Continuing breach

[J. J.]

The Asnem Society meets monthly. It has an officer position, defined in the bylaws, called "Grand Nagus." The bylaws state:

"The Grand Nagus shall be elected at the December meeting in odd numbered years for a two year term and shall serve until his successor is elected. Only members of the Society for five years prior to the election or appointment as Grand Nagus shall be eligible to serve in the position."

In May of 2010, Joe became a member. In December of 2011, Joe was elected as Grand Nagus.

At the January meeting, with nothing pending, a point of order is raise that Joe is ineligble to serve as Grand Nagus. Nothing is pending when it is raised. Most of the people in the room like Joe and want him to serve.

The chair (who likes Joe) rules the point of order not well taken and a member appeals the decision of the chair, which is seconded. Another member moves to refer the appeal to a committee, that will report back at the June meeting. The motion is adopted.

At the February meeting, people who believe in following the rules show up. One of them raises a point of order is raise that Joe is ineligble to serve as Grand Nagus; nothing is pending when it is raised. Is it out of order to raise a point of order, as the issue has been referred to a committee? The breach is still continuing.

[Guest Nancy N.]

J. J., as you have set it up, why would it be in order at the February meeting?

[J. J.]

J. J., as you have set it up, why would it be in order at the February meeting?

The breach still exists. Joe is ineligible as he has been a member for less than five years. Joe is still holding the office of Grand Nagus. The majority at the January meeting (Joe's friends) want him to stay in office, even though he is ineligible. Is it still in order at the February meeting still raise a point of order (the majority will make the right decision)? Can they get at the breach even though the prior appeal was referred to a committee in the previous session.

[Sean Hunt]

The breach still exists. Joe is ineligible as he has been a member for less than five years. Joe is still holding the office of Grand Nagus. The majority at the January meeting (Joe's friends) want him to stay in office, even though he is ineligible. Is it still in order at the February meeting still raise a point of order (the majority will make the right decision)? Can they get at the breach even though the prior appeal was referred to a committee in the previous session.

I would say that the motion is out of order since it is, fundamentally, a motion dealing with a matter in the hands of a committee. The committee could be discharged and the appeal ruled on, if the necessary support was present to do so without notice.

[J. J.]

I would say that the motion is out of order since it is, fundamentally, a motion dealing with a matter in the hands of a committee. The committee could be discharged and the appeal ruled on, if the necessary support was present to do so without notice.

The support is not there to discharge. I would note that p. 341, ll. 24-28 prohibits the renewal of a main motion that has been referred to a committee, until the main motion has been discharged or the committee has reported. This is not a main motion.

The main argument I have for the assembly being able to deal with it is that the issue "reoccurs," for lack of a better term, with the Febuary session.

[Trina]

Why would the language on p 343 ll. 26-29 not apply?

'motions are improper that conflict with, or present practically the same question as, one still within the control of the society because not finally disposed of'

I think this thread from over a year ago also has some relevant discussion, particularly starting at post #19, and particularly Mr. Martin's comments in post #21:

http://robertsrules....dpost__p__21504

Several posters in that thread expressed the opinion that once the assembly (via processing a point of order) had made a decision about a continuing breach (and even if the decision was obviously the wrong decision) that it would be improper to raise the same point of order about the same continuing breach again in the future. If that line of argument is valid, then if your hypothetical assembly had simply upheld the chair's bad ruling on the point of order, the members at the February meeting would be unable to raise the same point of order again, even though the breach is still (obviously) continuing. In your hypothetical scenario the assembly hasn't yet finished processing the appeal, but I don't see how that makes it more proper for a member to raise a duplicate point of order about the continuing breach. If the breach can be 'protected', so to speak, from future points of order by a bad decision of the assembly, I think it would certainly be temporarily protected by a delayed decision (referring the appeal to committee).

I'm curious to see further discussion of this question. From an emotional standpoint, it doesn't seem fair at all to get only one shot at challenging and fixing a continuing breach. Since, as you say in the last sentence of your original post:

"The breach is still continuing."

[J. J.]

Why would the language on p 343 ll. 26-29 not apply?

'motions are improper that conflict with, or present practically the same question as, one still within the control of the society because not finally disposed of'

I think this thread from over a year ago also has some relevant discussion, particularly starting at post #19, and particularly Mr. Martin's comments in post #21:

http://robertsrules....dpost__p__21504

I'm not sure a thread from last year would be relevant. The language now includes a greater discussion of the role of precent, especially on p. 252, ll. 10-17. If the Point of Order was found not well taken at the January meeting, I would doubt that the majority at the February meeting could be prevented from reversing that action by appeal, certainly as a practical matter.

Several posters in that thread expressed the opinion that once the assembly (via processing a point of order) had made a decision about a continuing breach (and even if the decision was obviously the wrong decision) that it would be improper to raise the same point of order about the same continuing breach again in the future. If that line of argument is valid, then if your hypothetical assembly had simply upheld the chair's bad ruling on the point of order, the members at the February meeting would be unable to raise the same point of order again, even though the breach is still (obviously) continuing. In your hypothetical scenario the assembly hasn't yet finished processing the appeal, but I don't see how that makes it more proper for a member to raise a duplicate point of order about the continuing breach. If the breach can be 'protected', so to speak, from future points of order by a bad decision of the assembly, I think it would certainly by protected by a delayed decision (referring the appeal to committee).

I would question the breach it could be protected. In general, a breach would end at the January meeting, even if the wrong decision. A breach of a continuing nature is a bit different. It is still there in the February session. Even if the appeal had been completed in January, I do not see any rule that would prevent the a point of order on the issue, or the chair (perhaps a different one) from making a different ruling, or, if the ruling is the same, from an appeal. I thing both the chair and assembly may reverse itself (and I know of no practical way to prevent a majority from doing so in the case of a continuing breach).

My question is if the majority at one session can, by using the motion to Commit, tie the hands of future session to prevent those future session from reaching it.

[Dan Honemann]

Why would the language on p 343 ll. 26-29 not apply?

'motions are improper that conflict with, or present practically the same question as, one still within the control of the society because not finally disposed of'

I think this thread from over a year ago also has some relevant discussion, particularly starting at post #19, and particularly Mr. Martin's comments in post #21:

http://robertsrules....dpost__p__21504

Several posters in that thread expressed the opinion that once the assembly (via processing a point of order) had made a decision about a continuing breach (and even if the decision was obviously the wrong decision) that it would be improper to raise the same point of order about the same continuing breach again in the future. If that line of argument is valid, then if your hypothetical assembly had simply upheld the chair's bad ruling on the point of order, the members at the February meeting would be unable to raise the same point of order again, even though the breach is still (obviously) continuing. In your hypothetical scenario the assembly hasn't yet finished processing the appeal, but I don't see how that makes it more proper for a member to raise a duplicate point of order about the continuing breach. If the breach can be 'protected', so to speak, from future points of order by a bad decision of the assembly, I think it would certainly be temporarily protected by a delayed decision (referring the appeal to committee).

I'm curious to see further discussion of this question. From an emotional standpoint, it doesn't seem fair at all to get only one shot at challenging and fixing a continuing breach. Since, as you say in the last sentence of your original post:

"The breach is still continuing."

A motion to discharge the committee will do it. A member should give notice of his intent to move to discharge the committee, in which event it will take only a majority vote to do so.

This has previously been suggested, and J.J. responded that there are insufficient votes to adopt such a motion. If this is the case, not much can be done from a parliamentary law point of view, since a majority are unwilling to go along. However, the facts as stated indicate a deliberate violation of the bylaws by a majority of the members, in which event a law suit may solve the problem (assuming enough is a stake to justify the institution of legal proceedings).

[J. J.]

A motion to discharge the committee will do it. A member should give notice of his intent to move to discharge the committee, in which event it will take only a majority vote to do so.

Which will work, because at the Febuary meeting there will be a majority in favor of the correct action. The people at the January meeting didn't give notice, however. (That an "interpretation" of the bylaws was referred to a committee and that people wanting a different interpretation didn't give notice to discharge the committee are the only two things that actually happened, but they got me thinking.)

This has previously been suggested, and J.J. responded that there are insufficient votes to adopt such a motion. If this is the case, not much can be done from a parliamentary law point of view, since a majority are unwilling to go along. However, the facts as stated indicate a deliberate violation of the bylaws by a majority of the members, in which event a law suit may solve the problem (assuming enough is a stake to justify the institution of legal proceedings).

Now, to go back to another question raised on this thread, the majority are willing to to do the correct thing. At the January meeting, a point of order is raise that Joe is ineligble to serve as Grand Nagus. The chair ruled the point not well taken, and his decision was upheld on appeal. At the February meeting, the majority (and it is a bare majority with less than a majority of the entire membership present) that shows up will follow the rules. Is it in order to raise the point of order at the Febuary meeting.

Conversely, the chair hears the words "law suit" and wishes to reverse his ruling (possibly subject to appeal). May he do so?

[And, if the answer is yes, are lawyers like locks; are they there to keep honest people honest?]

[Trina]

I'm not sure a thread from last year would be relevant. The language now includes a greater discussion of the role of precent, especially on p. 252, ll. 10-17. If the Point of Order was found not well taken at the January meeting, I would doubt that the majority at the February meeting could be prevented from reversing that action by appeal, certainly as a practical matter.

I would question the breach it could be protected. In general, a breach would end at the January meeting, even if the wrong decision. A breach of a continuing nature is a bit different. It is still there in the February session. Even if the appeal had been completed in January, I do not see any rule that would prevent the a point of order on the issue, or the chair (perhaps a different one) from making a different ruling, or, if the ruling is the same, from an appeal. I thing both the chair and assembly may reverse itself (and I know of no practical way to prevent a majority from doing so in the case of a continuing breach).

My question is if the majority at one session can, by using the motion to Commit, tie the hands of future session to prevent those future session from reaching it.

I probably was unclear in putting two different questions/comments into the same post.

My (separate) questions were --

1)

Why would the language on p 343 ll. 26-29 not apply?

'motions are improper that conflict with, or present practically the same question as, one still within the control of the society because not finally disposed of'

This is assuming the February people don't give notice, and thereby don't have enough votes to discharge the committee. Is it your view that this language doesn't apply to a point of order because it isn't a main motion?

2)

What's the relevance (if any) of the earlier discussion of repeated points of order applied to the same continuing breach, after the assembly has already made a decision on the point of order? I didn't really mean to dredge up the earlier parts of that linked thread (the discussion about precedents). I agree that, in a practical sense, it's hard to see how the assembly would be prevented from raising duplicate points of order about an ongoing breach.

[Trina]

...

Now, to go back to another question raised on this thread, the majority are willing to to do the correct thing. At the January meeting, a point of order is raise that Joe is ineligble to serve as Grand Nagus. The chair ruled the point not well taken, and his decision was upheld on appeal. At the February meeting, the majority (and it is a bare majority with less than a majority of the entire membership present) that shows up will follow the rules. Is it in order to raise the point of order at the Febuary meeting.

I wish it were; I can't come up with reasoning that allows it, though, without doing something about the committee that's sitting on the appeal.

edited:

Never mind my answer in this post; I didn't notice that this was actually a different scenario, without the referral to committee.

[Rev Ed]

At the February meeting, the members could take the issue back from the Committee (I cannot recall the section offhand at the moment) and then make a decision themselved.

[Trina]

At the February meeting, the members could take the issue back from the Committee (I cannot recall the section offhand at the moment) and then make a decision themselved.

J.J. has already posited that the members at the February meeting don't have enough votes to discharge the committee (without notice, anyway).

[J. J.]

I probably was unclear in putting two different questions/comments into the same post.

My (separate) questions were --

1)

Why would the language on p 343 ll. 26-29 not apply?

'motions are improper that conflict with, or present practically the same question as, one still within the control of the society because not finally disposed of'

This is assuming the February people don't give notice, and thereby don't have enough votes to discharge the committee. Is it your view that this language doesn't apply to a point of order because it isn't a main motion?

The only thing that I could figure is that it would become a new question with each session.

2)

What's the relevance (if any) of the earlier discussion of repeated points of order applied to the same continuing breach, after the assembly has already made a decision on the point of order? I didn't really mean to dredge up the earlier parts of that linked thread (the discussion about precedents). I agree that, in a practical sense, it's hard to see how the assembly would be prevented from raising duplicate points of order about an ongoing breach.

There was some rather substantial language changes from the 10th to the 11th edition.

I'm interested in the practical aspect. As a practical matter, no one internal to an organization can prevent the majority within one session from creating a breach of a continuing nature. My broader question is can a bare majority at a future session correct a breach of a continuing nature; if not, how would it be possible to prevent them from doing so?

[Josh Martin]

What's the relevance (if any) of the earlier discussion of repeated points of order applied to the same continuing breach, after the assembly has already made a decision on the point of order?

I doubt my post from last year that you have linked to is of much (if any) relevance to this question. This question deals with a somewhat different topic - an Appeal which has been temporarily rather than finally disposed of - and as J. J. has noted, the rules pertaining to precedent have changed substantially since then. My post at the time dealt with the rules under the 10th edition.

Is it in order to raise the point of order at the Febuary meeting.

No, as an Appeal on the question is already in the hands of a committee.

Conversely, the chair hears the words "law suit" and wishes to reverse his ruling (possibly subject to appeal). May he do so?

No, for the same reason - although the words "law suit" might impel the members to permit a motion to Discharge a Committee so that the Appeal could be taken up.

My broader question is can a bare majority at a future session correct a breach of a continuing nature; if not, how would it be possible to prevent them from doing so?

Well, ultimately, there is not a practical parliamentary solution to prevent the majority from doing so. For instance, the assembly could Appeal from the chair's ruling that the Point of Order could not be raised as the question is within the control of a committee. It is not possible to prevent the majority from correcting the breach any more than it was possible to prevent the majority from creating it.

As noted, however, the proper course of action is to discharge the committee of the Appeal.

[J. J.]

No, as an Appeal on the question is already in the hands of a committee.

I asked a second question which was just a point of order, and an appeal in January (that ultimately violates the bylaws), followed by an appeal on the same ground in February. No committee referral involved.

Bluntly, I cannot even think of a ground (other than wrongly claiming the action doesn't violate the bylaws) to rule the point of order not well taken.

[Dan Honemann]

I asked a second question which was just a point of order, and an appeal in January (that ultimately violates the bylaws), followed by an appeal on the same ground in February. No committee referral involved.

Bluntly, I cannot even think of a ground (other than wrongly claiming the action doesn't violate the bylaws) to rule the point of order not well taken.

Well, assuming I understand correctly the facts involved in this second question, I gather that the question itself isn't whether or not the point of order is well taken. The question, as I understand it, is whether or not the point of order rejected during the January session may be raised again at the February session, and I think that the answer to this question is "yes", since there is no rule in RONR precluding it.

[Trina]

Well, assuming I understand correctly the facts involved in this second question, I gather that the question itself isn't whether or not the point of order is well taken. The question, as I understand it, is whether or not the point of order rejected during the January session may be raised again at the February session, and I think that the answer to this question is "yes", since there is no rule in RONR precluding it.

Is this a change from the situation under the rules in the 10th edition (due to the changes in the rules about precedent which J.J. and Josh Martin have pointed out earlier in this thread)?

[ And, I'm fairly certain I saw an initial answer of 'no' posted yesterday, in response to this same question from J.J. which is getting a 'yes' answer now -- was that due to an initial misunderstanding of the circumstances of the question? (I know I got confused about the scenario with the committee versus the scenario without the committee). Or, maybe I'm just confused all around . ]

[J. J.]

Well, assuming I understand correctly the facts involved in this second question, I gather that the question itself isn't whether or not the point of order is well taken. The question, as I understand it, is whether or not the point of order rejected during the January session may be raised again at the February session, and I think that the answer to this question is "yes", since there is no rule in RONR precluding it.

That is the answer I was getting. I also couldn't figure out what ground to use to rule the point of order not well taken.

[J. J.]

[ And, I'm fairly certain I saw an initial answer of 'no' posted yesterday, in response to this same question from J.J. which is getting a 'yes' answer now -- was that due to an initial misunderstanding of the circumstances of the question? (I know I got confused about the scenario with the committee versus the scenario without the committee). Or, maybe I'm just confused all around . ]

The committee referral was a different question, but I asked it because I kept getting a yes answer to the second question.

[Dan Honemann]

Is this a change from the situation under the rules in the 10th edition (due to the changes in the rules about precedent which J.J. and Josh Martin have pointed out earlier in this thread)?

If you focus solely on the specific facts presented here, I think the answer to your question is "no" (but I really don't much care).

[ And, I'm fairly certain I saw an initial answer of 'no' posted yesterday, in response to this same question from J.J. which is getting a 'yes' answer now -- was that due to an initial misunderstanding of the circumstances of the question? (I know I got confused about the scenario with the committee versus the scenario without the committee). Or, maybe I'm just confused all around . ]

The "no" that you remember seeing was in response to the last question in post #9:

"Conversely, the chair hears the words "law suit" and wishes to reverse his ruling (possibly subject to appeal). May he do so?"

[J. J.]

If you focus solely on the specific facts presented here, I think the answer to your question is "no" (but I really don't much care).

The "no" that you remember seeing was in response to the last question in post #9:

"Conversely, the chair hears the words "law suit" and wishes to reverse his ruling (possibly subject to appeal). May he do so?"

I think I really should start another thread, because this second issue came up. It is misleading. My appologies.

[Trina]

Is this a change from the situation under the rules in the 10th edition (due to the changes in the rules about precedent which J.J. and Josh Martin have pointed out earlier in this thread)?

If you focus solely on the specific facts presented here, I think the answer to your question is "no" (but I really don't much care).

OK, I'll work on the hypothesis that I was wrong about the application of the rules under the 10th edition.

Is it fair to summarize the situation as follows:

A member raises a point of order about a violation of the rules (a violation which constitutes a continuing breach). The chair (and the assembly, either by its silence, or by upholding the chair's ruling on appeal) find the point of order not well taken. There is no rule in RONR [either 10th or 11th edition] precluding exactly the same point of order from being raised again at a later session.

?

[J. J.]

OK, I'll work on the hypothesis that I was wrong about the application of the rules under the 10th edition.

Is it fair to summarize the situation as follows:

A member raises a point of order about a violation of the rules (a violation which constitutes a continuing breach). The chair (and the assembly, either by its silence, or by upholding the chair's ruling on appeal) find the point of order not well taken. There is no rule in RONR [either 10th or 11th edition] precluding exactly the same point of order from being raised again at a later session.

?

In the 11th edition, I believe that is correct. I have at seen an argument the different way in the 10th.