Re: [wg-review] Constituencies, 1 governance and legality

[Karl Auerbach <karl@CaveBear.com>]

On Wed, 31 Jan 2001, Kent Crispin wrote:

> Now I just want to get this straight: you as an attorney before the
> California Bar, and as an ICANN board member with a fiduciary
> responsibility to protect the interests of corporation, are stating that
> the ICANN atlarge members are members of the corporation in the full
> legal sense of section 5056 of the California Nonprofit Public Benefit
> Corporation Law, Article II, Section 1 of the ICANN bylaws
> notwithstanding; and that therefore any or all of these atlarge members
> should engage in all appropriate legal action to secure their "rights"?
> Have I correctly stated your position?

(Did you have one of those "top notch" attorneys help you write that?)

As for your question, you got much of my position right, but not all:  In
no way am I saying that the at-large members "should"  engage in legal
action - such a decision rests with each individual member.  I personally
don't want to see such action, I prefer that ICANN simply recognize the
fact of membership and abide by it.

And it's not just section 5056 we're talking about.  There are many
provisions of the Calif corporations code involved.

As for ICANN's bylaw section - can you cite a source of authority for the
proposition that a corporate bylaw can supersede and nullify a State
statute?  You used the word "notwithstanding" - and that's exactly right,
a corporate by-law does not withstand the superior authority of a State
statute.

If one were to adopt your logic, ICANN could pass a bylaw saying that its
officers are exempt from traffic speed limits.  That would be a laughable
defense should one be be cited and tried for speeding.  ICANN's
self-declaration that it has no members carries exactly the same lack of
weight against a State law.

Part of my obligation is to ensure that ICANN follows the laws.  And those
laws, as I read them, say that ICANN has members who have numerous rights.


> You are of course aware that in your position, making such a
> public statement is likely to incite some person to legal action that
> could cost ICANN significant sums of money?

Incite?  Since when is discussing legal rights incitement?

ICANN can avoid spending those sums you mention simply by realizing the
fact of membership.

		--karl--






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