Robert Fyrst, Petitioner
v.
ASM Student Council, Respondent
2005 ASM SJ 12
JUDGMENT
Cite As: 2005
ASM SJ 12
Before Fox, CJ, Brusda,
and Tyack, S.JJ.
Mr. Fyrst
for Petitioner.
Chair Varney for Respondent.
THE CHIEF JUSTICE announced the Unanimous
Opinion of the Panel.
NICHOLAS J. FOX, Chief
Justice. 1. Petitioner
Robert Fyrst
[1]
filed suit against the ASM Student Council alleging that
at its regular business meeting on
2. Upon motion of the
panel, parties were asked to submit briefs regarding the standing of Mr. Fyrst, since he is filing for another person’s rights in the
first instance. The panel certified
Mr. Fyrst’s standing, arguing that there is a general
standing and general harm principle when bodies of the student government
allegedly violate the policies and procedures governing their operations. Motion
for Certification on Standing, 2005 SJ Ord.
16.
3. Mr. Fyrst argues that, pursuant to the ASM Bylaws 3.01(E)(VIII), the Representatives in question were not
given appropriate notice of their absences and pending removal, and consequently
their due process rights under the ASM Constitution, Art. 4 § 2 (2005) were violated.
4. The Court prefaces
its analysis of Petitioner’s claims by noting that this is a due process claim
arising under the ASM Constitution. Petitioner is not challenging whether or not
the reasons for removal are valid. The
Secretary of the Student Council is vested with the authority to determine
the validity of excuses for non-attendance.
ASM Bylaws 3.01(E)(I). The Court has viewed the determination of validity
as a political question, left to the respective branches to determine for
themselves what constitutes an acceptable absence. Kedziora v. McCabe,
2004 ASM SJ 1. However, in this case,
Petitioner challenges the due process involved in the removal for Representatives
for non-attendance, not the validity of the reasons involved.
5. The Student Judiciary
has a long history of recognizing that the ASM Constitution guarantees procedural due process, so that as long
as constitutional procedures are established and followed, due process has
been considered fulfilled. Zyvix v. Fox, 2005 ASM SJ 8; Robbie Earl for ASM v. ASM Finance Committee
Appeal, 2005 ASM SJ 7. The Court
is not concerned with the substantive outcome of the case so long as the procedure
was followed. Amending a poor procedure
is reserved for the legislative process, not for judicial fiat.
6. The ASM Bylaws 3.01(E)(VIII) discuss the procedure
for removing Representatives because of non-attendance:
Any representative
who has more than two unexcused absences
shall be notified in writing
of his or her total absences and his or her risk of being removed as a Representative. Any Representative who has three unexcused absences
or more may be removed from the Student
Council by a two-thirds vote. (emphasis
added).
It is clear from a plain reading of the ASM Bylaws that more than two unexcused absences are required before
the Student Council must statutorily notify Representatives of their poor
attendance. It is also evident that
at three unexcused absences (i.e., also the first time when a Representative
is required to be notified), a Representative is eligible to be removed.
7. Petitioner’s argument
that the Representatives in question did not receive proper notice of their
attendance record and consequent removal is flawed because Petitioner relies
upon the Student Council attendance form, Complaint, rather than the ASM
Bylaws which dictate attendance policy.
Petitioner argues that the Student Council attendance sheet requires
a warning to be issued after two unexcused absences and a notice be issued
after three unexcused absences indicating that the Representative can be removed.
8. The ASM Bylaws, though, state that notification
of poor attendance must be given when more than two unexcused absences have
accrued, not merely after the second absence. The “more than two” requirement in the ASM Bylaws clearly indicates that the Student
Council was not procedurally bound to notify these Representatives after two
unexcused absences. The Student Council
could have notified these Representatives of this fact, but it is not statutorily
bound to do so.
9. According to trial
Exhibit A, Representatives Wick
and Crozier were notified via email by Student Council Chair Varney
on
10. While it might be
argued that the ASM Bylaws do not
require a removal notice to be sent out because the Bylaws do not mandate said notice, it could easily be counter-argued
that under the ASM Constitution’s
due process guarantees a Representative should be notified of such a removal
for non-attendance. This issue is not
before the Court in the case at bar because notification of poor attendance
and removal was given. Moreover, since the Bylaws require notification to be sent out after more than two unexcused
absences, and since the Bylaws also
mandate that after three unexcused absences a Representative can be removed,
it is clear that at three unexcused absences a Representative is required
to be notified of his or her absences but that also the Representative can
be removed at that point.
11. Petitioner also
argues that absences after the second unexcused absence should be vacated
because the Representatives did not receive notice of their attendance record,
and that if they had they might have attended more meetings. It first should be noted that since the Representatives
did not have to receive notice until more than two unexcused absences accrued,
using the notice argument in this case is not applicable.
12. More importantly,
though, is that the Representatives in question are responsible as duly-elected
Student Council members to attend meetings, and in the event they cannot attend
a meeting, to submit an excused absence form in accordance with the ASM Bylaws. Representatives should be aware of all policies
and procedures pertinent to their office, especially when such policies and
procedures are easily accessible. See
also, Student Election Commission v.
Robbie Earl for ASM Appeal, 2005 ASM SJ 6.
Ignorance of attendance policy is no excuse to miss meetings.
13. In addition, the
Court is of the opinion that the emails regarding Student Council meetings
(namely sending out an agenda prior to 24 hours before a meeting) does constitute
actual notice under Werner Appeal.
Failure to open the emails does not absolve the Representatives from
any duty pertinent to the business of those emails.
LIC v. SSFC, 2005 ASM SJ 10. Accordingly,
the Representatives did have actual notice of the meetings, but failed to
attend and failed to get their absence excused.
14. Wherefore, for the
reasons stated herein:
IT IS ORDERED that Judgment be entered for Respondents;
IT IS FURTHER ORDERED that the Preliminary Relief issued by
THE CHIEF JUSTICE be VACATED;
IT IS FURTHER ORDERED that the motion to vacate Representative
Wick and Crozier’s absences beyond two unexcused
absences is DENIED;
IT IS FURTHER ORDERED that this Judgment be STAYED until all
appeals are resolved or acted upon by the Student Judiciary;
IT IS FINALLY ORDERED that the Complaint be DISMISSED.
Nicholas J. Fox, Chief Justice
Shannon Brusda, Student Justice
Joshua Tyack, Student Justice
Published:
Attest: /s/ NJF
[1] Mr. Fryst, at the filing of this complaint, was a member of the ASM Student Council. Several days after the filing, Mr. Fyrst resigned his seat on the Student Council.