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Our legal counsel determined and told us that a certain bylaw item is now illegal according to Federal law. (It

prohibits members from soliciting clients of other members).

How do we expunge it?

Do we need to pass a bylaw amendment to remove the offending item, or may we remove it by relying on legal counsel,

and on the prohibition on having any bylaw that is not allowed by higher laws, or contradicts higher laws?

 

Thank you.

 

yoram

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You should (probably) amend the bylaws to remove the offending portion.

From a parliamentary perspective, you cannot remove it by relying on legal counsel. Just consider what would happen if that worked - you'd have people seeking multiple legal opinions until they find one that allows them to modify the bylaws as they see fit. The only way to amend the bylaws is by following the rules for amendment.

As to the hierarchy of rules as described in RONR, from a parliamentary perspective, it is only procedural laws that outrank your bylaws, not substantive laws. If an organization wishes to behave in a substantively illegal manner, RONR will not stop it. (Of course, if people are willing to behave illegally, they're also probably willing to violate RONR.) What's more, even if the law here were procedural, it would outrank your bylaw, but wouldn't make the bylaw go away. It would remain "on the books" but unenforceable. (For a practical distinction, consider the situation if the law is repealed.) 

In conclusion: amend your bylaws.

Note that all of this is from a parliamentary perspective. For so long as the offending portion remains in effect, there may be legal problems, such as fiduciary responsibilities, with acting on it. But that is beyond the scope of this forum, and does not change the fact that the proper course is to amend the bylaws.

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1 hour ago, Joshua Katz said:

(Of course, if people are willing to behave illegally, they're also probably willing to violate RONR.)

Not necessarily. Suppose it is an organization that wishes to violate what they consider to be an unconstitutional law, in order to create a test case for challenging it. Some of the organizations involved in the civil rights movement come to mind. 

That said, I concur with the substance of Mr. Katz's response.

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11 minutes ago, Weldon Merritt said:

Not necessarily. Suppose it is an organization that wishes to violate what they consider to be an unconstitutional law, in order to create a test case for challenging it. Some of the organizations involved in the civil rights movement come to mind. 

 

Presumably, that would involve a substantive law. Certainly a procedural law can be unconstitutional, and an organization may violate it, but it's unlikely it would be litigated. Stranger things have happened though. In any case, I'm not sure, in the case of a substantive law, that if RONR said that substantive laws outrank the bylaws, that any organization would desire to participate in civil disobedience, but not do it because of a point of order at a meeting. 

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5 minutes ago, Joshua Katz said:

Presumably, that would involve a substantive law. Certainly a procedural law can be unconstitutional, and an organization may violate it, but it's unlikely it would be litigated. Stranger things have happened though. In any case, I'm not sure, in the case of a substantive law, that if RONR said that substantive laws outrank the bylaws, that any organization would desire to participate in civil disobedience, but not do it because of a point of order at a meeting. 

I quite agree. And in fact, RONR didn't distinguish between substantive and procedure law prior to the 10th edition. The 9th edition simply said, "Motions that conflict with ... national, state, or local law, are out of order." RONR (9th ed.), p.. 337. (I haven't checked the relevant language in prior editions, but presumably it was similar.)

In a listing of the changes made in the 10th edition, the book says, "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." RONR (10th ed.), p. XXI.

So organizations voting to engage in civil disobedience prior to the 10th edition were in violation of both substantive law and RONR.

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Thank you gentlemen for your considered and well stated opinions.

That is what I was afraid I'll hear.

We tried to remove the offending bylaw by a proper amendment, and it failed. There is no cure for blindness.

The bylaw prohibits members from soliciting clients of other members. The courts ruled such prohibition illegal in more

than one case. Right now we are stuck. Will try a removal by an amendment again, later.

 

Thanks!

 

Yoram

 

 

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