***The Student Judiciary Reserves the Right to move to Closed Session during this meeting when discussing matters involving an

UW Roman Catholic Foundation, Petitioner

Student Services Finance Committee, Respondent

2005 ASM SJ 11

JUDGMENT

Cite As: 2005 ASM SJ 11

Before Fox, CJ, Collins, VCJ, and Leonard, SJ.

Ms. Czarnecki and Mr. Romano for Petitioner.

Chair Stone and Vice-Chair Saar for Respondent.

THE CHIEF JUSTICE announced the Unanimous Opinion of the Panel.

NICHOLAS J. FOX, Chief Justice. 1. On 22 September 2005, the ASM Student Services Finance Committee (SSFC) held an eligibility hearing for the UW Roman Catholic Foundation (UWRCF), as required under the ASM Bylaws 2.03(C)(V). At this hearing, the SSFC denied eligibility to the UWRCF, stating in its official reasons that that organization failed to meet the following: Eligibility Criteria 1 (requiring an organization to have proper written governing documents), Eligibility Criteria 10 (requiring the eligibility application to be completely and accurately filled out), and Eligibility Criteria 12 (requiring that the organization has been free from violating its own governing documents, the ASM Bylaws and Constitution, UW System Policy, and state and federal law). Exhibit A: Official Reasons for UWRCF’s Denial of Eligibility by the SSFC.

2. At its next meeting on 26 September 2005, the SSFC moved to reconsider the eligibility of the UWRCF. The reconsideration hearing was held on 29 September 2005. Again the SSFC denied the UWRCF’s eligibility based on the same three criteria, supra. Exhibit D.1[1]: Collection of SSFC Eligibility Evaluation Forms from 22 September 2005 and 29 September 2005.

3. The UWRCF filed a Complaint and Petition for Relief with the Student Judiciary on 30 September 2005. Complaint. A brief was also submitted to the Court by Petitioners on 11 October 2005. Petitioner’s Brief. Petitioner alleges that, because Criteria 1 and 12 do not match the criteria as they are detailed in the ASM Bylaws 2.03 (C)(V)(3), their due process rights were violated. Moreover, Petitioner alleges that the SSFC has no judicial authority to determine if a violation of policy has in fact occurred, and that such assumptions about an organization are unfounded and lack the appropriate due process to validate such claims. Finally, Petitioner argues that the SSFC should give organizations deference when interpreting their own governing documents and should not impose its own interpretation as to what an organization’s documents mean or imply. Complaint. Petitioner’s Brief.

4. Respondent counters that the criteria which are currently on the SSFC Eligibility Evaluation Forms have been used for several years and have been applied equally to all organizations. Furthermore, the SSFC should be given deference when interpreting its own bylaws and requirements, since some level of interpretation must take place to properly evaluate what a bylaw requirement means and how it applies to an organization.

5. The Court begins its analysis by addressing the claim that Eligibility Criteria 1 and 12 and inconsistent with the ASM Bylaws. This Court has long held, and affirms here, that there exists a hierarchy of laws within the ASM. United States v. Lopez, 514 U.S. 549; Schober v. Evans, 2004 ASM SJ 14; MCSC v. Greenbaum, 2004 ASM SJ 9. The ASM Constitution is the pinnacle of ASM law, and is accordingly followed by the ASM Bylaws, which are in turn followed by the rules and laws of the ASM (such as committee rules). Lower elements of the hierarchy must necessarily conform to higher elements, and when the two conflict, the higher element will hold and the lesser element will fail.

6. By Respondent’s admission at trial, Criteria 1 and 12 do not match the criteria listed in the ASM Bylaws. This is quite obvious to the Court by comparing Criteria 1 as it appears in the SSFC Forms and as it appears in the ASM Bylaws 2.03(C)(V)(3):

SSFC Criteria 1: “Does the organization/program have proper written governing documents (By-laws, etc.)?”

ASM Bylaws: “The organization/program must have written governing documents.”

7. The Court is not concerned here with the fact that the SSFC Criterion is framed in the form of a question whereas the ASM Bylaws criterion is framed in the form of a stated requirement. Such grammatical formatting requirements to adjust a statement to a question are inconsequential so long as the purpose and intent of the higher element is maintained without amendment in the lower element. Accordingly, the criterion listed in the SSFC Evaluation Forms must match, in terms of the purpose and intent, the criterion in the ASM Bylaws, the higher element between the two.

8. The key distinction with Criteria 1 is the insertion of the word “proper” in the SSFC Forms, a word that does not appear in the ASM Bylaws. The Court believes that this one word permits too much discretion on the part of SSFC members. The United States Court of Appeals for the Seventh Circuit maintains that the funding system which the University uses is viewpoint neutral because “[t]he numerous and specific Funding Standards […] limit the discretion of the ASM Finance Committee and SSFC,” and that because of these standards and checks, the student government does not have excessive or unbridled discretion in the distribution of funds. Fry v. Board of Regents, No. 01-1912, pg. 40, 42. Then Vice-Chief Justice Green echoed these same sentiments in Tenant Resource Center v. SSFC, 2004 ASM SJ 7, by arguing, “[T]he whole purpose of the ASM By-laws on viewpoint neutrality is to remove as much human discretion as possible” (at 1).

9. It is evident to the Court that the word “proper” opens the door to too much discretion on the part of SSFC members. During trial, Petitioners presented the audio tapes of the SSFC meetings in which several members of the SSFC, when debating the use of the word, arrived at considerably different definitions. The subjectivity inherent in such an ill-defined word clearly invites discretionary interpretation. While discretion is, to some extent, inevitable in the funding process (i.e. “what is a service” or “is the application completely and accurately filled out”), it is clear that if that discretion comes from a discrepancy between the ASM Bylaws and the SSFC Criteria, the wording in the ASM Bylaws must be binding. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7; State-Langdon Neighborhood Association v. Smith, 2002 ASM SJ 14; ALPS v. Patzner, 2002 ASM SJ 13; DES v. Patzner, 2002 ASM SJ 7; MEChA v. Patzner, 2002 ASM SJ 6.

10. The Court also acknowledges that Criteria 12 is inconsistent with the ASM Bylaws:

SSFC Criteria 12: “Has the organization/program been free from violations of its own governing documents, the ASM Bylaws and Constitution, UW System Policy, and State or Federal law?”

ASM Bylaws: “The organization/program does not currently violate its own governing documents or the Constitution.”

11. It is quite clear that “phantom criteria”[2] emerge here, since the ASM Bylaws mandate that the organization be free from violating its own governing documents, but the SSFC criteria expand upon this narrow requirement. The addition of several other authorities beyond what the ASM Bylaws detail severely impairs an organization’s due process rights under the ASM Constitution, Art. IV § 2. While the Court has never recognized elements of substantive due process, the procedural due process which we recognize requires that a constitutional process be established and that that process be followed. Robbie Earl for ASM v. ASM Finance Committee, 2005 ASM SJ 7. In essence, if the ASM Bylaws require a process to happen, and there are specific criteria attached to that process, then a committee of the ASM operating under that process and those criteria cannot deviate from said process and criteria. Petitioner’s due process rights are violated by Criteria 1 and 12 because the process which the ASM Bylaws outline is not followed.

III

12. The Court also affirms that it is not the providence of the SSFC to act as a judicial body to determine whether or not violations have occurred. This sentiment was codified into ASM law by an en banc Court in UW Infoshop v. Patzner, et al., 2002 ASM SJ 11:

[T]he Court re-asserts that it is not the position of the SSFC to act as a judicial body— which authority rests exclusively with the Student Judiciary. The SSFC shall not speculate towards whether or not an organization may have violated the law, as it is not their position to speculate or judge.

13. The SSFC has no authority to speculate about whether or not the UWRCF, or any other organization for that matter, is discriminatory or in violation of its own governing documents. These speculations lack substance and proof; moreover, to determine—based on speculation—that an organization has in fact violated an affirmative law completely undermines the entire concept of due process. An organization, without chance to defend itself, present its case, or have its case heard by an authorized body, is in effect determined to be guilty of a violation. It cannot be said that the UWRCF foundation was given its due process under law when mere allegations and speculation were the only “evidence” used against it, and when that determination was made by an unauthorized body.

14. The Court disagrees with Respondent that merely because the SSFC did something a certain way in the past that that process should be given deference now. While it may be true that the SSFC could certainly be given some deference in regards to the interpretation of the bylaws governing its operation—an issue which the Court feels no need to address here—the underlying issue is that the bylaws which the SSFC was interpreting are inconsistent with and improper under the ASM Bylaws. In effect, the SSFC’s interpretation and implementation of these criteria is immediately suspect because the criteria are improper in their very nature.

15. Moreover, Respondent’s argument of “that is how we’ve done it in the past” cannot hold in this case. While deference can be given to such standard practices—again, an issue which the Court feels no need to address here—when those practices are inconsistent with the ASM Constitution and ASM Bylaws, regardless of how long the practice has been occurring, the practice is itself unconstitutional because it circumvents the established processes detailed in the ASM Bylaws. It is a due process violation if committees do not follow processes which have been constitutionally promulgated by the appropriate body. McCabe v. Evans, 2004 ASM SJ 2. Tradition does not necessarily equate with legality.

16. The only question remaining for the Court regards the deference which should be given to a private organization in the interpretation of its own governing documents. This Court has held in two consecutive cases that the Court will defer to another organization’s interpretation of its own governing documents provided that such an interpretation is reasonable. Zyvix v. Fox, 2005 ASM SJ 8; Zyvix v. Huang et al., 2005 ASM SJ 9. In ASM, the Student Judiciary has the authority to interpret the bylaws governing the organization. Richards v. Student Council, 1997 ASM SJ 1 (per curiam). However, when involving entities which exist outside of governing structure of ASM, the Judiciary’s power is significantly lessened; hence, the “reasonableness” standard, which gives deference to an organization, but not absolute deference. If the Student Judiciary has the power to interpret the ASM Bylaws, and if the Student Judiciary has acknowledged that that power is reduced to a reasonableness standard when dealing with external organizations, we see no reason while other entities of ASM should not be held to the same standard as the Student Judiciary. If a reasonable interpretation of governing documents is provided, the ASM must give deference to that interpretation.

17. The Court feels compelled to take a moment to address the Declaratory Judgment which Petitioner seeks, namely to grant Declaratory Judgment that Petitioner has governing documents, that Petitioner’s application is complete, and that Petitioner has not been found in violation of its governing documents by a duly authorized body. To grant Declaratory Judgment on these counts would essentially be to declare that Petition meets these criteria. This the Court will not do. It is the providence of the SSFC or the Student Council to determine whether or not an organization meets the eligibility requirements in the ASM Bylaws; it is the providence of the Student Judiciary to ensure that the proper criteria and processes were used in that determination. The Court will not involve itself in the eligibility process by declaring that an organization meets or does not meet certain criteria, especially when there are other duly authorized bodies to make this determination. The Court is concerned with procedural due process; the substantive outcome is of no consequence, and to declare that an organization meets certain criteria is in effect to transcend procedural due process and enter into the realm of the substantive outcome. Robbie Earl for ASM v. ASM Finance Committee, 2005 ASM SJ 7.

18. Accordingly, it is important to note that the Court in no way is arguing that the UWRCF meets any or all of the eligibility criteria, nor is the Court arguing that the UWRCF does not meet any or all of the criteria. The Court is asserting that there are procedural due process infractions, and that the initial determination of the SSFC must therefore be vacated and a new hearing, using appropriate criteria, must be certified. The remedy the Court has in this situation is to authorize a new hearing; the remedy the Court does not have and will not give itself is the power to declare an organization eligible or ineligible. That is now the task of the ASM Student Council.

19. Wherefore, for the reasons stated herein:

IT IS ORDERED that SSFC Criteria 1 and 12, as they appear on the current SSFC Eligibility Evaluation Forms, are improper under the ASM Bylaws;

IT IS FURTHER ORDERED that the SSFC revise Criteria 1 and 12 to conform exactly to the language of the ASM Bylaws;

IT IS FURTHER ORDERED that the SSFC’s revisions to Criteria 1 and 12 be completed no later than two regular business meetings of the SSFC from the publication of this Judgment;

IT IS FURTHER ORDERED that the SSFC’s revisions to Criteria 1 and 12, once completed in accordance with other provisions of this Judgment and Order, be placed in the ASM mailbox of THE CHIEF JUSTICE;

IT IS FURTHER ORDERED that the SSFC’s determination of the UWRCF’s eligibility is VACATED;

IT IS FURTHER ORDERED that the question of the UWRCF’s eligibility is CERTIFIED to the ASM Student Council to be decided at its next regular business meeting, pursuant to the ASM Bylaws 2.03(C)(VII)(1);

IT IS FURTHER ORDERED that the ASM Student Council, during its consideration of the UWRCF’s eligibility, use the wording of Criteria 1 and 12 as they appear in the ASM Bylaws;

IT IS FURTHER ORDERED that Petitioner’s request for Declaratory Judgment that Petitioner’s application is accurate is DENIED;

IT IS FURTHER ORDERED that Petitioner’s request for Declaratory Judgment that Petitioner has governing documents is DENIED;

IT IS FINALLY ORDERED that Petitioner’s request for Declaratory Judgment that Petitioner has not been found by a duly authorized body to be in violation of their governing documents is DENIED.

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NICHOLAS J. FOX, Chief Justice (concurring). 20. While writing the Opinion of the Court, I feel that it is necessary to address issues which the Court did not have to address in the disposition of this case. Petitioner argues that even if they are discriminatory in their membership, the “open to all students” requirement for eligibility should not apply to them because of rights of association and rights of free exercise under the First Amendment of the Federal Constitution.

21. While not the case before the Court here, the SSFC should be mindful that claims of this nature arising from private organizations may appear in the future. I do not think that such claims can be made by Registered Student Organizations (RSO) on campus; one of the requirements for organizing as a RSO is that the organization be open to all students. The RSO voluntarily chose to organize in this fashion and is consequently bound by the regulations promulgated to associate in that manner.

22. However, private organizations have also made a voluntary choice not to organize as a RSO. The issue present here, then, is can the SSFC (or the University in general for that matter) require a private organization—whose membership requirements may be discriminatory—to be open to all students.[3] In Roberts v. United States Jaycees (468 U.S. 609), the United States Supreme Court affirmed that “implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” In Boy Scouts of America v. Dale (530 U.S. 640), per REHNQUIST, CJ, held that association is essentially an expressive activity; it is the expression of a viewpoint. The right of association necessarily includes the right of negative association: it does not make sense that a group expressing one viewpoint would allow someone to join their organization who does not share that viewpoint. This inclusion would undermine the expressive nature of the group; in essence, the government would be forcing the private organization into an area of compelled speech.

23. In Dale, the Supreme Court held that in order to exclude someone from membership, the organization must show that the forced inclusion of said person “would significantly affect the [organization’s] ability to advocate public or private viewpoints,” supra. The Court ruled similarly in Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557, holding that members of the LGBT community could be excluded from a parade because the parade was privately-funded, and therefore rights of association and expressive activity of the parade organizers were invoked. The SSFC should be cognizant of issues like these, especially when privately-organized groups come before it.

24. A counter argument to the right of association might be that the funds the SSFC distributes are state dollars, and that any group wishing to receive funding needs to abide by all criteria attached to that funding. I find this argument problematic on several levels, the most obvious being that the state is not speaking in this instance; rather, it is creating what is tantamount to a limited public forum (not in the spatial sense but in a more metaphysical sense). This was clearly established in Rosenberger v. University of Virginia (515 U.S. 819) and University of Wisconsin v. Southworth (529 U.S. 217).

25. When the state funds private entities to endorse the state’s programs or speak on the state’s behalf, it can attach requirements to the funding it gives. Rust v. Sullivan (500 U.S. 173). However, as explicated in Rosenberger and Southworth, the state is not speaking in this case; rather, it is giving money to private speakers for the encouragement of a diversity of ideas, not for the promotion of the state's interests or programs. The role of viewpoint neutrality in this instance distinguishes that the speech of the private speakers is not the speech of the state.

26. In First Amendment jurisprudence, however, viewpoints cannot be restricted from a limited public forum by the government unless those viewpoints are unrelated to the purpose or the content of the forum:

The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not "reasonable in light of the purpose served by the forum," nor may it discriminate against speech on the basis of its viewpoint. Rosenberger.

27. The purpose of the University's limited public forum seems quite broad, perhaps only defined by "student services" or "diversity of ideas." The University and SSFC must ensure that the criteria that they have promulgated do not restrict groups from this forum because of their viewpoint, either explicitly or implicitly. If a group is discriminatory under Dale and Jaycees, supra, the Supreme Court has ruled that it is their constitutional right to do so. To consequently forbid these groups access to a limited public forum because they are discriminatory—because they express a certain viewpoint—in effect restricts that viewpoint from the forum, even though it may be perfectly relevant to the purpose of the forum.

28. The argument can be difficult, but the essence of viewpoint neutrality is that all viewpoints which are related to the purpose of the forum are included. There can be no mistake that the state is not endorsing a certain viewpoint on an issue if all viewpoints relevant to the purpose of the forum are given access. When the state denies a group access, assuming that the group’s viewpoint is related to the purpose of the forum, it in effect disfavors that viewpoint while at the same time favors another viewpoint, and viewpoint neutrality is compromised. "In the realm of private speech or expression, government regulation may not favor one speaker over another." Rosenberger.

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Justice ROMANO took no part in the consideration or disposition of this case.

* * * * *

Published: 19 October 2005, 3.00PM

Attest: /s/ NJF

[1] At trial, Respondents entered into evidence an Exhibit D; however, the evidence packet was incomplete and missing pages. Petitioner moved to strike the submitted Exhibit D because of its incompleteness, which the panel granted. Respondent was then allowed to re-submit a complete packet, which was, at Petitioner’s request, labeled Exhibit D.1 to differentiate it from the old and stricken Exhibit D.

[3] It should be noted that the hearing the UWRCF asserted multiple times that it was open to all students and that is how they interpreted their governing documents and membership requirements. Any examples used here are hypothetical and are not necessarily related to the UWRCF or any other specific organization.