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Rescission and amendment


Guest guest Dan

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If my bylaws prohibit amending an action that has been appealed to a higher body, would it still be OK to rescind the action?

Or is a rescission equivalent to an amendment that strikes out the entire action?

RR #37 on Rescision says "To rescind is identical with the motion to amend something previously
   adopted, by striking out ..."

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46 minutes ago, Guest guest Dan said:

If my bylaws prohibit

amending an action that has been appealed to a higher body,

would it still be OK to rescind the action?

Or is a rescission equivalent to an amendment that strikes out the entire action?

It depends.

I have NEVER seen bylaws which are worded akin to "Thou shalt not amend _______."

So you must have a highly-customized rule.

And since you are talking about a BYLAWS-level rule, I doubt that I, or any reader, can give you an authentic interpretation of your customized rule.

***

• Confounding variable #2: You refer to a superior body. -- "Yeow!" -- That could imply any relationship!

• Confounding variable #3: You refer to "appeal". -- "Zowie!" -- You have nested the parliamentary actions atop one another.

• Confounding variable #4: You want to rescind (annul or repeal) the action, and not just add a few details to it, or make its list of facts more complete. -- "Oy!" -- How can you rescind that business which is now in the hands of your superior body? How can you yank back responsibility? You should have thought of that before kicking it upstairs.

***

I would need an example --  plus the actual wording of the rule -- even to offer an opinion.
I cannot even imagine what kind of rule which would imply, "Body A cannot amend X when it has been appealed to Body B."

(Insert ten-foot pole here.) :(

 

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for context, on page 35 of:

http://www.losranchos.org/wp-content/uploads/packet-final-nov-19-153.pdf

we have a claim that rescinding is allowed where amending is not:

“Since the Presbytery action is in ecclesiastical litigation, the Presbytery cannot alter the terms of the transfer, but it can rescind the whole action and restore everything to the status quo ante.”

And on page 157 of:

http://www.mission-presbytery.org/documents/BookofOrder2013-2015pdf.pdf

under D-3.0102, we have:

"When a case, either remedial or disciplinary, has been transmitted to a permanent judicial commission, the electing council shall take no further judicial action on the case."

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Without getting into the details of the customized rule, I think it is true that a motion to Rescind is the same as to Amend Something Previously Adopted, where the amendment is simply to strike the original motion in its entirety.  

So, while I don't claim to understand the rule, I think it's safe to say that if amendment is not in order, then neither is rescission.. 

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I think the U.S. Supreme Court follows the same rule, that you can't rescind a ruling after it has been appealed.

Griggs v. Provident Consumer Discount Co.
459 U.S. 56 (1982), available at:
  https://supreme.justia.com/cases/federal/us/459/56/case.html
on p. 58 says:

  "Even before 1979, it was generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.   The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."
 

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I suppose you may or may not find what the Supreme Court has said in the case you have cited to be helpful to you in construing the provisions of your Constitution, but I can assure you that it creates no parliamentary law, and has no significance whatsoever in understanding what is or is not proper parliamentary procedure under the rules in RONR.

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I mentioned the Supreme Court rule for 2 reasons:

 1) it is not unhelpful;  If it had made a distinction between rescinding and amending, then that could give hope to those trying to make a similar distinction in my case.

Instead, it lumps together "vacate, alter, and amend" in the sentence following my quote above: "Under pre-1979 procedures, a district court lacked jurisdiction to entertain a motion to vacate, alter, or amend a judgment after a notice of appeal was filed."

 

 2)  It gives the reasoning for the rule and that reasoning is applicable to my case:

It says: "The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."

Similarly, in my case, the Book of Order,  D-8.0101 states: "An appeal of a remedial case is the transfer to the next higher council ...".

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I think my question has been adequately answered, unanimously saying "if amendment is not in order, then neither is rescission".

Thanks to all.  That happened to be the answer I was hoping for.

I think the rescission is also out of order for a separate reason, since it is in the nature of a contract.

RR #37 says: "The motion to rescind can be applied to votes on all main motions, ...with the following exceptions: votes cannot be rescinded ... where it is in the nature of a contract and the other party is informed of the fact; ..."

The motion that was rescinded in my case was a motion to ratify the terms of an agreement.  I presume that qualifies as "in the nature of a contract", unless I'm mistaken.

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31 minutes ago, Guest Dan said:

RR #37 says: "The motion to rescind can be applied to votes on all main motions, ...with the following exceptions: votes cannot be rescinded ... where it is in the nature of a contract and the other party is informed of the fact; ..."

The quoted passage is from the 4th edition of Robert's Rules that was published in 1915. The current edition is the 11th edition. There have been many changes including the statement in the quoted passage.

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Good point!  It looks like Rescission is now #35 instead of #37 in the 4th ed, and #37 is now Reconsider.

It looks like the wording "where it is in the nature of a contract and the other party is informed of the fact; ..." stayed in #37 rather than moving to #35.

Is that correct?  I don't have the paper version at hand, so just going by what can be seen in online previews.

So if I understand correctly, the 11th edition allows rescinding (but not reconsidering) an action in the nature of a contract, although the other party to a contract that is unilaterally rescinded might have grounds for a civil action for breach of contract?

p.s. thanks for correcting the title.

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3 hours ago, Guest Dan said:

Good point!  It looks like Rescission is now #35 instead of #37 in the 4th ed, and #37 is now Reconsider.

It looks like the wording "where it is in the nature of a contract and the other party is informed of the fact; ..." stayed in #37 rather than moving to #35.

Is that correct?  I don't have the paper version at hand, so just going by what can be seen in online previews.

So if I understand correctly, the 11th edition allows rescinding (but not reconsidering) an action in the nature of a contract, although the other party to a contract that is unilaterally rescinded might have grounds for a civil action for breach of contract?

Yes, I think you have this right.

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So does it make sense that you can rescind but not reconsider a motion in the nature of a contract?

Perhaps that is an unintentional result of reorganizing the rules between the 4th and 11th editions.

btw, how does one cite this forum in a hearing.  The comments above are very helpful for overturning a rescission where there is agreement that an amendment would not be allowed.  But do I need to hire an expert witness to recite what the forum experts above have stated?

 

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1 hour ago, Guest Dan said:

So does it make sense that you can rescind but not reconsider a motion in the nature of a contract?

Perhaps that is an unintentional result of reorganizing the rules between the 4th and 11th editions.

Yes, it makes perfect sense to say that an affirmative vote which is in the nature of a contract cannot be reconsidered if the party to the contract has been notified of the outcome of the vote because it is then no longer possible to place the motion again before the assembly in the exact position it occupied the moment before it was voted on originally. The contract has already been entered into.

 

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Yes, I fully agree that an affirmative vote which is in the nature of a contract cannot and should not be reconsidered, since a contract normally cannot be unilaterally broken.

But my questions was why wouldn't the same reasoning apply to rescinding an affirmative vote which is in the nature of a contract?

In the 4th edition, that wording did apply, but in the 11th edition it doesn't, and perhaps that is an unintentional result of rearranging the sections.

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12 minutes ago, Guest said:

Yes, I fully agree that an affirmative vote which is in the nature of a contract cannot and should not be reconsidered, since a contract normally cannot be unilaterally broken.

But it can be broken, so to speak, by one party, although the consequences of doing so may be grave.  That's not the same as the point Mr. Honemann made regarding reconsideration, in which he noted " it is then no longer possible to place the motion again before the assembly in the exact position it occupied the moment before it was voted on originally."  That's just a plain fact.  If I recall correctly, the authors made note of this change in one of their summaries of the changes to the 10th Edition.  They'll correct me if I'm wrong.

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I don't follow your argument.  Not trying to be dense, but you say for reconsideration of a vote in the nature of a contract, "it is then no longer possible to place the motion again before the assembly in the exact position it occupied the moment before it was voted on originally."  Doesn't that reasoning apply equally well to a rescission?

It would be enlightening to see this mentioned in a change summary.

 

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10 minutes ago, Guest said:

I don't follow your argument.  Not trying to be dense, but you say for reconsideration of a vote in the nature of a contract, "it is then no longer possible to place the motion again before the assembly in the exact position it occupied the moment before it was voted on originally."  Doesn't that reasoning apply equally well to a rescission?

It would be enlightening to see this mentioned in a change summary.

 

When the motion to reconsider is adopted, the original motion comes back before the assembly in the position it occupied before the vote.  When the motion to rescind is adopted, on the other hand, the action is rescinded - there's nothing further to do, and the assembly can take up other business.  So the two motions put you in a different position - rescind is sufficient for reversing the previous action, whereas reconsider just means that the assembly now needs to decide how it wants to handle the motion that is now before it.

The argument given above is that reconsider cannot be used if it is impossible for the motion to come back before the assembly in its previous condition.

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Here is the summary of the change on page xxi in the 10th edition of RONR:

"References to federal, state, and local laws are restricted, wherever appropriate, to procedural rules prescribed by such laws, in recognition of the fact that rules of parliamentary procedure are concerned with the process by which a deliberative assembly arrives at a decision, and not with the wisdom, or even legality, of the decision itself. For similar reasons, the rule prohibiting rescission of a motion which is in the nature of a contract has been eliminated."

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I'm thinking, without looking it up, that previous editions of RONR had language to the effect that a motion approving a contract, once it has been executed, cannot be rescinded.  It was, I believe, the 10th edition that changed that.   It is possible, of course, for a party to cancel or rescind a contract (or to attempt to do so), regardless of the legal consequences of doing so.   Whether the courts uphold the cancellation is beyond the scope of parliamentary procedure and RONR.

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