Bylaw clause without mentioning statute

[J. J.]

The footnote on p. 580 states that it could be desirable to add the clause "and any statute applicable to this organization that do not authorize the provisions of these bylaws to take precedence," to the parliamentary authority clause of the bylaws.

Suppose the organization does not do include that clause and that there is a statute that permits the bylaws to supersede statute.  Does the lack of the clause permitting RONR  to take precedence in such cases mean that RONR could not take precedence?  I will exempt proxy voting from my question.

[Atul Kapur]

Are you asking, in other words, whether a provision in RONR would be sufficient to supersede the statute when the statute includes language to the effect that "unless the bylaws provide otherwise"?

I think the answer to the reworded question is No, whether or not the p. 580 footnote wording is in the bylaws.

[J. J.]

25 minutes ago, Atul Kapur said:

Are you asking, in other words, whether a provision in RONR would be sufficient to supersede the statute when the statute includes language to the effect that "unless the bylaws provide otherwise"?

I think the answer to the reworded question is No, whether or not the p. 580 footnote wording is in the bylaws.

I'll go with the rewording.

[Joshua Katz]

If the rewording is accepted, I agree with Dr. Kapur. As a general matter, a parliamentary authority named in the bylaws could supersede the statute when the statue allows for a bylaw provision to supersede it. However, that certainly wouldn't be the case if RONR said "this provision does not supersede a contrary statute, even if that statute allows for bylaw provisions to supersede it." RONR doesn't say that, but it does say that adopting certain text will cause it to supersede the statute. It seems to me, then, that RONR is also instructing us that, in the absence of such text, it does not supersede the statute.

[J. J.]

2 minutes ago, Joshua Katz said:

If the rewording is accepted, I agree with Dr. Kapur. As a general matter, a parliamentary authority named in the bylaws could supersede the statute when the statue allows for a bylaw provision to supersede it.

My intent of the question, and a the statement, is the opposite.

Perhaps this would be clearer.  Statute says that the society can do X, unless their bylaws say otherwise.  X in this case could to levy an assessment on its members.  The society is bound by this statute.
The society establishes RONR in its bylaws, using the language on p. 580, but does not include the clause, "... and any statute applicable to this organization that do not authorize the provisions of these bylaws to take precedence."  They bylaws do not provide for levying assessments.    Would the society be able to do X, e.g. levy an assessment upon its members.

(Again, X will not be proxy voting in this example.)

 

 

 

[Shmuel Gerber]

4 hours ago, Joshua Katz said:

when the statue allows for a bylaw provision to supersede it

Statues have very tenuous abilities these days.

[Shmuel Gerber]

4 hours ago, Joshua Katz said:

If the rewording is accepted, I agree with Dr. Kapur. . . . It seems to me, then, that RONR is also instructing us that, in the absence of such text, it does not supersede the statute.

But Dr. Kapur said: "I think the answer to the reworded question is No, whether or not the p. 580 footnote wording is in the bylaws."

It seems that you are not agreeing with him.

[Joshua Katz]

1 minute ago, Shmuel Gerber said:

But Dr. Kapur said: "I think the answer to the reworded question is No, whether or not the p. 580 footnote wording is in the bylaws."

It seems that you are not agreeing with him.

Fair. I agree with him about the case under discussion.

[Shmuel Gerber]

4 hours ago, J. J. said:

Statute says that the society can do X, unless their bylaws say otherwise.  X in this case could to levy an assessment on its members.  The society is bound by this statute.
The society establishes RONR in its bylaws, using the language on p. 580, but does not include the clause, "... and any statute applicable to this organization that do not authorize the provisions of these bylaws to take precedence."  They bylaws do not provide for levying assessments.    Would the society be able to do X, e.g. levy an assessment upon its members.

J. J., I think you've picked probably one of the most difficult examples, because the rule that "members cannot be assessed additional payment aside from their dues unless it is provided for in the bylaws" is not a procedural rule at all. The footnote on page 580 refers to procedural rules.

[Shmuel Gerber]

4 hours ago, Joshua Katz said:

RONR doesn't say that, but it does say that adopting certain text will cause it to supersede the statute. It seems to me, then, that RONR is also instructing us that, in the absence of such text, it does not supersede the statute.

I disagree. RONR says that "it may be desirable" to add certain text. The reason it's desirable to add that text is to make as clear and definite as possible what the intended effect of the "Parliamentary Authority" provision is. Those words are desirable because otherwise people will tend to argue about the meaning of the provision, not because the provision definitely means the opposite without those words.

[J. J.]

5 hours ago, Shmuel Gerber said:

J. J., I think you've picked probably one of the most difficult examples, because the rule that "members cannot be assessed additional payment aside from their dues unless it is provided for in the bylaws" is not a procedural rule at all. The footnote on page 580 refers to procedural rules.

Yet, RONR says that a society could not do that without bylaw authorization p. 572, ll. 2-4.  I would certainly say that, in the absence of a bylaw or statutory provision, a motion "to assess the members _____," would be subject to a point of order, at any point during the continuation of the breach.