Dr. George Phillies, APPEAL THE LNC
Following the resignation of Libertarian Party Chair Joe Bishop-Henchman in late June 2021, arguments were made that it was the position – not of Chair – but of Vice-Chair, that had become vacant, as under Robert’s Rules of Order Vice-Chairs become Chairs immediately upon resignations.
Others argued that the LP bylaws, as well as past precedent, were clear that it was the Chair’s position that was vacant, and that the Vice-Chair was only Acting Chair, pending a bylaws-required vote by the members of the LNC to elect a new Chair.
Late yesterday, 18 November 2021, a petition was presented to the Judicial Committee in an attempt to clarify which of those two points-of-view should prevail.
Shortly after former Chair Joe Bishop-Henchman’s resignation, LNC Vice-Chair (or Chair, or was it Acting Chair) Ken Moellman declared that he would not accept the Chair’s position through either process, but also ruled that the Robert’s Rules of Order process was applicable, thus reversing prior (bylaws) precedent and setting new (Robert’s) precedent for “automatic-ascension” of the Vice-Chair to Chair, with future LNCs then to be tasked with voting on, and electing a new Vice-Chair.
On 13 July 2021, Dr. Phillies and others posted on social media a link to:
At that time, Dr. Phillies wrote:
“Are you a member of the Libertarian National Party? Were you a 2020 delegate to the national convention? Either is good. Robert’s (Rules of Order) made a hash of the 2020 (Libertarian National Convention). We can fix that one slice at a time. Thanks to the recent argument over the next national Chair, an argument now settled, we have a path to doing this. ”
Past Chair Nicholas Sarwark wrote:
” . . . there are people who have tried to use parliamentary shenanigans to . . . keep people focused on internal bickering instead of reaching out to our neighbors who are not libertarian yet. There is an appeal to the Judicial Committee of the party to put a stop to these shenanigans. I know many of you have already signed this appeal, but if you are a party member and you haven’t, we could use a few extra signatures as a cushion. If you are a sustaining member of the Libertarian Party, or attended the 2020 national convention as a delegate, please add your signature to this petition so we can move forward on a path to even greater success in 2022.”
107 signatures were reported to have been required to trigger a Judicial Committee examination and decision. Late yesterday evening the following petition was submitted with 114 unique signatures of individuals identified as either having been a delegate to the 2020 national convention, as sustaining members, or both.
The PETITION can be read, in full, HERE.
IPR Readers who wish to follow the LNC’s public discussion of this issue may do so HERE.
IPR Readers who were either delegates to the LP 2020 national convention, or are sustaining members or both, and who wish to do so, may add their signature to the APPEAL THE LNC petition HERE. (Although the threshold for Judicial Committee review having been apparently exceeded, this may be more of a symbolically supportive act, than a decisive one.)
IPR Readers opposed to this petition are encouraged to monitor statements from the Judicial Committee about how to most appropriately express their concerns (information about same to be provided in the Comments section below as soon as it’s received from the Judicial Committee. IPR has reached out to Dr. Ruwart for comment.)
Submitted with the above Appeal were the following answers to a series of questions asked of Dr. Phillies by Judicial Committee Chair Dr. Mary Ruwart. Dr. Ruwart’s questions are in bold.
What is the basis for the subject matter jurisdiction of the Committee?
The jurisdiction has two parts, namely
(i) the action is capable of repetition, yet evading review, and
(ii) the issues correspond to the jurisdiction of the Judicial Committee under Article 7, Section 12 of the party’s bylaws, namely Section 7.12.d. voiding of National Committee decisions.
What is the ruling requested?
The requested rulings appear below, accompanying the specific issues in the petition.
What is the verifiable identity of the person or persons, affiliate, or party committee petitioning for the requested ruling (“petitioner(s)”).
I am speaking on behalf of 116 delegates to the last national convention. Appendix 3 gives their names and email addresses (NOTE: These have been redacted from this article. Also, an examination by IPR of the names and emails showed 114 unique individuals (with 2 duplicates).
This list was checked against a list of credentialed delegates provided by Susan Hogarth.
What is the identity by individual name of any person, affiliate, or party committee that would be directly affected by the requested ruling?
The effect will rest primarily on the national party Chair, Whitney Bilyeu, who should therefore be the respondent if you decide to hear the case. There would also be an effect on those acting in the national party Chair’s place, and at one remove on Chairs and acting Chairs of Libertarian Party Committees and subcommittees.
At more length.
Basis for the subject matter jurisdiction:
(i) We cite the doctrine “action is capable of repetition, yet evading review”. We refer to events that have already taken place, but which can still be adjudicated despite the mootness doctrine. Libertarians will immediately recognize two issues that could only be brought to the Supreme Court because of this doctrine, namely abortion and ballot access. Assuredly, before an issue can reach the Supreme Court the unborn child will have been born and the votes will have been counted, but the cases may still advance. There will be other women wanting an abortion and other election ballots waiting to be filled.
The doctrine in question first appeared in the 1911 case of Southern Pacific Terminal Co. v. Interstate Commerce Commission. (219 U.S. 498, 1911). Under modern conditions, beginning with Sosna v. Iowa, 419 U.S. 393 (1975), the doctrine has two prerequisites:
(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.
Our petition points 1 – 5 refer to events at LNC meetings and National Conventions that have since adjourned, a process taking days, while gathering the requisite signatures for this appeal took months, so the action was too short to be litigated. Furthermore, appeals to experts in Robert’s leading to opinions that contradict our bylaws, and prolonged delays via appeals to Robert’s Rules of Order, are certainly actions that can be repeated. Therefore, the prerequisites for applying the doctrine are indeed satisfied.
With respect to the assertion that the doctrine refers to federal court cases, and is not binding on us, I would remind all parties that (i) the doctrine is highly reasonable and efficacious in promoting justice, and (ii) we regularly rely on the doctrine in our ballot access litigation, and might find it disadvantageous to have others note that we do not apply it in our own judicial processes.
Are we discussing decisions of the LNC?
First, some attention to the text of our bylaws is needed. Second, in several cases we are discussing LNC votes. First, our bylaws are well-worded:
In Sections 5.6, 6.7, 7.5, 7.8, 7.11, 7.13, 7.14, 7.15, 10.9, 11.6, 13, 14.4, 14.5, 15.1, 15.2, 17.1, and 17.2, where an actual vote is intended, the word “vote” is used.
In Article 11, namely 11.1, 11.2, 11.3c, 11.3.d, 11.4a, 11.4b, and 11.5, where the process for choosing person(s) for a multi-member group may become complicated, the verbs “select”, “appoint”, “choose” and “name” in various tenses are invoked, the exact process of determining committee members and officers not being specified.
In Sections 5.6, 7.5, and 7.12, actions of the Judicial Committee are described with the verbs “rule” and “veto”, the process the Judicial Committee follows being covered by Section 8.3 “…the Judicial Committee shall establish…”
With respect to the petition here, Section 7.12.d refers to “d. voiding of National Committee decisions”.
This use of “decisions” rather than “votes” is significant, and important for our party. The Libertarian National Committee is not only its 17 or 18 members assembled in a meeting, because its officers and subcommittees may have independent powers to make decisions. In particular, our bylaws, Section 6.3, provide in part
“…The Chair is the chief executive of the Party with full authority to direct its business and affairs…subject to express National Committee policies and directives…”
The Chair’s directives under 6.3 are as much decisions of the LNC as LNC votes are decisions. If they were not, then there would be no way for the membership to appeal a Chair’s decisions by taking him to the Judicial Committee. An LNC that wished to subvert the bylaws would merely need the connivance of the Chair. The Chair would make improper decisions, the LNC would vote to table any objections from within the LNC, and there would be no LNC decisions that were not by-laws compliant that could be appealed.
Is this subversion a mere hypothesis? There is a concrete case of an officer’s individual decision eventually reaching the Judicial Committee. Some years ago, the LNC Secretary claimed that LNC Member R. Lee Wrights’ dues were delinquent. The Secretary then claimed that due to said notice, Wrights had constructively resigned from the LNC without the LNC needing to take action to remove Wrights from the Committee. After much back and forth, Wrights was not removed.
Second, in some of the cases here, it could be proposed that the LNC has voted, namely it has voted to allow a person not a member, namely a Parliamentarian, to address the body, the vote being part of a bylaws-noncompliant decision.
Specific issues in the Appeal
Appeal Requests 1, 2, and 3
In an attachment to the https://groups.google.com/a/lp.org/g/lnc-business message Issue of vacancy, as posted on June 27, 2021 acting Chair Moellman posted claims from several experts in Robert’s Rules of Order, people he had consulted.
His cover memo read:
“Jun 26, 2021
“I hope you will take the time to read through this message and the attached information. It is my intent to be upfront with this board and our members.
“The issue of auto-ascension has been the topic of a number of conversations. Because I want to be sure to give the best ruling possible on this very important topic, I have sought professional opinions on the matter, and present those three opinions now.
“1. Richard Brown, our party’s go-to parliamentarian for the last few years. Pages 1 and 2 of the attached document contain his opinion and explanation.
“2. Thomas Balch, PRP, and current co-author of RONR. Mr. Balch has provided opinions to the national Libertarian Party and/or its leadership in the past. Pages 3-5 contain the only conversation I have ever had with Mr. Balch. Pages 6-9 contain his opinion and explanation. Pages 10-13 contain his bio and resume. (I later validated that we are, indeed, still incorporated in DC.)
“3. Dr. Atul K. Kapur, PRP, provided a verbal opinion that matches the opinions given by Mr. Brown and Mr. Balch. As such, I did not obtain a written opinion for financial reasons. He is listed in case any member wishes to know who was contacted.
“Please note that contact info that isn’t published on websites and street address information has been redacted in the attachment.”
Libertarian National Committee
The claims are in the attachment to this message. As part of Moellman’s decisions on the question of who becomes national chair, Moellman relied in part on sentences on page 7, final paragraph of the attachment. For clarity, within the petition I partitioned the relevant part of the offending paragraph into three parts:
a. “In adopting Robert’s as its Parliamentary authority, …”
b. “…the Libertarian Party bylaws incorporated that authority’s interpretation of the meaning and effect of language used in its bylaws provisions…”
c. “…Consequently, upon a vacancy in the office of Chair, the Vice Chair automatically assumed the office of Chair, in turn creating a vacancy…”
We now reach the petition itself, which in part reads
1. The Judicial Committee is asked to rule that the claim (b) above is false, because it allows the meaning of our bylaws to be changed by outside parties, in violation of the authority of the National Convention, and therefore may not be a basis for past or future LNC decisions.
2. The Judicial Committee is asked to rule that the claim (c) above is false, because it violates our bylaws Article 6 and 16, in that on this point Robert’s is inconsistent with our bylaws and is therefore inapplicable, and therefore may not be a basis for past or future LNC actions.
3. The Judicial Committee is asked to rule that the claim (a) above, which is widely invoked, is false as a violation of our bylaws Article 16, in that Robert’s is only applicable at points where it does not conflict with our bylaws, so therefore our own bylaws are the primary authority.
While the LNC voted to overrule Moellman’s ruling that he therefore became chair, the above points still represent three interpretational decisions. We are asking, as a matter for the record for future LNC actions, that the Judicial Committee rules that the claims in the above are false.
Appeal request 4 refers to a statement in Robert’s Rules of Order
“IV.21.Questions of Order and Appeal 21. Questions of Order and Appeal. A Question of Order takes precedence of the pending question out of which it arises; is in order when another has the floor, even interrupting a speech or the reading of a report; does not require a second; cannot be amended or have any other subsidiary motion applied to it; yields to privileged motions and the motion to lay on the table; and must be decided by the presiding officer without debate, unless in doubtful cases he submits the question to the assembly for decision, in which case it is debatable whenever an appeal would be. Before rendering his decision he may request the advice of persons of experience, which advice or opinion should usually be given sitting to avoid the appearance of debate. If the chair is still in doubt, he may submit the question to the assembly for its decision…”
Mr. Moellman in his cover memo states “The issue of auto-ascension has been the topic of a number of conversations. Because I want to be sure to give the best ruling possible on this very important topic, I have sought professional opinions on the matter, and present those three opinions now.”
We do not see where Mr. Moellman was asked for a ruling on the question of auto-ascension, but perhaps he asked himself. The clause in bold face appears to be the basis for Mr. Moellman’s request of several outside experts for their opinions. The outcome of the request was several opinions that clearly contradict our bylaws. The Appeal now requests:
Noting repeated use of persons familiar with Robert’s Rules of Order to generate opinions, the Judicial Committee is asked to rule, contrary to the decision of the former acting Chair and others, that the right of the Chair to refer questions to ‘persons of experience’ refers to persons experienced with us, namely persons who are long-term party members, have chaired our meetings or conventions, or sat on the Judicial Committee, and can if need be cite precedents.
The effect of the requested ruling would require that the Chair, if he cannot rule himself, and for some reason fails to invoke the clause in Robert’s “…unless in doubtful cases he submits the question to the assembly for decision, in which case it is debatable whenever an appeal would be…” limit himself to consulting long-time party members who are experienced in these issues.
Finally, we really are here to do political business. We therefore reach
Appeal Request 5
The Judicial Committee is asked to rule that the decision to allow prolonged parliamentary delays, as opposed to the Chair making an immediate decision or immediately asking the opinion of the body, is a violation of our bylaws, Article 2, in that it prevents carrying out the purposes of our party.
This appeal would not prevent the Chair from asking persons of experience within the party for their opinions. Of course, if the persons of experience are not members of the LNC, then as explained in Robert’s the LNC would need to pass a motion permitting the non-members to address the LNC. (This rule appears not to be observed reliably, as witness the introduction of the opinions of several Parliamentarians by acting Chair Moellman, without such a motion being passed.)
Note: The author of this article, Dr. Joseph G. Buchman, is one of the signatories to the Appeal The LNC Petition to the Judicial Committee of 18 November 2021.