v.
Student Services Finance
Committee, Respondents
2005
ASM SJ 10
JUDGMENT
Cite As: 2005 ASM SJ 10
Before Fox, CJ, Romano and Wang,
S.JJ.
Chief Justice Emeritus Romano
delivers the Unanimous Opinion of the Court.
Justice Wang filed a concurring
opinion.
NATHANIEL
ROMANO, Chief Justice Emeritus. ¶1
Facts
and Background
¶2
The
¶3
The evidence received at trial further
illustrates that the SSFC sent various electronic messages to these e-mail
addresses via the listserv during the last weeks of May and continuing
throughout the summer of 2005. Trial Exhibit B. LIC admits that they received such e-mails,
though they deny that they opened them. Complaint ¶16. These e-mails contained, in the body of each,
information regarding the dates as set by the SSFC at the start of the Twelfth
Session for the upcoming year. Exhibit B. Finally, at some point during the period in
question, the SSFC produced a manual for the use of GSSF-funded groups. Testimony
of SSFC Advisor
¶4
LIC filed a late application for
eligibility with the SSFC. Complaint ¶18. The SSFC voted to reject the late
application.
Analysis
¶5
Our analysis begins with the fundamental
principles of the law of the Associated Students of Madison. Schober
v. Evans, 2004 ASM SJ 14 at 2; Multi-Cultural
Student Coalition v. Greenbaum, 2004 ASM SJ 9 at 1. The basic requirement for all ASM bodies is
the requirement to act only under due process of law. ASM Const.
Art. IV §2. Due process is the
requirement that, before any official act is taken, the actor will establish an
official procedure and will then abide by that procedure. Zyvix
v. Fox, 2005 ASM SJ 8, ¶7; Robbie
Earl 4 ASM v. Finance Committee, 2005 ASM SJ 7, ¶7 (en banc). At its core, due process is the requirement
that all relevant laws, rules, and official texts are followed without addition
or subtraction.
¶6
The starting point for our due process
caselaw in the notification area is, of course, the previous LIC case, LIC v. Werner, supra. There, a very similar set of events
occurred. The LIC filed a late
application and was ultimately denied eligibility by the SSFC. However, the full court vacated that decision
on the grounds that SSFC Chair Werner had acted unreasonably and so failed to
provide actual notification to the LIC.
¶7
Here, the LIC challenges both (2) and (4)
of the alleged notification. We can
easily dismiss the claim based on the failure to actually communicate. LIC’s complaint admitted that at least one of
its co-directors received these e-mails.
Complaint ¶16. Further, it is clear from the list of the
listserv that at least two of the co-directors were on the listserv during the
times in question. Despite claiming that
some of the messages “bounced,” LIC presented no evidence to show that these
messages were not delivered. Therefore,
we believe it quite clear that SSFC did “actually communicate” with LIC. Thus, the only question left is whether a
SSFC should reasonably have believed that LIC received the communications.
¶8
We can compare the communications at bar
with the issues raised in previous cases.
In Werner, the SSFC Chair’s
purported notification consisted of two e-mails over the course of a summer and
one phone call about two hours before the eligibility deadline. LIC v.
Werner Appeal, supra, at 1-2. In at
least one case, the e-mail contained no actual information; it was all
contained in a difficult to open attachment.
¶9
We cannot make such a statement here. Even limiting ourselves to activities since
the start of the Twelfth Session,[1]
we can find that the SSFC could reasonably have believed that their
communications were received. In
contrast to the slapdash methods seen in our earlier caselaw, the SSFC, while
still relying on a suspect form of communication, the listserv, see LIC v. Werner, supra, at 4, the SSFC
sent numerous e-mails over the course of the summer. As soon as she was elected, Chair Stone sent
out an e-mail asking for updated information.
Her testimony showed that she sent at least 2-4 e-mails a month during
the summer to the listserv. Finally, she
did send at least one personalized e-mail to the LIC when she realized that she
had not received any information from them all summer. Such a personalized e-mail, even one, would
have been enough, under Werner, to
cure any other defects, it is important to remember. 2003 ASM SJ 18 at 3.
¶10
LIC places undue reliance on the fact that
SSFC still uses a listserv to communicate information. They admitted on questioning from the Court
that the actual notice standard is reasonableness standard, requiring
balancing.
¶11
The balance further requires
an analysis of LIC’s duties. Werner is strangely silent on the issue,
and we can assume that, there, the LIC fulfilled all duties, or had none to
fulfill. However, since Werner, we have clearly described and
built upon the duties an applicant for GSSF funding has. In SEC
v. Robbie Earl 4 ASM, supra, the
en banc Court clearly stated that GSSF applicants are required to know the
financial policies of ASM. The Court
relied on the Wisconsin Supreme Court’s decision in Student
Ass'n of UW-Milwaukee v. Baum, 74 Wis. 2d 283; 246 N.W.2d 622 (1976) and
our own Constitution to determine that “[t]he rules established by ASM through
its official organs and consistent with the ASM Constitution are the laws that
govern student life, drafted by students, enacted by students, enforced by students,
and binding on all students.” SEC v. Robbie Earl 4 ASM Appeal, supra, ¶4. Thus, regardless of what may have been the
case under Werner, LIC was under an
obligation to know the basics of the policies SSFC followed.
¶12
Following the balancing test required of us under Werner and Robbie Earl 4 ASM v. FC, we cannot say that SSFC acted unreasonably
in this case. We agree with counsel for
SSFC that LIC is an important institution to have on this campus. However, that is not a basis for granting
them funding eligibility. LIC may indeed
be correct that it is unfair to them, and perhaps other student groups, for
many of these dates to be set and to occur during the summer session. This Court, though, does not consider
fairness in the abstract. A flawed or
imperfect process should be amended through the ordinary political
process. Robbie Earl 4 ASM v. Finance Committee, supra, at 8. As SSFC acted
reasonably, we cannot undo the process simply because we think the process
could be improved.
¶13
Finally, we note that Petitioners complaint included a
question of “good faith” in providing audio tapes of the meetings in
question. Little to no evidence was
presented by LIC regarding this claim.
SSFC Secretary Mike Puerner did establish that he provided tapes within
the timeframes set up by the By-laws.
LIC failed to challenge or rebut this testimony. The burden is on the petitioner. Since there is essentially no evidence on the
petitioner’s side, we cannot sustain the claim.
See, Zyvix v. Huang, et. al.,
2005 ASM SJ 9 at ¶10; Egan & Benishek
v. Halamish & Kumar, 2003 ASM SJ 22 at 3 (Romano, J, concurring in the
judgment). “A litigant cannot simply rest upon the allegations made in his
complaint and petition for relief, he must actually prove the specific facts
that he has alleged.” MultiCultural
Student Coalition v. Otten – Order on Summary Dismissal, 2004 SJ Ord. 8 at
2 (per curiam).
Orders & Judgment
WHEREFORE the Student Judiciary finds that Petitioner has failed
to establish that the Respondent acted unreasonably in fulfilling a duty
mandated by law, Judgment is entered to wit:
1.
On all issues presented to the
Court, JUDGMENT FOR RESPONDENTS.
2.
The denial of eligibility to
the
3.
The Complaint and Petition for
Relief is DISMISSED.
By the Student Judiciary,
IT IS SO ORDERED
Nicholas J. Fox, Chief Justice
Nathaniel V. Romano, Chief Justice emeritus
Yin-Chin Wang, Student Justice.
YIN-CHIN
WANG, Associate Justice (concurring). ¶14 While
I am fully satisfied with the analysis by the majority opinion, which I seek to
join myself, I would like to emphasize a few words on (1) the “reasonableness”
prong in the Werner test in the
context of the present case, and (2) the duty on the part of GSSF-funded groups
in responding SSFC in matters of funding application.
¶15
Since the reasonableness inquiry is never intended by
this Court to be a generalized test as to proscribe all the listserv used by
ASM officers as violative of due process requirement, and it shall not be, it
suffices to say Chair Stone has met her burden under the facts. In addition to the observation by the
majority, first, each of the email messages presented to this Court as evidence
has its specific subject title, such as “SSFC,” “Eligibility Hearing Dates,” or
“Budget Hearing Dates” in order to raise the attention level of
recipients. Secondly, Chair Stone
testified that over the course of summer she encountered no bounce-back
messages from the listserv indicating any communicative frustration between any
potential GSSF-funded groups, including LIC and herself. This testimony was not effectively rebutted
by LIC, and from the hindsight of this Court, the personal email addresses of
Ms. Thundercloud and Ms. Otten are
accurate. Ms. Stone can be said to have
every reason to believe her communication was effective and reached Petitioner.
¶16
It is undisputed that LIC representatives Ms.
Thundercloud and Ms. Otten were present in the SSFC training session on
Accordingly, I concur.
Yin-Chin Wang, Student Justice
Published:
Attest: /s/ NJF
[1] The Twelfth Session
started on