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The President’s Letter
"THAT'S DEBATABLE": THE ALI AS A PUBLIC POLICY FORUM
Part IV
The Substitute Motion
Our discussions of substantive topics at Annual Meetings usually begin with comments by the Reporter and the text of a draft. The members then consider the sections, usually in sequence, and comment ensues, frequently with suggestions for improving the draft. Often these suggestions are made simply for the Reporter’s careful consideration. Sometimes, however, a member may have submitted a written motion directed to one or more sections or to the project as a whole or may rise to make an oral motion. That motion then becomes the subject of debate. That motion and attendant comment may expose a problem and furnish a constructive solution, so that if the motion is approved, it will require a specific change in the draft.
Sometimes the motion itself may not completely solve the problem, at least in the view of some members. A member may then rise to offer an amendment, which, if seconded, will be debated. It may be that the amendment will not solve the problem either, and it too will become the subject of criticism and possibly lead to a further amendment. The procedural situation by then will have become sufficiently complex so that under Robert’s Rules of Order Newly Revised (10th edition), which provides our parliamentary guidelines, no further amendments will be in order.
During the debate, a member may suggest that, if the main motion or a proposed amendment is defeated, he or she will offer a different motion intended to solve the problem. Sometimes the alternative suggested cannot be conveniently framed as an amendment to the main motion or even as substitute language to it. At this juncture, such a suggestion may influence the debate but it is not itself a motion. If the person making the suggestion has caught the sense of the Meeting, there is a good chance that the pending main motion or amendment will be defeated and that the way will soon be clear for the member to renew the previous suggestion as a new motion. Once the proposed amendment and pending motion have been voted down, the timing becomes right for such a motion to be made. If it succeeds, it will reflect the action of the house.
Suppose, however, that the member wishes to offer the solution not as a suggestion in debate for a future motion but as a "substitute" motion for immediate action. What guidance do parliamentary procedure and our precedents give us?
The basic rule is that a "substitute" motion is simply a proposed amendment and is subject to the rules governing amendments. By means of the motion to amend, members can propose changes to a pending main motion. An amendment can take the form of either simple changes in words and phrases or of an entire new text as a substitute for the language of all or part of the main motion. If such an amendment is adopted, the main motion is then voted on in its amended form.
As a practical matter, if the amendment proposing a "substitute" contains any lengthy language changes, it is preferable, and it may be essential, to have it in writing and distributed to the members in advance, or at least in a form that is sufficiently clear and legible to be viewed from one of the screens in the meeting room. The ABA and other organizations require that any motions requiring changes of more than a few words be in writing and distributed in advance. See ABA Constitution and Bylaws, Rules of Procedure of the House of Delegates 2000-2001 § 45.8 (2000).
After debate, and assuming the house is ready to vote, the vote will first be on the motion to substitute. The question before the house will be whether the proposed substitute language should be substituted for the main motion in whole or in part, as the case may be. If the ayes have it, and the motion to substitute is adopted, the question is then on the substitute motion; there may be further debate on the substitute, or the members may be ready to vote on it. If the noes have it on the question whether the substitute motion should replace the main motion, the substitute motion is lost and the question is then on the main motion.
The procedural situation becomes more complicated if amendments are offered to the substitute motion or if the substitute motion is in the posture of an amendment to an amendment rather than an amendment to the main motion. The Chair of the Meeting must attempt to keep clear exactly what is the question before the house.
If the member proposing the substitute motion has captured the sense of the house, the substitute motion can be a useful means of reaching consensus and dispatching business. If, however, the substitute motion itself is controversial, debate may ensue that can be time consuming. Makers of motions, amendments, and substitutes at the Annual Meeting are encouraged to be as thoughtful and clear as possible in order to make constructive points that hold the promise of reflecting a consensus.
Sometimes a member will offer as a "substitute" motion a proposal that does not substitute text in the main motion but that is meant to obtain a different result, for example, a referral of the section back to the Reporter. The true characterization of such a motion is that it is a motion to refer, not a "substitute" motion in the strict form of an amendment. The Chair may elect to treat it for what it is and so advise the house. A motion to refer that is not dilatory and is properly made and seconded will take precedence over the main motion and any subsidiary motions to amend or postpone indefinitely. A motion to refer is itself debatable and amendable and requires a majority vote.
In 1978, Professor A. James Casner, Reporter for the Second Restatement of Property, presented in Tentative Draft No. 1 on Donative Transfers a wait-and-see approach to the vesting requirement of the Rule Against Perpetuities. A great deal of discussion arose (some of it referred to in "That’s Debatable," Part I in The ALI Reporter for Winter 2002). Professor Laurence Eldredge made a motion "that the Institute does not approve the wait-and-see rules as presented in the present Draft." His motion underwent considerable debate. Then Judge Charles Breitel made what he described as a "substitute motion." He moved essentially to authorize the Reporter to continue with the basic principle of his Draft, in light of the various criticisms that had been made of it, and that the Reporter’s Advisers be somewhat enlarged. The following dialogue then ensued:
Professor Louis Lusky: [who had seconded Professor Eldredge’s motion]: Mr. Chairman, a point of order. Should not Mr. Eldredge, and I, as the seconder of his motion, be asked whether we consent to the substitute?
President Cutter: No. I think the motion comes on whether the substitute motion will be substituted for the motion otherwise before the house.
Professor Lusky: I for one would consent to the substitute.
Director Wechsler: Do you want to withdraw your motion, Mr. Eldredge?
Mr. Eldredge: No, I don’t want to withdraw my motion, Mr. President. I don’t agree with the substitute.
President Cutter: Then the question now comes on, on the question of adoption of the substitute in lieu of the motion before the house. I will hear discussion on that subject.
There was more dialogue. Then President Cutter said that he thought "the Reporter is entitled to be heard upon this question." Professor Casner responded: "I have remained silent for a longer period of time than I ever remained silent before in my life. (Laughter) I would like to say that, as I understand what Judge Breitel is suggesting, I am in favor of it." President Cutter then said, "You have heard the motion to substitute. It has been seconded. The question has been called for. I think this may call for a count, but I am going to attempt a voice vote first." The motion carried, and President Cutter went on to take a vote for the Breitel substitute motion. That vote carried as well. In short, the Breitel motion gave Professor Casner another year to refine his proposal and enlist additional support. At the 1979 Annual Meeting, the membership did adopt Casner’s wait-and-see approach.
Although not technically a "substitute" motion, in the strict sense of suggesting alternative language by way of an amendment, the Breitel motion captured the sense of the house, afforded a sensible way through a heated debate, and gave the Reporter a chance over the year to improve his proposal as well as the support for it.
In 1992, in connection with the Principles of Corporate Governance, the late Richard B. Smith crafted a last-minute compromise on the extent to which a decision by a corporate board to dismiss a derivative action against the directors or officers should be subject to judicial review. His motion carried the day at the Annual Meeting and cleared the way for final approval of the Corporate Governance project. The discussion of his motion takes 60 pages in the 1992 Proceedings. Although effectively a substitute motion, this was also not technically such because it replaced a presubmitted motion by Charles Hansen that Mr. Hansen had withdrawn in favor of the Smith motion. The latter was therefore a direct amendment to § 7.04 rather than a proposed substitute for the Hansen motion. The Smith motion also produced the following humorous exchange:
Mr. Elliott Goldstein (Ga.): I would like to join in the support of the motion…. However, I do have one caveat, and I join with the Reporter in saying that, although this may not have been translated from the German, it reads remarkably like that. (Laughter) And I would suggest that we try to put this into English so that anyone who refers to it may understand it.
. . .
Professor Coffee: Dean Casper wants to rise on a point of personal privilege. (Laughter)
Dean Gerhard Casper (Ill.): It seems to be clearer than much of the English we produce at the ALI, and I would like to point out that in Council meetings I am one of the major guardians of the English language at all times. (Laughter) (Applause)
In offering a "substitute" motion, whether in the "pure" form of an amendment or as a proposal to accomplish a result that will achieve consensus, it is always helpful for the Chair and the members to have as much notice as possible and the precise text of what the member wishes to be amplified. If the motion is not a proper "substitute," i.e., a true amendment, the Chair may, however, rule it out of order. Depending on the nature of the motion, and with the approval of the house, the Chair may wish to treat it for what it actually is, for example, a motion to postpone indefinitely (i.e., to kill a proposal).
Usually debate proceeds and motions are made and acted on without great formality or difficulty at the Annual Meeting. Parliamentary procedure, however, is useful in guiding the debate. Council Rule 9.03, which is reproduced in the Program for the Annual Meeting, authorizes the Chair to set the agenda and time limits and it provides for written motions and comments, which can be very helpful in mitigating confusion and time-consuming discussion about what exactly is before the house. The main idea is to facilitate clear discussion of identifiable issues and resolve them without allowing the debate to become unduly proceduralized.
A carefully crafted written motion, submitted in advance of the Annual Meeting, can be an extremely valuable means of focusing and structuring the debate even if it is not ultimately adopted. The same can be true of a substitute motion offered during a debate, provided that it is truly responsive to the sense of the house, which is not likely to become apparent until the debate has had the opportunity to mature. If such a motion fails to accurately anticipate consensus, it may serve only to derail or delay matters. Nevertheless, a well-timed substitute motion at this year’s Annual Meeting, particularly one that is precisely drafted and submitted in writing, might well advance our deliberations. For this, the Reporter and the Chair will be grateful. I look forward to seeing you at the Annual Meeting and to learning whether an opportunity presents itself for such a motion.
Michael Traynor
President