Bill passed W/o Quorum

[Guest Rebecca]

If a vote passed, then after people realized we didn’t have quorum, is there a rule that we have to revote or can the vote stay because no one called for a quorum count? 

[Hieu H. Huynh]

See FAQ #3.

[Guest]

 the presiding officer can rule that business invalid (subject to appeal). “CAN” but do they have to? Can the presiding officer argue that it was the responsibility of the committee to announce that there was not quorum and because they voted with no argument the day the vote was made then the vote can stand?

 

[Hieu H. Huynh]

A member could raise a point of order that no quorum was present and provide clear and convincing proof of it.

[Guest]

and if that was made then we must revote?

[George Mervosh]

3 minutes ago, Guest said:

and if that was made then we must revote?

Not exactly.  At the next meeting, if a point of order is made and clear and convincing proof is presented and the point is well taken and not overturned by an appeal, the adopted motion is not valid.  It can be made again, but there is no requirement to do so.

[Dan Honemann]

Not exactly.  At the next meeting, if a point of order is raised that a quorum was not present at the time the vote was taken, and this point of order is finally determined to be well taken, the adopted motion is not valid. It can be made again, or a motion can be made to ratify its adoption, but there is no requirement to do so.

[George Mervosh]

9 minutes ago, Daniel H. Honemann said:

Not exactly.  At the next meeting, if a point of order is raised that a quorum was not present at the time the vote was taken, and this point of order is finally determined to be well taken, the adopted motion is not valid. It can be made again, or a motion can be made to ratify its adoption, but there is no requirement to do so.

Yes, sir, they can ratify it.   I was being lazy and figured it's just as easy to make the motion again, if they desire to do so.  

[Dan Honemann]

10 minutes ago, George Mervosh said:

Yes, sir, they can ratify it.   I was being lazy and figured it's just as easy to make the motion again, if they desire to do so.  

Actually, I was mostly interested in leaving out that "and clear and convincing proof is presented" part.   

[George Mervosh]

9 minutes ago, Daniel H. Honemann said:

Actually, I was mostly interested in leaving out that "and clear and convincing proof is presented" part.   

I'm going to ponder why your version is preferable (other than the fact you say it is, which is always good enough) at the 2FP Happy Hour at 6.  Cheers!

[Shmuel Gerber]

6 hours ago, George Mervosh said:

Not exactly.  At the next meeting, if a point of order is made and clear and convincing proof is presented and the point is well taken and not overturned by an appeal, the adopted motion is not valid.  It can be made again, but there is no requirement to do so.

 

6 hours ago, Daniel H. Honemann said:

Not exactly.  At the next meeting, if a point of order is raised that a quorum was not present at the time the vote was taken, and this point of order is finally determined to be well taken, the adopted motion is not valid. It can be made again, or a motion can be made to ratify its adoption, but there is no requirement to do so.

 

5 hours ago, Daniel H. Honemann said:

Actually, I was mostly interested in leaving out that "and clear and convincing proof is presented" part.   

But leaving it out doesn't really make it go away, does it?

The rule on page 349, lines 24-29 states:

• ". . . a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)."

I take this to mean that if there is no proof that there was an absence of a quorum when the prior action was taken, or if it cannot possibly be reasonably said that the "proof" offered is clear and convincing, then the chair must rule the point of order not well taken, and this ruling will not be subject to appeal.

[Dan Honemann]

21 hours ago, Daniel H. Honemann said:

Actually, I was mostly interested in leaving out that "and clear and convincing proof is presented" part.   

 

15 hours ago, Shmuel Gerber said:

But leaving it out doesn't really make it go away, does it?

The rule on page 349, lines 24-29 states:

• ". . . a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)."

I take this to mean that if there is no proof that there was an absence of a quorum when the prior action was taken, or if it cannot possibly be reasonably said that the "proof" offered is clear and convincing, then the chair must rule the point of order not well taken, and this ruling will not be subject to appeal.

No, leaving it out doesn't make it go away, but I think that including it in the response may give the impression that there is some difference between the degree of proof required in order to determine that a quorum was not present when a vote was taken and, let's say, the degree of proof required in order to determine that unidentifiable ballots were cast by persons not entitled to vote. I don't think that there is, and I don't think that any significance should be given to the fact that, in the latter instance, RONR simply refers to there being evidence of the fact.

In either instance, what is required is that the chair (initially), and members of the assembly (if the question is placed in their hands), be convinced, on the basis of whatever evidence is provided, that a quorum was not present or that ballots were cast by persons not entitled to vote. No need to worry about there being some distinction that must be recognized and obeyed, such as the distinction between a preponderance of the evidence and proof beyond a reasonable doubt.

[George Mervosh]

41 minutes ago, Daniel H. Honemann said:

In either instance, what is required is that the chair (initially), and members of the assembly (if the question is placed in their hands), be convinced, on the basis of whatever evidence is provided, that a quorum was not present or that ballots were cast by persons not entitled to vote. No need to worry about there being some distinction that must be recognized and obeyed, such as the distinction between a preponderance of the evidence and proof beyond a reasonable doubt.

The book seems to make a distinction, which is why I used its language and I'm not convinced it hurts to include the language when responding here, but you're right in that if I'm deciding the matter, or part of the assembly that's deciding the matter, I'm going to want the same (for me - high) level of proof.

[Shmuel Gerber]

35 minutes ago, Daniel H. Honemann said:

In either instance, what is required is that the chair (initially), and members of the assembly (if the question is placed in their hands), be convinced, on the basis of whatever evidence is provided, that a quorum was not present or that ballots were cast by persons not entitled to vote. No need to worry about there being some distinction that must be recognized and obeyed, such as the distinction between a preponderance of the evidence and proof beyond a reasonable doubt.

So how do you give effect to the part of the rule that says, "a point of order relating to the absence of a quorum is generally not permitted to affect prior action"?

It seems to me the book is saying that it's not good enough for the assembly to try to determine, based on the best available evidence after the fact, whether or not a quorum was present at the time of the prior action. Instead — because the chair and the assembly have the constant duty of ensuring that there is a quorum whenever any (substantive) action is taken, and because presumably it was established that there was a quorum at the outset of the meeting and no one ever noticed and pointed out that the quorum may have been lost — the fact that no one raised a point of order at the time creates a presumption, which must be taken into account when the point of order is raised at a later time, that there was a quorum present. However, that presumption is rebuttable (upon clear and convincing proof).

[Richard Brown]

I take the "upon clear and convincing proof" language to mean what is says and to say what it means.  Clear and convincing proof (or evidence) is a higher burden than mere "belief" or "preponderance of the evidence".  It means ya gotta be pretty darn sure, as in , well, "convinced".

[Dan Honemann]

1 hour ago, Richard Brown said:

I take the "upon clear and convincing proof" language to mean what is says and to say what it means.  Clear and convincing proof (or evidence) is a higher burden than mere "belief" or "preponderance of the evidence".  It means ya gotta be pretty darn sure, as in , well, "convinced".

You seem to be saying that, as far as RONR is concerned, one need not really be convinced that nonmembers voted in the ballot vote held during the last meeting in order to vote to declare that vote null and void, but if the objection is that no quorum was present at the time the vote was taken, well then, by golly, he better be convinced of it.

This is nonsense.

[Dan Honemann]

2 hours ago, Shmuel Gerber said:

So how do you give effect to the part of the rule that says, "a point of order relating to the absence of a quorum is generally not permitted to affect prior action"?

This is true because it will take at least some evidence to establish the fact that a quorum was not present at some particular time in the past. All that is required to determine if a quorum is present at the present time is to count noses.

[Richard Brown]

2 hours ago, Richard Brown said:

I take the "upon clear and convincing proof" language to mean what is says and to say what it means.  Clear and convincing proof (or evidence) is a higher burden than mere "belief" or "preponderance of the evidence".  It means ya gotta be pretty darn sure, as in , well, "convinced".

 

27 minutes ago, Daniel H. Honemann said:

You seem to be saying that, as far as RONR is concerned, one need not really be convinced that nonmembers voted in the ballot vote held during the last meeting in order to vote to declare that vote null and void, but if the objection is that no quorum was present at the time the vote was taken, well then, by golly, he better be convinced of it.

This is nonsense.

I said no such thing.  You are reading something into my comment that I did not say.  I was responding to the discussion about the original poster's original question about burden of proof required to overturn action on the basis that a quorum was not present when the vote was taken.  RONR is very clear that the burden of proof is clear and convincing evidence, which is different from mere "belief", "probably", "more than likely", "I think so", or the more common "preponderance of the evidence".  I believe that RONR means what it says and says what it means in that regard.  If it doesn't, well, you might take that up with the authorship team. 

But, now that you have brought up the issue (which I did not in any way refer to in my comment) of invalidating an election or vote on the basis that votes were cast by people not entitled to vote, RONR says absolutely nothing about requiring the higher burden of proof in such a case. So, now that you have brought it up and now that I have thought about it, I do believe that two different standards or burdens of proof apply in the two different situations. 

The language on page 416 at lines 30-33 regarding voiding an election on the basis that votes cast by persons ineligible to vote might have affected the result is quite different from the "clear and convincing evidence" required to set aside a vote due on the basis that it was later determined that a quorum was not present.

Here is the language regarding votes bast by persons ineligible to vote on page 416:  " If there is evidence that any unidentifiable ballots were cast by persons not entitled to vote, and if there is any possibility that such ballots might affect the result, the entire ballot vote is null and void, and a new ballot vote must be taken."    Note that in this case only "evidence" is required, not "clear and convincing evidence".  And there need be only a "possibility" that the invalid ballots might have affected the result.

I see a clear difference between the standard or burden of proof to invalidate a vote after the fact on the basis that a quorum was not present and the proof required to invalidate a vote on the basis that there might have been ballots cast by persons ineligible to vote.  If RONR meant (or means) for the standard to be the same, it should say so.  It presently does not, but, rather, makes a distinction.   It should be easy enough for RONR to specify that the same standard applies in both situations if that is the intent.

[Shmuel Gerber]

1 hour ago, Daniel H. Honemann said:

 

4 hours ago, Shmuel Gerber said:

So how do you give effect to the part of the rule that says, "a point of order relating to the absence of a quorum is generally not permitted to affect prior action"?

This is true because it will take at least some evidence to establish the fact that a quorum was not present at some particular time in the past. All that is required to determine if a quorum is present at the present time is to count noses.

It is interesting that RONR does not say how the presence of a quorum needs to be determined when a member raises a point of order at the time. In other words, can the chair just say, "It looks to me like we haven't lost a quorum," or is it required that a quorum again be definitively established as it would be before the meeting is called to order?

In any event, it seems that at least you agree that if a point of order is to be sustained after the fact, evidence must presented that there was not a quorum present, rather than the other way around.

[Dan Honemann]

On 2/19/2016 at 4:26 PM, Richard Brown said:

But, now that you have brought up the issue (which I did not in any way refer to in my comment) of invalidating an election or vote on the basis that votes were cast by people not entitled to vote, RONR says absolutely nothing about requiring the higher burden of proof in such a case. So, now that you have brought it up and now that I have thought about it, I do believe that two different standards or burdens of proof apply in the two different situations. 

The language on page 416 at lines 30-33 regarding voiding an election on the basis that votes cast by persons ineligible to vote might have affected the result is quite different from the "clear and convincing evidence" required to set aside a vote due on the basis that it was later determined that a quorum was not present.

Here is the language regarding votes bast by persons ineligible to vote on page 416:  " If there is evidence that any unidentifiable ballots were cast by persons not entitled to vote, and if there is any possibility that such ballots might affect the result, the entire ballot vote is null and void, and a new ballot vote must be taken."    Note that in this case only "evidence" is required, not "clear and convincing evidence".  And there need be only a "possibility" that the invalid ballots might have affected the result.

I see a clear difference between the standard or burden of proof to invalidate a vote after the fact on the basis that a quorum was not present and the proof required to invalidate a vote on the basis that there might have been ballots cast by persons ineligible to vote.  If RONR meant (or means) for the standard to be the same, it should say so.  It presently does not, but, rather, makes a distinction.   It should be easy enough for RONR to specify that the same standard applies in both situations if that is the intent.

 

Lawyers need to try not to think like lawyers when dealing with questions of parliamentary law.

Yes, RONR mentions only “evidence” of unidentifiable ballots being cast by persons ineligible to vote, and doesn’t say anything about that evidence being “clear and convincing”, but I urge you not to read too much into this, just as I would suggest that you not read too much into the fact that RONR doesn’t say anything at all about evidence being required to sustain other points of order, such as (for example) those based upon assertions that members were denied their right to vote, or assertions that main motions conflicting with motions previously adopted and still in force were declared adopted by a vote which was less than the vote required to rescind or amend the previously adopted motion.*

Nor is there any reason whatsoever for there to be some different “standard of proof” for sustaining a point of order based upon the absence of a quorum than one based upon any of the other three grounds which I have referred to above. In each of these three instances, if the point of order is ultimately sustained the action improperly taken will be every bit as null and void as is action which has been determined to have been taken at a time when no quorum was present.

The fact is that in no instance is there any “standard of proof” set forth in RONR that must be met before the chair or the assembly may decide that a point of order is well taken, and the rules relating to appeals are exactly the same no matter what the grounds are for raising the point of order which prompts the ruling from which the appeal is taken.

----------------------

*In this case, if it is determined that a main motion conflicts with a main motion previously adopted and still in force, it is necessary to establish that the later motion was adopted by the vote required to rescind or amend the previously adopted motion in order to prevent it from being declared null and void.

[Dan Honemann]

16 hours ago, Shmuel Gerber said:

It is interesting that RONR does not say how the presence of a quorum needs to be determined when a member raises a point of order at the time. In other words, can the chair just say, "It looks to me like we haven't lost a quorum," or is it required that a quorum again be definitively established as it would be before the meeting is called to order?

If the chair simply rules that the point of order is not well taken, an appeal can be taken from that ruling or a member may move that a count be taken. General Robert, in PL (Q&A #360), says that, in either case, if the majority agrees tellers are appointed and those present are counted.