Judgments of the Supreme Court

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2018 (Gyo-Hi) 417

Date of the judgment (decision)

2020.11.25

Case Number

2018 (Gyo-Hi) 417

Reporter

Minshu Vol. 74, No. 8

Title

Judgment concerning whether a penalty of suspension against a city council member of an ordinary local public entity should be subject to a judicial review

Case name

Case seeking rescission of a punishment of suspension

Result

Judgment of the Grand Bench, dismissed

Court of the Prior Instance

Sendai High Court, Judgment of August 29, 2018

Summary of the judgment (decision)

The determination concerning the reasonableness of a penalty of suspension on a city council member of an ordinary local public entity is subject to a judicial review.

(There is a concurring opinion.)

References

Article 3, paragraph (1) of the Court Act, Article 134, paragraph (1) of the Local Autonomy Act, Article 135, paragraph (1), item (iii) of the Local Autonomy Act, Article 92 and Article 93 of the Constitution



Court Act

Article 3, paragraph (1)

(1) Courts decide on all legal disputes, except as specifically provided for in the Constitution of Japan, and have other powers that are specifically provided for by law.



Local Autonomy Act

(Grounds for Disciplinary Punishments)

Article 134, paragraph (1)

(1) The council of an ordinary local public entity may resolve to impose a penalty on a council member who has violated this Act, or any meeting rule or ordinance related to a committee.

(Type and Procedure of Disciplinary Punishments)

Article 135, paragraph (1), item (iii)

(1) Disciplinary punishments are to be as follows:

(iii) suspension for a certain period of time



The Constitution of Japan

Article 92

Regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy.

Article 93

(1) The local public entities shall establish assemblies as their deliberative organs, in accordance with law.

(2) The chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities.

Main text of the judgment (decision)

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant of final appeal.

Reasons

Concerning the reason for a petition for acceptance of final appeal stated by the counsel for final appeal, ABE Takeru

1. In this case, the appellee of final appeal, who was a member of the City Council of Iwanuma City (the "City Council"), alleged that the penalty of suspension for 23 days imposed by the City Council (the "Punishment") was unconstitutional and unlawful. The appellee demanded that the appellant rescind the Punishment and pay the amount that is equivalent to the portion of his salary as a council member that was reduced due to the Punishment, under the Ordinance Concerning the Salaries of Council Members, Repayment of Costs, and Term-end Allowance (Iwanuma City Ordinance No. 23 of 2008; the "Ordinance").

2. The outline of facts lawfully determined by the court of prior instance is as follows.

(1) The appellee was elected in an ordinary election held on December 20, 2015 due to the expiration of the terms of council members of the City Council. The appellee was a member of the City Council as of the time of the Punishment.

(2) The number of regular sessions of the City Council is specified as four in each year in the Ordinance Concerning the Number of Regular Sessions of the Iwanuma City Council (Iwanuma City Ordinance No.78 of 1956). According to the Rules of the Iwanuma City Council (Iwanuma City Council Rules No. 1 of 1995), the term of each session should be determined by voting at the City Council at the beginning of the session. The duration of the regular session of the City Council convened in June 2016 (the "regular session of June") was 10 days from June 14 to 23, 2016. The duration of the regular session of the City Council convened in September 2016 (the "regular session of September") was 23 days from September 6 to 28, 2016.

(3) According to the Ordinance, each member of the City Council receives a monthly salary of 363,000 yen (Article 2). The salary paid to a council member who has received a penalty of suspension for a certain period of time should be reduced by the amount calculated on a per diem basis for the number of days of suspension (Article 6-2, and Article 3, paragraph (3)).

(4) Council Member A, who belongs to the same faction as the appellee, went abroad and consequently failed to attend the meeting of the City Council's standing committee on education and welfare held on April 25, 2016. On June 14, 2016, during the regular session of June, the City Council resolved to penalize Council Member A for the aforementioned absence by making him apologize in a conference room open to the public. In response, Council Member A read out an apology letter in a conference room of the City Council.

(5) In the steering committee of the City Council held on June 21, 2016, the appellee made a comment concerning the act of Council Member A of reading out the apology letter mentioned in (4) above by saying that "It was true that he read it out. However, the content of the letter was not necessarily true. If he had not read it out, he would have received another penalty. This is called political compromise. He made a political compromise" (the "Comment").

(6) On June 23, 2016, which was the last day of the regular session of June, the City Council found the Comment to be problematic and decided to continue examination, even during the City Council's recess, regarding the motion to impose a penalty on the appellee, which was submitted on June 22, 2016. After examination in the Special Penalty Committee, in a meeting of the regular session of September convened on September 6, 2016, the City Council penalized the appellee for the Comment by the Punishment of imposing a penalty of suspension for 23 days.

(7) On September 21, 2016, the appellant paid the appellee a salary as a council member after a reduction of 278,300 yen, which corresponds to the 23 days during which the appellee was suspended based on the Punishment, based on the Ordinance.

3. The court of prior instance found that a determination as to whether it is reasonable to impose a penalty of suspension specified in Article 135, paragraph (1), item (iii) of the Local Autonomy Act on a council member of an ordinary local public entity should be subject to a judicial review as long as the penalty involves a reduction in the salary of the council member. Furthermore, having found that the action to seek rescission of the Punishment and payment of a salary as a council member is lawful, the court of prior instance remanded this case to the first instance by reversing the judgment in the first instance that found said action to be unlawful.

4. The counsel argued that the determination of the court of prior instance is against the judgment of the Grand Bench of the Supreme Court of 1959 (O) No. 10 of October 19, 1960, Minshu Vol. 14, No. 12, at 2633, which states that any determination concerning the reasonableness of a penalty of suspension imposed on a council member by the ordinary local public entity should not be subject to a judicial review.

5. (1) The council of an ordinary local public entity may resolve to impose a penalty on a council member who has violated the Local Autonomy Act, or any meeting rule or ordinance related to a committee (Article 134, paragraph (1) of said Act). The type and procedure of such penalty are fixed by law (Article 135 of said Act). According to these rules, etc., if a council member who has received a penalty of suspension files an action to seek rescission of the penalty, the council member can be found to be seeking rescission of the punishment under a law or regulation. Due to the nature of the action, it should be found that the action can be ultimately settled through the application of a law or regulation.

(2) A. The Constitution has adopted the so-called principle of local autonomy as its basic principle applicable to the organization and management of a local public entity. The principle of local autonomy dictates that the local public entity should take measures based on the will of local people. The council of an ordinary local public entity consists of council members who represent the local people. The council is established as a deliberative organ based on the Constitution and has the function of making decisions of the local public entity concerning important matters. Regarding the matters related to the operation of the council, it can be said that the council, as a deliberative organ, needs to maintain voluntary and smooth operation and that the autonomous function of the council should be respected due to its nature. A penalty can be imposed on a council member for the purpose of maintaining the order of the council as a conference structure and improving the efficiency of the operation of the council. The power of the council to impose a penalty is a part of the aforementioned autonomous power.

B. On the other hand, the council members of an ordinary local public entity should be elected by people who live in the district under the jurisdiction of the ordinary local public entity (Article 93, paragraph (2) of the Constitution, and Article 11, Article 17, and Article 18 of the Local Autonomy Act). The council members can submit bills to the council (Article 112 of said Act). Unless otherwise specified, the council's proceedings can be decided with the support from the majority of the attending members (Article 116 of said Act). The council must resolve various matters such as establishing or abolishing ordinances, making budgets, and concluding certain agreements (Article 96 of said Act). Also, the council is entitled to inspect the management of the administrative tasks, execution of decisions, and account keeping by the ordinary local public entity, and conduct investigations on said administrative tasks (Article 98 and Article 100 of said Act). The council members are obliged to act as the representatives of the local people and make efforts to reflect the will of local people in the decision-making process of the ordinary local public entity by taking part in the proceedings and voting concerning the aforementioned matters that the council is in charge of in order to embody the principle of local autonomy specified in the Constitution.

C. A penalty of suspension is a type of punishment that the council is authorized to impose on a publicly elected council member who has the aforementioned obligations. If a penalty is imposed, the council member is prohibited from attending a council meeting or committee meeting for the prescribed period of time and conducting essential activities as a council member such as taking part in the proceedings and voting. Consequently, the council member would become unable to fully carry out his/her mandate from the local people as a council member. In light of the nature of the penalty of suspension and the restrictions on the activities of the penalized council member, it cannot be said that the reasonableness of the penalty should be determined solely through the voluntary and autonomous examination by the council by deeming the consequence of the penalty as a temporary restriction on the council member's exercise of his/her rights. For this reason, although the penalty of suspension was imposed by the council based on its autonomous authority and the council has discretion to a certain extent, it is reasonable to find that the court may evaluate the reasonableness of the penalty at any time.

(3) Therefore, a determination concerning the reasonableness of the penalty of suspension imposed on a council member by the ordinary local public entity should be considered to be subject to a judicial review.

Any judicial precedents of this Court that are not in line with the aforementioned conclusion such as the judgment of the Grand Bench of the Supreme Court of October 19, 1960 cited in the counsel's arguments should be modified.

6. As described above, since a determination concerning the reasonableness of the Punishment imposed in the form of a penalty of suspension on the appellee, who was a member of the City Council, is subject to a judicial review, the part of the action in question (the "Action") that seeks rescission of the Punishment should be considered to be lawful. Naturally, the part of the Action that demands payment of salary as a council member should also be considered to be lawful. Thus, the determination of the court of prior instance that the Action is lawful can be upheld in conclusion. The counsel's arguments are not acceptable.

On these grounds, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice UGA Katsuya.

The concurring opinion by Justice UGA Katsuya is as follows.

While I agree with the Court's opinion, I would like to express a concurring opinion with regard to a judicial review of a penalty of suspension imposed on a local council member.

1. Legal dispute

In light of a judicial precedent of this court (1976 (O) No. 749, the Judgment of the Third Petty Bench of the Supreme Court of April 7, 1981, Minshu Vol. 35, No. 3, at 443) to the effect that a legal dispute (1) is a dispute concerning the existence of specific rights or obligations or legal relationships between the parties concerned and (2) should be limited to a dispute that can be ultimately settled under laws and regulations, it is clear that the action to seek rescission of a penalty of suspension imposed on a member of a local council can be considered to be a legal dispute because said action satisfies the requirement specified in (1) and (2) above.

Regarding a legal dispute, Article 32 of the Constitution guarantees that all Japanese people have the right of access to the courts. Furthermore, under Article 76, paragraph (1) of the Constitution, the judicial authorities are obliged to conduct a trial on a legal dispute. In principle, it will be impermissible not to exercise judicial power. Cases where a determination of not conducting a judicial review because of external restrictions on judicial power can be upheld need to be strictly limited to those where there is a constitutional justification for such exceptional treatment.

2. The contrast with the Diet

It is clear that the Constitution respects the independence of the Diet to be the highest organ of state power (Article 41 of the Constitution). The Constitution itself specifies that each House shall judge disputes related to qualifications of its members (Article 55 of the Constitution). The Constitution also specifies that members of both Houses shall not be held liable outside the House for speeches, debates or votes cast inside the House (Article 51 of the Constitution). However, regarding local councils, no provisions similar to Article 55 or 51 of the Constitution have been established. Thus, it is clear that the Constitution does not consider a local council to be identical with the Diet in terms of the level of independence.

3. Autonomy by citizens

If the independence of a local council needs to be justified based on the Constitution, Article 92 of the Constitution concerning "the principle of local autonomy" is the only provision that can serve that purpose. While opinions are divided over the meaning of "the principle of local autonomy," there is a consensus that its essence lies in the autonomy of independent entities and the autonomy of citizens. It can be said that the autonomy of independent entities itself is not the purpose per se, but is a tool to achieve the autonomy of citizens.

To achieve the autonomy of citizens, it would be difficult to adopt the system of direct democracy. In Japan, the system of indirect democracy has been adopted not only by the state, but also by local public entities in principle. However, local public entities have adopted more direct democratic elements than the state in order to achieve the autonomy of citizens. For example, local public entities have introduced various systems such as the system of directly requesting the establishment or abolishment of an ordinance.

From this perspective, for a local council member who was elected by citizens, it is his/her right to reflect the will of the voters by attending a council meeting to express his/her opinions and vote to make decisions. At the same time, such activities would be indispensable for the achievement of the autonomy of citizens. The activities of the members of a local council are not limited to attending council meetings, expressing their opinions in those meetings, and casting votes. However, it is clear that those activities are considered to be essential obligations of the members of a local council in view of the fact that a penalty would be imposed on a member who fails to attend a meeting without any justifiable reason.

Therefore, if a local council member is prohibited from attending a meeting, it makes it impossible for him/her to fulfill the essential obligations as a local council member, and the member is also prevented from reflecting the will of the voters who supported the member. Consequently, this would result in damaging the autonomy of citizens.

It would be unreasonable if the autonomy of citizens in accordance with "the principle of local autonomy" is used as the grounds for imposing external restrictions on judicial power and, at the same time, causes damage to the autonomy of citizens. Thus, said external restrictions would not justify a determination of not conducting a judicial review to evaluate the reasonableness of a penalty of suspension imposed on a local council member.

4. Discretion of a council

Even if a judicial review is conducted to evaluate the reasonableness of a penalty of suspension imposed on a local council member, the independence of the local council will not be entirely denied. Since a local council is considered to have jurisdiction over substantive examination of a penalty, the exercise of the jurisdiction of the local council would be found to be unlawful only if it is considered to be deviant and abusive. The independence of a local council has the effect of increasing its discretion. Therefore, if a determination concerning the reasonableness of a penalty of suspension imposed on a local council member is made subject to a judicial review, it would prevent an abusive penalty, but would not excessively damage the independence of the local council.

Presiding Judge

Justice OTANI Naoto

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice KANNO Hiroyuki

Justice YAMAGUCHI Atsushi

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko

Justice MIYAMA Takuya

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice OKAMURA Kazumi

(This translation is provisional and subject to revision.)