Pratt Rulings and Opinions

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Contents:
Introduction
"Several Messages" Letter
Third Term Presidency/2001 Bylaws Change
Further Comments - Illegal Bylaws Change
Further Comments - Subj: Legal Issues - Term Limits Et All
Rulings - Member Removals - Brown/Kronenberger
Pratt Follow-up Legal Opinion - Brown/Kronenberger

Introduction
Sherman W. Pratt (1512 S. 20th Street, Arlington, VA 22202; ph. 703-521-7706) is the Judge Advocate and Legal Advisor of the Korean War Veterans Association. He was appointed by Harley J. Coon in late 1999 to replace Edward Magill. 

When the Korean War Educator asked Sherman Pratt what a Judge Advocate does for the KWVA, he replied in an e-mail message on September 01, 2003: "He provides legal advice to the association officers, executive council - or KWVA members upon request.  I have been called on often to interpret the rules.  It's helpful if he is a lawyer - although the bylaws do not require that he be.  I've had no shortage of praise for my findings, that some have called learned and scholarly.  I don't recall that anyone has quarreled with my rulings...." 

Pratt's status (as of July 3, 1997) on the State Bar of Virginia is "retired." A Third Infantry Division veteran of World War II, Pratt was in campaigns stretching through North Africa, Sicily, Italy, Southern France and into Bavaria. When he was a 1st Sergeant, he got a battlefield commission in France and soon commanded Company L of the 7th Infantry that captured Hitler’s Camp David at Berchtesgaden. During the Korean War, he served as a company commander with the 23rd Infantry of the 2nd Division. He has Silver Stars, Bronze Stars, the CIB, and 15 campaign stars on two theater ribbons, plus a CIB with star. He served in Korea in 1950-51.

Following are some of his rulings, opinions, and comments on controversial matters of the KWVA.  They have not been edited.

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"Several Messages" Letter
15 December 1999
Sherman Pratt to Harley Coon

"Dear Mr. President:

This refers to several messages between or among me, yourself, former President Nick Pappas, and some others concerning (1) our last election, (2) whether the past president has a vote on the Executive Committee, (3) the authority of a board member to call for a special meeting of the Executive Committee, and (4) some other related matters. I believe you have copies of all these documents except, perhaps, my letter listed in paragraph "a" below, a copy of which I am enclosing herewith. The specific communications and their pertinent substances are essentially as follows:

a. My letter of 28 August 1999 to Director C.J. "Skip" Rittenhouse responding to his inquiry concerning a 22 August answer by you to his earlier inquiry as to whether the "resignation" of Past President Nick Pappas was valid, and whether the Executive Board members were given a 10 day written notice. The Rittenhouse question concerning resignation was apparently generated by the action of Pappas near the end of the last general meeting when he suddenly walked off the stage as presiding officer after which you undertook to take charge. You apparently understood the question to mean did Pappas by that action resign from the Board of directors to which you answered that he did not and that he was still a member of the Board. You also wrote that because there had been no ten day notice of the resignation you declared the meeting of July 28 to be null and void. Presumably you meant not the entire meeting but only so much of it, about a half hour, that occurred after the departure of Pappas.

b. Letter of September 22, 1999 from Pappas to Judge Advocate Ed Magill challenging the action by the Executive Council at its September 12 meeting denying the immediate past president a council vote.

c. Letter of October 4, 1999 from past President Pappas to JA Magill challenging the validity of the recent election because of the exclusion of 259 photocopied ballots following a Greybeards item indicating that voting could be by this method, and asking for a legal ruling on the matter. Pappas asks not for a new election, but rather for inclusion of the rejected photocopied ballots.

d. Letter of October 18 from JA Magill to Pappas holding that the Council action to deny the past president a vote was illegal and Pappas is entitled to voting privileges. Magill also commented that while the executive council was technically correct in deciding not to count the photocopied ballots, KWVA is "equitably estopped from disregarding the challenged votes that were the direct result of the confused association instructions to its voters."" He opined that the best ""enlightened interests of KWVA would be to rescind that original results and have a recount including the 259 challenged ballots."

e. The draft minutes of the 1999 KWVA Convention Executive Board and General Membership meetings of September 12 and 14. I do not know whether this draft has been circulated and approved by Executive Board members. Lacking information that it has not been approved, for purposes of this discussion, I will assume it has been approved and is now official, at least in substance. The minutes of the General meeting indicate that an extensive discussion took place as to whether to hold a new election and that a motion to do so was defeated with only one "nay." There is no indication of any discussion or action at the general meeting concerning the question of including the rejected 259 photocopied ballots. There is also an entry reflecting a decision not to consider any Bylaw changes "at this time", and the acceptance of a motion to continue operations under the Bylaws passed in 1997 (sic, 1992 and amended in 1997?). The minutes of the Executive Board indicate that a motion was made "that in accordance with the By-Laws the past president has no vote", and that the vote by secret ballot was six to six with the President casting a yes vote and thus carrying the motion. The Executive Board minutes of Sept. 13th indicate an extensive discussion of the 259 photocopied ballots. Comments were made that "we may have a challenge," "we may have a ballot that is illegal (because) when Vince Krepps (the newsletter editor) printed ballots in July, it said they could be copied". The minutes show that a motion to uphold the election was carried.

f. Letter, 20 October, from me, to you, reporting that as prospective Judge Advocate, and a fellow lawyer, I agree with Magill that (1) the council action to deny the past president a vote was illegal, and (2) that the challenged 259 ballots, equitably, should not be rejected because of erroneous voting information to the membership.

g. Letter of October 21, 1999 from Theodore Trousdale requesting to be "reinstated" as a director and contending he was still on the board because of invalid voting (the exclusion of the 259 votes many of which were for him).

h. Letter, October 23 from Pappas to you, reiterating his contention that the 259 "disenfranchised" votes should be counted and that it is your responsibility to see that it is done based on legal rulings by two licensed attorneys. Pappas included certified election results to show that 225 of the 259 disallowed votes were for director Trousdale and that this would have resulted in his election rather than candidate James Kerr.

i. Letter, 6 November, from James Kerr "withdrawing" his name from consideration for director, "as a peace making gesture."

j. Letter, November 11 from Pappas to you, reiterating his previous arguments concerning the disallowed 259 photocopied ballots, and the impropriety of the council action to deny him voting rights.

k. Your Memo to Board members, undated (but presumably in response to above letter from Pappas), stating that there are no provisions in the By-Laws voted and approved by the membership on July 27, 1997 (1992?) that authorized the past president a vote on the Executive Council and that the Directors passed a motion that he does not have a vote. You wrote that as President you uphold that decision by the Board. You also wrote that the membership voted to "uphold the election results" and not "have a new election."

L. Messages, November 9, from Director Rittenhouse, to "Fellow Board" members, alluding to the matter of voting rights of the past president, and the exclusion of 259 photocopied ballots in the past election, and calling for a special meeting in January to address these matters. Included are copies of signed agreements to the special meeting by nine directors and the past president Pappas; for a total of ten.

m. Your letter of November 26th, to Rittenhouse apparently in response to his efforts to call a special meeting, saying that you would not call a meeting, that 7 (board) members had called you and stated they would not attend, and that these issues will not be on the agenda at the next board meeting. You also wrote that the request for a meeting cards should be sent out by, and return to, the secretary. In an undated attached Memo to Board Members you wrote that "there are no provisions in the By-Laws voted and approved by the membership on July 27, 1997, that authorized the Past President a vote on the Executive Council", and that "the Board passed a motion that the President does not have a vote on the executive council."

Although you have not expressly requested a legal opinion from me concerning these matters I feel I would be remiss in my duties if I did not address them now, especially in view of the efforts of one director in November to call a special meeting in January which is less than a month away. No doubt, some of my following comments and legal opinions will not meet with your approval if your comments described above can be used as a guide to your positions. But I am sure you will agree that I must call it as I see it if I am to properly discharge my obligations as your Judge Advocate. I take no "sides" with any party involved in these matters. My personal position does not necessarily coincide with my legal opinion. I hope you can accept my views in that spirit.

Voting Rights of Past President
I hold it to be established beyond any challengeable argument that the Past President is entitled to a vote on the Executive Board. I am advised by the Chairman of the By-Laws Committee that the Association is now operating under the provisions of the Bylaws document headed "Effective July 27, 1992, Amended July 27, 1994 and 1997", a copy of which you provided me recently, and as published in the Sept-Dec., 1997 issue of the Graybeards beginning on page 29. Article III, Section 2, Executive council, of that document provides expressly that the Council shall consist of 18 members, one of which will be the Past President and two of which shall be appointed members, a Secretary and a Treasurer. Sub Section A of that section provides "Appointed officials of the Executive Council shall not carry a board vote." By inference, under the long established judicial rules of statutory construction, since two members have been selected as not having a vote, it must be concluded that all other members of the Council, to include the Past President, do carry a board vote. Admittedly, this voting authority under these By Laws is inferentially rather than expressly stated. But this does not make the voting authority any less valid or clear. The Board action by a 6 to 6 vote with the President voting to break the tie to withdraw the voting rights of the past president is invalid and of no legal effect. To withdraw the voting rights of the past president would require an amendment to the By-Laws as provided for in Article VII of the By Laws. It cannot be accomplished by the Executive Council alone but must also be ratified by the members at the annual meeting. The minutes do not reflect that this was done at the 1999 meeting.

(NOTE: The current Bylaws could be more clear, but are not fatally defective, with respect to the voting rights of the past president. That weakness is apparently recognized by the Bylaws Committee that has added new language in its 1998 version of the Bylaws now proposed but not acted on. In Article II "Election of Officers", it is expressly stated who on the Executive council shall have voting rights. Section 3. Executive Council will read: "All sixteen (16) elected Officers and Directors past and present are automatically voting members of the Executive Council." This proposed version of the Bylaws is published beginning on page 49 of the July-August 1999 issue of the Graybeards, but incorrectly it is indicated at the beginning that the version was Adopted July 1998. On the contrary, the minutes of the 1998 annual meeting, as reported in the Graybeards for Nov-Dec 1998 on page 30, record that the membership voted with only one vote in opposition to publish the new Bylaws for presenting to the general membership in 1999. The minutes for the 1999 meeting mentioned above herein, indicate that the membership voted to delay consideration to a future meeting.)

A Special Meeting
I find no legal deficiency or impediment to Director Rittenhouse’s call for a special meeting in January. Section 2, D of Article III of the Bylaws provides that the President or nine (9) members of the Executive Council, upon written two week notice giving the time and place, may call a Council meeting. Evidence available to me, cited above, establishes that these requirements have been more than fully met. Ten members of the Council, one more than necessary, have provided signed and timely indication that they approve of the special meeting proposed by Rittenhouse. If you as President chose not to call a special meeting, or as a member of the Council chose not to attend one called by the required nine members, that is your option. Nor is it dispositive that you assert that 7 members have said they will not attend a special meeting. There is no mention in the Bylaws concerning attendance, only that a minimum of nine members must call the meeting which it seems has been done. For business to be conducted, of course, the required quorum of nine must be present as specified in Section 2.B of Article III. I find no support in the Bylaws for your assertion that request for meeting cards should be sent out only by and returned to, the secretary. You tell me there is such a requirement in the procedures manual. In any event, this would be simply form over substance since the council members by their signed and returned cards have established that they had proper notice of the proposed meeting.

Election Results - Including Rejected Ballots
The legal ramification of the Board’s action in rejection of 259 photocopied ballots under the circumstances existing in this instance is somewhat cloudy at best. A literal application of the Bylaws would probably justify that action since in Article III, Section, 3, E, there is the provision that ballots for elections shall be published in the Graybeards and "no other ballots will be honored or accepted." In this situation, however, as we know, there are complications. There was erroneous notice in the Graybeards that photocopied ballots could be used and, relying on that information, 259 KWVA members did so vote to their detriment thus far it seems. Under these circumstances, it is my considered opinion, shared I understand by former Judge Advocate Magill, that if the matter ever reached a court of equity, a finding would emerge that the exclusion of these ballots would not be permitted. This seems especially probable in the current climate of judicial sensitivity to preserving and protecting voting rights throughout our society. As I pointed out in an earlier letter to Past President Pappas, with a copy to you, in civil law there are courts of law and courts of "equity." Relief in equity courts from the old days of English Common law has often been obtained when, regardless of the law or evidence in a given instance, the unfairness or harm to a complainant is so severe and egregious that it shocks the consciousness and demands remedy. I feel confident that if this complaint were to reach an equity court, it would result in an order that the KWVA reverse its decision through its board to disregard these 259 votes. This may be conjectural at this point but with such uncertainty why needlessly subject the Association to a possible lawsuit that could be costly and very likely lost. At this point it should be noted that the members of the general meeting were not aware that these votes had been rejected and they voted not on that issue but, rather, on whether to have a new election. Pappas has not requested a new election. He urges only that the rejected votes be included and counted. I think there is ample legal basis for favorably considering his request, especially since the harmed person, board member Trousdale, is requesting that he be permitted to remain on the Board. Trousdale would clearly have standing to file a complaint if he desired to litigate the matter.

A Personal, Non-Legal Observation
Having provided you with the above observations concerning the legal ramifications of these matters, I feel impelled as a close friend and an individual KWVA member to say also the following. I am most distressed that we find ourselves in what seems to be yet another confrontational and contentious face off between opposing factions in our Association. I think this is neither necessary or desirable. You have told me, and I believe you, that your high priority goal is return the KWVA to a peaceful and amiable operational status. We’re just emerging from a most trying, bitter, upsetting and non-productive period and we should now be sailing on calm seas as is your desire and objective.

I do not know why it should so disturb you if the past president has a vote on the Executive Council. The upcoming latest version of the Bylaws that will likely be considered and adopted next year will expressly so provide anyway. And in the long run it will be to your advantage if you wish to vote on the council in coming years when you become the past president with service on the Board. Personal differences or personalities, if any, should not be allowed to dominate or unduly influence your position.

With respect to the recounting of votes and acceptance of the 259 rejected ballots, it seems the only consequences of this will be that past director Trousdale will remain on the Board for another three year term rather than candidate Kerr. Surely this will not be a major calamity to KWVA. Kerr has indicated his willingness not to now serve. He can of course run again next year if he wishes and stand an excellent chance of being elected in view of this exposure, name recognition and standing in this year’s election.

The bottom line is, that as president, if you want to demonstrate leadership and effectiveness, and avoid further conflict and animosity in our organization, some sincere attempt at accommodation short of a special meeting should be made with those who are discontent with past developments over these matters. I hope you will contact Rittenhouse, or any other appropriate leaders, to see what action by you would be acceptable to them and avoid a special meeting that can only drive further wedges into our organization.

Good luck! Be assured of my willingness to assist you in every practical way to further the best interests of KWVA. I am furnishing copies of this letter to certain members who are known to be especially interested. You may want to provide others, especially board members, with copies but I leave that to your discretion.

Copy to: Pappas, Rittenhouse, Magill, Trousdale


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Third Term Presidency/2001 Bylaws Change
[KWE: This message is in response to a request for a ruling on bylaws that were changed by improper procedure.  Harley Coon orchestrated the change in order to be eligible for a third term presidency.  The legal bylaws of the KWVA do not allow a third term presidency.]

Judge Advocate’s Ruling
Date: Thu, 13 Dec 2001 22:29:04 -0500
From: sherman w pratt <swpratt@>
To: CoonKoreanExpow@, damadams@
CC: cccloman@, BlairECross@, vkrepps@, reddog_ferris@, gaffnet@

To: President Harley Coon and Past President Dick Adams, and Sec Howard Kemp for further distribution as is appropriate.

This refers to the undated letter of Past President Dick Adams, received November 28, concerning bylaws provisions establishing eligibility of a sitting president to run for reelection. Adams alludes to the action taken by the general membership meeting on July 26, 2001, to amend the bylaws to eliminate term limitations for KWVA officers and asks "Why wasn't this By-Laws change done properly?" He elaborates on reasons he apparently thinks the changes was not done properly. In a separate telecon Adams asked me for a Judge Advocate ruling, or opinion, on his letter, and President Coon has requested me to do an in-depth study on the matter. In response to these requests the following is respectfully submitted.

Background - The Graybeards May-June 2001 issue on page 6, under a the heading "Proposed changes to the bylaws discussed at the meeting in Tuscola, IL" (in March of 2001), Jim Jones, the Chairman of the Bylaws committee wrote, "The below changes will need to be approved at the July 2001 Executive Council meeting and ratified at the General Membership meeting to become effective." The proposed changes identified by Jones included a change to Article III, Section 4 covering terms of office, to wit: The President.... shall have a term of office of two (2) years..." (dropping following language that provided for a two consecutive term maximum)

The July-August issue of the Graybeards on page 6, contained the minutes of the Executive Council at its meeting on July 25, 2001, in Crystal City VA and records under "proposed By Laws Changes" that a motion to eliminate term limitations for all officers failed by a vote of 6 yes’s to 7 no’s. In the same issue on page 7, the minutes for the General Membership meeting on July 26, record that a motion passed "To eliminate a two consecutive terms maximum requirement for Officers and Directors".

Existing Bylaws Provisions - Concerning bylaw changes, Article VII, Section 2 of the bylaws provides that any regular member may propose amendments to the bylaws to the Chairman of the Bylaws Committee "at least 30 days before the next meeting of the Executive Council" and that such proposals (1)"will be considered at that meeting and (2)then published in the Graybeards for (3)ratification by two-thirds of a quorum at the next annual meeting" (emphasis and sequential numbering supplied)

Concerning the terms of the President, the bylaws provide in Article III, Election of Officers, Section 1, Officers, that eligible members shall vote, in accordance with the procedures set forth in the bylaws, "to elect a president whose term of office shall ...be for two years," (emphasis supplied), and in Section 4 Term of Office, A The President ....."shall have a term of office of two (2) years, with two (2) consecutive terms maximum." (emphasis supplied).

Discussion - What is involved here, it seems, is the question of whether the "two consecutive terms maximum" provision in Article II, Section 4, A has been legally and properly changed and eliminated so that our currently sitting president, or other elected officers rounding out a second consecutive term could, if he or they wish, run for a third consecutive term next year, or in following years. To answer this we must turn to the cited amendment language of Article VII, Section 2, and the above described events to see if the actions taken complied adequately and precisely with the required procedures set forth in the bylaws for bylaw changes. Under the former language the present president, or other elected officers indisputably, could not run for third consecutive terms.

The language used by the Bylaws Committee Chairman in his May June Graybeard issue identified proposed bylaws changes discussed at the March Tuscola meeting. (emphasis supplied) Jones does not state that the proposed changes to drop the two year consecutive term maximum were adopted by his committee at that time or formally presented to the Executive Committee as required specifically by the bylaws in the amendment Article. In fact, on the contrary, he expressly states that the proposed changes needed to be approved at the upcoming July meeting of the Council. Thus, at the time of that notification in the Graybeards, no firm proposal had been submitted to the Council for its consideration so the notice was not publication of an Executive Council rule change proposal before consideration by the general membership at the next annual meeting as required by the bylaws. The Graybeard notice was only an announcement of a bylaws committee discussion. An informal discussion without any specified consensus or agreement can hardly be concluded to constitute a formal position or recommendation of an association committee nor, as stated, does publication of such a discussion meet the requirements for publication of an Executive Council recommended bylaw change.. We can assume that at sometime in between the "discussion" meeting, and the next formal meeting of the Executive Council in July that proposed changes in the bylaws were in fact adopted by the bylaws committee and made ready for submission to the Council at its next meeting in July, 2001.

At the July meeting of the Executive Council, as reported, the proposed change "to eliminate term limitations for all officers (slightly different wordage but in substance the same as dropping the "two consecutive term maximum" language) was then presented to the Executive Council but it was rejected. With this rejection, the proposal died. There was then no viable proposal for a bylaws change for the Council to refer to the membership for action as envisioned by the bylaws amendment provisions. There is no express provision in the bylaws for the membership to consider a change not first endorsed and approved by the Council. Nor would an improper referral the next day at the current annual meeting, fulfill the requirements of consideration "at the next annual meeting". "Next" and "current" are not interchangeable terms..

When the proposal was brought before the general membership the following day, the members were called on to considered a proposal that had not been favorably acted upon by the Council in violation of the express provisions of the bylaws. As stated above, there is no bylaws provision for the general membership to consider a bylaw change not first considered and approved by the Council. Publication of the discussion of a proposed bylaws change by the bylaws committee does not constitute nor meet the requirements of publication of a proposed change formally and expressly adopted by the Executive Council.. Moreover, and even more procedurally defective, the general membership considered and voted on the change at the annual meeting in progress and not the next annual meeting, and without the required publication of an intervening issue of the Graybeards as is also expressly required by the bylaws. Thereby the overall KWVA membership could not have been advised and fully knowledgeable of the proposed changes. This did violence to the due process and fair play requirements of the bylaws and their amendment process.

Accordingly, the vote taken at the general membership meeting on July 26 to eliminate the two consecutive term maximum requirement for officers and directors, to include the president, was in direct and specific violation of the bylaws and therefore the attempted bylaws change abolishing term limitations of Association officers must be considered null and void and of no legal consequences.

In reaching this conclusion the Judge Advocate is not unaware of the profound impact that it likely will have on the KWVA and especially on any members who are contemplating an election bid next year. Some may be prevented from doing so while others may be encouraged to run when not opposed by incumbents.. Those considerations, however are not relative to nor do they have any bearing on this deliberation and opinion.

I am distributing this opinion before my departure for holidays in Florida on pressing family affairs so that it can be available to Executive Council members, or others, before the January Las Vegas meeting that I may not be able to attend. An opinion by a legal advisor in an organization such as the KWVA does not necessarily have the effect of a binding ruling by an outside court of competent jurisdiction and the Council should have a maximum opportunity to consider its reaction, if any, to this opinion.

Respectfully submitted.
Sherman Pratt, Judge Advocate

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Further Comments - Illegal Bylaws Change
From: Sherman W. Pratt
Sent: Wednesday, January 23, 2002 5:19 PM
To: CoonKoreanExpow@
Cc: damadams@; cccloman@; BlairECross@; raydonnelly@; KWVADOH@; Jwiedhahn@; Reddog_ferris@
Subject: Re: president message

Harley - Congratulations on a most inspiring and informative message concerning numerous matters of importance to the membership. It was well articulated and thought out. Your message to me did not indicate any additional distribution so do not know who else received it.

With reference to the upcoming elections and your description of the membership action at the last annual meeting to amend the bylaws to eliminate the provision concerning term limits, I feel, with no great pleasure at all, that I must state for the record, as I have done in my recent decision on the matter as Judge Advocate, that the action by the membership on that occasion was not in accordance with the procedures required by the bylaws and is therefore of no legal consequence. I explained that bylaw changes can be considered by the general membership only after they are referred to the members by the Executive Council - and that in this instance the Council did not act favorably on the proposal to change the bylaws to eliminate terms limits and therefore did not recommend or submit the matter to the general membership.

If you or others who have served two terms as limited by the bylaws persist in filing for reelection, and the chair of the election committee accepts those filings and candidates are reelected I warn you that you may be risking or encouraging the filing of law suits to contest the election of such persons. More law suits I suggest are what the KWVA just now needs less. - Sherm Pratt, Judge Advocate

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Further comments - Subj: Legal issues - Terms Limits, et al
Date: Monday, February 18, 2002 1:26:28 PM
From: swpratt@
To: ebuckman@, DMByers99@, jj.edwards@, reddog_ferris@, WVADOH@, CharleyPrice@, jeanskiptemp@, Jwiedhahn@, mrwainwright@
cc: cccloman@, CoonKoreanExpow@, BlairECross@, raydonnelly@, Vkrepps@, nickandjan@, trousdale@, SKronen266@, marisa.magill@, KWVADOH@, damadams@, CharleyPrice@

To all KWVA members interested in the following:

A few words from the Judge Advocate

In the past days I have received numerous letters - some e-mail, some snail mail = some addressed directly to me = others indirectly via info copies of messages sent to others. I have also received numerous copies of messages to me or others from suspended member Nick Pappas, who identifies himself as "ex patriot". I feel no obligation to respond to those messages coming from a former member not now in good standing. Most of the other messages pertain in one way or the other to the following questions or issues ==

a. whether the bylaws were effectively amended last year to eliminate provisions that provide for a maximum of two consecutive terms for elected officers; (former President Adams requested a ruling on this but at the Las Vegas meeting in January he did not, for reasons best known to him, pursue the matter at the Executive Council meeting)

b. whether President Coon, or any other elected office holder on a second term may now file for and run for a third term. (President Coon has announced that he will so file and at this writing I understand he has done so) and will run.

c.. whether a Korean War vet must be a member of the National Association to be eligible to join a Chapter; (here there is a dispute among Tom Gaffney, Jack Edwards and Sam Farina in Florida and Joe Vogel and others in NY or elsewhere);

d. Additionally, one writer, past newsletter editor Stan Hadden, repeats the frequently voiced charge of late that in screening what goes into the Graybeards there is a violation of the First Amendment to the U. S. Constitution concerning free speech or press.

e. There is also a question as to whether or not the rules on terms limits were amended several years ago when past President Adams ran for and was elected to a third term in violation of the bylaws and whether, changed in 2001 or not, if this provides a precedent allowing for third terms now or guidance on how to resolve present uncertainties.

Historical background
Concerning paragraph e above, I also have an e-mail from member Mike Glazzy who reports that he conducted a detailed and scholarly research of the records, such as they are, and he concludes that when Adams ran for a third term it was caused by a violation of the bylaws by a chairman of the election committee, and perhaps others, whom he could not now identify. Mike concludes, therefore that Adam's third term was not allowed by the bylaws and was therefore not valid, but he suggests that at this late date nothing remedial can be done about it. I think Mike is correct in this regard.

I have discussed these early 1990 events also with member and Past Vice President Tom Maines who states he was active in the developments of that time, along with founder Bill Norris (now deceased) and some others. Maines remembers well the actions that resulted in Adams serving repeatedly in office as president. Essentially he agrees with Mike's version and feels that impropriety and irregularity was involved. In any event, it strikes me that we have enough current disputes to dissuade us from delving into the somewhat distant past to uncover more.

The 2001 attempt to change the term limits bylaws
With respect to the question of whether the bylaws concerning term limits were effectively changed last year at the annual reunion I have rendered a judgment on this last December 12 which I thought would lay the matter to rest. I am surprised that there is continued uncertainty or confusion on the matter. But apparently there are those who did not receive my opinion, (I will provide a copy upon request) or did not understand it, of who chose to disregard it. At the risk of unwanted or unneeded redundancy I will summarize here the thrust of my opinion.

In that opinion I pointed out that to change the bylaws pursuant to Article VII, Section 2 of the bylaws, any regular member may propose amendment by (1) presenting them to the Chairperson of the bylaws committee (2) at least 30 days before the next meeting of the Executive Council for consideration, and then (4) to be published in the Graybeards (5) and if adopted by the Council then referred to the membership for ratification by 2/3 of a quorum at the next annual meeting (of the membership) - in that sequential order.

Bylaws Committee Chair Jim Jones has written in a reply to Director Jim Ferris, (that he requested be sent to Elections Committee Chair Director Ken Cook), that all of the bylaws amendment requirements were met and "done properly" and that the election (to include candidates running for a third consecutive term?) "will proceed as scheduled". He wrote that the publication requirement was met by the notice in the May-June 2001 issue of the Graybeards. Jones also writes that he does not consider my opinion correct or binding.

Jones also discussed at some length the Article VII Section 1 provisions concerning amendments to the KWVA Charter but I will not respond to that since such a proposal is not now before us. No one to my knowledge has suggested Changing our Charter that is granted by New York, the State of Incorporation. We have before us only the matter of amending our own bylaws.

In my subject opinion I held that the attempt to amend the bylaws was fatally defective because (1) the notice alluded to by Jones was only that a discussion had taken place and not a clear and specific proposal to be submitted to, for consideration by, the Executive Council. I also pointed out from available records, including the minutes of the July meeting, that no specific amendments adopted by the Council had been properly published in the Graybeards following consideration and adoption by the Council. The heading on the item in the Graybeards read "Proposed changes in the bylaws discussed at the meeting in Tuscola, IL did not meet the requirements for publication of specific changes following Council consideration.". Even if, however, this deficiency were favorably resolved by concluding that the proposed bylaws change was in adequate form and could be referred to and considered by the Council, there are other aspects of the matter that are clearly in conflict with the amendment process.

First, there is a strong requirement by implication that consideration by the Executive Council means favorable consideration if the proposal is to be referred to the membership for action. In this instance the Council when considering the matter did not favorably vote it out - on the contrary the council, as reflected in the minutes reported in the next Graybeards, expressly rejected the proposed change thereby having nothing to publish or to later refer to the membership at its annual meeting. The proposed change was referred to the general membership by the President, but there is no provision for that in the bylaws. It is the Council that is authorized to perform that function.

Even more fatal is the fact that the proposed amendment was immediately referred to the membership on the following day, and not after being published in the Graybeards as a proposal adopted by the Council.. Consequently, only a handful of members then present at the meeting, and who were but a tiny fraction of the membership of KWVA knew in advance of the proposal. The rest of the 16,000 membership did not know at all of this proposed change. To amend the basic bylaws of an organization under such circumstances does great violence to the concept of fair and orderly democratic processes. Since the bylaws requirements for changing its provisions were substantially not followed, there can be no conclusion other than that the attempt to change the bylaws failed completely and the limitation on the number of consecutive terms allowed must stand.

Our President has insisted that the position of the membership must prevail over that of a dozen or so members of the Executive Council. Of course he is right on any routine matter when not in conflict with the written and adopted bylaws assuming that the views of the membership can be accurately ascertained.. Here we do not have such a situation as explained above. This is not a routine matter where there is vague or little guidance, but one that is covered with specificity and in detail in the bylaws.

Common Law and Consistency
Director Joe Pirrello also has written on this matter of changing the term limits provision. He alludes to the common law rule that one cannot profit by his own misdeeds, and he compares the conflict between Council and general membership actions in this instance to the recent conflict of actions when the Council voted to expel former member and past president Nick Pappas that was rejected by the general membership that voted only to suspend him. I do not see that there is any relevance or comparability in those two actions. In the rule change situation there were specific and detailed provision in the bylaws concerning the manner in which a bylaw provision could be amended. And it is indisputable in my view that those provisions simply were not followed. In the Pappas situation the Council and the membership in a general meeting were acting on a matter in which they had discretionary authority to reach a finding of fact, i.e., was there "just cause" for taking punitive action against Pappas as provided in the rule section applying to suspensions and expulsions. Both the council and the membership found that there was just cause for action. They differed only as to what punitive action should be taken.

I do not see any relevance either to our situation and the common law as suggested by our dedicated Director Joe Perrillo. The Common law originated in England and was adopted or accepted by most American colonies - later states - to cover situations where there was no applicable American statutory or judicial law. Common Law is rarely applied today by courts to resolve disputes because almost every conceivable situation in our litigious society is covered by modern domestic law that supersedes common law.. Blacks law Dictionary, widely relied on today, defines American Common Law as law that was adopted and in force at the time of the Revolution that "has not been expressly abrogated" (legislatively or judicially) Today it is not easy to find Common Law provisions that have not to some extend been so abrogated; thus it would be tortuous at best to rely on Common Law today to resolve any internal dispute in our KWVA.

With respect to the assertion of bylaws Committee Chair Jim Jones Judge Advocate views are only opinions and not binding he is absolutely correct. The Judge Advocate in this kind of organization does not wield the power and authority of a constitutional magistrate on a civilian court of record. He is more like the Attorney General of the U. S. or a State that advises the chief executive and the executive departments. His views can be accepted or rejected at will but often at the hazard of those who disregard the views. But surely the policy making body of the KWVA, the Executive Council, should consider carefully the views of the Judge Advocate. If they reject them outright, or substantially, then a fair question is, why have a Judge Advocate? Why not eliminate that position? Or replace the JA with one in whom the Council has more confidence? As for the views of the JA being incorrect I suggest that is a conclusion best reached by the Council, or others educated and trained in the law.

A Remedy or Partial Resolution
Having said all the above, I am impelled to point out that further action on the term limits provision is yet feasible in my view. It now seems clear, from information from bylaws chair Jones and the minutes of the Las Vegas Council meeting that, even under rather loose procedures, the change has been adopted by the bylaws committee and considered and approved by the Executive Council. Thus the change could now be forwarded to the editor of the Graybeards for timely publication and then referred to the membership for consideration at the upcoming July annual reunion.. If the membership then adopts the change it could become effective as of that time. Of course such belated action could not operated to validate any improper elections this year as described above. It could, however, be a way of sanctioning any questionable elections this year and perhaps satisfy to some extent those members who are disturbed that our president or others may be running this year illegally.

National Membership Requirements
Turning now to the question of whether membership in the national KWVA is required for membership in a chapter the answer is a clear an unequivocal YES. The fact that an effort to expressly so provide failed in rule changes last year has no bearing on the matter. That rule change attempt was not necessary or appropriate. Had it gone through it would have done no harm, but the fact is that the bylaws already so provide, and I have so ruled in several instances over the past months.

Article V, II, Section 1 and 2 of the bylaws, dealing with the formation of chapters, expressly provides that chapters may be formed by 12 or more members in good standing. A member indisputably cannot be deemed to be in good standing if his or her dues are not paid. The member would clearly be delinquent and not eligible to be one of the 12 members in good standing to petition for formation of a chapter. This qualification is also reinforced in Article II, Section 2, B, that provides that membership may be terminated when a member "becomes ineligible for membership because of nonpayment of dues". Thus, to be in good standing a member to be eligible to join others to form a chapter, or to remain in a formed chapter, the member must first be up to date in the payment of his national dues. Even if the proposed rule change requiring a chapter member to first pay national dues had been adopted, it would not have changed the existing requirement already in the bylaws, as explained here, that national dues must be paid in order to be a member of a chapter. Director Jack Edwards, in his capacity monitoring applications for membership in his chapter was absolutely correct in rejecting an application from one who had not paid his national dues.

An additional and essential element in this matter is the requirement in U. S. Tax laws under which the KWVA has obtained its nonprofit, non-tax Section 503 (c) status that requires the operations and formations of chapters or subordinate units of KWVA must conform to the practices of the national organization. Thus, if dues are required for membership in the national association so too are dues required for membership in its chapters.

Of course there is nothing in the law, KWVA bylaws or elsewhere that would prevent a group of Veterans to organize a local group and call themselves a Korean War Veterans organization, and set their own rules, dues, membership requirements, or other procedures but they would not be a part of or under the umbrella of the Korean War Veterans Association, Inc.

Freedom of the Press and Speech
The contention that the Constitution of the U. S. is being violated when the Graybeards editor refuses to publish certain matters is little less than nonsense. The First Amendment quoted correctly by Stan Hadden is a restriction on the Federal Congress - not on editors of private, non government, publications.

Refusals to print all items submitted to our editor may or may not be wise and appropriate - depending on the acceptability from many consideration including interest to readers, decency, helpfulness, truth, non-libel or slander, or whether an item is in the best interests of the KWVA - but the refusal to print items not meeting these tests certainly not be any violation of the U. S. Constitution.

I have been disturbed that our editor may have excessively rejected items for the Graybeards and felt he was being placed in an undesirable and unfair situation and have recommended a change. I urged that the editor not have the final authority alone to reject material and that in case of doubt about its acceptability it be referred to the president for further reference to the Executive Council for final decision.. Our President has told me he approved of that arrangement and I understand it is now in effect.

In Summary
So where does all this leave us? For sure we have some anguishing predicaments now before us in KWVA. If Harley or others chose to run for a third consecutive term is that in conflict with the bylaws and not permitted? I think definitely Yes, as described in my earlier opinion and above.

If Harley Coon or others do so run, wins, and are elected and take office with the concurrence of the Executive Council and the general membership at the annual meeting what can be done about it as a matter of practicability? Probably nothing. There is no machinery internally to over ride the general membership short of electing new council members or other leadership - I don’t think anyone would suggest armed rebellion or other violence. Some members as reflected in my e-mail or elsewhere are clearly much disturbed that Harley Coon may run for reelection and they have made noises about filing a law suit. That happened a while back with the Chosin Reservoir vets and the Court appointed new directors pending new elections as I recall. Such a recourse for KWVA members could be unbelievably cumbersome as an interstate matter (residence in multiple jurisdictions), very expensive with multiple attorneys in multiple states It is problematical whether a court would even entertain what it would likely perceive to be an veterans organization internal dispute among its members. Above all, such a suit would be time consuming and the questionable terms challenged would probably have expired before the cases could ever be heard and disposed of on today's saturated court dockets.

Should KWVA members be concerned if these candidates are elected? In some respects I think so. But that's a matter for the members decision. All office holders swore under their oaths when installed in office that they would uphold and obey the bylaws of KWVA and it should be a concern of any and all members when a clear violation of the bylaws occurs.

To what extent would the KWVA be harmed if non-eligible members remain in office for a third term? Probably not much. That event would not cripple the KWVA - we would continue on - most members would not even know about or object to the continued service of the subject officials. Even if some members may dislike our president for personal or personality reasons, and my e-mails establish that some do, it cannot be denied that under his term in office the KWVA has rebounded and prospered energetically and effectively from near bankruptcy and low membership.

These are complex issues and my views are sure to not please all, but I hope they will shed some light on some difficult and challenging matters and enable us to put our differences behind us and join hands in better comradeship and good feelings to work effectively for the advancement and improvement of the KWVA. We still have things to do in observing the 50th anniversary of the beginning and ending of the Korean War the struggle that marked the beginning of the end of the Cold War."

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Rulings - Member Removals
Lynnita Brown/John Kronenberger

Legal Opinion - E-mail from S.W. Pratt to Marty O'Brien
December 07, 2003

[KWE Note:  This message is in response to a request from KWVA member Marty O'Brien for a ruling on Harley Coon's "executive order" to expel Associate Member Lynnita Brown from the membership roster of the KWVA.  Coon also began proceedings to remove Life Member John Kronenberger at the same time he issued the executive order against Brown that bypassed KWVA bylaws regarding procedures for removal.]

" Just in from Florida where daughter had new baby - and am up to buns in both snail and e mails - but will take quick stab at your inquiry about legality of expulsion action by President Coon.  - without much confidence that  my response will be what you are seeking, or will meet with your approval having noted your numerous e-mail messages of late.