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Continuing Breach (no committees, I promise)


J. J.

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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 rules the point of order not well taken and a member appeals the decision of the chair, which is seconded. The decision of the chair is sustained.

Scenario #1

The chair does some research before the February meeting. He realizes his ruling was incorrect. May he make a ruling (possibly subject to appeal) at the February meeting that Joe is ineligible to serve as Grand Nagus?

Scenario #2 (and I think this was answered)

A bare majority of the members at the February meeting want to follow the bylaws. May one of them raise a point of order that Joe is ineligible to serve as Grand Nagus? If the point is not well taken, may they appeal the decision of the chair and (they will have a majority of less than 2/3 or an MEM) overrule the decision of the chair?

At all meeting described, there is a quorum, but a majority of the entire membership (MEM) is not present. No vote gets 2/3.

[This might make it cleaner.]

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Scenario #1

The chair does some research before the February meeting. He realizes his ruling was incorrect. May he make a ruling (possibly subject to appeal) at the February meeting that Joe is ineligible to serve as Grand Nagus?

Scenario #2 (and I think this was answered)

A bare majority of the members at the February meeting want to follow the bylaws. May one of them raise a point of order that Joe is ineligible to serve as Grand Nagus? If the point is not well taken, may they appeal the decision of the chair and (they will have a majority of less than 2/3 or an MEM) overrule the decision of the chair?

Yes to both questions. A precedent may be overturned by a later ruling of the chair or a decision of the assembly on appeal, the latter of which would require a majority vote in the negative. The usual rules pertaining to reversing a decision of the assembly do not apply, since the precedent is only persuasive and is not binding on the assembly (RONR, 11th ed., pgs. 251-252). While the rules regarding precedent primarily speak of "similar issues arising in the future," it seems the same principles would apply in this instance, even though it is arguably the same issue.

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Yes to both questions. A precedent may be overturned by a later ruling of the chair or a decision of the assembly on appeal, the latter of which would require a majority vote in the negative. The usual rules pertaining to reversing a decision of the assembly do not apply, since the precedent is only persuasive and is not binding on the assembly (RONR, 11th ed., pgs. 251-252). While the rules regarding precedent primarily speak of "similar issues arising in the future," it seems the same principles would apply in this instance, even though it is arguably the same issue.

I agree. There is no rule in RONR that would prevent the renewal of a point of order in this situation.

But J.J., how about changing to a more reasonable set of facts next time. :)

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I agree. There is no rule in RONR that would prevent the renewal of a point of order in this situation.

But J.J., how about changing to a more reasonable set of facts next time. :)

Weeeeeell, the previous committee question was based on what a client was claiming (it mercifully turned out not a continuing breach, though they thought it was). :)

I also have seen situations where the assembly violated their bylaws, with intent and after being instructed the action was out of order (and then a month later spend four digets to fix the problem they created, and avoid the law suit). :) I'll be happy to give you a recommendation. :)

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  • 4 weeks later...

The chair rules the point of order not well taken and a member appeals the decision of the chair, which is seconded. The decision of the chair is sustained.

Scenario #1

The chair does some research before the February meeting. He realizes his ruling was incorrect. May he make a ruling (possibly subject to appeal) at the February meeting that Joe is ineligible to serve as Grand Nagus?

Beware.

Page 251-252 refers to SIMILAR issues.

Page 251-252 does not refer to the IDENTICAL issue, repeatedly.

You don't get to make points of order at all future sessions for the SAME Joe (the SAME Grand Nagus).

The Book says, "... When similar issues arise in the future."

Mr. Joe Grand Nagus is not a "simliar" issue. There is only one issue. One issue cannot be similar to itself and simultaneously "in the future." Nothing has happened in the future which is similar.

It is sui generis. So far.

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You don't get to make points of order at all future sessions for the SAME Joe (the SAME Grand Nagus).

I don't read it as saying this. What I read it as saying is that, in the future if a similar issue arises and a Point of Order is raised, the precedent established by the previous ruling may be seen as persuasive in determining how to rule on the current issue, as opposed to disregarding it since the circumstances are not exactly the same.

By saying a Point of Order cannot be renewed in the case presented, it seems tantamount to saying that the ruling provided at the January meeting has healed the breach and made Joe eligible for election as Grand Nagus, when in fact that is not the case. He was ineligible at the time of election, and his ineligibility continues.

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Beware.

Page 251-252 refers to SIMILAR issues.

Page 251-252 does not refer to the IDENTICAL issue, repeatedly.

You don't get to make points of order at all future sessions for the SAME Joe (the SAME Grand Nagus).

The Book says, "... When similar issues arise in the future."

Mr. Joe Grand Nagus is not a "simliar" issue. There is only one issue. One issue cannot be similar to itself and simultaneously "in the future." Nothing has happened in the future which is similar.

It is sui generis. So far.

I don't believe a precedent (even on the same issue) has the same force as an adopted main motion, so it seems to me that the controlling rule is RONR, 11th ed., pg. 337, lines 22-28.*

If you feel otherwise, could you please explain what you feel would be the appropriate course of action when the chair and/or the assembly makes an error in interpreting a controversial issue involving a continuing breach?

*EDIT: Or there's an even better citation on the following pages, as Mr. Balch pointed out.

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"When a . . . Point of Order has been ruled on adversely by the chair, it cannot be raised again at the same session unless an appeal is made and the chair's decision is reversed. After a decision of the chair has been sustained on an appeal, no point of order or appeal contrary to it can be made during that session." RONR (11th ed.), p. 338, l. 34 to p. 339, l. 2 (emphasis added). It follows that the point of order can be renewed at a later session.

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