Robert's in US Court of Appeals Decision

[Jim Slaughter]

This case mentioning Robert's Rules appeared in the "Roberts Rules in the News" page of my website. It's a bit of a unicorn. While many news articles mention Robert's, few court cases do. Far fewer federal court opinions do, and this is from a US Court of Appeals, which is shockingly rare. So even though the decision is not that significant, it may be of interest:
Burton v City of Detroit

If you're interested in how often and how Robert's typically makes it into the news, view https://www.jimslaughter.com/roberts-rules-in-the-news

Jim

[Dan Honemann]

Well, we can all certainly agree with the court that the rules in RONR do not, and are not intended to, supersede validly enacted state law.  

[Greg Goodwiller, PRP]

Actually, I think this ruling is relevant and useful. I field many questions relating to a chair’s authority when one or more members are disruptive. This makes it clear that at some point, responses of leaders to disruptive behavior can transcend RONR requirements (namely, when the behavior violates civil ordinances or laws of conduct).

[laser158689]

What should Burton have done differently?

Can exercising your rights under RONR be seen as "disruptive" to the Chair (and outside parties, such as members of law enforcement)?  Many of the actions in 62 would appear "disruptive" without the context found there.

 

[Richard Brown]

I find the opinion very troublesome. I hope to come back and add more after rereading the opinion.

@Jim SlaughterI’m wondering: is there a video of that portion of the meeting available? 

[Josh Martin]

Sticking solely to the rules under RONR, and not regarding Michigan state law or philosophical discussions of civil disobedience, I would answer as follows.

On 12/6/2022 at 4:55 PM, laser158689 said:

What should Burton have done differently?

I'm not entirely certain because the facts are somewhat unclear. It is unclear what exactly was the pending business before the commission at the time this incident occurred, for example. Additionally, we are told various comments were ruled out of order, but the reasoning for those rulings is not clear.

Nonetheless, if the chair rules comments by a member out of order and the member disagrees with this ruling, the proper course of action is for the member to appeal from the decision of the chair, not to simply ignore the chair. So it would seem to me that Commissioner Burton should have appealed from the decision of the chair, which would place the decision in the hands of the assembly.

Based upon the limited facts available, I cannot reach any conclusion as to the correctness of the chair's ruling.

On 12/6/2022 at 4:55 PM, laser158689 said:

Can exercising your rights under RONR be seen as "disruptive" to the Chair (and outside parties, such as members of law enforcement)?

Simply exercising your rights under RONR, in and of itself, should not be seen as "disruptive" to the chair. If it is, the assembly should get a new chair.

What may or may not be seen as disruptive to outside parties, such as members of law enforcement, is not a parliamentary issue. What is relevant as a parliamentary matter is whether the behavior is disruptive to the assembly.

Edited December 6, 2022 at 11:50 PM by Josh Martin

[puzzling]

On 12/6/2022 at 10:55 PM, laser158689 said:

What should Burton have done differently?

Can exercising your rights under RONR be seen as "disruptive" to the Chair (and outside parties, such as members of law enforcement)?  Many of the actions in 62 would appear "disruptive" without the context found there.

 

if I interpretate RONR 61:14 to 22 correctly (the text is rather terse) 

first the chair needs to name the offender and state that he is out of order and should sit down.

If the offender doesn't  do this.

the chair can then ask " what penalty shall be imposed on the member?"

the offender may have a say in this but can be required to leave the hall during the consideration of his penalty. 

 if the assembly comes to a motion that the offender needs to leave the hall for the remainder of the meeting it can decide that by majority vote.

After this the chair can ask members to remove the offender from the hall.

this is all a bit my interpretation if I made mistakes in it please correct me.

[Greg Goodwiller, PRP]

This discussion is all certainly relevant, but an important point from the case is that any local, regional (county), state, or federal law supersedes RONR. So when it comes to "disruptive" behavior in a meeting, it behooves us to know how our particular civil authorities interpret that, and what actions are available and/or mandated in response.

[Joshua Katz]

On 12/6/2022 at 7:36 PM, Greg Goodwiller, PRP said:

This discussion is all certainly relevant, but an important point from the case is that any local, regional (county), state, or federal law supersedes RONR. So when it comes to "disruptive" behavior in a meeting, it behooves us to know how our particular civil authorities interpret that, and what actions are available and/or mandated in response.

I don't have it in front of me, but doesn't RONR say statutes supersede all other rules?

[rulesasker]

On 12/6/2022 at 8:03 PM, Joshua Katz said:

I don't have it in front of me, but doesn't RONR say statutes supersede all other rules?

In 2:18 it lists local, state, or national law along with bylaws and special rules of order that supersede the parliamentary authority. So one question is how you know whether state or national law supersedes the bylaws or vise versa?

A somewhat connected question is, if a society wants to disobey the law, shouldn't Robert's Rules allow them to do it? For example, under an oppressive government where freedom of association is restricted, shouldn't a society be able to organize a meeting using RONR without someone saying the whole meeting is out of order because of a statute against public meetings? I would think the society should be allowed to decide which laws to obey (at least in RONR's eyes).

[Atul Kapur]

On 12/6/2022 at 11:00 PM, rulesasker said:

one question is how you know whether state or national law supersedes the bylaws or vise versa?

Whichever law applies to the organization is the one that supersedes the bylaws. If more than one level has laws that apply, hopefully they don't conflict.

There is no vice-versa: the bylaws do not supersede law.

On 12/6/2022 at 11:00 PM, rulesasker said:

if a society wants to disobey the law, shouldn't Robert's Rules allow them to do it?

It does, with a specific exception. The restriction is, as noted in 1:5 (emphasis added),

Quote

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.

There is a footnote that refers to lawmaking bodies:

Quote

If the assembly is itself a lawmaking body, its actions are subject to applicable law of a higher authority—as, for example, the acts of a state legislature in the United States, which must not be in conflict with the constitution of that state, with national law, or with the national constitution.

This is reinforced by 10:26(1)

Quote

1)  . . . to 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

Note that RONR specifies procedural rules in laws.

Organizations are free to decide to engage in civil disobedience (even uncivil, I suppose, as long as they observe decorum during debate on the motion to engage in uncivil disobediance).

Edited December 7, 2022 at 05:49 AM by Atul Kapur

[Dan Honemann]

On 12/7/2022 at 12:47 AM, Atul Kapur said:

Organizations are free to decide to engage in civil disobedience (even uncivil, I suppose, as long as they observe decorum during debate on the motion to engage in uncivil disobediance).

But keep in mind that, even if an organization is free, as a matter of parliamentary law, to decide to engage in an action which is a violation of state law, and it takes such action, the fact that it has violated no rule in RONR will not protect it from being subjected to whatever penalty is imposed by state law for such a violation.

[Joshua Katz]

On 12/6/2022 at 10:00 PM, rulesasker said:

So one question is how you know whether state or national law supersedes the bylaws or vise versa?

Whatever law is applicable. Choice of law questions need to be asked to an attorney, though.

On 12/6/2022 at 10:00 PM, rulesasker said:

A somewhat connected question is, if a society wants to disobey the law, shouldn't Robert's Rules allow them to do it? For example, under an oppressive government where freedom of association is restricted, shouldn't a society be able to organize a meeting using RONR without someone saying the whole meeting is out of order because of a statute against public meetings? I would think the society should be allowed to decide which laws to obey (at least in RONR's eyes).

It does allow you to break substantive law. 

[Dan Honemann]

And I say again, keep in mind that, even if an organization is free, as a matter of parliamentary law, to decide to engage in an action which is a violation of state law, and it takes such action, the fact that it has violated no rule in RONR will not protect it from being subjected to whatever penalty is imposed by state law for such a violation.

[puzzling]

I am still puzzling about the practicalities of RONR 63:14 -22 in such a case.

a disruptive offender can easily stop the assembly from reaching a decision, (just by being disruptive) 

while for removing him from the hall (even for a short time) needs a decicion of the assembly (the chair has not the authority to rule so  by himself) 

I think it would be better if the chair could bring a motion like "member X is disrupting the meeting  and is ordered to leave the hall for y minutes, so that the other members  can discuss how to devide on what just happened" directly to a vote. ( the assembly being not able to do anything else than a simple voice vote)

 

Edited December 7, 2022 at 01:15 PM by puzzling
typo

[Weldon Merritt]

On 12/7/2022 at 5:36 AM, Dan Honemann said:

And I say again, keep in mind that, even if an organization is free, as a matter of parliamentary law, to decide to engage in an action which is a violation of state law, and it takes such action, the fact that it has violated no rule in RONR will not protect it from being subjected to whatever penalty is imposed by state law for such a violation.

Yes, and that would be a good argument to use in debate against the motion. But it could be that the organization wants to deliberately violate the law, inviting enforcement action to challenge the constitutionality of the law.

[Dan Honemann]

On 12/7/2022 at 10:08 AM, Weldon Merritt said:

Yes, and that would be a good argument to use in debate against the motion. But it could be that the organization wants to deliberately violate the law, inviting enforcement action to challenge the constitutionality of the law.

Yes, and RONR throws up no road blocks to prevent the organization from doing so.

But we seem to keep repeating ourselves.  🙂

[Josh Martin]

On 12/6/2022 at 6:26 PM, puzzling said:

if I interpretate RONR 61:14 to 22 correctly (the text is rather terse) 

first the chair needs to name the offender and state that he is out of order and should sit down.

If the offender doesn't  do this.

the chair can then ask " what penalty shall be imposed on the member?"

the offender may have a say in this but can be required to leave the hall during the consideration of his penalty. 

 if the assembly comes to a motion that the offender needs to leave the hall for the remainder of the meeting it can decide that by majority vote.

After this the chair can ask members to remove the offender from the hall.

this is all a bit my interpretation if I made mistakes in it please correct me.

I believe Laser's question was what the commissioner should have done differently, but to the question of what the chair should have done differently, I am in agreement.

On 12/6/2022 at 7:36 PM, Greg Goodwiller, PRP said:

This discussion is all certainly relevant, but an important point from the case is that any local, regional (county), state, or federal law supersedes RONR. So when it comes to "disruptive" behavior in a meeting, it behooves us to know how our particular civil authorities interpret that, and what actions are available and/or mandated in response.

On 12/6/2022 at 8:03 PM, Joshua Katz said:

I don't have it in front of me, but doesn't RONR say statutes supersede all other rules?

Certainly, state law supersedes RONR in any respects where they are in conflict.

But it's not clear to me that the court's ruling in fact means that it was proper for the chair to remove the member on his own authority, simply that the member had no legal remedy in the event that the chair did so.

Indeed, the court specifically avoids the question of whether the commission acted in accordance with its rules.

"Regardless of whether the Rules were followed or not, Burton disturbed the meeting and therefore violated state law, providing the Officials with probable cause to arrest him."

It would seem to me that, as a parliamentary matter, the assembly can and should order a member removed from a meeting only through the procedures specified in RONR or the commission's rules.

On 12/6/2022 at 10:00 PM, rulesasker said:

In 2:18 it lists local, state, or national law along with bylaws and special rules of order that supersede the parliamentary authority. So one question is how you know whether state or national law supersedes the bylaws or vise versa?

As a parliamentary matter, national and state law supersedes the bylaws in matters relating to parliamentary procedure. Laws not relating to parliamentary procedure are not a parliamentary question.

On 12/6/2022 at 10:00 PM, rulesasker said:

A somewhat connected question is, if a society wants to disobey the law, shouldn't Robert's Rules allow them to do it?

Nothing in Robert's Rules prevents a society from disobeying the law, except as it relates to procedural rules. Even in this connection, I think this rule could conceivably be overridden by a rule of the society. The rule in question is based upon an assumption that the society will find the procedural rules in applicable law to be part of the common parliamentary law as it applies to the society, but conceivably a particular society could disagree on this point.

But in any event, the law may well have consequences for the society violating the law.

On 12/6/2022 at 10:00 PM, rulesasker said:

For example, under an oppressive government where freedom of association is restricted, shouldn't a society be able to organize a meeting using RONR without someone saying the whole meeting is out of order because of a statute against public meetings?

Nothing in RONR would stop the society from doing so.

But this discussion always baffles me, because the consequences for violating the law are generally considerably more severe than the consequences for violating RONR, so it is not clear to me what practical difference it makes what RONR says on this matter.

On 12/7/2022 at 7:14 AM, puzzling said:

I think it would be better if the chair could bring a motion like "member X is disrupting the meeting  and is ordered to leave the hall for y minutes, so that the other members  can discuss how to devide on what just happened" directly to a vote. ( the assembly being not able to do anything else than a simple voice vote)

RONR explicitly provides the option for the chair to do exactly this.

"The offending member can be required to leave the hall during the consideration of his penalty, but he must be allowed to present his defense briefly first. A motion to require the member's departure during consideration of the penalty—which may be assumed by the chair if he thinks it appropriate—is undebatable, is unamendable, and requires a majority vote." RONR (12th ed.) 61:16

Edited December 7, 2022 at 04:50 PM by Josh Martin

[Joshua Katz]

On 12/7/2022 at 10:48 AM, Josh Martin said:

Certainly, state law supersedes RONR in any respects where they are in conflict.

 

What I was wondering about was what to do with common law court decisions in state court, faced with a text in RONR specifying statute.

[Josh Martin]

On 12/7/2022 at 12:56 PM, Joshua Katz said:

What I was wondering about was what to do with common law court decisions in state court, faced with a text in RONR specifying statute.

Thank you for this clarification. Some of the relevant rules in RONR are as follows.

"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 (12th ed.) 1:5

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2

"When a society or an assembly has adopted a particular parliamentary manual—such as this book—as its authority, the rules contained in that manual are binding upon it in all cases where they are not inconsistent with the bylaws (or constitution) of the body, any of its special rules of order, or any provisions of local, state, or national law applying to the particular type of organization. What another manual may have to say in conflict with the adopted parliamentary authority then has no bearing on the case. In matters on which an organization's adopted parliamentary authority is silent, provisions found in other works on parliamentary law may be persuasive—that is, they may carry weight in the absence of overriding reasons for following a different course—but they are not binding on the body." RONR (12th ed.) 2:18

There are other similar statements in other places throughout RONR. In each instance, the text refers to "national, state, or local law" affecting the assembly. Sometimes the words are in a different order, and in some cases "federal" is used in place of "national." But in every case, the text is general in nature, and does not refer specifically to statute or particular branches of government. As a consequence, I do not think this rule is limited to procedural rules adopted in applicable statute or ordinance by a national, state, or local legislature, but would also encompass applicable rulings by courts, or applicable executive orders, and so forth.

Edited December 7, 2022 at 07:12 PM by Josh Martin

[Joshua Katz]

Thank you. Seems I misremembered. With these cites, I agree that it extends to all sources of law from any level of government. I would add that the first one seems the strongest case for the inclusion of regulations and so on, as it refers to rules prescribed by law, while the others simply refer to laws.

Edited December 7, 2022 at 07:44 PM by Joshua Katz

[Shmuel Gerber]

On 12/7/2022 at 2:09 PM, Josh Martin said:

There are other similar statements in other places throughout RONR. In each instance, the text refers to "national, state, or local law" affecting the assembly. Sometimes the words are in a different order, and in some cases "federal" is used in place of "national." But in every case, the text is general in nature, and does not refer specifically to statute or particular branches of government. As a consequence, I do not think this rule is limited to procedural rules adopted in applicable statute or ordinance by a national, state, or local legislature, but would also encompass applicable rulings by courts, or applicable executive orders, and so forth.

But in 56:49n1, RONR does say, "Where a particular type of organization is subject to local, state, or national law containing provisions relating to its procedure—as for certain procedures in a labor organization, in condominium associations, or in an incorporated association—it may be desirable to add at this point a phrase such as, “and any statutes applicable to this organization that do not authorize the provisions of these bylaws to take precedence.” However, such statutes (those that do not authorize bylaws to take precedence) supersede all rules of the organization which conflict with them, even if no mention is made of it in the bylaws."

Maybe this paragraph would read more consistent with itself if "law" was used throughout, but I think it is obvious that if there were some legal provision, such as a rule in a state constitution or a city charter, that in some sense might be distinguished from a "statute," the reasoning would apply just the same.

[Shmuel Gerber]

On 12/7/2022 at 2:09 PM, Josh Martin said:

I do not think this rule is limited to procedural rules adopted in applicable statute or ordinance by a national, state, or local legislature, but would also encompass applicable rulings by courts, or applicable executive orders, and so forth.

I agree with this idea in general, and I agree that if an organization is under a court order to follow certain procedures at its meetings, those procedures can be enforced by the chair under the rules in RONR. However — and this is getting outside the scope of this forum, and I'm not a lawyer so take my musings for what they are worth — my understanding is that under the system presently in force in the U.S., rulings by a court are not actually laws and do not make or change laws. The courts, at least in theory, cannot make laws that apply outside the courts. In making rulings that bind the parties in a case, the court can definitively say what the law is, and that rationale will be used as precedent in future cases and will serve as guidance for those who must obey and enforce the law; but the law itself needs to (again, at least in theory) have come from some other (legislative) source. 

[Joshua Katz]

On 12/7/2022 at 1:55 PM, Shmuel Gerber said:

but the law itself needs to (again, at least in theory) have come from some other (legislative) source. 

Our system imported the common law, which has no point of origin outside the courts. We have canons against derogation of the common law, i.e. if a statute is displacing common law, it must be clear and explicit, or else it will be read not to do so. So I don't agree that all law needs a source outside the courts. 

 

On 12/7/2022 at 1:55 PM, Shmuel Gerber said:

In making rulings that bind the parties in a case, the court can definitively say what the law is, and that rationale will be used as precedent in future cases

Depends. A trial court ruling, and its rationale, holds no precedential value. Appellate rulings do. Also, rationales have no preclusive effect, only judgments do. The rationale is a guide for how the next court should apply the precedent, when it applies, and so on, but the precedent is the holding. 

Edited December 7, 2022 at 09:05 PM by Joshua Katz

[laser158689]

@Josh Martin Thanks for the concise answers to my original question.

@Richard Brown  This was the first, best video I found.  Audio is not good.
Video of the meeting from an member of the audience