Re: [ga] serious participation in ICANN processes

["Sotiropoulos" <sotiris@hermesnetwork.com>]

Kent, I've copied a message I had prepared in response to this same argument
of yours on the WG-Review on Jan. 31st
(http://www.dnso.org/wgroups/wg-review/Arc02/msg02292.html), for the benefit
of all on the GA List.  It went like this:

"Ok Kent,  I've read it a few times over and also gone to the CNPBCL Code.

       >1/30/01 6:40:04 PM, Kent Crispin <kent@songbird.com> wrote:
       >
       >>Article II, Section 1:
       >>
       >>    The Corporation shall not have members as defined in the
California
       >>    Nonprofit Public Benefit Corporation Law ("CNPBCL"),
notwithstanding
       >>    the use of the term "Member" in these bylaws, in a selection
plan
       >>    adopted by Board resolution, or in any other action of the
Board.
       >>    Instead, the Corporation shall allow individuals (described in
these
       >>    bylaws as "Members") to participate in the activities of the
       >>    Corporation as described in this Article II and in a selection
plan
       >>    adopted by Board resolution, and only to the extent set forth
in
       >>    this Article II and in a selection plan adopted by Board
resolution.
       >>
       >>I don't know how it could be more plain.  The corporation doesn't
have
       >>members.  (I know that Karl Auerbach has entertaining legal
theories.
       >>You just have to consider that Karl is a full-time engineer who got
a
       >>law degree, while the bylaws were written by full-time lawyers that
       >>everybody (except Karl) thinks are top notch.)

       Well, this is how the CNPBCL Code defines "members":

       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 or on a disposition
       of all or substantially all of the assets of a corporation or on a
       merger or on a dissolution unless the provision granting such right
       to vote is only effective as a result of paragraph (2) of subdivision
       (a) of Section 7132.  "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.
          (b) The articles or bylaws may confer some or all of the rights of
       a member, set forth in this part and in Parts 2 through 5 of this
       division, upon any person or persons who do not have any of the
       voting rights referred to in subdivision (a).
          (c) Where a member of a corporation is not a natural person, such
       member may authorize in writing one or more natural persons to vote
       on its behalf on any or all matters which may require a vote of the
       members.
          (d) A person is not a member by virtue of any of the following:
          (1) Any rights such person has as a delegate.
          (2) Any rights such person has to designate or select a director
       or directors.
          (3) Any rights such person has as a director.

       Now, granted that California Code Law does not enjoin any corporation
to *have* members, it does allow
       Corporations to set up their own "membership" mandates.  I think it
is quite clearly apparent that *some kind of
       membership* is involved in the fact that "the Corporation (ICANN)
shall allow individuals (described in these bylaws
       as "Members") to participate in the activities of the Corporation as
described in this Article II and in a selection plan
       adopted by Board resolution, and only to the extent set forth in this
Article II and in a selection plan adopted by
       Board resolution."  Since, however, the @Large is able to vote in
Directors of the Board, does it not follow that
       such members are actually acting according to the CNPBCL definition
of "members" (i.e. "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...) ???

       I'd appreciate a response."


I wonder, perhaps its time we turned to some rose gardening, or something,
huh?  maybe an upROOTing or a PRUNING?

Sotiris Sotiropoulos
        Individual



----- Original Message -----
From: 'Kent Crispin' <kent@songbird.com>
To: <ga@dnso.org>
Sent: Tuesday, April 03, 2001 2:55 PM
Subject: Re: [ga] serious participation in ICANN processes


> On Mon, Apr 02, 2001 at 07:52:24PM -0700, Roeland Meyer wrote:
> > > Sorry, that is simply incorrect.  Said laws do not mandate a
> > > membership.  It is perfectly legal to have a corporation without
> > > members.
> >
> > Not for a California non-profit.
>
> Sorry, that is incorrect.
>
>     5310.  (a) A corporation may admit persons to membership, as
>     provided in its articles or bylaws, or may provide in its articles
>     or bylaws that it shall have no members.  In the absence of any
>     provision in its articles or bylaws providing for members, a
>     corporation shall have no members.
>
>     (from the california corporations code, in part 2, describing
>     nonprofit public benefit corporations, visible at
>     http://caselaw.lp.findlaw.com/cacodes/corp/5310-5313.html)
>
>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
> --
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