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

[Elizabeth Van Horn]

Joe,

Thank you for sharing the information from the convention 
parliamentarian. Mr. Richard Brown's assessment is what several of the 
Region 3 state officers have concluded, that the LNC has no Judicial 
Committee, and no good way to get one.  Nor, can we appoint or mail 
ballot elect, as that violates our bylaws.
--
The 1923 General Robert's "Parliamentary Law" book, isn't what the LNC 
uses. Our bylaws state:
--
" ARTICLE 16: PARLIAMENTARY AUTHORITY
The rules contained in the current edition of Robert's Rules of Order, 
Newly Revised shall govern the
Party in all cases to which they are applicable and in which they are 
not inconsistent with these bylaws
and any special rules of order adopted by the Party."
--
Anything else is breaking our rules, and should be against our 
principals to do.
--
With this in mind, I shall either 'abstain' or vote 'no' on the motion 
to appoint the top-seven Judicial Committee candidates.  I'll share this 
communication from the convention parliamentarian with Region 3, and let 
them know my decision.  (I'll find the email ballot and vote on it after 
communicating with my region.)

---
Elizabeth Van Horn
LNC Region 3 (IN, MI, OH, KY)
Secretary Libertarian Party of Madison Co, Indiana
LP Social Media Process Review Committee
Vice-Chair Libertarian Pragmatist Caucus
http://www.lpcaucus.org/

On 2018-07-14 00:06, Joe Bishop-Henchman via Lnc-business wrote:
> 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)