[Lnc-business] Email Ballot 2018-11: ACKNOWLEDGE ELECTION OF JC

[Joe Bishop-Henchman]

   Happy to, I've pasted it below in full. It's long but I do suggest
   reading it all - he obviously has thought long about our dilemma, which
   certainly came across in my calls with him. He's very familiar with our
   past travails with the Oregon situation and he had some good
   suggestions on tackling our internal elections problems. We're very
   lucky to have someone as dedicated and thoughtful as he is.
   There really is something for everyone in this. If you think the JC was
   not validly elected and there's nothing that can be done about it until
   2020, he agrees. If you support the effort to acknowledge the top 7, he
   says that is the easiest option but it rests on everyone abiding by it;
   if any non-LNC entity or person refuses to abide by a JC judgment,
   we're back where we started. If you support a mail ballot, he says this
   is not far-fetched and has some precedent from a book by Gen. Robert,
   but he also says it's not analogous to our situation, has practical
   difficulties, and wouldn't withstand a legal challenge. He dismisses an
   e-mail ballot as illegal.
   I think his analysis matches our general diagnosis of the issues
   involved. It doesn't change my mind that acknowledging the top 7 is the
   only feasible way forward, but I also don't think it will change Ms.
   Harlos and others' minds that another ballot is the only way forward.
   JBH

   Mr. Bishop-Henchman, thank you for reaching out to me for my opinion
   regarding the status of the Judicial Committee.  I am happy to answer
   questions and provide information.  Although I have briefly stated my
   position to you in my two previous emails and one phone conversation,
   this email is to re-state my previous responses and to more fully
   respond to your inquiry.  You have my permission to share this email
   with other members of the LNC.


   As the convention parliamentarian for the 2018 convention in New
   Orleans, here is my position:

   1.  As of now, there is no Judicial Committee.  The delegates failed to
   elect one at the convention and per the Libertarian Party bylaws, the
   terms of the 2016-2018 members of the committee expired upon
   adjournment of the 2018 convention in New Orleans.  It really is as
   simple as that.  There is no Judicial Committee.  However, this
   situation can be resolved at the 2020 convention. There is no need to
   wait until 2022.

   2.  The terms of the 2016-2018 Judicial Committee members have expired
   and those members are no longer on the committee and have no authority
   to act as a Judicial Committee or to appoint their successors or to
   fill vacancies.   There is no provision for any of them to "carry over"
   or to serve in any fashion until their successors are elected. Their
   terms have ended.

   3.  The LNC has no authority to appoint members to the Judicial
   Committee or to determine who the members of the Judicial Committee
   shall be.  Any attempt by the LNC to appoint or establish who is on the
   Judicial Committee, regardless of the terminology used, would be void
   and of no effect and would, at best, create an unofficial
   “make believe” judicial committee.  The LNC and its members could agree
   to voluntarily abide by the decisions of such an unofficial committee,
   but I question how enforceable that would be and I don’t see how its
   decisions could be binding on other parties.

   Decisions by the so-called Judicial Committee could well result in
   discord and even lawsuits.  Using as an example the recent dispute
   between the competing Oregon factions seeking official recognition from
   the National Libertarian Party, I don’t think they would be bound by
   any ruling of the Judicial Committee and a lawsuit might well
   result.   The same could be said in the case of an appeal of a
   suspension or removal from office of an officer or at large member to
   the LNC.  The suspended officer might well just thumb his nose at any
   ruling by the Judicial Committee…and/or file suit against the party.

   4.  The various suspensions of the rules made at the convention for the
   election of members at large to the LNC applied only to the election
   for the LNC and did not apply to the election of the Judicial
   Committee.  I have reviewed the relevant portions of the live feed of
   the convention several times and do not see even a hint that the rules
   suspensions and motions to elect by plurality were to apply to the
   election of the Judicial Committee members.  If Chairman Sarwark made
   an announcement or ruling that the rules had also been suspended as to
   the Judicial Committee, I am not aware of it. Such a ruling, if he
   indeed made one, might well be controlling.  I do not recall such a
   ruling and don’t see it on the video.   In fact, at one point, he
   states, in response to an inquiry by delegate Pat Dixon of Texas, that
   the rules suspension and procedure being discussed for the LNC election
   apply to “at large only”.


   5.  The proposal to “finish” the election by having the delegates vote
   by mail is not a far-fetched suggestion and actually has parliamentary
   precedent, but might be difficult execute in your particular
   situation.  It is not to be found anywhere in any edition of Robert’s
   Rules of Order, but was suggested by General Henry Robert in his 1923
   bookParliamentary Law as an option which can be used when, for some
   reason, it is impractical to conduct a vote in the manner prescribed in
   the bylaws.    It is Question and Answer 107.  In that case, a society
   had grown so large and spread out that it was impossible to obtain the
   vote of three fourths of the entire membership at a meeting in order to
   amend the bylaws.  General Robert suggested, as an option, that the
   members present at a meeting first adopt the proposed amendment and
   that a mail ballot then be sent to all members and used, in essence, to
   ratify the vote of the members present to adopt an amendment to the
   bylaws, provided it was adopted by a three fourths vote of those
   voting.


   Conducting such a mail ballot would, in my opinion, come closest to
   satisfying your rules for election of the Judicial Committee by a
   majority vote of the delegates.  However, the situation in Question 107
   and your situation are not really analogous because your convention is
   a one-time event and has ended.  The convention no longer exists.  Some
   other body, such as the LNC, would have to conduct the mail ballot
   election and declare the results.  Btw, the mail ballot(s) would
   actually be the repeat ballots provided for by RONR when the first
   ballot fails to select the necessary winner(s) by majority vote.  The
   first ballot was taken at the convention.


   The practical difficulties of doing that might make it an impractical
   option.  It is most often suggested as a solution in the case of
   organizations which are a continuing body (of a permanent nature) but
   are unable to achieve a quorum or the necessary votes to amend their
   bylaws because of changed circumstances.   RONR refers to them as
   “organized permanent societies”.  Your convention is not a permanent or
   continuing body.   It is an assembly of delegates chosen for one
   session only, although that session can last for several days.  Final
   adjournment normally dissolves the assembly.    Once it adjourns sine
   die, it ceases to exist.


   Even though it has adjourned sine die and has ceased to exist, It might
   be theoretically possible to conduct a mail ballot of its delegates in
   order to complete an incomplete election.   Doing so, though, proves
   problematic.  Among the problems: First, who (what officers or what
   body) is going to conduct this mail ballot?   Second, which delegates
   are the ballots to be sent to?  Third, who is going to tabulate and
   announce the results?  The convention has ended.  The convention
   chairman is still the party’s chairman and chair of the LNC, but the
   convention secretary is no longer the secretary of the party or the
   LNC.


   I will give some more thought and do some research into the feasibility
   of a mail ballot, but at this time it seems to me that it is probably
   impractical because your situation is so different from the situation
   in Question 107 of Parliamentary Law.  Besides the practical
   difficulties of doing it, I question whether it would withstand a legal
   challenge.   And, finally, although email voting is authorized for
   voting by the LNC and committees, email ballots are not authorized for
   the convention.  I believe any such ballots would have to be by mail
   since email voting is not authorized for the convention.


   I don’t know if Question and Answer 107 inParliamentary Law is
   available online, but I will  be happy to provide a copy of it that I
   prepared a year or two ago upon request.


   Of the five options you mentioned in your email, it is my opinion that
   Option 5 is the only proper one pursuant to your bylaws, Convention
   Rules, and RONR:  There is no Judicial Committee because the convention
   failed to elect one.


   RONR (Robert’s Rules of Order Newly Revised, 11th edition) does not
   provide direction or suggest a solution.   Based on RONR, there was “no
   election”… nobody was elected before the convention adjourned. RONR
   provides no way around that.


   Regarding the pending LNC email ballot to “acknowledge” or “recognize”
   that the top seven vote getters constitute the Judicial Committee:  I
   do not believe it is possible for the LNC to appoint the members of the
   Judicial Committee or to officially “declare” who the members are.  I
   think what this proposal does is create a “pretend” Judicial Committee
   which will have no actual authority.


   Such a proposal is easy to implement and might work as long as everyone
   is willing to go along and agrees to abide by the decisions of such a
   Committee.  This might work fine for appeals from LNC actions as long
   as the LNC and its members are willing to go along with it.   However,
   in the event of a controversy involving others such as the Oregon
   controversy of a few years ago, I believe that the committee’s
   decisions would not be binding and might well lead to legal
   action.  The same could be said of an appeal of the suspension of an
   officer or LNC member: the member might well take the position that the
   Judicial Committee is illegally constituted and refuse to abide by its
   decision.


   In conclusion, it is my opinion that since the convention failed to
   elect a Judicial Committee, one does not exist.  Neither your
   Libertarian Party Bylaws, your Convention Special Rules of Order, or
   RONR provide for any means of creating or establishing one after the
   fact.


   Please don’t hesitate to contact me if you have additional questions or
   want to discuss this further.


   Sincerely,

   Richard Brown, Jr., J.D.

   Professional Parliamentarian

   824 Sessions Lane

   Kenner, LA  70065

   504-467-7890  (Home/Office, preferred number)

   504-982-7422  (Cell, use as backup and for texts)