|Legal Opinion: |
Text of Document: July 25, 2008
You have several questions about the procedure of laying a motion on the table while a vote was being taken. Under the facts you related to me, at the time the motion was made to lay the pending question on the table, the vote was 2 B 2 on the pending question, but the city council unanimously voted in favor of laying the pending question on the table, and the vote on the pending question was not concluded. I checked the Municipal Code, and ' 1-103 adopts Roberts Rules of Order, Revised, to govern the city council ' s procedures where the charter does not otherwise do so. MTAS uses Robert ' Rules of Order, Newly Revised. In most instances, there is little difference between those versions of Roberts Rules of Order, except that Robert ' s Rules of Order, Newly Revised may be arranged differently in many cases, and often goes into considerably more detail on the application of the Rules.
Can a motion to lay a pending question on the table be made while a vote on a question is in progress?
The motion to Lay on the Table is governed by ' ' 17 and 34 of Roberts Rules of Order, Newly Revised, (RRONR). Much to my surprise, under RRONR, ' 17, Further Rules and Explanations, motions to lay pending questions on the table can be made and voted on up until the last vote on the previous question before the governing body is taken:
If debate has been closed by ordering the Previous Question or by the expiration of the time to which debate was limited then up until the last moment of taking the last vote under the order, the Question still before the assembly can be laid on the table.
Whoever made the motion to lay the question at issue in your City on the table had apparently done his or her homework.
However, as RRONR, ' 17, also says:
By adopting the motion to Lay on the Table, a majority has the power to halt consideration of a question immediately without debate. Such action violates the rights of the minority and individual members if it is for any other purposes than the one stated in the first sentence of this section. In ordinary assemblies, the motion to Lay on the Table is out of order if the evident intent is to kill or avoid dealing with a measure.
RRONR, ' 17, MISUSES OF THE MOTION, also makes clear that, "It is out of order to move to lay a pending question on the table if there is evidently no other matter urgently requiring immediate attention."
What is the effect of the Board of Mayor and Aldermen having voted unanimously to lay the motion in Question on the table, where the motion would have otherwise been out of order?
There are two aspects to this question, one of which deals with the Point of Order, the second dealing with the unanimous vote.
If the governing body breaches the procedures prescribed by RRONR, one of the members of the board should raise a Point of Order. RRONR, ' 23 says the following about points of order:
It is the right of every member who notices a breach of the rules to insist on their enforcement. If the chair notices a breach, he corrects the matter immediately; but if he fails to do so--through oversight or otherwise--any member can make the appropriate point of order. In any event, when the presiding officer has made a ruling, any two members can appeal (one making the appeal and the other seconding it.) As prescribed in section 24.
If the presiding officer refuses to put a board member's motion before the board, RRONR, section 60 says that:
If the chair at a meeting ignores a motion made and seconded in good faith, and neither states the question on the motion nor rules it out of order, the maker of the motion should raise a Point of Order (23) covering the case, and from the chair's decision he can Appeal (24). If the chair also ignores the point of order, the member can repeat the motion; and if it is seconded and the chair still ignores it, the maker of the motion can himself put it to a vote standing in his place.
The effect of failing to raise a point of order is contained in TIMELINESS REQUIREMENTS FOR A POINT OF ORDER in ' 23:
If a Question of order is to be raised, it must be raised promptly at the time the breach occurs. For example, if the chair is stating the question on a motion that has not been seconded, or on a motion that is out of order in the existing parliamentary situation, the time to raise these points of order is when the chair states the motion. After debate on such a motion has begun (no matter how clearly out of order the motion may be) a point of order is too late. If a member is unsure of his point or wishes to hear what the maker has to say on behalf of the motion before pressing a point of order, he may, with the chair ' s sufferance, "reserve a point of order" against the motion; but after the maker has spoken, he must insist upon his point of order or withdraw it. Points of order regarding the conduct of a vote may be raised immediately following the announcement of the voting result: up until another member has been recognized and has introduced another matter...
There is some Tennessee case law that supports the proposition that unless the governing body violated the city charter or a statute, the council can expressly or impliedly remove its own procedural impediments to a vote on a question. That conclusion is supported by Saylors v. City of Jackson, 575 S.W.2d 264 (1978). There the mayor, as presiding officer, moved for the adoption of an annexation ordinance. Not receiving a second within a period of about four seconds, he declared the motion to have died for lack of a second. A council member protested to the mayor that he had acted too quickly, declaring that he had intended to second the motion. The motion was restated by the mayor, seconded by the protesting council member, and unanimously approved by the board. Rejecting a challenge to that procedure on the ground that it violated Robert's Rules of Order, the Court said:
Even if this irregularity violates Robert's Rules of Order, that tome specifically provides that where action is unanimous, a violation of the rules is without consequence. [Emphasis is mine.] Robert's Rules of Order, section 48, at 202-03 (rev. Ed. 1971) states, ' By general, or unanimous, or silent [emphasis is mine] consent the assembly can do business with little regard for the rules of procedure, as they are made for the protection of the minority, and where there is no minority to protect, there is little use for the restraint of the rules, except as such protect the rights of absent members, or the right of secret vote. ' [At 267]
I do not find a comparable rule in RRONR, but as ' 17 of RRONR points out, a motion to Lay on the Table where there is no urgency supporting such a motion violates the rights of the minority. But where, as in the case of the City, the Notion to Lay on the Table is adopted unanimously, it is difficult to point to a violation of the rights of the minority.
It is also said in Rutherford v. Nashville , 79 S.W.2d 581 (1935), that it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure.
The same rule is also supported by 4 McQuillin, Municipal Corporations, Section 13.42:
In the absence of legal provisions or restrictions, municipal legislative body may, from time to time, adopt and change its own rules or parliamentary usage as to procedure. The charter or a statute applicable may prescribe rules for the government of the proceedings of councils, municipal boards, etc., and often times the organic law provides that the council or representative body may adopt its own rules of action. The council may abolish, suspend, modify or waive its own rules. This also may be done by
implication, when action in hand is not in accordance therewith. Of course, it cannot disregard mandatory charter or statutory provisions. [Emphasis is mine.]
Those cases and authorities support the proposition that if a question comes to the board, under its own rules, even in procedurally defective form, if there is no protest made on procedural grounds, and the board votes on the question, the vote will not be disturbed because of any procedural irregularities; provided that the city ' s charter or general statutes governing procedure are not violated.
Are questions removed from the table removed with the vote at the time it was laid on the table intact?
A motion to take the motion in question off the table can be made under RRONR, ' ' 17 and 34. Section 17, TAKING A QUESTION FROM THE TABLE, says that:
Rules affecting the motion to Lay on the Table are closely related to the motion to Take from the Table. (34) After a question has been laid on the table, it can be taken from the table by a majority vote as soon as the interrupting business is disposed of and whenever no question is pending, provided that business of the same class as the Question on the table, unfinished business, general orders, or new business is in order.
Any member can move to take a question from the table in a regular meeting or in a meeting that is an adjournment (9) of a regular meeting. A question can be taken from the table at a special meeting only if it has been laid on the table at that meeting or if previous notice of such intention has been stated in the call of the meeting. [Emphasis is mine.] When a question is taken from the table, everything is in the same condition, so far as possible, as it was when laid on the table [Emphasis is mine], except that if the motion is not taken up until the next session, the effect of an order limiting or extending the limits of debate on the Previous Question is exhausted. (Pp. 187-88)
With respect to the City, does "everything in the same condition, so far as possible..." include the 2-2 vote? At first glance, the answer appears to be yes, but that answer does not survive a second glance.
Section 34 of RRONR continues the discussion of the motion of taking from the table. The function of this motion is to "make pending again before the assembly a motion or a series of adhering motions that previously has been laid on the table." [See 17] Note carefully in that provision, that it is "adhering motions" that stick to the motion when it is taken off the table.
Under TIME LIMITS ON TAKING A QUESTION FROM THE TABLE in ' 34, it is said:
A question that has been laid on the table remains there and can be taken from the table during the same session (8), or if the next regular business session will be held before a quarterly time interval has elapsed (see 88), also at the next session after it was laid on the table. If not taken from the table within this time limit, the question dies, although it can be reintroduced later as a new question. [Emphasis is mine]
In McCarter v. Goddard, 609 S.W.2d 505 (Tenn. 1980), the question of whether an application laid on the table by a beer board was an "order" under Tennessee Code Annotated, ' 57-5-109(d), which can be appealed. In considering that question, the Court took up the question of what tabling under RRO means [See footnote 1 in that case], and declared that, 'Our inquiry into the nature of the act of tabling indicates that as a general rule the party whose question is tabled is subject to nothing akin to an order.... " but in form a "continuance of the hearing." :
The action of tabling can be similarly characterized. To table a question is in form and in effect a continuance. Unlike an order, it neither permits nor denies anything to the party whose question is tabled. It is simply a matter of procedure necessary to the administrative body employing it... [At 507]
In spite of that language, the McCarter Court held that the beer board ' s tabling the beer permit application was a final order that could be appealed. But the Court ' s language about what form a tabling takes appears to apply to the City to support the proposition that it simply has the effect of a continuance. It is difficult to conceptualize a "continuance" of a question as a continuance with a preexisting vote attached to the question, especially if tabling "neither permits nor denies anything to the party whose question is tabled." If the party whose measure is tabled is a member of the governing body rather than an applicant for a beer permit, and a partial vote has been taken on his measure, he is neither permitted nor denied anything if the question he presents is "continued." He does not get the advantage of the two votes for the measure he presented, and he does not get he disadvantage of the two votes against the measure he presented. In effect, he goes back to square one, but with his measure intact.
Section 34, STATUS OF A QUESTION TAKEN FROM THE TABLE, appears to support that conclusion:
If the question is taken up on the same day that it was laid on the table, members who had exhausted their right of debate cannot speak on the question again; but if on another day, no notice is taken of speeches previously made. The Previous Question or a limitation or extension of debate is not exhausted, however, if the question to which such an order was applied is taken from the table at the same session, even on another day B as in a convention. At the next session any such order is exhausted and the regular rules of debate prevail. [Emphasis is mine.]
That language indicates that, at least at the next meeting (or the next day in the case of a convention) after the Question is laid on the table, debate on the question is allowed. Presumably, even the members of the board in question who had voted on a measure before the motion to Lay on the Table had been adopted could change their votes following the additional debate, if there were any.
The case of Wright v. Wiles, 117 S.W.2d 736 (Tenn. 1938), also observes that, "And while Roberts Rules of Order, which the House rules provide may be looked to on questions not provided for by the House rules, states the general rule to be that a motion to table leaves the measure subject to further consideration...," before going on to consider the practice in the Congress when a bill is passed to couple a motion to reconsider with a motion to lay on the table. [Emphasis is mine.] If a motion to reconsider leaves a measure subject to further consideration, it is difficult to believe that a new vote is not allowed.
I am continuing the search for cases that directly address the question of the status of motions to Take off the Table when a partial vote occurred before a motion to Lay on the Table was adopted. But I am convinced that it is quite clear that such motions return to the table with no preexisting vote attached.
Sidney D. Hemsley
Senior Law Consultant