Subject: GA-DIGEST V1 #341
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST           Wednesday, April 4 2001           Volume 01 : Number 341

----------------------------------------------------------------------

Date: Tue, 3 Apr 2001 16:23:43 -0400
From: "Sotiropoulos" <[email-masked]>
Subject: Re: [ga] serious participation in ICANN processes

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 <[email-masked]> 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' <[email-masked]>
To: <[email-masked]>
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
> [email-masked]                           lonesome." -- Mark Twain
> --
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>
>

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------------------------------

Date: Tue, 03 Apr 2001 22:48:44 +0200
From: Harald Tveit Alvestrand <[email-masked]>
Subject: Re[2]: [ga] withdrawal of candidacy

At 11:56 03.04.2001 -0700, William X. Walsh wrote:
> > Well, none of the candidates are dead, that I know of.  But we have no
> > established practice here, and it seems pretty clear that the NC will
> > have to make a determination.  Well, I suppose the GA could vote on
> > what to do...
>
>I think the voting system adequately deals with this.  There really is
>no crisis here.

well, there are 2 reasonable choices:

- - Run the vote as scheduled, note that (if the resignee is a winner) either
the chair or the co-chair has resigned, raise the co-chair to chair if the 
chair was the resignee, and call a new election for co-chair

- - Before the first round of counting, eliminate all resigned candidates

I know positively that I did not think of this when writing the rules; 
there is nothing to cover resignation of a candidate after accepting.
So by the default of "run the rules as written", the first option wins.

Thoughts?

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------------------------------

Date: Tue, 3 Apr 2001 16:51:14 -0400
From: [email-masked] (Digitel - Ken Stubbs)
Subject: Re: [ga] withdrawal of candidacy

am i to assume then that the vote i cast is for naught . given that the
election is still open, i should be give the opportunity to recast my vote
as should any party who originally voted for jonathan and wishes to recast
their vote for another person.

i would request that someone please advise me of my options

ken stubbs
- ----- Original Message -----
From: "Sotiropoulos" <[email-masked]>
To: "Kent Crispin" <[email-masked]>; <[email-masked]>
Sent: Tuesday, April 03, 2001 3:42 PM
Subject: Re: [ga] withdrawal of candidacy

> What to do?!?!
>
> Why... we go on with the election of course!
>
> Damn pity Jon Weinberg dropped out, but there's no need to stall the
> election... unless certain parties are apprehensive about... what, I
wonder?
>
> Sotiris Sotiropoulos
>         Hermes Network, Inc.
>
>
>
>
> ----- Original Message -----
> From: Kent Crispin <[email-masked]>
> To: <[email-masked]>
> Sent: Tuesday, April 03, 2001 2:24 PM
> Subject: Re: [ga] withdrawal of candidacy
>
>
> > On Tue, Apr 03, 2001 at 11:26:58AM -0700, Bret Fausett wrote:
> > > Kent Crispin wrote:
> > > >> Luckily, the instant-runoff voting system will allow any votes that
> people
> > > >> may have cast for me to be redistributed to other candidates.
> > > >
> > > > The question of what to do when a candidate withdraws in the midst
of
> > > > an election is a matter of policy, not mechanism.
> > >
> > > In most jurisdictions in the United States, as an example, the
practice
> is
> > > to inform the voters of the withdrawal but allow the election to
proceed
> as
> > > planned under the current ballot. (Of course, this practice has led to
> at
> > > least one dead man being elected to a high office. :-)
> >
> > Well, none of the candidates are dead, that I know of.  But we have no
> > established practice here, and it seems pretty clear that the NC will
> > have to make a determination.  Well, I suppose the GA could vote on
> > what to do...
> >
> > --
> > Kent Crispin                               "Be good, and you will be
> > [email-masked]                           lonesome." -- Mark Twain
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
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> >
> >
> >
>
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>

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------------------------------

Date: Tue, 3 Apr 2001 23:12:29 +0200
From: Thomas Roessler <[email-masked]>
Subject: Re: [ga] serious participation in ICANN processes

On 2001-04-03 15:50:39 -0400, Sotiropoulos wrote:

> Just because ICANN wishes to say the sky is pink and blue
> pinstripe, doesn't mean it's not blue... just take a look out the
> window.

The last time I looked at ICANN's site, there was no claim that the
sky is pink and blue pinstripe.

> Must we rehash this?  

Apparently.

> Although the Bylaws may contend the ICANN has no members, the
> FACT that the ATLARGE puts DIRECTORS on the BOARD, who may
> participate in and qualify for quorum requirements, and thereby
> influence the allocation and distribution of Corporation assets,
> speaks for itself... ICANN does in FACT have members.

Please, have a look at the staff's analysis from Aug 11, 1999, under
<http://www.icann.org/santiago/membership-analysis.htm>.  Let me
quote:

	California law provides that certain specific rights and
	powers automatically belong to any "member" of a non-profit
	corporation. A "member" includes "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 . . . has the right to vote on changes to
	the articles or bylaws." (§ 5056).

Now, let's look at what's in the Bylaws on this topic:

	ARTICLE II:  MEMBERSHIP
	
	Section 1. GENERAL
	
	The Coropration shall not have members as defined in the
	CNPBLCL. [...]
	
	Section 2. PLAN FOR SELECTION OF FIVE "AT LARGE" DIRECTORS
	IN THE YEAR 2000
	
	Five persons shall be nominated and selected by no later
	than November 1, 2000, to become "At Large" Directors
	according to a selection plan adopted by the Board.  They
	shall be seated at the conclusion of the Annual Meeting of
	the Corporation in 2000.

The Articles of the Corporation don't say anything relevant, either.

In Yokohama, resultions 00.66+ contained the actual "selection
plan".  When there's one thing which is pretty clear about this,
it's that there is no SPECIFIC PROVISION in the ARTICLES OR BYLAWS
which gave at large members the right to vote on the board.  They
had this privilege solely on the ground of a board decision, which
could just as well have given that right to the UN general assembly.

Now, since Roeland mentioned it, let's look at Karl Auerbach's
interpretation of this:

	This so-called "selection plan adopted by Board resolution"
	is nothing less than the election in which we are all
	participating right now.

Nobody doubts this.

	By avoiding even the use of the word "election" (and using
	"selection" instead) the ICANN side-show artists are
	attempting to claim that there isn't even any voting going
	on - and you will note that the California statute depends
	on people having a "right to vote".
	
	One has to be pretty silly, or stupid, not to recognize that
	there is, in fact, an election going on.  But ICANN is
	depending on blind acceptance of their artifice.
	
	By placing the definition of the selection/election process
	into a "plan adopted by Board resolution" ICANN is trying to
	claim that the selection/election is not made "pursuant to a
	specific provision of a corporation's articles or bylaws".

As far as I read the code, it's not talking about an election which
is made pursuant to a specific provision, but about the right to
vote which has been given pursuant to such a provision.  But ok,
this may be due to the fact that I'm not a native speaker - neither
of English, nor of American legalese.

	This is a legal shell game that has no purpose except to
	evade the clear intent of the California law and to
	eviscerate the rights accorded to people who are in all
	senses of the word, "members" of ICANN.

	It is a shell game that should be stopped.

Now, if the clear intent of the California law was that anyone who's
asked by board resolution to vote for board seats is a member in the
sense of the California code, why did the legislation put in that
note on a SPECIFIC PROVISION?

I'm sorry, but I don't buy Karl's argument here, since it boils down
to very little: His opinion on the INTENT of the California law, as
opposed to it's WORDS.  Bad enough, he doesn't even argue this
opinion, but just surrounds it with a hole lot of polemics.  Sorry,
folks, this isn't an analysis - it's campaigning, and polemics.
ICANN is indeed using this law in a creative way - but I actually
believe it does so in a legally effective way.

BTW, I find it interesting that not a single US lawyer has sued for
his membership rights so far.  Why not, if Karl's arguments are
clear, and there is no doubt in their correctness?

Anyway, I'd suggest we postpone this debate until we have a court's
opinion on this.

- -- 
Thomas Roessler			    <[email-masked]>
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------------------------------

Date: Tue, 3 Apr 2001 14:41:11 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] withdrawal of candidacy

Hello Digitel,

Tuesday, April 03, 2001, 1:51:14 PM, Digitel - Ken Stubbs wrote:

> am i to assume then that the vote i cast is for naught . given that the
> election is still open, i should be give the opportunity to recast my vote
> as should any party who originally voted for jonathan and wishes to recast
> their vote for another person.

> i would request that someone please advise me of my options

In your vote, you ranked the candidates by preference.

Would it not be logical to assume that your ranking would not change
with regard to the other 3 candidates?

So why the need for a revote?

- -- 
Best regards,
 William                            mailto:[email-masked]

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------------------------------

Date: Tue, 3 Apr 2001 14:53:23 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] serious participation in ICANN processes

Hello Thomas,

Tuesday, April 03, 2001, 2:12:29 PM, Thomas Roessler wrote:
> Now, if the clear intent of the California law was that anyone who's
> asked by board resolution to vote for board seats is a member in the
> sense of the California code, why did the legislation put in that
> note on a SPECIFIC PROVISION?

How do you know the clear intent?

One of the things the courts look at in clear intent is not always the
literal interpretation of the words, but the statements by the
authors and others in the legislature when the law was being drafted
and debated.

> I'm sorry, but I don't buy Karl's argument here, since it boils down
> to very little: His opinion on the INTENT of the California law, as
> opposed to it's WORDS.

The courts will tell you the strict wording is not as important as the
interpretation of the meaning and intent.

- -- 
Best regards,
 William                            mailto:[email-masked]

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------------------------------

Date: Tue, 3 Apr 2001 15:17:22 -0700
From: "'Kent Crispin'" <[email-masked]>
Subject: Re: [ga] serious participation in ICANN processes

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.

- -- 
Kent Crispin                               "Be good, and you will be
[email-masked]                           lonesome." -- Mark Twain
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------------------------------

Date: Wed, 4 Apr 2001 08:33:13 +1000
From: "Patrick Corliss" <[email-masked]>
Subject: Re: [ga] withdrawal of candidacy

Hi Harald

Thank you for your interesting post about the withdrawal of Jon Weinberg from
the election for the Chair of the General Assembly.  I believe Jon has acted
properly and should be congratulated for his integrity.  It is, perhaps, a pity
that the current procedure doesn't allow candidates to nominate for the Chair
and co-Chair positions separately.  The outcome may well have been different.

Although I am a candidate I would like to make one or two other important
points, if I may.

(1)    I don't believe any of the three remaining candidates should drop out
MERELY because they see the result as a foregone conclusion.  As Jon's decision
showed, the race is not over until the decision is announced.

(2)    Similarly, all registered voters should not think that the result is
decided but should cast their vote for their preferred candidates in the order
of that preference as this is important to demonstrate legitimacy of the result.
The more votes there are the more legitimate is the result.

(3)    Harald has proposed two reasonable choices (see below), the first choice
could see the votes counted and the votes declared.  This is separate from the
announcement of the winner.  It is easy enough, for example, to say something
like:

"The votes cast in this election were as follows Candidate A (Jon Weinberg) - 90
votes, Candidate B - 80 votes, Candidate C - 60 votes, Candidate D - 40 votes.
As Candidate A has withdrawn I declare Candidate B the winner."

It is my view that all of the votes on the ballot paper must be counted exactly
in accordance with how they have been cast.  To do otherwise, in the slightest
degree, causes the perception, however slight or misinformed, that the election
may not be legitimate.

I agree it's a waste of time to count votes for a withdrawn candidate but it
must be done.

However, I would suggest that nobody draws any conclusions from the size of the
vote cast for a withdrawn candidate as it is impossible to determine the
intentions of those who voted prior to his withdrawal what they would have voted
if they had voted afterwards.

On another note I cast my own vote shortly after receiving the ballot paper.  It
now occurs to me that there was a small window before the ballot officially
opened.  If this is in fact the case, some votes may be deemed invalid as cast
outside the declared time frame.  My vote could be affected.

Because of the difficulties with time zones, I would appreciate it if you would
advise whether such an irregularity could occur and, if so, how should it be
dealt with.  I open this for public comment.

Best wishes to all candidates.
Patrick Corliss

- ----- Original Message -----
From: Harald Tveit Alvestrand <[email-masked]>
To: William X. Walsh <[email-masked]>
Cc: Kent Crispin <[email-masked]>; <[email-masked]>
Sent: Wednesday, April 04, 2001 6:48 AM
Subject: Re[2]: [ga] withdrawal of candidacy

> At 11:56 03.04.2001 -0700, William X. Walsh wrote:
> > > Well, none of the candidates are dead, that I know of.  But we have no
> > > established practice here, and it seems pretty clear that the NC will
> > > have to make a determination.  Well, I suppose the GA could vote on
> > > what to do...
> >
> >I think the voting system adequately deals with this.  There really is
> >no crisis here.
>
> well, there are 2 reasonable choices:
>
> - Run the vote as scheduled, note that (if the resignee is a winner) either
> the chair or the co-chair has resigned, raise the co-chair to chair if the
> chair was the resignee, and call a new election for co-chair
>
> - Before the first round of counting, eliminate all resigned candidates
>
> I know positively that I did not think of this when writing the rules;
> there is nothing to cover resignation of a candidate after accepting.
> So by the default of "run the rules as written", the first option wins.
>
> Thoughts?
>
>
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Date: Wed, 4 Apr 2001 00:41:05 +0200
From: Alexander Svensson <[email-masked]>
Subject: Re: Re[2]: [ga] withdrawal of candidacy

Harald Tveit Alvestrand wrote on 03.04.01, 22:48:44:
> well, there are 2 reasonable choices:

> - Run the vote as scheduled, note that (if the resignee is a winner) either
> the chair or the co-chair has resigned, raise the co-chair to chair if the
> chair was the resignee, and call a new election for co-chair
>
> - Before the first round of counting, eliminate all resigned candidates
>
> I know positively that I did not think of this when writing the rules;
> there is nothing to cover resignation of a candidate after accepting.
> So by the default of "run the rules as written", the first option wins.
>
> Thoughts?

Problem:
To fill out the ballot, you are not required to rank all
candidates, you may also rank one or two of them.
(cf. http://www.dnso.org/dnso/notes/2001.GA-chair-election-rules-v0.2.html)

If you have just cast a vote for a candidate which now
resigns and not for any other ones, your vote is wasted.

If you have cast a vote for a resigned candidate and
one for another, your vote for co-chair is wasted.

I would therefore ask whether it is technically possible
and wise to give everyone the opportunity to resend their
vote. (I already see the difficulty that there may
be people who have already deleted both the mail they 
received from gavote and the one they sent.) 

Best regards,
/// Alexander

_______________________________________________________
  ICANN Channel              http://www.icannchannel.de
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------------------------------

Date: Tue, 3 Apr 2001 16:01:53 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] serious participation in ICANN processes

Hello 'Kent,

Tuesday, April 03, 2001, 3:17:22 PM, 'Kent Crispin' 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.

Nice to see you give legal opinions, but I think this matter will be
more likely to be settled in a court room when At-Large members sue
the ICANN BoD.

- -- 
Best regards,
 William                            mailto:[email-masked]

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Date: Tue, 03 Apr 2001 18:03:04 -0500
From: Eric Weisberg <[email-masked]>
Subject: Re: [ga] withdrawal of candidacy

 Ken Stubbs wrote:

> am i to assume then that the vote i cast is for naught .

That is an interesting question.  Harald suggests that this case is not covered
by the rules, but should be resolved by having your vote count exactly as you
would have cast it had Jonathan not been in the race (i.e. that the election
proceed with the current ballot, but that his votes would be ignored in ranking
your preferences under STV).  Others have suggested that this situation is
analogous to that in which the deceased Carnahan beat the living Ashcroft in the
Missouri senate race--e.g. that Jonathan's votes must be counted as if he were a
viable candidate, and, should he "win," that result will be taken as  "none of
the above."

Treating the NC as "governor" acting upon a clean slate would frustrate the NC's
reported desire to appoint someone approved by a vote of the GA.  But, some are
objecting to the loss of options for voters who preferred Jonathan.  His
candidacy may have kept others from running who would have appealed to the same
constituency.   Neither option--taking the "second" choice or vesting "clean
slate" discretion in the NC--may be satisfactory from their point of view.
Their concerns may only be met by starting the process again, from nominations
to voting.

This issue must be resolved by the NC which created the election structure and
time table.  But, it is something we can address by suggesting a rule to cover
this and similar cases.

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Date: Tue, 3 Apr 2001 15:54:04 -0700
From: "'Kent Crispin'" <[email-masked]>
Subject: Re: [ga] serious participation in ICANN processes

On Tue, Apr 03, 2001 at 04:01:53PM -0700, William X. Walsh wrote:
> Hello 'Kent,
> 
> Tuesday, April 03, 2001, 3:17:22 PM, 'Kent Crispin' 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.
> 
> Nice to see you give legal opinions, but I think this matter will be
> more likely to be settled in a court room when At-Large members sue
> the ICANN BoD.

Don't hold your breath.  :-)

- -- 
Kent Crispin                               "Be good, and you will be
[email-masked]                           lonesome." -- Mark Twain
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Date: Tue, 3 Apr 2001 16:24:01 -0700 
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] serious participation in ICANN processes

See Karl's answer below;

> From: 'Kent Crispin' [mailto:[email-masked]]
> 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:[email-masked]]
> 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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------------------------------

Date: Tue, 3 Apr 2001 19:31:22 -0400 
From: "Cade,Marilyn S - LGA" <[email-masked]>
Subject: RE: [ga] withdrawal of candidacy

Without any comment on votes, given that I endorsed all four candidates to
ensure that there could be a valid election, I am somewhat concerned.
Without a fourth candidate, I probably would have worked harder to recruit
someone to run.  That might be true of others, as well.

This is in no way a commentary on the candidates who are standing, but more
a comment on other things.  Everyone who is standing has made a considerable
effort to organize themselves/their work/etc. so they can offer to take on
the considerable work of chair, c-chair.

We are all obviously learning as we build... 

Regards, Marilyn

- -----Original Message-----
From: Patrick Corliss [mailto:[email-masked]]
Sent: Tuesday, April 03, 2001 6:33 PM
To: Harald Tveit Alvestrand
Cc: Roberto Gaetano; Jonathan Weinberg; Eric Dierker; Danny Younger;
[GA]
Subject: Re: [ga] withdrawal of candidacy

Hi Harald

Thank you for your interesting post about the withdrawal of Jon Weinberg
from
the election for the Chair of the General Assembly.  I believe Jon has acted
properly and should be congratulated for his integrity.  It is, perhaps, a
pity
that the current procedure doesn't allow candidates to nominate for the
Chair
and co-Chair positions separately.  The outcome may well have been
different.

Although I am a candidate I would like to make one or two other important
points, if I may.

(1)    I don't believe any of the three remaining candidates should drop out
MERELY because they see the result as a foregone conclusion.  As Jon's
decision
showed, the race is not over until the decision is announced.

(2)    Similarly, all registered voters should not think that the result is
decided but should cast their vote for their preferred candidates in the
order
of that preference as this is important to demonstrate legitimacy of the
result.
The more votes there are the more legitimate is the result.

(3)    Harald has proposed two reasonable choices (see below), the first
choice
could see the votes counted and the votes declared.  This is separate from
the
announcement of the winner.  It is easy enough, for example, to say
something
like:

"The votes cast in this election were as follows Candidate A (Jon Weinberg)
- - 90
votes, Candidate B - 80 votes, Candidate C - 60 votes, Candidate D - 40
votes.
As Candidate A has withdrawn I declare Candidate B the winner."

It is my view that all of the votes on the ballot paper must be counted
exactly
in accordance with how they have been cast.  To do otherwise, in the
slightest
degree, causes the perception, however slight or misinformed, that the
election
may not be legitimate.

I agree it's a waste of time to count votes for a withdrawn candidate but it
must be done.

However, I would suggest that nobody draws any conclusions from the size of
the
vote cast for a withdrawn candidate as it is impossible to determine the
intentions of those who voted prior to his withdrawal what they would have
voted
if they had voted afterwards.

On another note I cast my own vote shortly after receiving the ballot paper.
It
now occurs to me that there was a small window before the ballot officially
opened.  If this is in fact the case, some votes may be deemed invalid as
cast
outside the declared time frame.  My vote could be affected.

Because of the difficulties with time zones, I would appreciate it if you
would
advise whether such an irregularity could occur and, if so, how should it be
dealt with.  I open this for public comment.

Best wishes to all candidates.
Patrick Corliss

- ----- Original Message -----
From: Harald Tveit Alvestrand <[email-masked]>
To: William X. Walsh <[email-masked]>
Cc: Kent Crispin <[email-masked]>; <[email-masked]>
Sent: Wednesday, April 04, 2001 6:48 AM
Subject: Re[2]: [ga] withdrawal of candidacy

> At 11:56 03.04.2001 -0700, William X. Walsh wrote:
> > > Well, none of the candidates are dead, that I know of.  But we have no
> > > established practice here, and it seems pretty clear that the NC will
> > > have to make a determination.  Well, I suppose the GA could vote on
> > > what to do...
> >
> >I think the voting system adequately deals with this.  There really is
> >no crisis here.
>
> well, there are 2 reasonable choices:
>
> - Run the vote as scheduled, note that (if the resignee is a winner)
either
> the chair or the co-chair has resigned, raise the co-chair to chair if the
> chair was the resignee, and call a new election for co-chair
>
> - Before the first round of counting, eliminate all resigned candidates
>
> I know positively that I did not think of this when writing the rules;
> there is nothing to cover resignation of a candidate after accepting.
> So by the default of "run the rules as written", the first option wins.
>
> Thoughts?
>
>
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End of GA-DIGEST V1 #341
************************