RE: [ga] serious participation in ICANN processes

[Roeland Meyer <rmeyer@mhsc.com>]

> From: 'Kent Crispin' [mailto:kent@songbird.com]
> Sent: Wednesday, April 04, 2001 7:23 AM
> 
> On Tue, Apr 03, 2001 at 04:24:01PM -0700, Roeland Meyer wrote:
> [...]
> > > So, bottom line, ICANN does not have members (as defined by the 
> > > CNPBCL), and it is under no legal obligation to have them.  There 
> > > really is no question about this.
> > 
> > Yes there is
> 
> One could say that some who really should know better have a 
> mischievous and irresponsible interest in causing people 
> to think so. 

As someone else would say, ad hominem characterizations do not lead to
serious and constructive discussion of substantive issues. Your application
of value-judgments is out of place here.

> > ... and I'd rather take the word of a member of the California
> > State BAR over yours.
> 
> Yes, that would in general be wise.  However, this is not really a 
> conflict between me and Karl; it is a conflict between Karl and the 
> lawyers who wrote the bylaws, who are also members of the BAR.  
> Moreover, they are practicing attorneys who do this kind of 
> stuff on a daily basis.

Yes, but you also gloss over their seriously biased view. It is the nature
and ethical requirement of those attorneys to do as their clients bid and
support the position that their client wants, no matter how sketchy. ICANN
didn't want to have members, for whatever reason, and the lawyers were
tasked to justify it in legal theory. This does not mean it is correct, only
that it is a defensive argument. It remains for a court of competent
jurisdiction to decide. Lawyers are legal interpreters, implementors.
mercenaries, and champions, they do not set requirements. That is the
function of their clients/employers.

> Let's put this in a different realm: you discover you have a heart
> condition, and you need an operation.  You need to select a 
> doctor to do the operation.

You know my position on "argument by analogy". Please, let's stick to the
direct facts and theories and not go down the analogy rat-hole. I discount
analogy arguments as not-presented. They are a teaching mechanism, no more,
and are inappropriate for substantive discussion. This isn't about doctors.

> > I note that you have made no IANAL disclaimers, are
> > you pretending to be a lawyer?
> 
> No.  I am not a lawyer, and this is just my opinion as an intelligent
> layperson.  It is, of course, obviously an opinion shared by the 
> members of the BAR who drafted the bylaws...

I disagree, it is an opinion that lawyers, on the ICANN payroll, put forth
to support that position. As such, it is an entirely different matter. I
thank you for the disclaimer. You probably should apply it more liberally,
IMHO. Otherwise, someone might mistake you for a lawyer, as you seem awfully
assertive regarding your legal interpretation abilities.

> > Thanks to Karl Auerbach for the following (posted with permission);
> [...]
> > > But membership may arise from either a positive explicit 
> > > declaration in
> > > the Corporation's organic documents (Articles of 
> Incorporation or the
> > > By-Laws) *OR* by the indirect consequences of procedures 
> written into
> > > those same documents.
> 
> Nope.  In my humble opinion Karl's "indirect conseqences" 
> theory is his own creation, and is not in the law.  Unless there is 
> specific, explicit provision to the contrary, CNPB corporations do 
> not have members.  The default state is to not have members; members
> must be explicitly designated.  The law goes out of its way to
> make this clear, as I show below.

This is ironic. I too have read the law. More importantly, I asked the
opinions of a number of attorneys, over three years ago. This was the basis
of my Delaware incorporation recommendation, back then, pre-ICANN, for
ICANN.[DOC also made the same recommendation, in 1998. ICANN didn't listen
to them either.] This is one of the reasons that MHSC is a DE corp.
Membership requirements, specifically, was one of the main issues I looked
into. The point is that Karl isn't the only one that has made this opinion
known to me and this certainly isn't the first time I've heard it. I am
actually glad that ICANN BoD didn't listen. CNPB charter is one of the few
handles we actually have on the ICANN. Although, I am saddened to state that
we actually might need to use that handle.

I might also note that indirect consequences are a matter of legal
interpretation. This is something that neither of us is qualified to do for
anyone else. Lawyers may put forth the theory, but only a judge is allowed
to be definitive.

> > > And one of those procedures through which a corporation 
> > > comes to have
> > > members is by having elections for directors pursuant to 
> > > provision in the
> > > Articles or Bylaws. (Section 5056 of the California 
> > > Corporations Code.)
> > > 
> > >   5056. (a) "Member" means any person who, pursuant to a specific
> > >   provision of a corporation's articles or bylaws, has the 
> > >   right to vote for the election of a director or directors... 
> > >   "Member" also means any person who is designated in the 
> > >   articles 
> > >   or bylaws as a member and, pursuant to a specific provision of 
> > >   a corporation's articles or bylaws, has the right to vote on 
> > >   changes to the articles or bylaws.
> 
> Note carefully the phrase "pursuant to a specific provision of the 
> corporations articles of bylaws".

Yes, I and many others, interpret that to allow the corporation to specify
conditions of membership. The law does not seem to presume to state
membership terms. In any case, you don't have the proper governing law
identified here (see below).

> Note also that Karl studiously ignores 5056 (d)(2):

You are not even close to the right section see;

http://caselaw.lp.findlaw.com/cacodes/corp/7120-7122.3.html

and

http://caselaw.lp.findlaw.com/cacodes/corp.html

search for "PART 3.  NONPROFIT MUTUAL BENEFIT CORPORATIONS"

> -- the corporation doesn't have members.

False.

Of course, this only serves to underscore my previous point. Neither of us
are expert in law.

-- 
IANAL - I Am Not A Lawyer. Before taking action on anything I say, you are
encouraged to seek legal advice. 
-- 
ROELAND M.J. MEYER
Managing Director
Morgan Hill Software Company, Inc.
TEL: +001 925 373 3954
FAX: +001 925 373 9781
http://www.mhsc.com
mailto: rmeyer@mhsc.com
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