Difference in remedies

[Tomm]

What's the difference in remedies when it's determined at a later date that a motion violated:

1. a Bylaw

2. a Special Rule of Order

3. a Standing Rule 

[Josh Martin]

On 12/11/2022 at 4:09 PM, Tomm said:

What's the difference in remedies when it's determined at a later date that a motion violated:

This is an extremely difficult question to answer based solely upon generalities, as much of this will depend on the facts of a particular case. The type of rule which is violated is not the only factor to consider in this matter. But I'll do my best. In the event there is a particular situation giving rise to this question, I would suggest describing the specifics.

I would also suggest, generally, reviewing RONR (12th ed.) 23:6.

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:
a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly,
b) a main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion,
c) any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,
d) any action has been taken in violation of a fundamental principle of parliamentary law (25:9), or
e) any action has been taken in violation of a rule protecting absentees, a rule in the bylaws protecting the secrecy of the members' votes (as on a ballot vote), or a rule protecting a basic right of an individual member (25:7, 25:10–11)."

On 12/11/2022 at 4:09 PM, Tomm said:

1. a Bylaw

The adoption of a main motion which conflicts with the bylaws is a continuing breach, unless the rule in question is in the nature of a rule of order. See 23:6(a) above.

In addition, RONR notes that violating a rule in the bylaws protecting the secrecy of the members' votes (such as a rule requiring a ballot vote). See 23:6(e) above.

If the two reasons above which are specific to bylaws are not applicable, there may still be a continuing breach depending on the specifics, as shown in 23:6 above.

On 12/11/2022 at 4:09 PM, Tomm said:

2. a Special Rule of Order

The fact that a motion violates a special rule of order, in and of itself, does not create a continuing breach. There may still be a continuing breach depending on the specifics, as shown in 23:6 above.

On 12/11/2022 at 4:09 PM, Tomm said:

3. a Standing Rule 

If the standing rule is one which is applicable during a meeting, then there is no continuing breach, because such rules may be suspended (by a majority vote). See RONR (12th ed.) 25:15.

If the standing rule is not one which is applicable during a meting, then there is a continuing breach unless the motion was adopted by the vote required to rescind or amend the standing rule. See 23:6(b) above.

[Atul Kapur]

On 12/11/2022 at 6:57 PM, Josh Martin said:

The fact that a motion violates a special rule of order, in and of itself, does not create a continuing breach.

Wouldn't a special order have to have been adopted by means of a "main motion previously adopted and still in force" and thus 23:6(b) would apply?

[Josh Martin]

On 12/11/2022 at 11:59 PM, Atul Kapur said:

Wouldn't a special order have to have been adopted by means of a "main motion previously adopted and still in force" and thus 23:6(b) would apply?

Yes, but I think a 23:6(b) violation is less likely to arise in connection with a special rule of order.

If a motion is made which applies only to part or all of a session, then this is permissible, since a special rule of order may be suspended for part or all of a session (unless there is some other reason this would be a continuing breach).

Certainly a motion could be made to adopt a special rule of order, which inadvertently conflicts with an existing special rule of order. But this seems less likely to pose a problem for special rules of order than for most main motions, because the vote to adopt or amend a special rule of order is the same (unlike an ordinary main motion). As a result, it will likely be the case that "the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion."

I suppose a 23:6(b) violation might arise in circumstances where an attempt is made to Suspend the Rules which will have effect outside the current session. I wonder if the rules pertaining to the freedom of each new session might also be a fundamental principle of parliamentary law, and therefore this may also be a 23:6(d) violation.

Edited December 12, 2022 at 02:37 PM by Josh Martin

[Atul Kapur]

@Josh Martin, it appears that you or I are misunderstanding each other and/or the OP. We are asked about a motion (any motion) that violates a special rule of order. I am saying that it constitutes a continuing breach under 23:6(b) because the special rule of order that was violated came about through its own main motion that is still in force.

The OP does not tell us that the offending, "subsequently adopted" motion was adopted by the vote required to suspend or amend the pre-existing special rule of order. 

I was not saying or implying that  the subsequently adopted motion was about a rule of order -- it could be any motion. 

[Tomm]

This question came about based on the response of Alicia Percell in the thread titled "Motion passed but later found to be against the bylaws". She said:

The subject of this post says that the motion was later found to be against the "bylaws" but the question posted says it went against a "standing rule."  The correct answer depends VERY MUCH on which of those two it is.  Which type of rule does it violate? The bylaws?  Or a standing rule?

The response implies to me that there may be significant difference in remedies for different types of violations. Just curious.

[Josh Martin]

On 12/12/2022 at 10:30 AM, Atul Kapur said:

@Josh Martin, it appears that you or I are misunderstanding each other and/or the OP. We are asked about a motion (any motion) that violates a special rule of order. I am saying that it constitutes a continuing breach under 23:6(b) because the special rule of order that was violated came about through its own main motion that is still in force.

The OP does not tell us that the offending, "subsequently adopted" motion was adopted by the vote required to suspend or amend the pre-existing special rule of order. 

I was not saying or implying that  the subsequently adopted motion was about a rule of order -- it could be any motion. 

Dr. Kapur, could you provide an example of the sort of motion you are thinking of?

I agree that, under certain circumstances, a main motion which conflicts with a special rule of order may cause a 23:6(b) violation. But I do not agree that this will be the case for "any motion" that violates a special rule of order.

On 12/12/2022 at 10:49 AM, Tomm said:

This question came about based on the response of Alicia Percell in the thread titled "Motion passed but later found to be against the bylaws". She said:

The subject of this post says that the motion was later found to be against the "bylaws" but the question posted says it went against a "standing rule."  The correct answer depends VERY MUCH on which of those two it is.  Which type of rule does it violate? The bylaws?  Or a standing rule?

The response implies to me that there may be significant difference in remedies for different types of violations. Just curious.

Whether a violation of a rule constitutes a continuing breach involves a number of factors, which includes, but is not limited to, the level of rule which has been violated. These factors are discussed in greater detail in RONR (12th ed.) 23:6.

Edited December 13, 2022 at 12:36 AM by Josh Martin

[Gary Novosielski]

On 12/12/2022 at 12:59 AM, Atul Kapur said:

Wouldn't a special order have to have been adopted by means of a "main motion previously adopted and still in force" and thus 23:6(b) would apply?

Are we talking about moving a special rule of order that conflicted with a previously adopted special rule of order? 

If it's an ordinary main motion, then any conflict with a special rule of order presumably would be procedural in nature, and not go to the substance of the main motion.  I would imagine the remedy would be to raise a point of order demanding that the special rule be complied with, rather than seeking to have the main motion declared out of order.