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

[Jonathan Weinberg <weinberg@mail.msen.com>]

	The relationship between a California nonprofit corporation and its
members is governed in the first instance by the California Nonprofit
Corporation Law.  Whether you (or I) think the law is well-written doesn't
much matter, and the notion that it would not "stand up to a test in
federal court" is fanciful.  Under that law, near as I can tell, the
proposition that a nonprofit corporation's failure to charge dues somehow
divests its members of rights is incorrect.  In particular, section 5710,
which covers suits against nonprofit corporations by their members, doesn't
draw any distinctions between entities that do and don't require members to
pay dues.

	If you have authority to the contrary,  I'd be delighted to see it.
That's how legal argument works; if you want to convince me that your
statement is an accurate description of the law, you tell me the legal
authority supporting it.  I can then assess whether your cases are from the
right jurisdiction, whether they mean what you think they do, whether
they're distinguishable, and so on.  If you don't want to engage in that
process, no one can force you.  But you should understand that you're not
going to convince people of the legal correctness of your views by arguing
"I have legal authority but I won't tell you what it is."

Jon

Jonathan Weinberg
Associate Professor of Law
Wayne State University
weinberg@msen.com



At 02:46 PM 4/12/99 -0400, Michael Sondow wrote:
>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.
>
>