Re: [Membership] Re: : [IFWP] COMMENTS ON M.A.C.RECOMMENDATIONS of MARCH 18

[Michael Sondow <msondow@iciiu.org>]

Jonathan Weinberg a écrit:

> This assertion is completely mystifying.  Can you cite any legal
> basis for it?  

I have been researching these questions in federal district and
appeals court cases and, while I have not had time to complete my
study, not by a long shot, I have already found some recent cases in
which the opinion of the judges was that members of an organization
who did not pay dues, or who had not directly voted for bylaws or
for directors, or whose situation was not explicitly encompassed by
a definition of members, had no standing to sue the corporation for
violation of its bylaws. I am not, of course, going to cite the
cases for you. You will have to do your own research. :-)

> The California Nonprofit Corporation Law appears to be to
> the contrary.  See sec. 5056 (defining "member," and making no reference
> to dues); see also secs. 5311 ("memberships may be issued by a corporation
> for no consideration or for such consideration as is determined by the
> board"), 5351 (a "corporation *may* levy dues . . . upon its members").

The California Corporation Law is a bad law. It is ambiguous in many
places and much of it would not stand a test. For example, Sec. 5134
says: "If initial directors have not been named in the articles, the
incorporator or incorporators, until the directors are elected, may
do whatever is necessary and proper to perfect the organization of
the corporation, including the adoption and amendment of bylaws of
the corporation and the election of directors and officers.",
whereas 
Sec. 5150(c) says: "The articles or bylaws may restrict or eliminate
the power of the board to adopt, amend or repeal any or all bylaws,
subject to subdivision (e) of Section 5151." [Note: subdivision (e)
does not reference Sec. 5134.]

Obviously, these two sections can coexist in the same statute only
under certain special conditions, not all. Yet nowhere are the
conditions under which they can coexist and those under which they
cannot specified. Therefore the statute is, as regards the changing
of bylaws by incorporators, incoherent and bad law, and cannot be
applied. Much of the rest of the California statute is equally badly
written and, as I say, will not stand up to a test in federal court.