[Lnc-business] [Lnc-discuss] Oregon Resolution - is Wes Wagner chair of the Oregon affiliate

[Ron Windeler]

    Without a specific procedure in the bylaws for resolving the conflicting opinions between the JC and the LNC, the ideal resolution would have been for the LNC to appeal the decision of the JC to the JC for reconsideration.  We might suggest that the next bylaws committee create a path of checks and balances to resolve such disputes.  The ultimate appeal would be for a different LNC to appeal to a different JC on the same, or refined issues.  I'm not suggesting this course for us now, because we have spent far too much time on Oregon already.  But, theoretically, someone could bring some kind of challenge to the fact that the LNC is on record as still recognizing the 
Reeves group but our credentials committee recognized both groups in different parts of the records, and refused to recognize the Reeves groups delegates which contained the Wagner groups delegates as a unity slate until the convention overruled them.  If jurisdiction could be found for some aspect of the controversy, its possible that our new JC would come to completely different decisions.
 
Ron Windeler
rowindeler at aol.com

 
 
-----Original Message-----
From: Alicia Mattson <agmattson at gmail.com>
To: lnc-business <lnc-business at hq.lp.org>
Sent: Mon, Jul 21, 2014 12:28 am
Subject: Re: [Lnc-business] [Lnc-discuss] Oregon Resolution - is Wes Wagner chair of the Oregon affiliate




If the LNC did rewrote the bylaws, it would be just as illegitimate as if the JC did it.


When the LNC passed the resolution saying the JC ruling was not legitimate, I wouldn't say that represents the LNC determining what the JC's jurisdiction is.  The JC jurisdiction is set by the bylaws, which are adopted by the convention delegates.  The LNC's motion was merely a mechanism to draw attention to the illegitimacy of the JC ruling.  Think of it as sorta-kinda raising a point of order about it...except, of course, there was not meeting with a chair that could rule on the question and settle the matter then and there.  It was just a means to publicly note that we felt the JC ruling violated the rules so that the rest of the organization should be on alert to decide for themselves how to react to it.


In the 2012 convention (when the Credentials Committee chose to initially seat the Reeves group and explain the dispute to the convention, and Mr. Sarwark moved to strike the Reeves delegates from the list and instead insert the Wagner delegates) the debate included discussion of the JC ruling.  One or two speakers argued that the convention was obligated to seat the Wagner delegates because of the JC ruling, but when it came time to vote, the convention delegates chose to leave the Reeves delegation in place and reject the Wagner delegation, in spite of the JC ruling.



-Alicia








On Sun, Jul 20, 2014 at 12:01 PM, Joshua Katz <joshua.katz at lp.org> wrote:

I would consider that a negative outcome (at least for me - maybe the rest of the LNC would be willing to accept the remainder of that ruling so as to have the prohibition on people named Joshua being on the LNC.)  But I see a problem with your example - it is borrowed from a case where this was the behavior of the equivalent of the LNC.  So, I'll turn it around.  What if the LNC decided that the convention will no longer elect LNC members, that current members, except those named Joshua, would remain on for life - and the JC has no jurisdiction in this matter?  The consequences of giving the LNC the ability to determine the jurisdiction of the JC are just as severe, and of basically the same type, as that of allowing the JC to decide its own jurisdiction.  In practical terms, there is one small difference, perhaps too small to matter - members of the LNC can make and vote on motions, whereas the JC only gets a case when a number of members appeals to them.  This is a small protection, but it's more than you get with letting the LNC decide the jurisdiction of the JC.


I didn't find anything in our parliamentary authority about the jurisdiction of the JC, except that obviously RONR dictates the procedure for setting it.  Our bylaws do spell it out - and then what?  Those words need to be interpreted.  No one questions what the jurisdiction is, in that sense - all that is ever questioned is whether or not a particular case falls into one of the general classes given.  If there were a formal decision-making procedure for that, something that could be programmed into a computer, that would be great.  I think it's a Godelian case, though, and will always require human decision-making, so the question is which set of humans.  I have no real answer to that - I just don't think anyone else does either.  


So we could go with what I presented as perhaps the most rational choice - each case has to be decided by each individual on its merits.  Yet what is the practical implication of that?  Take our example.  The LNC made a decision I consider to be within the LNC's jurisdiction.  The matter was appealed, and the JC felt that the LNC had effectively disaffiliated an affiliate without voting to do so - and used reasoning related to the SOS which I do not understand.  The LNC then passed a resolution that the JC was wrong and didn't have jurisdiction.  The practical impact of asking that each individual decide in their hearts who is right, and there is no formal resolution, would be - nothing at all.  The LNC would think it was right, with perhaps a few dissenters.  The JC would, again with some dissenters, think that it was right.  Party members would think what they want, and have no ability to act on it - as they do now.  Of course, if enough of them agreed with a particular position, they could try to call a special convention - as they can under any other rule.  Cases like this, where as an LNC member my vote depends on deciding whether or not a past JC decision had jurisdiction or not - are so rare that they cannot be the basis for a rule that throws much of ordinary business into disarray.  As much as I think this is the only rationally defensible answer, it just doesn't work.  


All we've done here is outline the fatal flaw of all governance.  At least in the LP, as opposed to most governing bodies, we have a vast, vast majority made up of people of good-will trying to do what is right.  So we run into this fatal flaw less often than others.  But this flaw exists everywhere from co-op boards to the UN, and all in between.







Joshua A. Katz


Region 8 (Region of Badassdom) Alternate
Libertarian National Committee

Chair, Libertarian Party of Connecticut





On Sun, Jul 20, 2014 at 2:59 AM, Alicia Mattson <agmattson at gmail.com> wrote:


Joshua,


If you accept the notion that nobody (not even the parliamentary authority our convention delegates adopted) can say a JC ruling is null and void, and if you accept this particular JC ruling as binding even though it was based on a new rule that they made up on their own rather than based on the bylaws, and even though the ruling itself violates the bylaws, then what's to stop the JC from making up other new rules and saying that they're binding on the party?

And why stop at one new rule?  Why can't they just rewrite the bylaws completely and claim they're binding because there is no body assigned to oversee the JC?  Would you just accept their new bylaws as binding because of the theory that they get to determine their own jurisdiction?

What if the JC wrote new bylaws, and the new bylaws said that conventions can do nothing more than nominate the presidential candidate, and the JC will now appoint the LNC members (but in no case can anyone named Joshua be on the LNC), the JC will reappoint themselves to life terms, and the JC will have full jurisdiction over anything they please?  (If that sounds familiar, maybe it's because the Wagner group did that, just with the Executive Committee instead of the Judicial Committee.)


Would your response still be that we have to accept their ruling?  How far outside of their authority can they go before it is invalid?

Haven't our convention delegates chosen to oversee the JC by adopting rules that limit them, including the bylaws and RONR?



-Alicia









On Fri, Jul 18, 2014 at 9:20 PM, Joshua Katz <joshua.katz at lp.org> wrote:



Here's my position, in brief.  I don't think there is a definitive answer to who gets the benefit of the doubt.  As I see it, there are three positions possible:
1.  The JC gets the benefit of the doubt, for the reason you summarized above - the job of the JC is overseeing decisions of the LNC, this is the intent in the bylaws, and the JC is elected with this understanding.
2.  The LNC gets the benefit of the doubt.  I can see two arguments for this.  One is the one you presented briefly in your email.  Another is that the LNC is, ultimately, the governing body of this organization outside of conventions (in turn, the LNC itself has a governing body when it isn't meeting.)  The JC has oversight within its jurisdiction, but in keeping with Locke's principles, the JC cannot decide what its jurisdiction is.  Therefore, the only reasonable body to make that decision is the LNC.  
3.  There is no answer, and each case is just decided on its merits.


In this case, 2 and 3 result in the same actions, but there remain practical differences.  I believe you have presented arguments for 2 and for 3 (or, at least, you've argued for 2 and given other arguments, on the details of the JC decision, that are only necessary if one accepts 3.)  I tend towards 1, but at a higher level, as I argued here, I don't think I have any knock-down argument for 1, I just also don't find a knock-down argument for 2.  As for 3, I find it very attractive, and wish I could embrace it, but I cannot accept the idea of simply having no answer at all as to which committee has the say in cases of dispute.  Maybe I should embrace 3, but at the moment I can't do it.


I presented my reasons for 1, but I don't think they're conclusive. 


My position has the serious weakness of allowing the JC to decide its own jurisdiction.  But 2 allows the LNC to exempt its decisions from JC oversight.  I'll take the first weakness over the second.  Both allow someone to be a judge in their own case.


Joshua Katz



Joshua A. Katz


Region 8 (Region of Badassdom) Alternate
Libertarian National Committee

Chair, Libertarian Party of Connecticut





On Fri, Jul 18, 2014 at 5:40 PM, Alicia Mattson <agmattson at gmail.com> wrote:


Joshua, that's an excellent question.  I'm sorry that I don't have time to write a more thorough answer, as I am fairly pressed for time this week.  But my short answer is that since the JC stepped well outside of its bounds of authority, and as I earlier described that I see it as being null and void, therefore I will not give it any consultative value, and I believe that it leaves the LNC decisions on the question still in effect.


In another email, though I don't have the time to go find it right now, you discussed something to the effect of who gets the benefit of the doubt in situation like this, and your sense (if I recall correctly) was that because the purpose of the JC was to oversee the LNC, the JC should get the benefit of the doubt.

However, I would ask you to consider that the bylaws put very strict limits on the JC powers of oversight and actually give benefit of the doubt to the LNC in that the bylaws say an appellant (not the LNC) has the burden of proof for a JC hearing, and if the JC issues no ruling, the LNC decision stands.


-Alicia











On Sat, Jul 12, 2014 at 10:25 AM, Joshua Katz <planning4liberty at gmail.com> wrote:

Suppose one were to accept that the JC made an incorrect decision.  Clearly, a majority of a past LNC agreed.  Also clearly, the JC at that time did not agree.  What would follow if one accepted this?  Suppose that, as in a past LNC, the majority of the LNC held this view.  Again, what would follow?  Would the JC decision not be binding anyway?  Is there an applicable rule covering such a dispute?


A reasonable digression:  One argument regarding minarchism/anarchism is that government is not so much undesirable as impossible, given the ways it is usually defined.  In particular, Locke argues for government because one may not be a judge in one's own case - and he considers anarchy to be simply the situation in which each is a judge is their own case.  To the extent that one is a judge in one's one case, then, anarchy reigns.  


So, the argument goes - what happens in the case of internal disagreements in the government, especially given a government in which power is divided among 3 branches with a system of 'checks and balances?'  If a court claims that an act of Congress is unconstitutional, and the Congress believes that the court has overstepped its power, the only solution - exactly the same as the nightmare scenario presented of anarchy by those who favor the state - is for either one side to give in for no good reason, or for the two branches to go to war in one way or another.  Indeed, the latter has happened in some form or another at various times.  Lincoln ordered the Chief Justice arrested.  Jackson was more restrained (perhaps a sentence never before written) in simply declaring that the court has made its decision, and now is free to enforce it, but he would not.  There have been attempts, some successful, in recent days to declare members of other branches in contempt of Congress and have them arrested.


The LNC governs the party under delegation of authority.  It seems that, in the scenario I outlined (and which clearly existed in the past, and could well exist again) we face the same problems actual governments face.  What is to be done about this seemingly irresolvable conflict?





On Sat, Jul 12, 2014 at 3:09 AM, Alicia Mattson <agmattson at gmail.com> wrote:


Yes, let's discuss the Judicial Committee ruling regarding Oregon.  I have attached it for the benefit of those who have not seen it before.


Wes Wagner appealed to the Judicial Committee the decision of the LNC's Executive Committee to recognize Tim Reeves as the Chair of the LP of Oregon.  Mr, Wagner claimed it was a disaffiliation of his group.  Obviously, for it to be a disaffiliation, his group would have to actually be the affiliate, and the brief from the large group of LNC members argued that he was not.


The party bylaws put limitations on what the Judicial Committee can do.  If it were a case of disaffiliation, the operative bylaw would be Article 6.6.  If you take out the timeline language and strip it down to the core elements, that article states:


"The National Committee shall have the power torevoke the status of any affiliate party, for cause, by a vote of 3/4 of theentire National Committee. A motion to revoke the status of an affiliate partyfor cause must specify the nature of the cause for revocation. The affiliateparty may challenge the revocation of its status by written appeal to theJudicial Committee within 30 days of receipt of notice of such revocation...[snip]...At the hearingthe burden of persuasion shall rest upon the appellant. The Judicial Committeeshall either affirm the National Committee's revocation of affiliate partystatus or order reinstatement of the affiliate party...[snip]"





In a disaffiliation case, the Judicial Committee options are limited to to either a) affirming the revocation, or b) reinstating the affiliate.  The majority of the JC stated, in reference to the recognition of the Reeves group, 


"This action was beyond the authority of the LNC or EC based on the bylaws, and is void."



In deciding whether something is a violation of the bylaws, logically, the standard to be used should be the bylaws themselves.  But the majority of the Judicial Committee stated the basis for their decision was, 


"We find that the Libertarian Party of a particular state, in this case the State of Oregon, is the entity that is recognized by the secretary of state, in this case the Secretary of State of Oregon."


Mr. Sarwark, can you show the LNC where this "rule" is found in the LP Bylaws, thus can be used as a standard by the Judicial Committee?  Our delegates have not agreed to this standard for identifying who our affiliate is.


Since that "rule" is not in our bylaws, can you show the LNC where the LP bylaws grant the Judicial Committee the authority to legislate from the bench and construct this new "rule" for affiliate governance?


Article 6.2 of the LP Bylaws give the LNC, not a secretary of state, the power to create affiliates.  It gives the LNC, not a secretary of state, the power to revoke an affiliate status.  The same body that can affiliate or disaffiliate naturally has the power to later identify who it is they have affiliated.

Application of this "rule" in this particular casewould directly interfere with the autonomy of the Oregon affiliate, in that theLPO members operating under the bylaws to which they mutually agreed selectedone set of officers, but the Judicial Committee has declared that the affiliateis instead whoever is on file with the Secretary of State's office inOregon.  Article 6.5 of the LP Bylawsstates:
 
“Theautonomy of the affiliate and sub-affiliate parties shall not be abridged bythe National Committee or any other committee of the Party, except asprovided by these Bylaws.”  (underlineadded for emphasis)
 
Autonomy, by definition, is the right of self-rule, and an acceptance of that statement in the Judicial Committee decision would in this case effectively deprive the members of the Libertarian Party of Oregon of the right to choose their own officers.


Thus the LNC adopted the resolution spanning pages 11-13 of the December 2011 LNC minutes (found at http://www.lp.org/lnc-meeting-archives) calling the Judicial Committee's ruling an "arrogation of power".


This Judicial Committee ruling itself violates the bylaws, thus is null and void.

Additionally, as was referenced in the email we received from Tim Reeves, the Oregon Secretary of State has been advised by their legal counsel that Oregon state law forbids from them doing what the Judicial Committee prescribed.  Thus they filed a declaration in the court case that,


"The Secretary of State's Elections Division has not and will not enforce or adjudicate disputes about political party bylaws.  We have told the parties that they have to go to court to adjudicate this matter if there is to be any change because we do not adjudicate this type of dispute."


Spanning pages 3-4 of RONR 11th ed. you will find that, 


"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."



The Judicial Committee prescribed a procedure for identifying our affiliates which would be in violation of Oregon state law, thus it is null and void on those grounds as well.  Oregon is not the only state in which state law would prohibit the Secretary of State from adjudicating this sort of dispute over the leadership of a political party.

Mr. Sarwark, now that you are national chair, should we expect you to broadly implement compliance with this "rule" you helped write and seem to believe is binding?  The ruling claimed it applied to any state, not just Oregon.  You could direct staff to remove from our website all the listed affiliates.  Then they could call all the secretary of state offices around the country and ask them whether they recognize the Libertarian Party as a political party in that state.  The only affiliates to be added back to the website will then be those who are recognized by their secretary of state offices.


We would likely lose a number of affiliates that way.  You could try out a couple by first calling the secretary of state of Oklahoma, then Alabama and see what they say.  I would like to be a fly on the wall when you explain to these state chairs that we don't recognize those affiliates because they have no legal status with the secretary of state.



How soon should these state affiliates expect you to implement this Judicial Committee-created rule?



-Alicia








On Thu, Jul 10, 2014 at 7:33 AM, Nicholas Sarwark <chair at lp.org> wrote:

Subsequent to the 2011 decision mentioned by Alicia above, the
Judicial Committee reversed the decision of the LNC Executive
Committee recognizing Reeves without a disaffiliation vote of the
entire LNC.   The LNC never took such a vote.  Mr. Wagner is
recognized as the Chair of the Libertarian Party of Oregon by the
Oregon Secretary of State.  Pursuant to the Judicial Committee
decision, he is recognized as the Chair of the Libertarian Party of
Oregon by the LNC unless or until (a) the LNC takes a vote to
disaffiliate the Libertarian Party of Oregon or (b) the Oregon
Secretary of State or the Oregon Courts decide someone else is the
Chair.  The Reeves group did sue in Oregon court and had their case
dismissed at summary judgment.  They are presently appealing that
decision, but the decision is not stayed.

In 2012, the Libertarian Party of Oregon placed Gary Johnson and Jim
Gray on the ballot for President.  The Libertarian Party of Oregon
will be able to place a Presidential ticket on the ballot in 2016.
Unless something changes drastically in the courts, the Chair will be
Mr. Wagner or his successor.

For those members of the Committee who were not around in 2000, I
would urge you to contact Bill Hall of Michigan to discuss what
happened when the LNC decided to disaffiliate the group in Arizona
that held ballot access.  If we ignore the lessons from that episode,
we risk cutting off our ballot access nose to spite Mr. Wagner's face.
I have yet to hear the argument that action would be in the best
interest of the Libertarian National Committee.

I will, under separate cover, forward to the list a message from Mr.
Moellman from Kentucky.

-Nick


On Thu, Jul 10, 2014 at 4:42 AM, Alicia Mattson <agmattson at gmail.com> wrote:
> As I have stated before, I do not agree that Wes Wagner is the chair of our
> Oregon affiliate.  This motion under consideration implies that he is.  It
> suggests the event for which we are apologizing violated the autonomy of the
> affiliate with Wes Wagner as its chair.
>
> For those of you new to the story, I cannot re-explain it better than has
> already been done.  Attached you will find three documents that lay out the
> story in great detail.
>
> The LNC's Executive Committee in 2011 voted to recognize the Reeves group as
> our Oregon affiliate.  Wes Wagner appealed this decision to the Judicial
> Committee claiming that he represented the affiliate, thus the decision to
> recognize Reeves was essentially a disaffiliation.  These three documents
> were filed with the Judicial Committee as a defense of the action.  They lay
> out the argument that Wes Wagner ceased to be the chair of the LP of Oregon
> in May of 2011.
>
> The story plot after this JC appeal was told fairly well in the 4-page
> document distributed by the Reeves group at this convention.  If you didn't
> get to read it but would like to do so, just ask.  I can scan in my copy and
> send it to you.
>
> -Alicia
>
>
>
>


> _______________________________________________
> Lnc-discuss mailing list
> Lnc-discuss at hq.lp.org
> http://hq.lp.org/mailman/listinfo/lnc-discuss_hq.lp.org
>

_______________________________________________
Lnc-discuss mailing list
Lnc-discuss at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-discuss_hq.lp.org






_______________________________________________
Lnc-discuss mailing list
Lnc-discuss at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-discuss_hq.lp.org






_______________________________________________
Lnc-discuss mailing list
Lnc-discuss at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-discuss_hq.lp.org






_______________________________________________
Lnc-discuss mailing list
Lnc-discuss at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-discuss_hq.lp.org








_______________________________________________
Lnc-business mailing list
Lnc-business at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-business_hq.lp.org






_______________________________________________
Lnc-business mailing list
Lnc-business at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-business_hq.lp.org






_______________________________________________
Lnc-business mailing list
Lnc-business at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-business_hq.lp.org





_______________________________________________
Lnc-business mailing list
Lnc-business at hq.lp.org
http://hq.lp.org/mailman/listinfo/lnc-business_hq.lp.org

 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://hq.lp.org/pipermail/lnc-business/attachments/20140721/eee1bb65/attachment-0002.html>