RE: [ga] serious participation in ICANN processes

[Roeland Meyer <rmeyer@mhsc.com>]

See Karl's answer below;

> From: 'Kent Crispin' [mailto:kent@songbird.com]
> Sent: Tuesday, April 03, 2001 3:17 PM
> 
> On Tue, Apr 03, 2001 at 04:23:43PM -0400, Sotiropoulos wrote:
> > 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.  
> 
> [...] 
> 
> 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."
> 
> No, it doesn't mean that.
> 
> To reiterate: 1) Contrary to the statement that started this thread, a
> CNPBCL is not required to have members; 2) The ICANN bylaws 
> make it very
> clear that the "Members" defined in the bylaws do not qualify 
> as members
> under the CNPBCL code.  Karl Auerbach has a mischievous interpretation
> of those laws, which you have picked up and will defend to the death,
> but the people who crafted those bylaws knew what they were doing. 
> 
> I have been told that Karl bases his creative reading on a fundamental
> misunderstanding (deliberate or not) of the legal view of 
> whose benefit
> the bylaws are written for -- the bylaws are written for the 
> benefit of
> the corporation; they are not written for the benefit of outside
> parties.  If the corporation writes bylaws that state that 
> "we are going
> to allow people to help us select directors, but that they 
> are not to be
> considered members as defined in the CNPBL", then that's how 
> things are. 
> 
> 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 ... and I'd rather take the word of a member of the California
State BAR over yours. I note that you have made no IANAL disclaimers, are
you pretending to be a lawyer?

Thanks to Karl Auerbach for the following (posted with permission);

> -----Original Message-----
> From: Karl Auerbach [mailto:karl@cavebear.com]
> Sent: Tuesday, April 03, 2001 1:26 PM
> 
> The person who posted gave only part of the story and as such 
> comes to an
> incomplete conclusion.
> 
> Sure the California statutes do allow non-membership corporations.
> 
> 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.
> 
> 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.
> 
> And under that section those who get the power to vote thereby become
> members.
> 
> (One can argue about the effectiveness of ICANN's use of an 
> resolution to try to avoid the "pursuant to a specific provision" 
> part of the statute.)
> 
> A corporation can't override the statute and say that that 
> that implict declaration of membership (i.e. the election of directors)  
> doesn't cause membership to arise.
> 
> See: http://www.cavebear.com/icann-board/platform.htm#full-members
> 
> The provision that Crispin quoted is merely a catchall that 
> serves to say that if nothing in the Articles or Bylaws either
> explicitly or implicitly causes a membership to arise, then
> the corporation is still legal.
> 
> There is no iconsistency between section 5310 and 5056. The 
> presence of a section 5056 election means that a corporation
> has not effectively provided "in its articles that it shall
> have no members."
> 
> A draftsman can create a set of corporate documents, such as 
> ICANN's, in which there is both a declaration of no-membership
> and provisions that do create membership.  But that is just
> slopply lawyering.
> 
> Notice that the first sentence of section 5310(a) merely allows a
> corporations to *state* in its articles or bylaws that it 
> shall have no members.  But such a provision is, in and of itself,
> nothing more than a bald statement.  The second sentence of 5310(a)
> is the real meat - according to that sentence it is only the
> *absence* of any membership-causing provision, such as 5056, anywhere
> in the articles or bylaws that causes there to be no membership.
> 
> 		--karl--
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