JC Demands State Parties Prove They're Allowed to Speak

The Judicial Committee is about to hear what is building out to be one of the most consequential affiliate rights cases it's seen in years. The New Hampshire disaffiliation appeal will decide whether the national party can strip a state affiliate of its status without due process, and every state party in the country has an obvious stake in the answer.

A joint amicus brief was submitted to the Judicial Committee on July 10 on behalf of six state affiliates. The response from JC Chair Ken Moellman arrived the next morning. The brief would not be considered as filed because each state party would first need to submit bylaws excerpts or meeting minutes proving that its elected officers were authorized to sign.

State parties, speaking through their own elected chairs, are being told that their word is not good enough. Before the JC will even hear them, they must open their internal governance documents for national inspection.

The rule doesn't say that

Moellman cited Rule 2.5 of the JC's Rules of Appellate Procedure, which requires an organization to provide evidence of authorization when a petition is submitted on its behalf:

"When a petition is submitted on behalf of an organization, the organization shall be required to provide evidence (e.g., meeting minutes, bylaws, etc.) that the petition was submitted in compliance with its governing documents, and not in conflict with the Bylaws, as part of the filing."

The problem is that an amicus brief is not a "petition". By definition, a petition initiates an appeal. An amicus is commentary from an interested non-party, offered to inform the committee's deliberations:

"1.9. 'Petition' is a written request for a ruling on a matter identified in the Party's Bylaws as being within the Committee's jurisdiction, which meets the requirements provided in these rules."

"1.7. 'Submission' means any petition, response, amicus brief, or supporting material filed with the Committee."

Nothing in the rules imposes a documentary burden on affiliates filing amicus briefs. Nothing in the rules contemplates rebutting the authority of an elected state chair before that chair has even been heard.

Under ordinary parliamentary and legal presumptions, an elected officer performing the routine duties of the office is presumed to be acting with authority. Anyone challenging that authority carries the burden of showing cause. The JC has inverted this by presuming six state parties are unauthorized until they prove otherwise, with no challenge raised, no cause shown, and no applicable rule cited.

Region 1 Representative Austin Martin, who is also a signing State Chair, in reply to the committee pointed out that not even the Supreme Court of the United States places this kind of burden on amici. The response also raised a deeper structural problem. When the JC demands state bylaws in order to check for compliance, it is conducting judicial review of state affiliate governing documents. Nowhere do the LP Bylaws delegate that power to the Judicial Committee. Article 5, Section 5 says:

"The autonomy of the affiliate and sub-affiliate parties shall not be abridged by the National Committee or any other committee of the Party, except as provided by these bylaws."

Interpreting a state party's bylaws to decide whether its own chair may speak for it is about as direct an abridgment as it gets.

Ironic timing

Consider what is happening in parallel. Over the past several weeks, state affiliates have been passing resolutions affirming affiliate autonomy and demanding due process from national leadership, and the count of affiliates signing on has reportedly climbed to 29. LNC News covered the wave earlier this month.

So National disaffiliates New Hampshire, the states pass resolutions saying their autonomy is being eroded and their voices suppressed. The states attempt to be heard in the appeal of the LPNH disaffiliation. The JC tells them they must first prove they have permission to talk. The JC is confirming the affiliates' warnings.

About the referee

There is also the uncomfortable question of who is issuing these rulings. Moellman signs his correspondence as Chair of the Judicial Committee, though only two JC members were elected at the Grand Rapids convention before balloting was cut short, even though the LP Bylaws sets the committee's quorum at five. How a chair was validly elected under those conditions has never been publicly explained.

Moellman's recent history with affiliate governance is its own story. He sued his own state party, the Libertarian Party of Kentucky, over a delegate ballot miscount that occurred at a convention where he himself served as convention chair and certified the results. The suit was dismissed during the national convention after LPKY fixed the error he directly oversaw. He then secured a convention seat through the Ohio delegation while chairing the very Credentials Committee responsible for vetting delegate authorization.

This is the same man now demanding that six legitimate state parties document their chairs' authority to sign a brief. Scrutiny for thee.

Beyond the paperwork

The New Hampshire case is fundamentally about whether affiliates have enforceable rights against national power. We hope the JC's handling of the amicus question is not a preview of its answer. A committee that treats state parties as presumptively unauthorized to speak is unlikely to determine that one was unjustly disaffiliated.

If the barrier stands, its precedent will be worse than the initial ruling. Any state party wishing to participate in future JC proceedings would be required to submit its internal governance to national review as the price of admission and their organizational voice would hinge on the committee's discretion. That is exactly what the 29 affiliate resolutions were written to stop.

The states are watching. They asked to be heard through the front door, with their elected officers' signatures, the way corporate persons have always spoken. The committee told them to come back with a permission slip.

No hearing date has been set.

LNC News covers the governance and internal affairs of the Libertarian National Committee. Documentation for the events described in this article is available on the committee's public list.