A meeting itself as civil disobedience

[Nathan Zook]

In two places, RONR (11th ed) pgs 111 & 343, specifies that motions which violate the law as to procedure are immediately out of order and void.  This spring associations are encountering social distancing and stay at home orders from governors.  In Washington state, these orders come with the threat of a $5000 fine.

Setting aside the question of the constitutionality of the orders as a matter of a different body of Law, I'm wondering about the propriety of meetings being called when attendance at the meeting implies hazarding the threat of arrest and a $5000 fine.  Surely, an assembly can only obligate its members through its bylaws or constitution.  It seems to me that in the case where meeting itself is an act of civil disobedience, absent prior mention in the bylaws, only the unanimous consent of the membership can permit such a meeting.

 

 

[Guest Zev]

I cannot find "civil disobedience meeting" and the rules related to that type of meeting in this book.

[Josh Martin]

3 hours ago, Nathan Zook said:

In two places, RONR (11th ed) pgs 111 & 343, specifies that motions which violate the law as to procedure are immediately out of order and void.  This spring associations are encountering social distancing and stay at home orders from governors.  In Washington state, these orders come with the threat of a $5000 fine.

Setting aside the question of the constitutionality of the orders as a matter of a different body of Law, I'm wondering about the propriety of meetings being called when attendance at the meeting implies hazarding the threat of arrest and a $5000 fine.  Surely, an assembly can only obligate its members through its bylaws or constitution.  It seems to me that in the case where meeting itself is an act of civil disobedience, absent prior mention in the bylaws, only the unanimous consent of the membership can permit such a meeting.

Well, for starters, nothing in RONR obligates members to attend meetings. So unless your organization has its own rules on this subject, calling a meeting (even one which is in violation of executive orders), does not obligate members to do anything. So this may well be a moot point.

So unless there's something else, I don't find it persuasive that "absent prior mention in the bylaws, only the unanimous consent of the membership can permit such a meeting." To the extent that such a meeting may pose legal or health risks for members, then as a parliamentary matter, the members will have to make their own decision as to whether to attend.

As to whether calling such meetings is a good idea, that is a question the organization will have to resolve for itself.

Edited June 2, 2020 at 10:55 PM by Josh Martin

[Nathan Zook]

I use the term "require" here in the sense of "on pain of not being able to participate in the meetings of the society."  It is intended to match the requirement of paying dues in societies having dues.  Moreover, members are required to be present in a meeting in order to participate (absent bylaws provisions), and discussions here regarding the advent and use of technology to permit deliberative assembly without physical presence has been a substantial topic.

In political central committees, it is common for the quorum to be less than 50%.  (In Texas, the statute sets the quorum at 25%.)  You can literally have a situation where an absolute majority of the body does not want to meet in defiance of the order, but in doing so, they leave deliberation in the hands of those who disagree with them.  I cannot see how this is good for the body.

Which is why I question if it is permitted to call a meeting in defiance of a gubernatorial order absent unanimous consent.

 

[Josh Martin]

20 hours ago, Nathan Zook said:

I use the term "require" here in the sense of "on pain of not being able to participate in the meetings of the society."  It is intended to match the requirement of paying dues in societies having dues.  Moreover, members are required to be present in a meeting in order to participate (absent bylaws provisions), and discussions here regarding the advent and use of technology to permit deliberative assembly without physical presence has been a substantial topic.

In political central committees, it is common for the quorum to be less than 50%.  (In Texas, the statute sets the quorum at 25%.)  You can literally have a situation where an absolute majority of the body does not want to meet in defiance of the order, but in doing so, they leave deliberation in the hands of those who disagree with them.  I cannot see how this is good for the body.

Which is why I question if it is permitted to call a meeting in defiance of a gubernatorial order absent unanimous consent.

Okay. Once again, the answer is that no rule in RONR provides that unanimous consent is required to call a meeting in defiance of a gubernatorial order. All meetings are called under the requirements in the organization's bylaws.

Either the rule in the order is in the nature of a procedural rule in law, in which case, the meeting cannot be called at all (even with unanimous consent) or the rule in the order is not in the nature of a procedural rule in law, in which case, the rules are the same as for calling any other meeting. There is no case in which the order would mean that the meeting could be called, but only by unanimous consent.

To the extent that there is "a situation where an absolute majority of the body does not want to meet in defiance of the order, but in doing so, they leave deliberation in the hands of those who disagree with them," a tactic to research would be the motion to Reconsider and Enter on the Minutes, which is used when, although a quorum is present, it is believed that the members present are not representative of the full membership. Additionally, when members feel that it is safe for them to return to meetings and they do so, they can take disciplinary actions against those who called the meetings if they feel these actions put the organization and its members at risk.

Once again, none of this is intended to comment on the wisdom of calling meetings in defiance of gubernatorial executive orders.

Edited June 3, 2020 at 10:01 PM by Josh Martin

[Gary Novosielski]

23 hours ago, Nathan Zook said:

In two places, RONR (11th ed) pgs 111 & 343, specifies that motions which violate the law as to procedure are immediately out of order and void.  This spring associations are encountering social distancing and stay at home orders from governors.  In Washington state, these orders come with the threat of a $5000 fine.

Setting aside the question of the constitutionality of the orders as a matter of a different body of Law, I'm wondering about the propriety of meetings being called when attendance at the meeting implies hazarding the threat of arrest and a $5000 fine.  Surely, an assembly can only obligate its members through its bylaws or constitution.  It seems to me that in the case where meeting itself is an act of civil disobedience, absent prior mention in the bylaws, only the unanimous consent of the membership can permit such a meeting.

I'm not sure a lock down order qualifies as a procedural rule within the meaning of RONR.

But whether it is or not, I don't see any reason that calling a meeting would require more than a majority, even if it were truly an act of civil disobedience.

[Josh Martin]

20 hours ago, Nathan Zook said:

I use the term "require" here in the sense of "on pain of not being able to participate in the meetings of the society."  It is intended to match the requirement of paying dues in societies having dues.  Moreover, members are required to be present in a meeting in order to participate (absent bylaws provisions), and discussions here regarding the advent and use of technology to permit deliberative assembly without physical presence has been a substantial topic.

In political central committees, it is common for the quorum to be less than 50%.  (In Texas, the statute sets the quorum at 25%.)  You can literally have a situation where an absolute majority of the body does not want to meet in defiance of the order, but in doing so, they leave deliberation in the hands of those who disagree with them.  I cannot see how this is good for the body.

Which is why I question if it is permitted to call a meeting in defiance of a gubernatorial order absent unanimous consent.

The other thing I would add is that, while I continue to believe my previous response is accurate and correct as a matter of parliamentary law, it may well be that if a group were to choose to meet in defiance of an executive order, members might be able to take legal action regarding decisions made at such a meeting (although this is a question which is beyond the scope of RONR and this forum).

[Joshua Katz]

I think it's pretty clear that a lockdown order, to the extent it is a "law" at all, is substantive. (I think it is fair to assume that what is said in RONR about procedural laws would also apply to procedural regulations or executive orders so I see no need to distinguish here all that much.) 

I agree that members might well challenge decisions made at such a meeting legally, but I doubt they would be using parliamentary procedure as the basis for the claim. 

[Josh Martin]

1 hour ago, Joshua Katz said:

I think it's pretty clear that a lockdown order, to the extent it is a "law" at all, is substantive. (I think it is fair to assume that what is said in RONR about procedural laws would also apply to procedural regulations or executive orders so I see no need to distinguish here all that much.) 

I agree that members might well challenge decisions made at such a meeting legally, but I doubt they would be using parliamentary procedure as the basis for the claim. 

I am generally inclined to agree. The orders often involve limitations on gatherings above a certain number of people (or depending on the status of the pandemic in a particular state, gatherings of any size), but these orders apply generally regardless of the nature of the gathering. As a result, I don't think such rules are generally in the nature of a procedural rule. Conceivably, more targeted rules might be adopted, perhaps authorizing or even requiring certain types of deliberative assemblies to meet online, and that rule would be more clearly procedural in nature. It doesn't seem, however, that this is the sort of rule we are discussing in this instance.

In any event, it is certainly correct that members who are making legal challenges should not be using parliamentary procedure as the basis for the claim.

Edited June 5, 2020 at 03:00 AM by Josh Martin

[Joshua Katz]

11 minutes ago, Josh Martin said:

Conceivably, more targeted rules might be adopted, perhaps authorizing or even requiring certain types of deliberative assemblies to meet online, and that rule would be more clearly procedural in nature.

I'd need to see the rule, but I suspect I'd consider these to be substantive too.

[Nathan Zook]

The parliamentary principle that worries me is that principle that the society cannot impose duties on any member in order to participate in business of its meetings beyond those in the bylaws.  It seems to me that hazarding arrest and a substantial fine is such an imposition.

The question of whether distancing orders are procedural or substantive is to me secondary.  But on that issue, if the meeting itself is not a procedure, what exactly is it?  The legislature can set the quorum for meetings.  It can set the date and time of meetings.  It can permit or forbid proxies.  It can set how membership is determined, and how officers are elected.  It might even require that members maintain a certain spacing from each other at all times during and surrounding the meeting.  It seems very odd to me that it can do all these things (and more), but not forbid the meeting entirely for a specified cause.

[Joshua Katz]

1 minute ago, Nathan Zook said:

The parliamentary principle that worries me is that principle that the society cannot impose duties on any member in order to participate in business of its meetings beyond those in the bylaws.  It seems to me that hazarding arrest and a substantial fine is such an imposition.

 

The same principle would apply, with only a difference in degree, if there is heavy traffic. The better approach, I think, is to regard those consequences as imposed by an outside authority, not the organization (which is, in my view, a part of making the procedural/substantive distinction).

2 minutes ago, Nathan Zook said:

But on that issue, if the meeting itself is not a procedure, what exactly is it?

I don't know what this means. Certainly a meeting is not a procedure. If you mean having the meeting, I would say no, that's not a procedure either. A law prohibiting meetings is a law against doing something (meeting), not a law telling you how to do something. Consequently, it is substantive, not procedural. 

4 minutes ago, Nathan Zook said:

It might even require that members maintain a certain spacing from each other at all times during and surrounding the meeting.

In my view, this would also be a substantive law. The chair should rule not well-taken a point of order regarding the position of the seats. However, the seats should be arranged in a manner that complies with substantive law. If they are placed improperly, the better mechanism is a point of privilege impacting the assembly, or simply a motion to move the seats in a manner that complies with the law. It is similar, somewhat, to the proper response if someone moves to hire a hitman. A point of order would, in my opinion, not be well-taken, but it would be highly advisable to vote no on that motion (or to defeat it in some other way, such as objection to consideration).

7 minutes ago, Nathan Zook said:

It seems very odd to me that it can do all these things (and more), but not forbid the meeting entirely for a specified cause.

Keep in mind that the only reason, from a parliamentary perspective, that the legislature can do the things you mention is that RONR says it can. From a legal perspective, it can so as long as there is no law preventing it, such as the Constitution. (Does RONR require organizations to follow unconstitutional procedural statutes? I think the answer to that is much the same as the question of interpreting the law in the first place - when a procedural statute is at issue, the chair and ultimately assembly need to determine how to comply, just as many non-lawyers make legal determinations every minute of every day governing their own behavior.) But the only impact of that, without the rule in RONR, would be to authorize arresting/fining/etc. people and organizations that do not follow the procedural law. Because of the rule in RONR, however, the law becomes enforceable by the chair and assembly within the context of the meeting. That cannot be true of any law impacting what goes on outside of the meeting, including laws prohibiting (or making impractical) meetings. If RONR included substantive law in its rule, then substantive law would be enforceable by means of points of order.

[Nathan Zook]

14 minutes ago, Joshua Katz said:

A law prohibiting meetings is a law against doing something (meeting), not a law telling you how to do something. Consequently, it is substantive, not procedural. 

So I get the distinct impression that the terms "procedural law" and "substantive law" are terms of legal art--with which I am not familiar.  This is probably the source of a chunk of my confusion on the matter.  However, you then go on to say:

18 minutes ago, Joshua Katz said:

31 minutes ago, Nathan Zook said:

It might even require that members maintain a certain spacing from each other at all times during and surrounding the meeting.

In my view, this would also be a substantive law.

So you are saying that the boundary between substantive and procedural law is in the eye of the (experienced) beholder?  Or, more formally, not always clear?  Joy.  Because to me, a limitation on how close people can be is certainly a matter of procedure.  Although, when you say:

22 minutes ago, Joshua Katz said:

That cannot be true of any law impacting what goes on outside of the meeting, including laws prohibiting (or making impractical) meetings.

You appear to be drawing the line at that point.  Which I can understand.

As to the question of constitutionality, I am specifically avoiding that one here!

 

So to summarize my understanding of your points:

• RONR makes procedural law a parliamentary matter.
• "Procedural law" and "substantive law" are terms of legal art.
• Procedural law is about how meetings are to be conducted, but if sufficiently onerous, the requirements become substantive law, which is not part of the rule in RONR.
• Violations of substantive law therefore need to be address by other means, such as Raise a Question of Privilege affecting the assembly, or Reconsider and Enter in the Minutes.

This interpretation I can support (perhaps unhappily).

 

[Joshua Katz]

8 minutes ago, Nathan Zook said:

So you are saying that the boundary between substantive and procedural law is in the eye of the (experienced) beholder?  Or, more formally, not always clear?  Joy.  Because to me, a limitation on how close people can be is certainly a matter of procedure.  Although, when you say:

 

Well, I agree that it's not always clear. But as to this instance, where you sit in a meeting is not a rule about the conduct of business within a meeting. It is not:

9 minutes ago, Nathan Zook said:

• Procedural law is about how meetings are to be conducted, but if sufficiently onerous, the requirements become substantive law, which is not part of the rule in RONR.
•  

because it is onerous, it is because it is not about the conduct of business at a meeting.Again, substantive law tells us what we may and may not do, procedural law tells us how to do things. Distancing rules (to the extent they can be called laws, as I mentioned in a different thread), are substantive because they tell us "do not get this close." But, more importantly, they don't have anything to do with how to conduct business.

[Nathan Zook]

9 minutes ago, Joshua Katz said:

But as to this instance, where you sit in a meeting is not a rule about the conduct of business within a meeting. It is not

 

9 minutes ago, Joshua Katz said:

because it is onerous, it is because it is not about the conduct of business at a meeting.

 

And that's why we have experts.  Okay.

[Josh Martin]

1 hour ago, Nathan Zook said:

The parliamentary principle that worries me is that principle that the society cannot impose duties on any member in order to participate in business of its meetings beyond those in the bylaws.  It seems to me that hazarding arrest and a substantial fine is such an imposition.

Once again, RONR imposes no obligations on members to attend meetings.

To the extent that an organization has its own rules in its bylaws requiring members to attend meetings (and consequences for failing to follow these rules), even in such a case, calling a meeting which may cause members to hazard arrest or a substantial fine does not mean the organization itself is imposing these things. The organization is not fining or arresting members. Yes, the members are in a difficult situation. The organization's members will have to decide whether they prefer to risk the potential consequences imposed by the organization for not attending the meeting against the potential consequences imposed by the government for attending the meeting.

As noted previously, there may be legal consequences for the organization in making this decision, but it remains a legal issue, not a parliamentary one.

1 hour ago, Nathan Zook said:

The question of whether distancing orders are procedural or substantive is to me secondary.  But on that issue, if the meeting itself is not a procedure, what exactly is it?  The legislature can set the quorum for meetings.  It can set the date and time of meetings.  It can permit or forbid proxies.  It can set how membership is determined, and how officers are elected.  It might even require that members maintain a certain spacing from each other at all times during and surrounding the meeting.  It seems very odd to me that it can do all these things (and more), but not forbid the meeting entirely for a specified cause.

My understanding is that the rules in question do not necessarily relate to meetings of deliberative assemblies specifically. If a rule provides (for example), that gatherings of ten persons or more are prohibited, that certainly has consequences for deliberative assemblies, but the rule itself also relates to gatherings which are not in the nature of deliberative assemblies. Therefore, it seems to me that it is not in the nature of a procedural rule.

If the rule were to prohibit meetings of deliberative assemblies specifically, I think it is a more difficult case, but I am warming to Mr. Katz's view that such a rule still would not be procedural in nature. RONR defines rules of order as rules which "relate to the orderly transaction of business in meetings and to the duties of officers in that connection." (RONR, 11th ed., pg. 15) Therefore, it does seem reasonable to suggest that a rule relating to the holding of the meeting itself is not a rule which relates to the "transaction of business in meetings."

This is not at all saying that the state legislature or governor can "not forbid the meeting entirely for a specified cause." Whether the legislature can or cannot do such things is a question which is beyond the scope of RONR and this forum. It's simply saying that the rule by which the legislature does so is not in the nature of a procedural rule.

I really am always puzzled, however, by why people stress out over this issue so much. If people are willing to violate a law or executive order, potentially risking the legal consequences that come with that, then I don't think a provision in RONR telling them not to do that is going to change their mind.

Since we're speculating about this distinction, however, I would also suggest that a rule which requires that members of a deliberative assembly maintain a certain amount of physical spacing from each other at all times during and surrounding a meeting is also not a procedural rule, as such a rule does not appear to relate to the manner in which business is conducted in a deliberative assembly. An organization can adopt rules regarding physical spacing and arrangements of the hall as standing rules, so I don't see why they would become rules of order just because they are found in law instead.

Edited June 5, 2020 at 07:40 PM by Josh Martin

[Nathan Zook]

30 minutes ago, Josh Martin said:

I really am always puzzled, however, by why people stress out over this issue so much. If people are willing to violate a law or executive order, potentially risking the legal consequences that come with that, then I don't think a provision in RONR telling them not to do that is going to change their mind.

In the specific case I have in mind, it affects the basis for challenge of actions taken at the meeting.  And the mindset of the chair who called the meeting is not necessarily the mindset of the members who may or may not attend.  In particular, some did attend the meeting, even though they believe the call was impermissible, specifically to be able to challenge any substantial actions that were proposed at the meeting on that basis.  That is, they valued the rights of their fellow members not to hazard arrest and fine more than their own.

 

[Josh Martin]

20 hours ago, Nathan Zook said:

In the specific case I have in mind, it affects the basis for challenge of actions taken at the meeting.  And the mindset of the chair who called the meeting is not necessarily the mindset of the members who may or may not attend.  In particular, some did attend the meeting, even though they believe the call was impermissible, specifically to be able to challenge any substantial actions that were proposed at the meeting on that basis.  That is, they valued the rights of their fellow members not to hazard arrest and fine more than their own.

Okay. The members still certainly have tools at their disposal, it just won't be in the form of a Point of Order regarding the validity of the meeting. For instance, the following actions could be taken:

With respect to actions proposed at the meeting, members could use motions such as Postpone Indefinitely, Postpone to a Certain Time, and (if a motion is actually adopted) Reconsider and Enter on the Minutes. While the first two of these would require a majority vote, any two members (one to move it and one to second it) can use Reconsider and Enter on the Minutes to cause the effect of the motion to be suspended (just like with Reconsider), but unlike the usual motion to Reconsider, the motion cannot be called up until a future meeting. Another tactic would simply be to immediately move to Adjourn the meeting, which would require a majority vote.

Members could also take disciplinary action against the chairman who called the meeting, such as removing him from office. See your bylaws or check FAQ #20 if they are silent.

You originally proposed that in circumstances like these, unanimous consent should be required to hold a meeting. While RONR has no such requirement, the organization could adopt such a provision in its bylaws if it wished. Perhaps it could read something like this: "In the event that holding a regular or special meeting would conflict with a state law or executive order, the meeting shall be cancelled if any member of the society objects to holding the meeting."

Edited June 6, 2020 at 04:37 PM by Josh Martin

[Rob Elsman]

I have been reading this discussion for several days, and I have yet to be able to distill what is the kernel of the question, as a matter of parliamentary law.  In other words, I'm too stupid to figure out what the heck you folks are talking about.  It sounds interesting, but I just don't get it.  Can someone point me to somewhere in the Right Book that you think might be the focus of your thread?

[Dan Honemann]

4 minutes ago, Rob Elsman said:

I have been reading this discussion for several days, and I have yet to be able to distill what is the kernel of the question, as a matter of parliamentary law.  In other words, I'm too stupid to figure out what the heck you folks are talking about.  It sounds interesting, but I just don't get it.  Can someone point me to somewhere in the Right Book that you think might be the focus of your thread?

🙂

[Nathan Zook]

On 6/6/2020 at 9:46 AM, Rob Elsman said:

I have been reading this discussion for several days, and I have yet to be able to distill what is the kernel of the question, as a matter of parliamentary law.  In other words, I'm too stupid to figure out what the heck you folks are talking about.  It sounds interesting, but I just don't get it.  Can someone point me to somewhere in the Right Book that you think might be the focus of your thread?

No body of law can completely address all related matters perfectly.  That is, after all, why we have RONR, and not just the original RRO.  It has been my concern that the calling of a meeting in defiance of the civil authorities constitutes an imposition on the members (namely, the hazarding of arrest and fine) in order to participate in the meetings of the society beyond what is permitted by RONR.  The response has been that RONR has specifically carved problems this sort as not being part of parliamentary law.  The remedies then become the usual ones when the chairman or an assembly engages in deeply problematic behavior not in violation of RONR.

[Caryn Ann Harlos]

I think this might be highly context dependent on the nature of the assembly as well.  In the groups I am involved in, civil disobedience is routine and some would say, part of the mission.  But in other groups I could see that being highly inappropriate.