Former DPOC Central Committee member and Party executive board member has filed a timely appeal regarding his removal from the Democratic Party of Orange County in November. Chris Myers of the CDP sent this email out last week:
To Interested Parties:
The State Party has received a timely appeal of the CRC Decision regarding the Diamond DPOC Challenge issued on January 20, 2019. The decision and appeal is attached to this email.
Interested parties may respond in writing by 5pm, March 17. This matter will be heard at the next regularly scheduled Credentials Committee meeting after the response deadline.
As noted in the Compliance Review Commission (CRC) decision, “the decision is so ordered, and is in effect, unless, and until, a successful appeal is made, decided, and contrary orders made whether by the CRC, or by the Rules Committee.” The CRC decision is attached.
Please feel free to distribute this appeal to any other interested party.
Chris Masami Myers
California Democratic Party
The document, done by Mr. Diamond, was dated February 1, 2019. The content of which — al 10 pages of a PDF — is below. He’s made some minor errors which will be identified along the way, and all I can say is even if Diamond somehow wins his appeal, I will file a motion for his removal based on his November 5, 2018 blog post calling for voters not to cast a ballot for the DPOC’s endorsed candidate in Anaheim District 2, clearly preferring a Republican, James Vanderbilt. That action is open and shut when it comes to a violation of the rules. The reason, I’m convinced, this route of Diamond’s support for Todd Spitzer was more designed to censure Congressman Lou Correa and Assemblyman Tom Daly with an eye towards the 2020 elections.
Appeal of Compliance Review Commission Opinion in Greg Diamond v. DPOC, 2018
This appeal of the recent opinion and order of the Compliance Review Commission, in the matter of my expulsion from the Democratic Party of Orange County at its monthly meeting on Monday, November 26, 2018, available at https://www.cadem.org/our-party/compliance-reviewcommission/body/CRC-Diamond-FINAL-Decision-012019.pdf, is being submitted on this date in accord with the instructions contained therein, as cited below.
Appeal of this order, if any, must be filed with the CDP Secretary, with copies to the Chair of the CDP State Central Committee, within twelve days of the date of this decision. (Article XII, section 6(a).) Thus, any appeal must be filed on or before February 1, 2019 with the Sacramento office of the California Democratic Party, and shall be an appeal to the next meeting of CDP Credentials Committee upon conclusion of the response period
To the extent that standing and jurisdiction are at issue, they are the same as expressed in my initial appeal, adding the fact of the adverse opinion expressed by the CDP.
I am not separating this document into sections other than to address each of the four complaints separately, note what strikes me as their pertinent holdings in each, and then to offer one or more objections to that holding. I intend herein to preserve all of my rights for appeal.
The CRC noted that I made four allegations in my complaint:
1. The DPOC Bylaws do not allow for his removal from the County Committee; 2. The DPOC did not provide adequate notice of the time and procedures for the hearing; 3. The DPOC should not have used majority vote and did not provide adequate notice of the rules for the membership removal including a change from two-thirds vote to majority vote; and 4. The DPOC procedures were discriminatory due to the lack of accommodation for his disability.
Its conclusions with respect to each are as follows:
1. With respect to DPOC Bylaws:
CRC quoted former Chair Fran Sdao as saying that I violated the section of the Bylaws allowing removal if a member endorses “a candidate of another party” by supporting a Republican candidate in a race for District Attorney in the general election, against another Republican candidate who had been endorsed by the Republican Party, where the Republican I supported had been endorsed by the endorsed member of the Democratic Party who lost in the primary.
DPOC’s Parliamentarian, Jonathan Adler, stated in an a formal opinion (which was attached to my complaint: “In your defense, you asserted that since O.C. GOP endorsed Tony Rackauckas for O.C. DA, only he, if anyone, fit the phrase “candidate of another party,” so your publishing reasons to oppose him and vote for his opponent Todd Spitzer did not offend the above Bylaws prohibition. Your view seems arguably correct, at least; and, given the requirement that the prohibition be narrowly construed, even stronger.” Adler noted that this language came directly from the Elections Code at the time that this Bylaws provision had been approved, at which time (prior to the “top two primary”) “a candidate of another party” in the general election was necessarily that other party’s nominee. (A separate provision affects primary elections)
CRC Holding 1A: DPOC Opinion Should Prevail If Both Interpretations are Reasonable
The CRC stated that it asked the question, “in a non-partisan contest, does “candidate of another party” mean the endorsed candidate of another party as put forth by Mr. Diamond or a candidate registered in another party as put forth by the DPOC? The CRC debated both interpretations at length. While the CRC does not find Mr. Diamond’s interpretation was unreasonable, it also does not find the DPOC to be unreasonable. Given the reasonableness of both interpretations, the CRC gives deference to the DPOC to interpret their own Bylaw.”
Objection 1A.1: The Parliamentarian’s Opinion is “the DPOC’s Opinion”
According to the Bylaws, however, that deference should have gone to the person serving as the Parliamentarian – in this case a trained appellate attorney with extensive knowledge of the CDP and DPOC Bylaws, the State Election Code, and Robert’s Rulers of Order – rather than to Chair who, especially being neither an attorney nor a trained Parliamentarian, was to have sought his advice on such matters. From the Bylaws:
Article 5, Sec. 6 Parliamentarian
A. The Parliamentarian, upon request of the Chair, shall advise the Chair and members of the County Committee as to the proper procedures for the conduct of meetings, relying upon these bylaws, the State Election Code, CDP bylaws and Robert’s Rulers of Order.
In this case, the Parliamentarian was the one equipped, as the DPOC Chair was not, to interpret the provision using pretty much any generally recognized as legitimate theory of legal interpretation one might wish to apply: original lexical meaning, original intent, or function. When approved, the provision did and was intended to operate to prevent opposition to an endorsed candidate of another party, because that’s all there was in a general election. The balance of this section of the Bylaws paragraph makes it clear that other provisions are intended to protect the interests of choices made by the Democratic Party in an election where a Democrat was running; it’s a straightforward applications of principles of legal interpretation that this provision would be interpreted in a like manner. The provision was not intended to prevent support for “the lesser of two evils” in a primary where Democratic Party interests were not at stake; nor is there any indication that it has ever been so applied. (DPOC has sacrificed the right to argue otherwise from past history, as Chair Sdao, like at least the two Chairs preceding her, did not appoint a DPOC Historian, as she was required to do within the first 60 days of her term, who might have retained material relevant to this question. (See DPOC Bylaws, V.1.C.) (editor’s note, Mr. Diamond, as a member of the Central Committee, could have brought this up anytime after March 2017 and did not)
Objection 1A.2: The DPOC’s Alleged Opinion is Not the Most Natural Interpretation
The CRC’s opinion employs a canon of legal interpretation that turns out to be a sword that cuts both ways. It states in its next section (although the initial discussion of it belongs here):
[T]he CRC further notes that had the DPOC wished the phrase “candidate of another party” to mean “candidate endorsed (or nominated) by another party” it could have used the word “endorsed,” (or nominated) as it did in the following clause (“candidate nominated and endorsed by this party”). But it did not, and thus, the best interpretation of the phrase “candidate of another party” is “candidate registered with another party.”
This reasoning is misplaced for at least three reasons:
1. As Parliamentarian Adler noted, they used this phrasing because that was the phrasing used in the Election Code in the pre-“Top Two Primary” days, and at that time it referred to the candidate endorsed or nominated by another party. There was no need to do otherwise unless they had some reason for departing from the language of the Code.
2. One might just as easily say that:
had the DPOC wished the phrase “candidate of another party” to mean “candidate registered with another party (or nominated) endorsed (or nominated) by another party” it could have used the phrase ‘registered in another party.’ … But it did not.
The CRC claims that this non-use the term “nominated” or “endorsed” is meaningful because in the following clause it used the phrase “candidate nominated and endorsed by this party” and it therefore would have done the same twice. It’s obvious that the reason that this was written as it appears is that saying “gives support or avows a preference for a candidate of another party or a candidate who is opposed to a candidate nominated and endorsed by this party” would not have been adequately replaced by “gives support or avows a preference for a candidate registered with another party or a candidate who is opposed to a candidate registered in this party” because the important thing about the candidate is that they were nominated and endorsed, not their mere registration. (Those of at least my age will recall that the neo-Nazi Tom Metzger was registered as a Democrat when he slipped into a general election, but many party officials opposed him nonetheless – and as I recall even suggested that people vote for his opponent rather than risk electing a Nazi masquerading as a Democrat– because his mere registration was not the important point.) So that is why one would not use “registered” in the second clause, and there is no reason to wonder about the parallelism in the first clause.
3. The revised CDP Bylaws – incorporated into the DPOC Bylaws, use the correct formulation! In Article II.9.B, we find the sister provision to the DPOC provision in question:
This Committee may remove any member if, during his/her term of membership, such member affiliates with or registers as other than Party Preference Democratic; publicly avows preference for another party; publicly advocates that the voters should not vote for the endorsed candidate of This Committee for any office; or who publicly gives support to or avows a preference for a candidate registered as other than Party Preference Democratic in the voter-nominated top two open primary.
The CDP recognized the change created by the Top Two primary and chose to make a change to adopt the position that the CRC says is the natural interpretation of the DPOC’s Bylaws provision. In 2013, the CDP’s position read as follows:
This Committee may remove any member if, during his/her term of membership, such member affiliates with or registers as a member of another party; publicly avows preference for another party; publicly advocates that the voters should not vote for the endorsed candidate of This Party for any office; or who publicly gives support to or avows a preference for a candidate nominated by another party. (Editor’s note: this paragraph is bolded because it directly applies to Diamond’s longtime support of Republican Anaheim Mayor Tom Tait and support for Republican James Vanderbilt over Jordan Brandman)
DPOC did not change its Bylaws (and is in fact admonished for this by CRC in its opinion in another context.) CDP’s Bylaws tell us what “of another party” would have meant prior to Top Two; the “natural” interpretation – which I reached (editor’s note: other disagree) – is that until and unless DPOC followed CDP’s lead, it was content to treat nomination (which in its essence is now “endorsement”) by another party as the critical factor in a race where no Democrat is running. The natural reading of a document in which no terminology has changed is that no meaning has changed.
CRC Holding 1B: If the Rule was Ambiguous, I Should Have Sought DPOC Permission
CRC asserts that “Mr. Diamond cannot reasonably claim that he was unaware of potentially different interpretations given his multiple conversations with Mr. Murdock. The CRC finds no record that Mr. Diamond took actions to verify his interpretation prior to his endorsement and advocacy.”
Objection 1B.1: Requiring Seeking Permission Given Serious Ambiguity is Noxious
Note that I am not saying that any ambiguity in a rule should allow people the liberty to go ahead in an expectation that they will not face punishment. A person’s interpretation has to be plausible – something that CRC’s opinion explicitly concedes that mine was. In the area of administering punishment to an accused transgressor, the principle that ambiguity sufficient to generate plausible alternative interpretations is known as “lenity” – and, again, it is one of the principles that has consistently been defended by (mostly Democratic) civil libertarians.
Indeed, I was aware of possible differing interpretations, and I did not ask for a formal resolution allowing me to act on my own behalf in what impartial observers considered to be the most important countywide race in the past 20 years – one occurring in the wake of a national scandal over the operation of the OC District Attorney and Sheriff’s offices over the civil rights and civil liberties of the accused, and one in which the candidate I endorsed was the one running in a de facto slate with the Democratic endorsed candidate for Sheriff (not only by dint of their similar positions and concerns, but by dint of the other pair being endorsed and highly promoted by the Democratic Party (and, to be fair, Sen. (sic) Lou Correa (editor’s note: It’s Congressman), who cited his long friendship with the Sheriff’s candidate who had violated the Miranda rights of prisoners and, with the DA I opposed, had employees hide evidence from and lie to the courts. Yes, I was intent on it not being the case that the only Democratic voice around was opposing protection of First and Fourth through Sixth Amendment rights – supposedly not on the merits, but based on personal friendship. I thought, as an attorney, that that that was terrible for – and causing long term injury to –my party (especially given that the incumbent’s likely designated successor would be a white supremacist sympathized from Huntington Beach. (Editor’s note: anyone else follow this logic? It’s all over the place)CRC thinks that, even when speaking for myself only, I had a responsibility to ask permission to take an act not expressly forbidden.
This is, as I hope most Democrats know, a position that largely arises in the context of First Amendment law – and it involves something called “a chilling effect,” in which an ambiguous regulation can have broader than expressed, than intended, or even than permissible effect – called “overbreadth” – due to its ambiguity and/or vagueness. The civil libertarian position – the ACLU position, and historically the Democratic position when it arises – is that people have no responsibility to censor themselves or their actions given an ambiguity in a law or rule. That rewards ambiguous legal drafting. If DPOC had wanted to clarify this rule as the CDP did, it could do so (and still can) – but a basic principle of what is called “lenity” is that you do not construe a truly ambiguous provision against those accused of violating it. You fix it and you apply the clarified position thereafter. I had no obligation to clarify an ambiguous rule prior to action – especially given that whatever response I would have received would have had no formal status and could as easily been violated with impunity by someone taking a position that the Chair favored – leading to decision-making that lawyers reject as “arbitrary and capricious.” That is not how law – even at the level of intra-party rule – works, or should work. (Imagine even trying to write a Bylaw explicitly requiring people to always ask permission first if more than one plausible interpretation of a rule is possible! It would not survive being stated explicitly.) (Editor’s note: IUSD Trustee Ira Glasky is a Republican and has been my friend since our daughters were 5; no Democratic candidate opposed his election to IUSD. I also wasn’t sure of the rule on endorsing, so I contacted the DPOC chair and was told I could not endorse Glasky because it violated our rules, so I did not. The “when in doubt, check it out” rule must apply to journalism and not law.)
Objection 1B.2: Allowing for Some Dissent, Absent Endorsement, Helps the Party
I can imagine that some people might be inclined to approach the question of my expulsion on policy grounds rather than, as should be, strictly as a matter of legal interpretation. I will therefore address them as well. The position that the party would take under my interpretation of the rule is far superior to the (embarrassingly weak) position it took in this past election. As I’ve noted, the first serious challenge in 16 tears to a 20-year incumbent District Attorney (who was widely considered corrupt and law-breaking) made this the most significant countywide election in decades. Democrats, for the fifth time, failed to put forth a candidate whom most would think was clearly qualified. (I was the fourth such candidate, in 2014.) Public interest in the race was high – and the Democratic Party was showing a conspicuous lack of interest in engaging in this issue at all – despite that, once again, the dysfunction in our large and prosperous county was making national news. (Editor’s note: That is strictly opinion and not fact).
I did my best to get our party’s candidate an endorsement and was among the loudest voices in the party supporting him in the primary. When our party’s candidate – note that by that I meant “endorsed candidate,” not simply “a candidate registered within our party,” and I’ll bet that that was the meaning most reader’s inferred — lost and was sought out for support by both of the candidates in the runoff, he negotiated with both candidates and was able to extract some extraordinary concessions from one, in favor of what the party after the election) recognized as “Democratic Principles in Criminal Justice Administration.) But there were also reasons, I did and do recognize, to oppose the candidate I favored, albeit one’s mostly dealing with his prior political record rather than his prospective management of the District Attorney’s office.
What if Democrats simply had no rule at all against taking sides in a race where no Democrat made the Top Two – a common occurrence in some of our counties? (Ex officio members can, of course, already do so without risk of expulsion.) We might have had a vigorous debate among Democrats as to which was the worse of the two evils. (I have no problem conceiving of the candidate I endorsed as “the lesser of two evils.”) That would have been a debate highlighting what Democrats stand for – rather than our simply hiding in a hole until it was over (which has been a topic of jokes in my county in similar situations.) I’d have welcomed public and legitimate attacks from Democrats on the candidate I favored, to accompany my attacks on the incumbent – though perhaps people were afraid of speaking out due to this very same provision, for fear of being seen as helping the incumbent (which strictly speaking, would have been the case.) But now, Democrats would not be depicted as weakling sitting on the sidelines whining or whimpering (we were accused of both), but as people engaged in the process of what we should a District Attorney should do and what sorts of acts we considered to disqualify someone from consideration so strongly that we would instead re-elect a corrupt thug. We would be seen as standing proudly for our ideals, even when we didn’t make the runoff. (Editor’s note: If if’s and but’s were candy and nuts, it’d be Christmas every day)
At base, the accusation levied against me is a lack of party loyalty. I think that I acted out of substantial loyalty to party – enough to risk a likely attack from political enemies.
2. With Respect to Notice
The CRC’s opinion seems to have overlooked several arguments made in my challenge – largely regarding incorporation of provisions of Roberts Rules in the event of a hearing over expulsion (which Roberts considers the most serious sanction and highest due process — so I ask that the committee review this section beyond the portions that included herein. Factually, the discussion is in two parts: notice as to the fact of a hearing and notice as to procedures.
CRC Holding 2A: Notice of the Hearing was Valid Regardless of Its Going to Spam, In Part Because I Never Opted Out of Receiving Email Notice
Objection 2A.1: This Was Unexpected, So Was Not Like Standard DPOC Notices
The Chair states that notice by email is a standard procedure. Indeed – but this was not a standard sort of notice. If a scheduled meeting is approaching and I haven’t received an agenda, I know to reach out to DPOC or to other people, and perhaps to check my Spam folder, to see whether they have received anything and ask for it to be forwarded. This was not an expected notice and there was no one I’d know was getting for me to ask. A notice of a hearing is one that carries special rules for a reason, specifically to ensure that the recipient does not treat it like other communications. We have fewer than one attempted removal of office per year over the past decade, this is not a common enough occurrence as to demand an “opt-out.”
Objection 2A.2: Roberts Rules Has a Different, and Stricter, Rule for Notice
Frankly, I would have been happy with an e-mail notice – even one sent out on the Friday before Thanksgiving week, when I would have family obligation – to be sent to me if it had been accompanied by some sort of “heads-up” so that I could contact DPOC if I didn’t find it. Regardless, what I received was insufficient. As I say in my complaint (in a portion that CRC seems to have ignored):
All references to notice in the DPOC Bylaws require written notice. It does not say what “written” notice is, so for that we would turn to Roberts Rules as a gap-filler. Roberts Rules says that rules in local, state and national law – and it would require additional time under CCP 1013 [for a reply]. See RONR pages 3-4 of Section 1: “The Deliberative Assembly.” In additional, Roberts states that email notice is only proper where the recipient of the notice has agreed to receive in advance. Page 89, Item B, within Section 9, “Particular types of business meetings,” “Regular Meeting.”
Note first that I somehow dropped a few words after the highlighted portion, but this shouldn’t have been a problem if the recipients read the citation. Rules for in local, state, and national law should be used of at least reflected – and this would include heightened certainty that one has received it (arrival of certified letter or personal service by the deadline, extra time required for a reply if service is mailed – but this was treated as nothing significantly noteworthy, and unfortunately my email service misdirected the notice to spam. (Editor’s note: Yahoo email can be whitelisted easily so it doesn’t go to SPAM even with bcc: listings; Mr. Diamond failed to take the steps necessary to make sure all party communication didn’t go to SPAM and it’s hard to believe he didn’t receive a call from at least one friend in the party when the notice came out).
Objection 2A.3: Being Unexpected, This Was Not Like Standard DPOC Notices
Contrary to CRC’s contention, but per Roberts, the above is NOT simply my problem. I have no responsibility to check my spam folder every one, two, etc. days – DPOC had the responsibility for notice and Roberts indicates a heightened standard to ensure that I know to look for it. This sort of notice is the organization’s equivalent to “Service of Process” rather than a routine notification of a meeting: hence, as with process service, the procedure should have involved some heightened means – certified letter, personal service, or at least a personal phone call – to attract attention to it. It should be considered category with different (and more stringent) rules applying to prevent the sort of broadside that had me trying to prepare for it over several days of family Thanksgiving events, as well as a hearing (which was, thankfully, ultimately cancelled.) Regular notice by email is fine; this sort of notice, without more, is not.
CRC Holding 2B: I Have Waived Some Objections Because I Can’t Prove I Made Them
CRC requires those challenging actions to have exhausted their claims below. “Real” law has rules that are similar to the “interference” rules in many professional sports: if you can’t complete a “play” due to the actions of the other team, you are excused from that deficiency. In this case, I was prevented from making some claims because the Chair would not recognize me and was impeded from reporting on which ones because the Chair, despite knowing that I am have a memory deficiency due to a stroke, refused to allow the meeting to be recorded (suddenly relenting in part only when it was too late to ensure that recording was possible) These cannot reasonably oust the jurisdiction of the CRC/CDP over wrongful actions..
Objection to 2B
As was noted in my Challenge, the Chair notified me that she would not allow recording of the meeting – something I wanted in part because I do have some memory deficiencies due to a stroke. The Chair refused this demand and said that we would not be allowed to record the meeting. I explained that I wanted it to be recorded to preserve arguments for appeal. I was told that this would not be necessary because they would take good minutes. (Note that I did not receive those minutes until January 27 or 28 – noticing shortly before the meeting that the vote count was materially wrong, as is addressed below.)
Due to my disability, I will have trouble proving exactly what objections I made – though I did present them in a writing distributed before and during the meeting. But that difficulty is due mainly to the Chair not allowing recording, something that I specifically recall objecting to her, as well as to her response above. Preventing me to collecting evidence I need to prove exhaustion of remedies should excuse me from providing such proof. In addition, the following sentences were included in my challenge, and point out that I tried to raise objections (which, it should stand to reason, would be the ones I had previously raised in writing – and I had a list and given time I would have presented them all) – and I was not recognized in a timely manner to do so. This again excuses any failure to prove exhaustion, among other things under the doctrine of “futility.”
I was prepared to object to the rules when they were proposed to the body. Such a vote was never taken. When I point out this and other deficiencies, I was simply waved away and told that the rules were already set and any time for objection had passed. On other occasions, I could not gain the floor.
As noted in my challenge, there is an additional perversity to consider. The argument could be made that my responsibility under the principle of exhaustion was to stand up and continue screaming for a point of order and to walk forward and take the stage to present my demands. It should be remembered that my expulsion was about to be voted on by the assembly, and while the Chair’s refusal to recognize me may have been intended to invite me to scream like a maniac, at some point it is simply unreasonable to expect me to do so under the exhaustion criterion. I assert that I satisfied all my requirements for exhaustion for all claims, either by presenting them (and failing in some cases to get the Chair to acknowledge a point of order and
proceed to a ruling) and in other cases because the Chair wrongfully impeded my doing so. (Editor’s note: Telling the party members to “blow it out your asses” was charming)
3. With Respect to the Vote Margins
DPOC states some voting requirements in its Bylaws, but in most cases refers to “gap-filling” provisions – provisions that tell you what to do when it is not otherwise clear what to do — primarily (up until the meeting in question) to Roberts Rules of Order, Newly Revised) and (as of last half-year or so on a Bylaws provision whose purpose no one seems to remember, one stating that if no other vote margin provision is expressly provided for in the Bylaws, the proper vote margin is a majority vote. I refer the Committee to Jonathan Adler’s discussion in my Challenge for an intelligent discussion of this.
That these two “gap-filling” provisions exist is not a problem if one makes one simple assumption (that also turns out to be the only logical one): that the provision incorporating Roberts Rules makes its rules EXPRESSLY part of the text of the Bylaws, and that the other “unless these Bylaws otherwise provide” is a backstop for anything on which Roberts appears to be silent, making THOSE votes majority rule. In that case, the voting requirement for a motion to expel is a 2/3. If the reverse is true, and Roberts is the backstop for the “everything is by majority” rule, then the DPOC with that amendment overturned not only the 2/3 requirement for removing a member – the gravest move the body takes – but also all of the other voting thresholds that are 2/3 (or unanimous!) in Roberts but aren’t addressed in the Bylaws. This would make the DPOC pretty much the only parliamentary body to do so – and also to have forgotten about the rule for the entire ten years I’ve been here (except for the past several months) during which time it was duly following Roberts Rules.
There’s one good canon of legal interpretation that should leads us to think that Roberts Rules has continued to be in force despite the Magical Majority Rule – and that is that the specific rule controls the general. RONR is composed of all sorts of specific rules (as well as some general principles); the Magical Majority Rule is a general bludgeon that only makes sense as a final backstop rule. The CRC, in its fourth order, “encourages the DPOC to determine which motions other than those already prescribed should appropriately require a vote more than a simple majority and then consider conforming amendments to its Bylaws.” (The good news, perhaps, is that unless the Bylaws say otherwise, for now they can amend the Bylaws by majority rule, and can vote by majority to eliminate the procedure of the Bylaws amendments having to go through the Bylaws committee at all. Some Bylaws those are!)
CRC takes this as a given: “As the DPOC Bylaws are silent as to the threshold for removal under the endorsement/advocacy provision, the threshold [for removal] would be a majority.” (I promise you, I would never have lasted this long if this were understood to be true.) But if the incorporation of Roberts Rules into the DPOC Bylaws actually does give them preference as the initial gap-filler rather than the never-relied-upon-for-voting-requirements backstop, then the Bylaws are NOT silent on the threshold for removal: they expressly say to follow the rules expressed in Roberts Rules – like pretty much every other parliamentary assembly using them.
The alternative to taking the view that the DPOC once did something so spectacularly stupid as to wipe out almost all of Roberts and then compounded this by an even more spectacular stupidity of simply forgetting about it for at least one decade and maybe more, and will now have to compound it with a third stupidity of having every supermajority in Roberts enshrined into its Bylaws is for the CRC to say that clearly, this “majority rule” bylaw that once had some forgotten purpose was never intended to oust all of Roberts’s supermajority procedures and should be construed as a backstop, in which case a 2/3 vote was required to remove me.
CRC then states that it doesn’t much matter because:
“The CRC further finds through the testimony submitted that while the initial voice vote was a majority, the roll call vote was by more than two-thirds. The CRC notes the latter reflects the final official vote and that this roll call was requested by Mr. Diamond.”
The CRC was right based on the information given to them by the party, despite my own count at the time that the vote was 31-17 for removal. But, as was verified at this past Monday’s meeting, that information was wrong. Rather than being exactly (not “more than,” but just as effective) two-thirds – 32 to 16 – the vote was indeed 31 to 17. AD-69 delegate Dr. José Moreno, one of my closest allies within the body, was recorded as voting to remove me. When I finally received the official roll call vote – more than two months after the vote took place and despite my seeking it – I checked it, noted the unlikely discrepancy, and called him up to say that even if he’d voted me out we were still friends. He told me that he had not voted to remove me. I then noted that Jim Moreno (not an ally) had voted to remove me, and that that could have easily led to the misrecording of his vote. José had the vote corrected at Monday’s meeting, and the official margin is 31-17. There’s no escaping the need to vote on whether DPOC did in fact eviscerate Roberts Rules and now must re-incorporate it, despite its existing incorporation (Editor’s note: instructions offered by the chair was a simply majority was required to remove Diamond).
Again, the notion that this provision had some original purpose that got mangled and forgotten is far, far, far more likely than the explanation that the CRC accept as given.
4. Disability Issues
I have stated that my cognitive disability – applying to memory and some comprehension of directions and instructions, and my ability to organize things, but not to my analytical abilities – made it difficult for me to follow the proceedings in real time, to reconstruct them, to get in the objections I wanted to if I was being intentionally or otherwise bamboozled, and to report on exactly what I did. I believe that this was intentional and intended to take advantage of my disability. Read my challenge for more. That should suffice to preserve that issue for appeal. (Editor’s note: If all this is true, how can Mr. Diamond defend his possession of a law license? People who suffer strokes sometimes lose their ability to drive and their driver’s license. If he lacks the mental capacity to practice law, shouldn’t the State Bar remove his law license?)
# # #
So that’s that. Let’s say Diamond prevails. I’ll make a motion to remove him from DPOC Central Committee based on his November 5, 2018 blog post below and his subsequent condemnation of the party’s endorsed candidate for Anaheim District 2. That link is below, with a cut and paste of the copy (screen grabs are already had). It’s a confession of sorts and an admission he knows he’s violated party rules.
This is where I disobey the orders of the DPOC; this is my ticket to the a trial in the dock. I won’t mince words: Jordan Brandman should not get your vote for this district. Does that mean that Democrats won’t be able to get a Council majority, even if Ashleigh Aitken and Jose Moreno and Grant Henninger win? Yes, it does. But there are worse things than not having a majority — and one of them is being an only nominal majority — and having to accept responsibility for all that happens — while being a functional minority because one of your members is on the wrong side, so that the wrong things happen.
Let’s presume that Ashleigh wins the Mayor’s race, that Dr. Moreno beats that nasty SOB Mitch Caldwell, and that Grant Henninger somehow resists being in thrall to Disney. She needs four people to make policy. In most areas related to the Resort, she could put together a coalition with Moreno, Denise Barnes, and … who else? Not Lucille Kring or Steve Faessel. She would need to pick off either Jordan or Grant — but I think that they would both ally with Kring and Faessel. (Each, in fact, would strengthen the will of the other to do so.) Ashleigh would become the same stifled and helpless leader that Tom Tait was in the first six years of his service as Mayor.
Jordan has never even promised not to do this. The only promise that I could get him to make in the DPOC endorsement process was that he would not endorse Kris Murray for Supervisor if he was endorsed — and even then he parsed his answer. The moment I realized that I couldn’t support Jordan was the moment when an ally of his said that if Vern and I didn’t stop picking at Jordan, he would feel free to ignore the promises he made to the DPOC. That rang true. But that is not how promises work! Jordan did not promise to “behave” only so long as no one criticized him; he promised to behave, period. If even his friends think that he would be looking for an opportunity to renege on his promises — how could I possibly put trust in him?
Given that Duane Roberts is not going to win this seat — and yeah, it’s a given — and that none of the minor candidates will make a dent, that means that the sole alternative is James Vanderbilt. Well, could Ashleigh work well as Mayor with Vanderbilt? Absolutely: in fact, in my opinion Vanderbilt would become Ashleigh’s staunchest ally as Mayor, because they’re both thoughtful, not that ideological, and won’t be punitive towards Disney and Arte Moreno while also not being inclined to let them pick the city’s pockets.
So look at the actual line-up on the Council with Ashleigh as Mayor, with the Disney side in green and the reformers in purple, with unknowns — including (laughably but for the sake of argument, Brandman) in gray:
Mayor: Aitken (by assumption, in this scenario)
2: Brandman or Vanderbilt
3: hopefully Moreno, hopefully not Caldwell, probably not the Tait Republican Robert Nelson.
6: Henninger or Disney Republican O’Neil or Tait Republican Gaby
If she wants to stand up to the people who have accused her of supporting child molesters — oh, and also for the good of the city — she has only one secure vote, that of Barnes. If Moreno wins, she needs one more vote — and if you look at the roster it’s clear that doe the next two years that’s going to be a Republican. (If Caldwell wins, she’d need Gaby AND Vanderbilt to win.) Otherwise, just as when Kris Murray and Jordan Brandman rode roughshod over Tait, she’d be a hostage tied to her own stagecoach.
I’m going to presume for now that Moreno wins. If Vanderbilt also wins, you have the Tait coalition intact for another two years, with a possible pickup in the District 6 race. But if Brandman wins, then it all depends on who wins District 6. If it’s O’Neil, all is lost. If it’s Gaby, Ashleigh still has a working “Tait” majority, with Gaby taking over the role of Vanderbilt. But what happens if it’s Henninger?
Based on the colors I used above, you have a 3-2-2 split: Ashleigh, Barnes, and Moreno as reformers, Kring and Faessel as Disney thralls — and Brandman and Henninger as supposed uncommitteds.
Well, as sure as 2+2=4, does anyone really think that in that situation Brandman plays a fourth or fifth wheel to Ashleigh, Barnes, and his mortal enemy Moreno?
OF COURSE NOT!
He does what he and Murray did under Tait — puts together a four-vote coalition that would in this case have its power limited only by Steve Faessel’s sense of decency. And then Ashleigh (or Cynthia!) has a miserable two years as Mayor, until the situation can be changed. Or maybe a miserable 4, 6, or 8. (Ask Tait about being in that spot.
If you know Jordan Brandman, you know that the prospect of his not seizing power is approximate zero. He has a Trumpian love for dominating his political enemies and taunting them for their lack of power.
And the worst part is that the ensuing policies happen with a Democrat as Mayor and with two Democrats in the four-person governing coalition (along with a woman and a Latino Dem in the minority.)
NO THANKS! This would destroy the Democratic Party in Anaheim. The policies that the Brandman-Caldwell-Kring-and-Faessel coalition (with or without Henninger) would support would be pro-repression, pro-borrowing money to be paid back for decades in exchange for campaign money today, and fundamentally anti-Latino. When you look back at how Tait’s ineffectual vote to make the Mickey & Friends Parking Lot deal unanimous is STILL trotted out regularly by anonymous commenters, you can imagine that the 2019-2020 betrayals of the City would be put on the Democrats’ tab for the rest of the century. What does Jordan care? His constituency is Disney and the Building Trades, not the party.
Not just reformers, but also DEMOCRATS, cannot risk Jordan Brandman being elected in District 2. If DPOC members really understood Anaheim politics — and Jordan Brandman — all of the folksy sucking up in the world would not have gotten them to endorse him.