Saito Takauji

Note: This analysis is offered solely in my private capacity. It is mine and mine alone, and not offered on behalf of any Kingdom, the Board, or the Society.

At this point in my life I can reasonably say that I remove people from volunteer organizations semi-professionally. Since 2014 I’ve served in the Judge Advocate’s Office of TRMN, and since 2015 I’ve been the Judge Advocate General. In that capacity I also function essentially as Inspector General, processing and investigating complaints to present to the Board of Directors along with recommendations for action. If need be, I also present the evidence to Demotion and Peerage Boards (where members who are not being removed are considered for reduction in rank or removal from the Peerage respectively). I also served as Chairman of the Grand Council of the SCA when we were reworking the Sanctions process, and wrote an early first draft of what eventually became the original Sanctions Guide.

I offer that not as proof of particular wisdom, only experience, so that the following can be understood in that context. I make no pretense that my analysis will be perfect, only that I hope it will not be flawed by more than an incomplete or imperfect understanding of the timeline of events in Calontir.

This analysis is also offered solely for the purposes of considering the requirements under Kingdom and Society law for due process in Sanctions procedures. It is not offered as a judgment on the merits of any other controversy, current or former.

Nonetheless and with those caveats out of the way, there is a question of importance before the Kingdom: What are the due process requirements according to Kingdom and Society Law for someone who is facing sanction, banishment, or Revocation & Denial (R&D) of membership? This is an attempt to lay those out clearly.

• Mundane Law

The mundane law governing the actions of associations or not-for-profits in removing members is Boy Scouts of America v. Dale, 530 U.S. 640 (2000). That case, while unfortunate in that it dealt with the removal of a gay Scoutmaster by the BSA for no offense other than being gay[1], laid out a broad and general foundation for the exercise of the fundamental right of freedom of association for private organizations.

Building on an earlier case[2], the court reinforced their early holding that:

 “The freedom of association…plainly presupposes a freedom not to associate…The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”[3]

In Dale the viewpoint was that of moral cleanliness, which the BSA argued at the time homosexuality wasn’t in accordance with. Thus, as a private organization with a long-standing history of acting against certain identities, behaviors, or views, was allowed to remove people expressing or exhibiting them even in the presence of an anti-discrimination statute in a state[4].

Importantly, the Supreme Court held that the association does not need to be brought together explicitly or solely to promote the viewpoint it wishes to uphold. It needs to express the viewpoint, but that expression can be either public or private[5]. If it has done so, and great deference is given to the organization’s own record of doing so, then it is an expressive association and First Amendment rights are at play[6]. Furthermore, while the association needs to have expressed this view it does not need to be completely consistent[7] nor does the association have to have been formed solely to express the belief in question:

“First, associations do not have to associate for the ‘purpose’ of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.”[8]

This analysis is important for the SCA. It is unlikely that a court would find the SCA had been explicitly created for the purpose of expressing support for certain kinds of conduct; but it is almost certain that a court would find the SCA had expressed in multiple ways, public and private, that it promoted the concepts of chivalry and honorable behavior. Because of this, it is almost certain that the SCA would be viewed as an expressive association able to hold its members to that standard of behavior.

Beyond Dale, the other legal requirement for the SCA to be mindful of is that it must follow its bylaws and regulations when dealing with both members and non-members. Bylaws are broadly viewed as a contract between the corporation and its members and are enforceable under general contract principles[9]. While the majority of the jurisprudence in this area comes from Delaware[10] (owing to their unique status as the most common corporate incorporation jurisdiction in the U.S.[11]), there is little reason to believe that similar enforcement would not be found in other jurisdictions. Indeed, it was a lawsuit against the SCA to enforce the provisions of its bylaws that originally led to the creation of the Grand Council in the mid-1990s[12].

Also, it is important to note that the holding in Dale expressly applies to conduct unrelated to the activities of the organization. Dale himself was not accused of acting improperly toward any of the Scouts in his troop, nor was he accused of anything in a Court of law. His personal identity and conduct violated the BSA code of conduct at the time, and they were allowed to remove him for it. These two holdings (that personal conduct is punishable by expressive associations, and that police investigation/mundane prosecution are not required) make sense because without them there would be no teeth to any organization’s code of conduct. If only actions while “on the clock” counted, a whole range of objectionable activities could take place that the organization was helpless to prevent itself from being associated with. So too here, where the SCA is empowered by Dale to remove members for what they do outside SCA events (and with no resemblance to a gestapo whatsoever).

• Calontir Kingdom Law

For the purpose of this analysis, the December 8, 2018 edition of the Calontir Kingdom Law was used. This is in order to analyze the procedural requirements as they existed during the matter currently being discussed by the Kingdom. Changes were made to the office of the Kingdom Advocate and the structure of the Kingdom Courts in 2019 which may change the analysis, but any discussion of whether or not Kingdom Law was followed must naturally use the Kingdom Law that was in place at the time.

It is also important to note is that Kingdom Law is fundamentally subsidiary to SCA corporate bylaws and policies. Where there is a conflict between them, Corpora will always overrule and invalidate Kingdom law. We are not a confederation of 20 individual groups, we are one corporation.

The most important sections in Calontir Kingdom Law for this analysis are Article III, and Article XIV. Article III lays out the powers and responsibilities of the crown[13]. Important is the following:

“III-100: The Crown of the Kingdom of Calontir shall reign supreme over these lands in accordance with the Corpora and the Laws of the Kingdom of Calontir.”[14]

Article XIV specifically deals with Kingdom Courts[15]. It creates three levels of Kingdom courts, and lays out the procedures for each of them. But it starts with a clause that serves as enabling clause, explanation, and reservation of powers:

“XIV-100 There shall exist in Calontir three levels of formal complaint and reconciliation of antagonistic parties. All three levels are intended to provide mechanisms for the resolution of legitimate issues between concerned parties within the context of the Society. Issues which lie outside the jurisdiction of the Society shall not be brought before the formal mechanisms outlined below. None of these mechanisms shall be construed to place limitations upon the Crown’s rights, duties, and privileges as outlined in Kingdom Law and Corpora. No Kingdom Court has jurisdiction over a Crown. This right has been specially reserved by the Board to itself.”[16]

The next clause is also important, and likely a meaningful part of the discussions occurring in the Kingdom:

“XIV-101 Each level of formal complaint and reconciliation shall be used before proceeding to the next level. In all cases, all parties shall remember that each level of formal complaint and reconciliation is not a substitute for the common codes of honor and chivalry which are at the heart of the SCA, and all parties are encouraged to rely on these common codes of honor and chivalry to resolve any dispute before involving the formal mechanisms initially, and before proceeding to the next level.”[17]

The specific language used in both of these clauses is important for the analysis. Three levels of court are created for the purposes of “complaint and reconciliation” that exist “for the resolution of legitimate issues between concerned parties within the context of the Society”, with the requirement that parties go through them before proceeding. But within the first clause there is also a very specific reservation to the Crown that none of the requirements place any limitations on the Crown’s “rights, privileges, and duties” as laid out in either Kingdom Law or Corpora.

That essentially creates a parallel track for proceeding within the Kingdom. Article XIV creates the structure of the courts to be used and outlines their procedures, who will sit on them, and what their outcomes can be. But at the same time the Crown reserves the right to use any right or privilege and the ability to exercise any duty given to them by Corpora. As we will see below, this includes the sole responsibility for substantive (as opposed to administrative) disciplinary matters in their Kingdoms. Because of that the Crown has the authority to both use the Courts as outlined in Article XIV, and any of the disciplinary solutions created by Corpora.

This makes sense if you consider the context of Article XIV. A disciplinary matter is not necessarily one of “complaint and reconciliation,” which is a procedure that seems more geared toward disagreement than harassment; if the Kingdom was required to use the Courts for matters of assault or harassment it would entail a public hearing on the matter open to the populace every time[18]. This would have serious implications for confidentiality toward both the accused and the accusers. The procedures outlined in Article XIV would mean that the Crown is not able to respond with any rapidity to a situation that required their immediate action.

We will also see that the Board itself has both a requirement to investigate banishments brought to it, and a staff to do so. This is to provide for independent investigation of Kingdom actions to ensure against bias.

What this means is that at the Kingdom level there are no due process requirements if the Crown chooses to follow the Corpora procedures, rather than the Kingdom Courts procedures. There is not a requirement to allow the accused to confront their accusers, to attend a proceeding, or even to offer a defense. If the Crown chooses to follow the Court framework, they must follow those procedures, but only to the extent that they wish the matters to remain in the Court framework; the moment that they decide to remove it from that framework they are no longer bound to it. To say otherwise would be to read in to the statutes limitations on the Crown which are clearly disallowed under XIV-100 as well as III-100.

This further makes sense if you consider the actual situation as it exists in Calontir. Kingdom has had exactly one Court of Chivalry (in 1993)[19], while the number of people it has banished is far greater than one. If it had been required that banishments follow Article XIV before they can be promulgated, every banishment except for one connected with whatever matter was decided in 1993 would be invalid and subject to being overturned by the Board.

• Society Law and Policy

For the purposes of this analysis, the October 19, 2019 edition of Corpora. While this edition is after the events currently in controversy, the revisions do not appear to have any bearing on due process considerations. If that turns out to be untrue, the article can be revised.

The relevant sections governing Royal sanctions in Corpora are I(F), IV(G)(11), VI(B), and the whole of Section X. The relevant section in the Corporate Policies is II(D).

Corpora explicitly ties Sanctions to the Board[20]. But it also creates them first as a Royal or administrative punishment:

“11. The Crown may sanction subjects of their realm and visitors thereto in accordance with Corpora X.A. (Royal Sanctions)[21].”

The Society Seneschal is given the responsibility of “reviewing all sanction related activities”[22], which is why ultimately Board appointed Investigators fall under their responsibility.

Section X(C)(1) and X(C)(3) deal explicitly with Royal Sanction and review by the Board. The first states that “The Crown of a Kingdom may sanction subjects, residents, and visitors within the border of the Crown’s Kingdom for just and stated cause,” and explains when they take effect[23]. The second reserves to the Board the right to make an expulsion permanent and issue a Revocation & Denial[24], which firmly places expulsion as a temporary Royal right and a permanent Board one.

Corporate Policies Section II(D) goes in to greater detail regarding Revocation and Denial of Membership. The Board may issue an R&D for anyone who endangers the SCA or its activities, violates its governing documents or rules, or violates mundane law[25]; lays out in what circumstances the Board may consider a request for one, including “Documentation of  cause for absolute banishment,” with no other description[26]; and further lays out the basics of notification and appeal for those who have been subject to sanctions[27].

The Board of Directors majorly overhauled the Sanctions Guide with an effective date of November 15, 2019. The more recent document, currently in force, was greatly shortened and streamlined from the previous document. It is unclear at this time which document would have been in force in the proceedings currently under controversy, as the SCA is likely not required to keep using policies and procedures which it has voted in due course to change.

Regardless, there are some important commonalities between the two documents, even if the specific procedures have greatly changed:

• The Society Seneschal may be directed to investigate Revocation & Denials which are sent up to the Board, but is not required to absent Board direction;
• The Board may consider any statements from the sanctioned party, but it does not have to solicit further statements and may give them the weight that it wishes.
• The Board is the ultimate arbiter of any of the proceedings below to ensure that there have not been procedural defects.

It is also important to note that it has always been implied (and the previous guide explicitly laid out) that mere procedural defects are not necessarily sufficient to overturn a proceeding. The Board can decide that the procedures followed have been insufficient and need returning to, or if any procedural defects did not have sufficient bearing on the final outcome to warrant overturning a sanction.

If someone has been given an opportunity to present their side of the story to an investigator and a Board member, and that was presented at the Board consideration of the banishment, it is hard to see given the above how the due process of the Society was not followed.

• A Note on Character Witnesses and Hearsay

Much has been made of the Crown’s decision not to hear witnesses for the accused in the current case. In any proceeding it is important to remember that there are two kinds of witnesses:

• Material Witnesses – Witnesses who have specific information about the incident(s) in question and can testify about specific facts (either supporting or refuting); and
• Character Witnesses – Witnesses who do not have any information about the specific incident(s) in question, but testify to the reputation as to the character of either party.

In a courtroom setting, the first are known as ‘witnesses’ and the second as ‘inadmissible’. Consider specifically:

“Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”[28]

It is only when character itself is either at stake or an inherent element of an action that reputation or opinion can be entered into evidence[29]. The only further exception to this is in a criminal case the Defendant may choose to introduce character evidence about themselves, but doing so also allows the prosecution to do so. Beyond that character witnesses are only brought up during the sentencing phase, after guilt has been determined.

The reason why character witnesses are almost always excluded from the guilt phase of a trial is fairly obvious. A person’s general tendencies or history has no bearing on whether or not they committed a specific action on a specific day at a specific time. Men who have volunteered at women’s shelters have committed domestic violence; women who have donated to civil rights organizations have hurled racial epithets and abuse. And the prohibition protects on both sides—it is not proof that a defendant assaulted someone just because the of rumors they had a temper, just as it isn’t proof he didn’t because he was always nice at church bake sales.

The differences here, then, are obvious. First that no Kingdom or Board proceeding are actually courts of law; second that even if they were, they are not criminal courts; and third even if they were, the Defendant introducing character evidence would also allow opposing character evidence to be submitted, which likely would have resulted in a number of non-involved parties writing to the Crown or Board with years of reputational evidence which they would have then considered. That sword, when used, cuts both ways.

Hearsay is defined as “an out-of-court statement offered to prove the truth of whatever it asserts.”[30] It is not admissible unless allowed either by a federal statute, the Rules of Civil Procedure, or other rules prescribed by the Supreme Court[31].

The Federal Rules of Civil Procedure (FRCP) offer a number of ways around that, both by defining what is and is not hearsay and by providing exceptions to hearsay. Importantly two things are categorically not hearsay: Victim statements offered to the court (even in writing), and statements by a party opponent[32]. Written victim statements can raise confrontation clause issues (which are not applicable to the SCA because, again, it isn’t a court of law), but not hearsay ones. And if a witness is testifying to a statement specifically made by the accused it is categorically not hearsay because a statement made by any party in the case[33] is explicitly excluded by the FRCP.

Hearsay is a complex evidentiary matter that law students and lawyers struggle with, but in no definition of the word does it include ‘statements made by victims as part of a proceeding’ or ‘statements allegedly made by the accused during or regarding the matter’.

• Conclusion

Due Process is important, because following the procedures that we have written helps build trust in our structures and ensures that justice is done—by whatever metric we choose to measure that. But it is important to remember that what due process is required in the SCA is not the same as that in either a civil or a criminal court; and that it shouldn’t be the same, given our limitations and circumstances.

In the Kingdom of Calontir, the Crown can proceed down one of two paths—that of either the Courts as laid out in Kingdom Law, or the Society dictated Sanction procedure. If it chooses to go down the path of those Courts it should follow those procedures, but it is neither required to choose that path nor stay on it if it decides that it is better pursued through Society mechanisms.

The Board of Directors bear the ultimate responsibility for ensuring that processes are followed when there is an R&D involved. Even if there are procedural defects at lower levels, they are not required to overturn a Sanction because of them; and their promulgation of a permanent R&D explicitly endorses that the Kingdom procedures were sufficient.

---

[1] Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

[2] Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).

[3] Dale, supra at 1, 648.

[4] Id., 652, 661.

[5] Id., 648.

[6] Id.

[7] Id., 651.

[8] Id., 655.

[9] See, e.g., Jill E. Fisch, Governance by Contract: The Implications for Corporate Bylaws, Faculty Scholarship at Penn Law 1737 (2018).

[10] See, e.g., Henry duPont Ridgely, The Emerging Role of Bylaws in Corporate Governance, 68 SMU L. Rev. 317 (2015).

[11] See, e.g., Suzanne Raga, Why Are the Majority of U.S. Companies Incorporated in Delaware, Mental Floss (March 11, 2016). https://www.mentalfloss.com/article/76951/why-are-so-many-us-companies-incorporated-delaware

[12] See, e.g., The Grand Council – Its Histories and Activities, East Kingdom Gazette (May 6, 2016). https://eastkingdomgazette.org/2016/05/06/the-grand-council-its-history-and-activities/

[13] Calontir Kingdom Law (December 8, 2018 edition) (Hereinafter ‘Calontir’).

[14] Id., 3.

[15] Id., 18.

[16] Id.

[17] Id.

[18] Id., 21 (XIV-405).

[19] Kingdom Advocate, Calontiri Wiki (http://calontiri.info/index.php?title=Kingdom_Advocate).

[20] SCA, Inc., Corpora, October 19, 2019 edition, at I(F).

[21] Id., IV(G)(11).

[22] Id., VI(B).

[23] Id., X(C)(1)(a).

[24] Id., X(C)(3)(a).

[25] SCA, Inc., Corporate Policies, October 19, 2019 edition, at II(D)(1).

[26] Id., II(D)(2)

[27] Id., II(D)(3)-(4).

[28] Federal Rule of Civil Procedure (FRCP) 404(a)(1).

[29] FRCP 405.

[30] Legal Information Institute, Hearsay, https://www.law.cornell.edu/wex/hearsay.

[31] FRCP 802.

[32] FRCP 801.

[33] Or as is stated colloquially, someone on either side of the ‘v’ (the versus, as in Doe v. Roe).