Statutory interpretation question.

[Atul Kapur]

A hypothetical, apparently. From the OP:

On 5/22/2023 at 4:46 PM, Guest FreedomThroughRules said:

This organization happens to be a political party. So imagine that we're talking about a hypothetical political party called the National Unity Party.

[Gary Novosielski]

On 5/24/2023 at 3:54 PM, Shmuel Gerber said:

Then what the [bleep] have we been talking about for the past 20+ responses? 

Yeah.  "Funny" I should mention it.   Everything I mention, it turns out was not as described originally.

 

[Josh Martin]

I will point out at this time that this appears to be a very complex situation which may be beyond our capacity to assist with us on this forum. It may be advisable to consult a professional parliamentarian, an attorney, or both, who has the time to thoroughly review and discuss the governing documents and applicable law in their entirety.

On 5/23/2023 at 1:29 PM, Guest FreedomThroughRules said:

In this particular political party, power is divided between two different bodies.
1) The state central committee.
2) The delegates who attend the party's annual conventions.

Yes, I am familiar. This is a common arrangement in many political parties.

On 5/23/2023 at 1:29 PM, Guest FreedomThroughRules said:

At a certain point, and I don't have the historical documents to be able to establish when this is exactly, this party adopted a constitution and bylaws. Clearly, what they did was to grab the language from the sample bylaws passages in RONR and they swapped out the word "society" for "party."

In other words, it was a mindless insertion that was intended to designate Robert's as the parliamentary. There is no reason to believe that the people who copied and pasted that passage into the bylaws had any intent to greenlight the utilization of special rules of order in party operations.

You know your organization better than I do. I have no idea whether this assertion is correct. To the extent that it is, however, this would certainly give greater weight to the argument that the party is prohibited from adopting other rules. Intent is one of the factors in the Principles of Interpretation, found in RONR (12th ed.) 56:68.

"Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable." RONR (12th ed.) 56:68

In the long run, as noted above, the rules on this matter should be amended so that they are clear.

I would reiterate that in most organizations (including political parties), the usual arrangement is that the constitution and bylaws is the highest level of rules, but lower-level rules are permissible so long as those rules do not conflict with the constitution and bylaws. There are rules governing the procedures for how to adopt different kinds of rules, as well as what is permissible for the full organization vs. a subordinate board (what a party generally calls a "central committee") to adopt. In this connection, see RONR (12th ed.) 2:14-24, 49:15. Organizations may also wish to adopt their own rules on those matters.

While an organization is free to decide that it shall adopt literally all of its rules in the constitution and bylaws (and the parliamentary authority) and no lower-level rules are permissible, I personally do not think this is advisable. This would seem to lead to one of two things, both of which sound problematic.

1.) An excessively long constitution and bylaws dealing with all the minutiae of the organization;

2.) A shorter constitution and bylaws with no supporting rules, leaving all of the details on matters not covered by those rules at the whims of the members at a particular moment.

So to the extent that the constitution does in fact provide that no written rules, of any kind, other than the constitution and bylaws may be adopted, I would strongly, strongly urge changing that as quickly as humanly possible, and instead adopting rules regulating the adoption of lower-level rules to address the concerns relating to the separation of powers between the convention and central committee.

On 5/23/2023 at 1:29 PM, Guest FreedomThroughRules said:

That being the case, I find it absurd to claim that the language in Article XIII is more SPECIFIC than the language in the preamble, which is VERY specific.

I do not find it absurd. But POI #3 is only one of eight Principles of Interpretation, each of which is an important facet of bylaws interpretation, and this is not necessarily an exhaustive list.

In any event, there is no doubt the two rules are (or may be) in conflict, and both rules are found in the constitution, so the society will have to resolve that conflict somehow, and that is ultimately up to the organization.

On 5/23/2023 at 1:29 PM, Guest FreedomThroughRules said:

And sure, this could all be made much simpler if the only reference to special rules of order in the entire ensemble of the constitution and the bylaws were removed, but that's not going to happen because the political class which has control of the state central committee doesn't want to lose this handy loophole used by the state central committee and their designated sycophantic parliamentarians to deceive the masses as they cheat the delegates out of a patronage-free convention process.

I mean, why have a level playing filed when you can pass a standing rule that says that you can ignore the protections in the constitution for grassroots control of the conventions, a standing rule that the delegates have no power to rescind, right? Because right in the constitution it says that the state central committee, not the delegates, is the governing body of the party, and right in the constitution, it says that the only documents that the delegates can amend are the constitution and the bylaws, which WE ALL KNOW, means that they cannot amend or rescind special rules of order or standing rules adopted by the state central committee.

There appear to be some misunderstandings here, and it's not necessary to try to force the organization to place all of its rules in the constitution and bylaws to address this problem.

1.) It is not permissible to adopt a standing rule which conflicts with the constitution. (The description also makes this sound like a special rule of order, not a standing rule - but those can't conflict with the constitution either.)

2.) I have serious doubts that a subordinate board could adopt a rule of this nature even if it didn't conflict with the constitution (and certainly it cannot adopt such a rule if it does conflict), unless the constitution or bylaws specifically grants them the authority to adopt such rules. See RONR (12th ed.) 49:15.

3.) I express no view at this time whether it is correct that the delegates are prohibited from adopting, amending, or rescinding special rules of order, as I have not seen the exact language of the rule in question, but to the extent it is correct, I would again point out that the constitution and standing rules take precedence - which the delegates can amend. They could also amend those rules to explicitly grant them authority to adopt, amend, or rescind standing rules or special rules of order if so desired.

On 5/24/2023 at 3:32 AM, Guest FreedomThroughRules said:

As we ALL agree, Article XIII, in the absence of the exclusive rules clause, allows for the existence of special rules of order and standing rules and even articles of incorporation, am I right? 

Yes, this is correct.

Although in regard to Articles of Incorporation specifically, I would note that those are actually of an even higher rank than a constitution and bylaws for an incorporated organization. This fact generally doesn't matter much, as typically the articles are written in such a way as to only include the bare minimum required for incorporation, and leaves all the details to the constitution and bylaws. See RONR (12th ed.) 2:5-7.

On 5/24/2023 at 11:40 AM, Guest FreedomThroughRules said:

Funny thing is the very people who had me put in jail for calling out the cheaters in this particular political party use exactly this "preamble" get out of jail card to defend their use of a "standing rule" to overrule the Constitution when it comes to cheating superdelegates into our conventions in violation of the state party constitution.

Special rules of order and standing rules cannot conflict with or overrule the constitution. No one has stated otherwise.

[FreedomThroughRules]

In 2007, the foxes in this party decided that they wanted to settle, once and for all, the question of whether standing rules are allowed in this particular political party. And so it was that a husband and wife team, both of whom are or have been PRPs with the NAP, proposed a change to Sentence 2 of the preamble.

The following is an email from the person who ended up amending their proposal on the floor. He clearly states his intent. The delegates upheld his motion and rejected the motion from the foxes who are for maximum authority for county party officers to bypass state party rules and insert large numbers of party leaders and elected officials into the state and county party conventions.

Let's just say that the hens won one that day.

Does the following email nudge anyone more towards my view that standing rules are absolutely prohibited in the operations of said party? Or do you agree with a PRP who often assists at party meetings in this state and who I'm arguing with in private emails right now that intent has no bearing on how Sentence 2 is to be interpreted?

= = = = = = = 
To whom it may concern,

 

On June 9, 2007, I attended the Utah Republican Party 2007 Organizing Convention, held at the South Towne Expo Center, in the county of Salt Lake, in the state of Utah. My presence was as an elected delegate from my local precinct.

 

During the convention there was brought before the body an amendment to the party constitution which would have changed the wording of the last sentence of the preamble from "This Constitution and the Party Bylaws are the exclusive governing rules of the Utah Republican Party." to be "This Constitution and the Party Bylaws are the primary governing rules of the Utah Republican Party.". The only change being the word "exclusive" changed to "primary".

 

During the course of discussion on the motion for the amendment, I moved to amend the amendment so it would change the wording of the sentence in question to read "The Constitution, Party Bylaws, and Robert's Rules Of Order current edition, are the exclusive governing rules of the Utah Republican Party." This added Robert's Rules Of Order to the list of governing documents, and retaining the original word "exclusive", so that no other unidentified documents would be admissible as governing documents.

 

The body of delegates voted to pass my amendment, so the original amendment became an amendment to change the wording of the last sentence of the preamble from "This Constitution and the Party Bylaws are the exclusive governing rules of the Utah Republican Party." to be "The Constitution, Party Bylaws, and Robert's Rules Of Order, current edition, are the exclusive governing rules of the Utah Republican Party." The body of delegates then voted on and passed this amendment to the party constitution preamble. With this action, the new wording became effective as the new preamble to the party constitution.

 

As of this date, March 24, 2008, the State Party web page, which publishes copies of the party documents, still has the original wording prior to the passing of the amendment. I have provided below a 'cut and paste' copy of the preamble as it exists on the web page today.

 

We, as members of the Utah Republican Party, grateful to Almighty God for life and liberty, desiring to perpetuate principles of free government and the blessings of liberty to our posterity, do establish and adopt this Constitution.  This Constitution and the Party Bylaws are the exclusive governing rules of the Utah Republican Party.

 

Charles R. Hastings

Utah State Republican Party Delegate

Precinct 1441

 

Emphasis added by FreedomThroughRules

By pure coincidence, I used to work for the Utah Court System and Chuck was my immediate supervisor. A great guy. And he did this all by himself with no consultation from the wizards on either side of this decades long underworld war. I was so pleased that day when he prevailed and the PRP at the podium who just happened to be the chair of the C&B Committee, a committee elected by foxes and comprised of foxes, walked away defeated.

For reference:
"Foxes" simply means members of the state central committee and their allies who want the SCC to have all power and for the delegates to have none.
Hens simply means party members who want the delegates to have maximum power and for the SCC to have minimum power when it comes to the rules that govern the elections that decide which candidates for public office get eliminated before the primary takes place.
"Hens" means Republicans who want the delegates to have the benefit of conventions that aren't skewed by patronage. Hopefully, we all know what patronage is, and hopefully we agree that it's not a good thing.

Let's just say that in this particular hen house, the foxes are firmly in control. But every so often a wall-armed hen stands up and drops an artillery shell on the den of the foxes. And so it was that day in 2007.

To those who say that we should consult professional parliamentarians in this matter, all I can say is that the last good one in this state of disunion died. Did any of you know Mr. John Hohlbauch? I flew all the way from St. Louis to attend his funeral. 

He is missed.

[Shmuel Gerber]

This is getting well beyond the scope of the forum. @FreedomThroughRules If there is anything from your last post that you want to save, please do so right away because pretty soon it will probably be deleted. 

[Josh Martin]

On 5/25/2023 at 1:18 PM, FreedomThroughRules said:

The following is an email from the person who ended up amending their proposal on the floor. He clearly states his intent. The delegates upheld his motion and rejected the motion from the foxes who are for maximum authority for county party officers to bypass state party rules and insert large numbers of party leaders and elected officials into the state and county party conventions.

As has been stated, repeatedly, even if special rules of order and standing rules are permissible, special rules of order or standing rules which conflict with the constitution or bylaws are not in order.

On 5/25/2023 at 1:18 PM, FreedomThroughRules said:

Does the following email nudge anyone more towards my view that standing rules are absolutely prohibited in the operations of said party? Or do you agree with a PRP who often assists at party meetings in this state and who I'm arguing with in private emails right now that intent has no bearing on how Sentence 2 is to be interpreted?

As I have stated previously, intent does play a role in interpreting governing documents when the rules are ambiguous. This is articulated in Principle of Interpretation #1, which I cited earlier.

"Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable." RONR (12th ed.) 56:68

Nonetheless, it remains my view that the facts as presented suggest that the rules do not prohibit the adoption of special rules of order or standing rules, to the extent that those rules do not conflict with the rules in the constitution or bylaws, and it also remains my position that prohibiting the adoption of any rules outside of the constitution and bylaws would be extremely ill-advised. I have articulated this previously and I do not think I have anything further to add.

You appear to disagree with this view, which you are free to do. As I have also stated previously, it is ultimately up to your organization to interpret its own rules on this matter.

As to these various references to foxes and hens, I would note that I do not know any of the people involved in this organization and take no position on the issue of the manner in which this organization conducts its endorsement processes, which is an issue I leave to the judgment of the organization. My views on this matter are based solely on my professional advice as a parliamentarian and without regard to how this advice may (or may not) benefit any particular faction in various matters.

I wish you and your organization the best of luck in interpreting these rules issues and determining how best to move forward as an organization on this matter.

[FreedomThroughRules]

On 5/22/2023 at 9:01 PM, Gary Novosielski said:

Are we ignoring the fact that the statement was made in the Preamble of the constitution?  Does it have the same weight as a statement placed elsewhere?

Hi, Gary. I guess the question I would ask is how many shades of gray are there on this "weight" scale to which you refer? (Hopefully, not 50. [Blush]) I mean, it's either controlling or it's not. 

There is no such thing as partially controlling or substantially controlling. It either applies fully, or it's null and void. There's no middle ground. To suggest that something goes from controlling to null and void because it's placed in the constitution in a paragraph that is somehow dubious because it also contains fluff language by someone who may well have meant to give it maximum weight (i.e. 1 on a binary tree where the options are 0 and 1) by making it the very first directive in the entire body of rules seems substantially indefensible to me.

Further, when the political-class maximalists in the party tried to amend the word "exclusive" out of this sentence, the delegates resoundingly said no.

I asked before. I'll ask again. Where in Robert's does it say that if a binding directive is (carelessly) placed in the preamble that it is no longer binding? I'm still waiting.
 

[Josh Martin]

On 5/26/2023 at 6:27 AM, FreedomThroughRules said:

I asked before. I'll ask again. Where in Robert's does it say that if a binding directive is (carelessly) placed in the preamble that it is no longer binding? I'm still waiting.

RONR contains no such statement, and even if it did, such a statement would be advisory only, much like the other statements in RONR concerning interpretation of an organization's own rules. It is ultimately up to an organization to interpret its own rules.

I concur with Mr. Novosielski that, generally speaking, organizations do not put binding rules in the preamble of governing documents. But there is no categorical rule on this subject, and it is conceivable that a particular organization may vary from the standard practice in this matter.

[FreedomThroughRules]

On 5/26/2023 at 7:09 AM, Josh Martin said:

RONR contains no such statement, and even if it did, such a statement would be advisory only, much like the other statements in RONR concerning interpretation of an organization's own rules. It is ultimately up to an organization to interpret its own rules.

I concur with Mr. Novosielski that, generally speaking, organizations do not put binding rules in the preamble of governing documents. But there is no categorical rule on this subject, and it is conceivable that a particular organization may vary from the standard practice in this matter.

It's not only conceivable, it happened. Hardly means that a court of competent jurisdiction would declare it null and void. 

The best advice is to ensure that the political party that controls your state never places the choice of US Senators, governors, legislators, and maybe even judges in the hands of party bosses and parliamentary hacks. Sadly, I lived in a state for 25 years where the opposite was true. It cost me pretty much everything.

[Gary Novosielski]

On 5/26/2023 at 7:27 AM, FreedomThroughRules said:

Hi, Gary. I guess the question I would ask is how many shades of gray are there on this "weight" scale to which you refer? (Hopefully, not 50. [Blush]) I mean, it's either controlling or it's not. 

There is no such thing as partially controlling or substantially controlling. It either applies fully, or it's null and void. There's no middle ground. To suggest that something goes from controlling to null and void because it's placed in the constitution in a paragraph that is somehow dubious because it also contains fluff language by someone who may well have meant to give it maximum weight (i.e. 1 on a binary tree where the options are 0 and 1) by making it the very first directive in the entire body of rules seems substantially indefensible to me.

Further, when the political-class maximalists in the party tried to amend the word "exclusive" out of this sentence, the delegates resoundingly said no.

I asked before. I'll ask again. Where in Robert's does it say that if a binding directive is (carelessly) placed in the preamble that it is no longer binding? I'm still waiting.
 

Look, I don't care what your party does.  I'm not a member.  And I'm convinced that you're inconvincible, and will continue to argue this point into the ground, but it will be without my participation.  If you insist on your own interpretation of RONR, even to the point of arguing with two of the actual authors of the book, further discussion would be futile.

 

Edited May 26, 2023 at 02:51 PM by Gary Novosielski