What, then, should be the standard for intervening in the decision of a collegial body, which has been proven in retrospect that some of its members considered extraneous considerations?
- In my view, even with respect to the decision of a collegiate body, a standard similar to that applicable to the decision of a single organ should be applied. In other words, even where it has been proven that any of the members of the collegiate body considered extraneous considerations, this does not, in itself, lead to the retroactive invalidation of the entire decision, but rather it is required to show that the said foreign consideration was the dominant consideration that was at the basis of the decision made by the body as a whole (for a similar position with respect to the said question, albeit in a different context, see: Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 Harv. Rev. 523 (2016)). This position is also supported by Zamir, who noted in his academic writing that:
"In many organs, special difficulty may arise in clarifying the discretion of the organ, especially when it turns out or there is a possibility that different members of the organ have reached a single decision on the basis of different considerations, including extraneous and improper considerations. In such a case, should the decision be disqualified because of the invalidity of extraneous considerations? It seems that in principle, the answer, as in any case of extraneous considerations, depends on the assessment: what were the dominant considerations, and is it reasonable that the decision would have been different had it not been for extraneous considerations? However, from a practical standpoint, it is more difficult to clarify this question in a plural organ than in a single organ" (Yitzhak Zamir, Administrative Authority, Vol. 1: Public Administration 384-385 (2010)).
In fact, an examination of the case law shows that although the case law did not explicitly address the above question, in many of the rulings that dealt with the cause of extraneous considerations, the matter was applied to a collegiate body, without any special significance being attributed to it (see, among many: the Poraz case; the Moskowitz case; the Dekel case; the Histadrut case; the Soloduch case; the United Torah Judaism case; the Open House case; the Yachimovich case; a sustainable association). In other words, even though the case law did not explicitly discuss the said question, in practice the case law applied the same standard with respect to a collegial body as well.
- And when will an extraneous consideration considered by a collegiate body be considered a dominant consideration? In my opinion, the answer to this question, since it is a question at work, depends, naturally, on the circumstances of each and every case. Thus, it is clear that where the petitioner was able to prove that in relation to more than half of the members of the body the foreign consideration was a dominant consideration, this would meet the threshold required to justify the disqualification of the decision. However, in most cases, it will not be possible to know, with the required degree of certainty, what is the weight of the extraneous consideration in the decision of each member of the body separately. Therefore, I am of the opinion that the same rule that was established in relation to the decision of a single organ should be applied here, with the necessary changes: it is sufficient for the petitioner to point out that one or more of the members of the collegial body considered extraneous considerations, so that the burden will shift to the shoulders of the authority to prove that this consideration was not the dominant consideration that was the basis of the decision that was made.
- And in applying the matter to our case: As stated above, I am convinced that at the basis of the position of Ministers Katz and Karai was, as a dominant consideration, the improper consideration. The question to be decided now is, therefore, whether this leads to the conclusion that the aforesaid improper consideration was dominant in the decision of the government as a collegiate body, which, as stated, is the decision that is the focus of the petitions before us. I am of the opinion that when we come to examine this question, real weight should be given to these two:
FirstMinisters Karei and Katz are not, in terms of the process of making the decision to close the Army Radio station and its essence, like any other minister in the government. Both of them have a clear substantive connection to the matter that is the subject of the decision, and this is what the Prime Minister even thought when he entrusted them with dealing with this issue. Moreover, at least one of them - Minister Katz - had a dominant influence on the entire process, when he signed the letter of appointment for the establishment of the advisory committee, adopted one of its recommendations and brought it as a draft resolution for the government's approval.