Re: [ga] serious participation in ICANN processes

["'Kent Crispin'" <kent@songbird.com>]

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. 

> ... 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.

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 don't actually know any doctors, but two choices are
suggested to you.  Would you select

    a) a currently practicing surgeon who has done hundreds of
    operations just like the one you need, or

    b) someone who went to medical school, and has a medical license,
    but who doesn't practice, and instead for the last 15 years has been
    working as a network engineer?

> 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...

> 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.

> > 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".  

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

   (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.

That is, in addition to requiring "specific provision", the right to
select directors is *explicitly marked* as insufficient to make one a
member.  The drafters of the law went to some lengths to make it
clear... 

[...]

> > 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.

The actual text reads:

    In the absence of any provision in its articles or bylaws providing
    for members, a corporation shall have no members. 

Karl imagines that there are all kinds of things that *implicitly*
create membership, that's why he uses the phrase "membership-causing
provision".  But the law actually goes far out of its way to make clear
that membership must be *explicitly* provided for.  A provision
"providing for members" would be something like "The coroporation shall
have members..." If the bylaws say "notwithstanding anything else, the
corporation does not have members", there really isn't much else to say
-- the corporation doesn't have members.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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