Where does precedent fit in the hierarchy of rules?

[Caryn Ann Harlos]

In the typical  hierarchy of Laws>Articles of Incorporation (or Charter)>Constitution (if any)>Bylaws>Special Rules of Order>Parliamentary Authority>Custom where does precedence fit?

It seems to me to be very similar to custom until the ambiguous provision is amended.

[Gary Novosielski]

On 7/26/2023 at 5:40 PM, Caryn Ann Harlos said:

In the typical  hierarchy of Laws>Articles of Incorporation (or Charter)>Constitution (if any)>Bylaws>Special Rules of Order>Parliamentary Authority>Custom where does [precedent] fit?

It seems to me to be very similar to custom until the ambiguous provision is amended.

Well, precedent arising out of ruling on an interpretation of an arguably ambiguous provision would depend on where the provision was contained.  If it was a rule in the bylaws, then the precedent pertains to that rule in the bylaws, if it was a Special Rule of Order, then the precedent pertains at that level.  

Edited July 26, 2023 at 10:24 PM by Gary Novosielski

[J. J.]

On 7/26/2023 at 5:40 PM, Caryn Ann Harlos said:

In the typical  hierarchy of Laws>Articles of Incorporation (or Charter)>Constitution (if any)>Bylaws>Special Rules of Order>Parliamentary Authority>Custom where does precedence fit?

It seems to me to be very similar to custom until the ambiguous provision is amended.

I will note that custom may be created by repeated practice.  It would not need to be created by a point of order/appeal, as would precedent. 

[Caryn Ann Harlos]

On 7/26/2023 at 4:23 PM, Gary Novosielski said:

Well, precedent arising out of ruling on an interpretation of an arguably ambiguous provision would depend on where the provision was contained.  If it was a rule in the bylaws, then the precedent pertains to that rule in the bylaws, if it was a Special Rule of Order, then the precedent pertains at that level.  

Not truly to pull a Kathy Newman, but what you are saying is that precedent is almost like an addition to the document it raised out of?

[Caryn Ann Harlos]

On 7/26/2023 at 4:47 PM, J. J. said:

I will note that custom may be created by repeated practice.  It would not need to be created by a point of order/appeal, as would precedent. 

I get that but its nature is that it is non-binding.  And it shares that in common with custom.   

[J. J.]

On 7/26/2023 at 8:11 PM, Caryn Ann Harlos said:

I get that but its nature is that it is non-binding.  And it shares that in common with custom.   

Precedent is binding until reversed.  Custom is not directly adopted. 

[Gary Novosielski]

On 7/26/2023 at 8:11 PM, Caryn Ann Harlos said:

Not truly to pull a Kathy Newman, but what you are saying is that precedent is almost like an addition to the document it raised out of?

Yes.  Very much like a marginal note:  Here's how to interpret this provision.

[Rob Elsman]

Nowhere.

[Josh Martin]

On 7/26/2023 at 4:40 PM, Caryn Ann Harlos said:

In the typical  hierarchy of Laws>Articles of Incorporation (or Charter)>Constitution (if any)>Bylaws>Special Rules of Order>Parliamentary Authority>Custom where does precedence fit?

It seems to me to be very similar to custom until the ambiguous provision is amended.

A precedent is not, itself, a rule, but is rather an interpretation of the society's rules. As a result, I do not think it neatly fits into a hierarchy of rules.

In one sense, as Mr. Novosielski suggests, a precedent would have a rank similar to the level of rules the precedent is concerning. To the extent a precedent is a correct interpretation of the bylaws (for example), the precedent takes precedence over special rules of order and the parliamentary authority, because the bylaws take precedence over the special rules of order and the parliamentary authority.

In another sense, one might rank precedent below any of these (even custom), because it is the easiest to change.

"The minutes include the reasons given by the chair for his or her ruling (see 48:4(10)). The ruling and its rationale serve as a precedent for future reference by the chair and the assembly, unless overturned on appeal, the result of which is also recorded in the minutes and may create a contrary precedent. When similar issues arise in the future, such precedents are persuasive in resolving them—that is, they carry weight in the absence of overriding reasons for following a different course—but they are not binding on the chair or the assembly. The weight given to precedent increases with the number of times the same or similar rulings have been repeated and with the length of time during which the assembly has consistently adhered to them.

If an assembly is or becomes dissatisfied with a precedent, it may be overruled, in whole or in part, by a later ruling of the chair or a decision of the assembly in an appeal in a similar situation, which will then create a new precedent. Alternatively, adoption, rescission, or amendment (35) of a bylaw provision, special rule of order, standing rule, or other motion may alter the rule or policy on which the unsatisfactory precedent was based." RONR (12th ed.) 23:10-11

A precedent "may be overruled, in whole or in part, by a later ruling of the chair or a decision of the assembly in an appeal in a similar situation, which will then create a new precedent." This is a much lower bar than amending any written rule of the society, and is an even a slightly lower bar than changing a custom (assuming the custom does not conflict with any written rule), since a custom "is adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise." RONR (12th ed.) 2:25

A precedent may be overruled by a ruling of the chair or a decision of the assembly, while the chair may not unilaterally discard an established custom.

On 7/26/2023 at 8:03 PM, J. J. said:

Precedent is binding until reversed.

RONR specifically says that "When similar issues arise in the future, such precedents are persuasive in resolving them—that is, they carry weight in the absence of overriding reasons for following a different course—but they are not binding on the chair or the assembly."

But I think I see what you mean. To the extent a precedent is correct, of course, the precedent is binding, because the rule the precedent is concerning is binding.

Edited July 27, 2023 at 11:54 AM by Josh Martin

[J. J.]

On 7/27/2023 at 7:52 AM, Josh Martin said:

RONR specifically says that "When similar issues arise in the future, such precedents are persuasive in resolving them—that is, they carry weight in the absence of overriding reasons for following a different course—but they are not binding on the chair or the assembly."

But I think I see what you mean. To the extent a precedent is correct, of course, the precedent is binding, because the rule the precedent is concerning is binding.

Then the precedent would be reversed.  It can be reversed by a point of order/appeal, though I would treat ruling of the chair as being the chair making a point of order (23:3, 26:3).

Neither custom nor precedent are subject to rescind at a future session; both can be altered by point of order/appeal, or by the assembly deciding to do something differently.  I would suggest that while an appeal could be reconsidered, the precedent it creates to be overturned during the same meeting by another appeal. 

Edited July 27, 2023 at 12:38 PM by J. J.

[Rob Elsman]

My own opinion is that a future session of the same assembly can dispel the "weight" of a previously established precedent by adopting a motion or resolution expressing its displeasure toward the previous ruling that gave rise to the precedent.

[J. J.]

On 7/27/2023 at 11:32 AM, Rob Elsman said:

My own opinion is that a future session of the same assembly can dispel the "weight" of a previously established precedent by adopting a motion or resolution expressing its displeasure toward the previous ruling that gave rise to the precedent.

They can, but even that would not be necessary. 

If a similar situation were to come up in the future, even later in the same session, the society could just not follow that precedent.  If a point of order is raised about a similar issue later in the same meeting, the chair ruling, whatever it is, could be appealed, the end result being that the precedent is overturned. 

[Rob Elsman]

I certainly agree, but why wait and go through all the rigmarole?  The assembly can save the chair his guidance on the point of order by just getting rid of the unwanted precedent before the same issue arises again.

[Atul Kapur]

It would be more definitive to amend the underlying rule to eliminate the ability to interpret it the non-favoured way. Because the overturning of a precedent creates a new precedent that could itself be overturned.