Motions violating procedural rules in legislation not in order. What did it say prior?

[Atul Kapur]

The language in RONR (12th ed.) 1:5, 10:26(1), and 10:55, 23:6(c), 25:1, and 39:5 all refer to "applicable procedural rules prescribed by local, state, or national law" or similar language.

I understand that this language was changed between the 9th and 10th editions to specify procedural rules in law. As my collection of past editions is incomplete and I couldn't find the answer by searching this forum, can someone please tell me what the previous language was? Thanks. Is there a summary of the rationale behind the change?

[Guest Zev]

Previously, this subject was dealt with the following text:

Quote

Aside from rules of parliamentary procedure and the particular rules of an assembly, the actions of any deliberative body are also subject to applicable local, state, or national law and would be null and void if in violation of such law.

RONR 9th edition (1990), page 3.

This text was dropped and instead became

Quote

Aside from rules of parliamentary procedure and the particular rules of an assembly, the actions of any deliberative body are also subject to applicable procedural rules prescribed by local, state, or national law and would be null and void if in violation of such law.

RONR 10th edition (2000), page 3-4.

2 hours ago, Atul Kapur said:

Is there a summary of the rationale behind the change?

 I do not know of one. However, I have my own opinion as to the justification for this change.

[J. J.]

It was that parliamentary procedure deals with the process, not the substance of the decision (10 edition, p. XX1). 

There were also two other reasons:

1.  Unless an attorney, parliamentarians should not be giving legal advice.

2.  The assembly may wish to violate the law to test the legality of the that law.

On the whole, I think it was a good change. 

[Richard Brown]

57 minutes ago, J. J. said:

On the whole, I think it was a good change. 

I agree that it was a good change and that those were probably the reasons for it. 

[Josh Martin]

5 hours ago, Atul Kapur said:

The language in RONR (12th ed.) 1:5, 10:26(1), and 10:55, 23:6(c), 25:1, and 39:5 all refer to "applicable procedural rules prescribed by local, state, or national law" or similar language.

I understand that this language was changed between the 9th and 10th editions to specify procedural rules in law. As my collection of past editions is incomplete and I couldn't find the answer by searching this forum, can someone please tell me what the previous language was? Thanks. Is there a summary of the rationale behind the change?

"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. For similar reasons, the rule prohibiting rescission of a motion which is in the nature of a contract has been eliminated." RONR (10th ed.) pg. xxi

[Atul Kapur]

Thanks, folks. Appreciate the help.

[Shmuel Gerber]

There was also a three-part series of articles published in the NP Magazine in the first three quarters of 2001.

This is what it says on the point:

Law: Procedural vs. Substantive

It has long been recognized that "Parliamentary Law refers ... to the customs and rules for conducting business..." in deliberative assemblies. ROR (5th ed.), p. 15. (1) It deals with the process for consideration of decisions to be taken by a deliberative assembly, rather than with the substance of those decisions. It is not truly the province of parliamentary law or of parliamentarians to deal with the wisdom or propriety of the measures that an assembly may consider.

In one respect, however, previous editions have been inconsistent with this basic principle. They have enunciated the rule, without qualification, that "No main motion is in order which conflicts with national, state, or local law..." RONR (9th ed.), p. 108. This has meant that a point of order could be lodged based, not on an interpretation of parliamentary procedure, but rather on a legal opinion, for example, that a proposal to construct a building would violate a zoning ordinance, that a proposed financial transaction would be in violation of the tax laws, or that a proposal to conduct certain actions at a planned march or rally would constitute civil disobedience. Although it is undoubtedly desirable that an assembly be advised, perhaps by its legal counsel, when a proposed action risks violating the law, such a determination is not a matter of parliamentary procedure.

On the other hand, some laws do specifically impact matters within the proper realm of parliamentary procedure. For example, the state codes under which many organizations are incorporated typically contain rules relating to the calling of meetings, the vote required to take action, and other procedural matters. Similarly, the procedures at union meetings are often governed by federal law. Such statutory provisions of course supersede conflicting provisions in an incorporated organization's bylaws, parliamentary authority, and other rules, and are appropriate bases for a parliamentary ruling.

Accordingly, in the Tenth Edition the rule now reads, "[T]o the extent that procedural rules applicable to the organization or assembly are prescribed by federal, state, or local law, no main motion is in order that conflicts with such rules." RONR (10th ed.), p. 106, l. 22-25.

[Shmuel Gerber]

The first article in the series was titled, "Significant Changes in the Tenth Edition of RONR, Part I".

I leave it as an exercise to the reader to infer what the other two articles were called. (Hint to longtime members of the forum: No crocodiles or banana slugs were involved in the titles of these articles.)

[Atul Kapur]

Thank you, @Shmuel Gerber

[alanh49]

Well, I never thought of the old rule, the one that said a motion that conflicts with state or federal law is null and void, as so much a rule but more a statement of fact. A Motion of that kind may not be out of order now, but I still think they are void if adopted. 

[Weldon Merritt]

21 minutes ago, alanh49 said:

Well, I never thought of the old rule, the one that said a motion that conflicts with state or federal law is null and void, as so much a rule but more a statement of fact. A Motion of that kind may not be out of order now, but I still think they are void if adopted. 

Why would it be void? It certainly may be ill-advised, but it would not automatically be void. For example, the organization may want to deliberately violate a law to set up a text case to challenge it.

[alanh49]

Well, if they win, that is one thing, but if not, it's not going to be much of a defense that RONR now says it was ok to make and adopt a motion to do something illegal 

[Gary Novosielski]

2 hours ago, alanh49 said:

Well, if they win, that is one thing, but if not, it's not going to be much of a defense that RONR now says it was ok to make and adopt a motion to do something illegal 

No, it's not any defense at all, but nobody is claiming it would be.  It's just that as a strictly procedural matter, a motion cannot be ruled out of order simply because it would be illegal to carry it out. 

This will be good news to the members of the National Bank Robbers Association, but no, it won't keep anyone out of jail.

[Josh Martin]

13 hours ago, alanh49 said:

Well, I never thought of the old rule, the one that said a motion that conflicts with state or federal law is null and void, as so much a rule but more a statement of fact. A Motion of that kind may not be out of order now, but I still think they are void if adopted. 

 

11 hours ago, alanh49 said:

Well, if they win, that is one thing, but if not, it's not going to be much of a defense that RONR now says it was ok to make and adopt a motion to do something illegal 

If a motion is adopted which conflicts with a nonprocedural rule in state or federal law, but violates no parliamentary rule, then the adopted motion is valid as a parliamentary matter. The motion cannot be ruled void by the chair on these grounds. It is of course correct, however, that this provides no defense in a court of law.

I also do not think that that "RONR now says it was ok to make and adopt a motion to do something illegal" is an accurate summary of what RONR says on this matter. Rather, it says that such matters are outside the scope of parliamentary law. Whether an organization should adopt a motion which is in violation of law is a decision for the assembly to make, not the authors of RONR.

"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.) pg. xxi

I would note that there certainly is a history of deliberative assemblies taking actions in violation of the established law of the time, involving such matters as various struggles over civil rights and the formation of the country for which RONR is the foremost parliamentary authority, so if the previous wording was intended to be "a statement of fact," it doesn't seem to be a very accurate one.

Edited March 23, 2021 at 03:31 PM by Josh Martin

[J. J.]

I would say that a motion cannot be ruled out of order solely the ground that it is illegal.  The sole exception is if the violation is of a procedural rule created by law.

That said, there is no bar against a member raising the issue of legality of the motion, in debate.  A member, obeying the rules of debate, may state and make the argument that the motion is illegal, or authorizes an illegal action, and should not be adopted for that reason.  

[Weldon Merritt]

1 hour ago, J. J. said:

I would say that a motion cannot be ruled out of order solely the ground that it is illegal.  The sole exception is if the violation is of a procedural rule created by law.

That said, there is no bar against a member raising the issue of legality of the motion, in debate.  A member, obeying the rules of debate, may state and make the argument that the motion is illegal, or authorizes an illegal action, and should not be adopted for that reason.  

I certainly concur with that. And I also would say that, depending on the specific motion, it perhaps could be ruled out of order on other grounds. For example, a motion to turn in a false fire alarm to test the fire department's response time might be ruled out of order as frivolous or absurd. RONR 39:3. At least, if I were the chair, I would so rule, and let someone appeal if they thought otherwise. 

[RSW]

On 3/24/2021 at 2:47 PM, Weldon Merritt said:

On 3/24/2021 at 12:52 PM, J. J. said:

 

I certainly concur with that. And I also would say that, depending on the specific motion, it perhaps could be ruled out of order on other grounds. For example, a motion to turn in a false fire alarm to test the fire department's response time might be ruled out of order as frivolous or absurd.

Depending on the flagrancy, even if it's not strictly "out of order" this feels like the sort of situation where an "objection to the consideration of the question" would potentially be a useful tool.

[Weldon Merritt]

1 hour ago, RSW said:

Depending on the flagrancy, even if it's not strictly "out of order" this feels like the sort of situation where an "objection to the consideration of the question" would potentially be a useful tool.

Yes, that's another good possibility.

[J. J.]

3 hours ago, RSW said:

Depending on the flagrancy, even if it's not strictly "out of order" this feels like the sort of situation where an "objection to the consideration of the question" would potentially be a useful tool.

Assuming that it is an original main motion, yes. 

[Shmuel Gerber]

On 3/24/2021 at 3:47 PM, Weldon Merritt said:

I certainly concur with that. And I also would say that, depending on the specific motion, it perhaps could be ruled out of order on other grounds. For example, a motion to turn in a false fire alarm to test the fire department's response time might be ruled out of order as frivolous or absurd. RONR 39:3. At least, if I were the chair, I would so rule, and let someone appeal if they thought otherwise. 

Since the subject has been revived: I don't see how it is the chair's job to rule out of order a motion that a member is seriously proposing, simply because what it proposes seems to the chair like a foolish thing to do. A frivolous motion would be something like "I move to declare that the president of the organization is the king of England" (assuming there is no possibility of this being serious). For the chair to rule a motion out of order as frivolous or absurd, it should be frivolous or absurd on an objective basis, not simply as a matter of the chair's personal opinion of what the organization should or shouldn't do.

[Weldon Merritt]

2 hours ago, Shmuel Gerber said:

For the chair to rule a motion out of order as frivolous or absurd, it should be frivolous or absurd on an objective basis, not simply as a matter of the chair's personal opinion of what the organization should or shouldn't do.

You don't think that turning in a false fire alarm (for example) would be objectively "frivolous or absurd"? I do, and would not hesitate to so rule. If at least two members disagree, they would be free to appeal. This is, of course, an extreme example. I certainly can envision many less extreme example that I might find personally objectionable but that I could not, in good conscience, rule out of order. 

[Shmuel Gerber]

8 hours ago, Weldon Merritt said:

You don't think that turning in a false fire alarm (for example) would be objectively "frivolous or absurd"? I do, and would not hesitate to so rule. If at least two members disagree, they would be free to appeal. This is, of course, an extreme example. I certainly can envision many less extreme example that I might find personally objectionable but that I could not, in good conscience, rule out of order. 

Well, you said that the purpose was to test the fire department's response time, which on the face of it seems like an actual proposal and not something totally frivolous. 

[Weldon Merritt]

11 hours ago, Shmuel Gerber said:

Well, you said that the purpose was to test the fire department's response time, which on the face of it seems like an actual proposal and not something totally frivolous. 

Maybe so. But I still find it hard to believe that any rational person would seriously propose doing so, even for the ostensible purpose of testing the FD's response time. Of course, if we assume that most of the members are rational, it probably wouldn't take long for the motion to be soundly defeated even if it is not ruled out of order. 

[Joshua Katz]

On 4/8/2021 at 1:16 PM, Shmuel Gerber said:

Since the subject has been revived: I don't see how it is the chair's job to rule out of order a motion that a member is seriously proposing, simply because what it proposes seems to the chair like a foolish thing to do. A frivolous motion would be something like "I move to declare that the president of the organization is the king of England" (assuming there is no possibility of this being serious). For the chair to rule a motion out of order as frivolous or absurd, it should be frivolous or absurd on an objective basis, not simply as a matter of the chair's personal opinion of what the organization should or shouldn't do.

I agree with Mr. Gerber about the fire alarm example. I'm less sure about the king of England example. It certainly is feasible and within the realm of possibility for an organization to issue a statement saying "our president is the king of England." If the motion were to actually install him as king of England, and the organization were, say, the Kiwanis, (as opposed to an anti-Britain group trying to revive the full power of the monarchy in England), then I would agree.

[Guest Zev]

On 4/8/2021 at 10:16 AM, Shmuel Gerber said:

...it should be frivolous or absurd on an objective basis,...

I was under the impression that the determination whether the motion had an objective basis or not was contingent on what the bylaws said was the society's object. Consequently, the local chapter of the Kiwanis and the local chapter of the "Secret Society of County Firebugs" may handle such motions in completely different ways.