committee, which shall be considered a special committee as defined in Article VI of these Bylaws, shall be composed of three members. The Hearings Committee Chairman shall be selected by the Chairman of American Mensa in consultation with the Executive Committee. The other two Hearings Committee members shall be chosen by the two parties to the complaint, one by each side. The members eligible for selection are those past Chairmen, past National Vice-Chairmen, past Secretaries, and past Treasurers who are not currently serving as officers or functionaries of American Mensa, Ltd.; who are members of American Mensa; and who are not involved in the matters in controversy. For the purposes of this Article, those members who previously held the offices of First Vice-Chairman and Second Vice-Chairman are considered to be past National Vice-Chairmen.

Any member of Mensa of judicial temperament is eligible to serve on a Hearings Committee.

[Consider drawing HCom members by lot from a panel of volunteers and allowing each party two (say) challenges.]

Neuner made no response to this point in his revision.

There are three reasons for drawing Hearings Committees from an open-ended panel.

a. Ex-officers are more likely to be oriented toward defending the “establishment” than taking a detached view toward actual harm to the society.

b. The likelihood of running out of suitable candidates from a closed list is not remote.

c. The process will be more readily seen to be fair as the judgment will be made by “ordinary members”..

3. Following receipt of a formal complaint by the Chairman of American Mensa, or after a dispute is referred to the Chairman by the Ombudsman, a Hearings Committee shall be formed within fifteen days. No more than thirty days after the formation of a Hearings Committee, its Chairman shall notify all parties to the complaint, by registered mail, of the specifics of the complaint and, if a hearing is to be held, of the date and place of the hearing. There shall be a minimum of thirty days between the notification and the hearing.

There is nothing in here about the rights of the respondent, such as counsel and confrontation. The Bylaws should contain a requirement that Hearings Committee rules must provide for fairness in procedures. This is a matter better left for a code of procedures for hearings. “Fairness” is a vague term that should not be written into the Bylaws

It is entirely in accord with my views to consign specific rights to a subordinate document such as “Rules of Procedure” (RoP). It is essential, however, to introduce the term “fairness” into the Bylaws. It is that prior requirement which compels and motivates the inclusion of protective provisions in the RoP..

The desire to achieve certainty, orderliness, and closure prompts law-writers to over-specify such things as schedules. The schedule listed here is not unreasonable, but reality is often not as anticipated in advance. There needs to be a waiver or exception procedure that can be invoked when justified by circumstances.

The principle that should govern waivers must be that they don't operate to the prejudice of the respondent.

There is nothing in here about the rights of the respondent, such as counsel and confrontation. The Bylaws should contain a requirement that HCom rules mist provide for fairness in procedures.

Not everything can be reduced to procedures nor can rules prevent perversions in practice. In the Mensa context there are two outstanding examples. John Snow, as Ombudsman, would issue findings and orders in a perfunctory manner unsupported by statements of facts and reasons for findings. Then there is the perversion of process in the Judy Dosse. matter. The “fairness” concept, even if vague, is the only handle I can find for limiting such harmful behaviors.

4. Within two weeks after completion of a hearing, the Hearings Committee Chairman shall report the committee's findings and its decision, including a resolution of the complaint, to the American Mensa Committee.

See above comment.

5. The American Mensa Committee is charged with the enforcement of the resolutions of a Hearings Committee. Failure to comply in full with a resolution in effect of a Hearings Committee is an act inimical to Mensa for which charges may be filed with another Hearings Committee

6. Any of the parties to a complaint may file a written protest with the Ombudsman if they feel that the hearing was conducted unfairly, with prejudice, or in violation of stated procedures. The Ombudsman shall investigate the protest and report his findings at the next regularly scheduled meeting of the American Mensa Committee. After reviewing the Ombudsman's report, the American Mensa Committee may decide to reverse the decision of the Hearings Committee and call a new Hearings Committee into existence to re-hear the complaint. The composition of the new Hearings Committee will be as specified elsewhere in this Article, except that no members from the original Hearings Committee shall be members of the new Hearings Committee.

7. A member against whom complaints are brought is allowed to resign or let his/her membership lapse rather than go through the Hearings Committee process. However, a member who chooses to take this action will not be permitted to rejoin Mensa. Such a resignation or lapse shall have no other conditions attached to it.

8. The Hearings Committee's range of action is limited by the following