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

[Steven Nekhaila]

Dear colleagues,

After reading through this thread and dissecting the analysis of both 
the official Parliamentarian and Ms. Mattson, I will be changing my vote 
to NAY.

It seems to me that the delegates were confused in regards to the 
Judicial Committee elections, and after a lengthy convention, wanted to 
expedite the procedure to get the elections accomplished within the 
boundaries of the time we had left before adjournment.

In doing so, inadvertently this caused a road block for Judicial 
Committee elections, thereby making the results of the JC null & void, 
and kicking a wasps nest of conflicting rules and bylaws violations.

We are at a cross roads now, we can either vote in a Judicial Committee 
which violates our own rules, or we can be left without a Judicial 
Committee until the 2020 convention, at which point we can resolve these 
opportunities so this does not repeat again.

The issue with recognizing the Judicial Committee is that most 
importantly, the work that the Judicial Committee does means that they 
can over rule the LNC and other bodies as the last purveyor of internal 
party law, but if there is question of that committee's legitimacy that 
puts the whole purpose of the committee into jeopardy. Legal suits could 
be charged or a schism in recognizing the authenticity of the committee 
could result in simple disobedience to any rule or suggestion from the 
committee. Effectively, this would give us an impotent JC until 2022.

While I agree that having a Judicial Committee is important, the only 
reasonable course of action I see now is to NOT ACKNOWLEDGE the election 
of the committee and instead intend for the delegates of the 2020 
convention to lawfully elect the Judicial Committee without question.

Although I have heard very little form Region 2 in regards to this 
issue, the general sense has been to move along with it and get to 
palpable business, however, while I represent my Region, I am bound by 
the rules of the Party, and to be in line with those rules and to avoid 
potential pitfalls and schisms in the future, I vote NAY on this motion.

In Liberty,

Steven Nekhaila
Region 2 Representative
Libertarian National Committee

Impotentes defendere libertatum non possunt
"Those without power cannot defend freedom"

On 2018-07-14 02:14 AM, Elizabeth Van Horn via Lnc-business wrote:
> 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)