Eric
Varney, et al., Petitioner
v.
ASM Student
Judiciary, Respondent
2005
ASM SJ 13
JUDGMENT AND ORDERS
Cite As: 2005 ASM SJ 13 (en banc)
Before Fox, CJ, Romano, VCJ, Brusda, Hodgson, Tyack, and Wang, S.JJ.
Mssrs. Varney and
Mr. Feingold for Respondent[1].
VICE-CHIEF JUSTICE ROMANO announced the Unanimous Judgment and Opinion of the Court CHIEF JUSTICE FOX delivered a concurring
opinion.
NATHANIEL ROMANO, Vice-Chief Justice. ¶1. The Court today is faced with
a challenge to the validity of the Living Wage Petition submitted and placed on
the Fall 2005 Ballot. Petitioners allege
certain substantive and procedural errors and ask the Court to enjoin final
certification of the election results.
¶2
ASM members Ashok Kumar and
John Bruning, on behalf of the Student Labor Action Coalition (SLAC), filed the
Living Wage Petition with the Student Election Commission. Chair Timothy Leonard, on behalf the
Commission and the Student Judiciary, then placed the Petition on the ballot,
billing it as a “referendum.” See, ASM Const. Art. XIII, §§1 et seq. (2005); ASM By-laws, §6.08 (2005).
During the Fall election, a majority of students voted in favor of the
referendum, and the initial results of the election declared it “adopted” by a
vote of 1379 to 612. Initial Election Results – Fall 2005,
available at http://www.asm.wisc.edu/elections/results_fall_2005.htm.
¶3
The Living Wage Petition
purports to amend the ASM By-laws that deal with the Auxiliary Budgets to
require those budgets to pay all workers a “living wage.” The Student Services Finance Committee (SSFC)
would be unable to consider or approve any budget that did not comply.
¶4
ASM members Eric Varney, Eric
Saar, Rachelle Stone, and Janell Wise filed Complaint and Petition for Relief
seeking an injunction against final certification of the Living Wage
Petition. Their Complaint focused on
procedural irregularities – missed deadlines, absence of signatures, and lack
of notification. Noting the grave
difficulties involved, the Student Judiciary decided to focus the issues and
certify the case directly for an en banc
hearing. Order Dismissing the SEC, 2005 SJ Ord. 18; Certification of Election Cases, 2005 SJ Ord. 17. We now conclude that the Living Wage Petition
was never a true referendum within the meaning of the ASM Constitution and so
grant the injunction, though we decline to reach the procedural issues
presented in the Complaint.
¶5
All legal analysis should
begin with the first principles of law. Schober v. Evans, 2004 AM SJ 14 at ; see also, United States v. Lopez, 514 U.S. 549 (1996). For the case at bar, those principles are
those privileges, rights, and directions found in the ASM Constitution, viewed
in light of the rights preserved and protected in the United States
Constitution. The ASM Constitution
grants members the right to participate in the governance of the University
directly through the Referenda process, but restricts that right in important
way. Const.
Art. XIII, §1. See also, Wis. Stat. §36.09(5); and
Student Ass’n of the
¶6
The Referendum under
consideration at bar does not survive scrutiny under those limits. The method of its enactment far exceeds the
constitutional limits on the discretion of ASM members to dispose of segregated
fees. While segregated fees may be
levied upon students and distributed to various groups on campus, various
constitutional limits exist to ensure that this compelled distribution accords
basic protections to students. Bd. Of Regents of the University of
Wisconsin v. Southworth, 529
¶7
Indeed, on remand before the
Seventh Circuit Court of Appeals, the
¶8
To allow this Referendum,
then, is to essentially circumvent that ban, and to undermine both the Southworth line of decisions and our own
Constitution. This Referendum, by its
very terms, would prohibit funding certain groups from participation in the
funding process. Clearly, this runs
afoul of the constitutional provision which states that “[a]ny funding for
speech or expressive activities shall not be subject to [initiative, referenda,
or recall procedures].”
¶9
Thus, though the Referendum
does not single out any group by name, it has clearly set forth as a condition
of funding adherence to a majoritarian belief.
Allowing this to stand would be to ignore the requirements set forth in Southworth. Further, it would render Article XIII’s
prohibition of funding via direct democracy to be a nullity. This Court has long acknowledged that it will
give effect to each and every provision of the Constitution and By-laws. Richards
v. Student Council, 1997 ASM SJ 1; Schober
v. Evans, supra. We will adhere to
such a principle in the case at bar.
¶10
This is not to say that wage
policies are inherently improper in the funding process. Certainly, the SSFC has authority to set such
a policy and we have upheld that authority when exercised in a viewpoint
neutral manner. Multicultural Student Coalition v. Werner, 2003 ASM SJ 20. The problem with the Living Wage Petition is
not that it is attempting to set a wage policy, but, rather, such attempts may
not be made through the referendum process.
Referenda may not directly affect “funding for expressive
activities.” ASM Const. Art. XIII, §1.
¶11
The restriction found in Art.
XIII is far broader than the viewpoint neutrality restriction binding on
official ASM institutions engaged in the funding process. ASM, though its official organs, clearly has
a role to play in the funding process, as the official student government. See, Wis.
Stat. §36.09(5); Student Ass’n of
University of Wisconsin-Milwaukee v. Baum, supra. It would be absurd to
argue that Art. XIII voids this role, expressed clearly in numerous other
provisions of the Constitution. See, e.g. ASM Const. Art. III(b); Art.
V, §1, Art. VII, §1(b), Art. IX, §3(a).
Official ASM bodies are limited to acting in a viewpoint neutral manner,
but a limitation does not remove all participation.
¶12
Students, however, are
directly banned from participation in the funding process outside of official
ASM bodies. The issue is not whether the
student-sponsored petitions are viewpoint neutral. Even when, as here, those petitions are
viewpoint neutral, the Constitution clearly bars them.[4] The student body, as a whole, has no role to
play in the funding process. ASM Const. Art. XIII, §1. Even if payment of wages does not constitute
funding activities,[5]
the Living Wage Petition would impact the Auxiliary Budgets generally,
including all other expressive activities that they may engage in. Since a referendum cannot affect such
activities, this petition cannot be a referendum and this Court will not
certify it as such.
¶13
Even if we ignore the
substance of the Referendum itself, however, the process by which it was
adopted utterly fails to pass muster under the Southworth line of cases.
The Supreme Court has made it abundantly clear that students have a
right to demand safeguards in the process to prevent bias and discrimination of
any type from entering into the process.
Southworth I, 120 S.Ct. at
1354. When considering how best to
evaluate the funding process, the Seventh Circuit identified three factors that
rendered the funding process at least partially viewpoint neutral.[6] The Seventh Circuit’s factors limiting the
unbridled discretion inherent in the funding process were: (1) University and
system-wide policies regarding the expenditure of funds; (2) ASM’s own by-laws;
and (3) the ability to appeal decisions to the Student Judiciary. Southworth
II, 307 F.3d 581-84. There are no
such protections in the referendum process, however.
¶14
There are no criteria that
students are required to abide by, whether University/system policy or ASM’s
own policies, when deciding how to cast a vote on a referendum, other than
internal bias and prejudice. The ballot
simply asks “yes” or “no” on the text presented. Indeed, we doubt that it is even feasible to
re-write the ballot to mirror the complex set of criteria and guidelines the
control the discretion of official ASM organs.
See, e.g., UW Roman Catholic Foundation v. Student
Services Finance Committee, 2005 ASM SJ 11 (eligibility criteria); Collegians for A Constructive Tomorrow v.
Kiernoziak Appeal, 2005 ASM SJ 1 (en banc) (funding decision criteria). Nor are students likely to have before them
the full record normally before the Student Services Finance Committee, the
Finance Committee, or the Student Council.
Even if we presume that the students are making a choice based on an
informed campaign season – a presumption we cannot not fully believe is
rational given the realities and vicissitudes of a political campaign – there
is no evidence to justify an inference that invidious viewpoint discrimination
has played no role in the referendum process.
It is improbable to assert that minority viewpoints have been guaranteed
the same weight of majority viewpoints; indeed, the referendum process is an
inherently political process that seems to indicate that such simply will not
occur. Cf. Southworth I, 120 S.Ct. 1357 (“The whole theory of viewpoint
neutrality is that minority views are treated with the same respect as are
majority views.”).
¶15
Nor is there any serious
ability for appeal to the Student Judiciary in the event that someone believes
his or her nondiscrimination rights have been violated in the referenda
process. Even if a complaining
petitioner could prove to this Court that one or more students had clearly
acted in a discriminatory manner, such is not enough, under our current
caselaw, to void the entire referendum.
Our doctrines require that a complainant show not only some members of a
decision-making body (here, the ASM as a whole) have expressed bias, but that
such bias infected the entire process. CFACT v. Kiernoziak Appeal, supra at 5-6. Unless we choose to overrule this case, and
adopt the proposition that any one instance of discrimination, no matter how
small, voids the entire process,[7]
we cannot provide any meaningful review.
¶16
Thus, it is absolutely clear
to this Court that the referenda process has been abused in the case at bar to
attempt an unconstitutional funding restriction based on majority
determinations. The substance of the
Living Wage Petition is of the type removed from consideration via the
Referendum procedure. Even the
concurring opinion of JUSTICE SOUTER in Southworth
I, who would have placed basically no limits on funding decisions,
concluded that the referendum process would not survive constitutional
scrutiny. 120 S.Ct. 1346, 1358 (SOUTER,
J. dissenting).
Further, the
referenda process itself, apart from the substance of this particular
referendum, fails to afford any of the required protections,
¶17
Because we have determined
that the Living Wage Petition was never a proper referendum under Article XIII
of the Constitution, we decline to reach the other issues presented in the
Complaint and Petition for Relief. It
has long been our policy to not reach issues that need not be reached. See,
Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22 at 3 (ROMANO,
J. concurring in the judgment). Thus,
despite the invitation of CHIEF JUSTICE FOX’S concurring opinion, we decline to dispose of the procedural issues,
preferring to await a ripe opportunity.[8] Our decision today renders those challenges
moot in this context.
¶18
We therefore hold that the
Living Wage Petition is an improper attempt to regulate the funding of
expressive activities via the Article XIII Referenda Process and as such, was
never properly placed on the Fall 2005 Ballot.
Accordingly,
1.
IT IS ORDERED that Judgment be
entered for PETITIONERS.
2.
IT IS FURTHER ORDERED that
final Certification of the Living Wage Petition be, and hereby is, ENJOINED.
By the
Court,
IT IS SO ORDERED.
Nicholas Fox,
Chief Justice
Nathaniel Romano,
Vice-Chief Justice
Shannon Brusda,
Student Justice
Amber Hodgson,
Student Justice
Joshua Tyack,
Student Justice
Yin-Chin Wang
Student Justice
* * * * *
TIMOTHY LEONARD, Student Justice took no part in the
consideration or disposition of this case.
* * * * *
NICHOLAS J. FOX, Chief Justice,(concurring)
I
¶19
While joining the majority
opinion, I take this opportunity to address Petitioner's actual claims
presented in the Complaint, not as a matter of disposition for this case, but
as a matter of illuminatory insight for future cases which may possibly present
a similar set of facts. I will address
Petitioner's claims in turn. It is to be
noted that, during my discussion of those specific claims, I assume that the Referendum[9]
is legal in all other aspects.
II
¶20
Petitioner alleges that the Referendum
in question was not submitted within the proper time frame to be placed on the
Fall 2005 ballot. Complaint, Charge 1. The ASM Constitution, Art. XIII § 2 states
that all referenda, initiatives, and recalls to be placed on the ballot must be
submitted to the Student Judiciary at least three weeks prior to the
election. There was no evidence
presented during the hearing which would indicate that the Referendum was not
submitted in a timely manner; Petitioner’s mere speculation and allegation that
the Referendum was not submitted in a timely manner is insufficient to convince
me of the Referendum’s illegality.
Petitioner’s challenge to the Referendum on these grounds lacks
substance and would not hold.
III
¶21
Petitioner also alleges that
the Referendum did not achieve the required number of signatures to be placed
on the ballot. Complaint, Charge 2. Petitioner
argues that the ASM Bylaws shed light
on the appropriate procedures for such referendums. The ASM
Bylaws 6.08(C)(1) state that for referenda, initiatives, and recalls which
do not amend the ASM Constitution,
signatures from not less than 500 ASM members are to be submitted with the referendum
or resolution in order for that referendum or resolution to be placed on the
ballot.
¶22
However, Petitioner fails to
consider the hierarchy of laws, where the ASM
Constitution reigns supreme, and is in turn followed by the ASM Bylaws, which are in turn followed
by rules and laws of ASM. United States v. Lopez, 514 U.S. 549; Fyrst v. Student Council, 2005 ASM SJ
12; UWRCF v. SSFC, 2005 ASM SJ 11; Schober v. Evans, 2004 ASM SJ 14; MCSC v. Greenbaum, 2004 ASM SJ 9. As long as the ASM Bylaws do not violate a provision of the ASM Constitution, then they are presumptively constitutional and
binding.
¶23
A pure textual analysis is
required to determine the legality of the bylaws which require 500 signatures
for referendums to be placed on an election ballot. The ASM
Constitution, Art. XIII § 1 states, “Initiatives, referenda and recalls may
be submitted to an election only upon petition of ASM members or resolution of
an ASM body filed with the Student Judiciary, as provided elsewhere in this Constitution” (emphasis added). The phrase “as provided elsewhere in this
Constitution” mandates that the Court look to the ASM Constitution only for this guidance. If the framers wanted the Court to look
elsewhere (such as the ASM Bylaws),
such a provision would have been incorporated, as is seen in other
constitutional provisions which give that direction. As established in Richards v. Student Council, 1997 ASM SJ 1, the Court gives a plain
reading to the text where no word is superfluous. The text is read as it appears without
addition or subtraction.
¶24
When searching the ASM Constitution, there is no signature
requirement for general referenda; in fact, the ASM Constitution is silent about referenda requirements, other than
the deadline by when it must be submitted to the Student Judiciary (ASM Constitution, Art. XIII § 2). Accordingly, I cannot say that the signature
requirement found in the ASM Bylaws
is constitutional, because the ASM
Constitution demands that the requirements for referenda, initiatives, and
recalls be found only in the ASM
Constitution, supra.
¶25
In addition, the ASM Constitution also states that
initiatives and recalls have their own signature requirements. Initiatives require a petition signed by five
percent of the members of ASM, and recalls require a petition signed by five
percent or 100 ASM members (whichever is greater) of those who can vote for
that specific seat. ASM Constitution, Art. IV §§ 4, 5.
Section 6.08(C)(I) in the ASM
Bylaws also clearly violates the ASM
Constitution in regards to initiatives and recalls, not just in regards to
referenda. Consequently, Section
6.08(C)(I) of the ASM Bylaws cannot
be held to be constitutional and I would strike it down.
¶26
Since the Referendum in
question did meet all constitutional requirements to be placed on the
ballot—the only requirement being the deadline—Petitioner’s second challenge to
the Referendum again lacks substance and would not hold.
IV
¶27
Petitioner finally alleges
that the Student Judiciary did not comply with the ASM Constitution, Art. XIII § 2, which states, “The Student
Judiciary shall bring the proposed initiative, referendum or recall measure to
the attention of ASM members by reasonable methods as specified in the
Bylaws.” Complaint, Charge 3. Petitioner
argues that the Student Judiciary in no way notified the student body of the Referendum
and therefore failed its constitutional duty; accordingly, Petitioner argues
the Referendum should be struck down.
There are two approaches to address this claim, and I will address each
in turn.
IV-A
¶28
First Approach. The constitutional provision in question
holds that the Student Judiciary must inform the student body of the Referendum
by reasonable means “as specified in the Bylaws.” Again, citing Richards, TRC v. SSFC (I),
and Riedl, supra, the Court must look to the ASM Bylaws to find the process of notification. However, the ASM Bylaws do not give the Student Judiciary any process which to
follow when informing the student body about proposed referenda, initiatives,
and recalls. If the ASM Constitution mandates that we look to the ASM Bylaws for a process, and that process does not exist, it can
be argued that the Student Judiciary cannot be said to have violated the ASM Constitution and ASM Bylaws. The Court is told to follow a process and is
told where that process is to be found, but the process does not exist. The Student Council, through its legislative
powers, did not give the Court what the ASM
Constitution mandates; the Court cannot comply with a process when the
Student Council has not given that process to the Court. In this approach, since there is no
established process, it can be argued that the Student Judiciary did not fail
that process.
IV-B
¶29
Second Approach. As Petitioner argues, however, that the Court
should follow the Actual Notification Test found in LIC v. Werner Appeal, 2003 ASM SJ 13. In Werner,
we held that in order for actual notification to be fulfilled, the notification
must meet a four-prong test: 1)
information of a fact, 2) that is actually communicated, 3) by an authorized
person, and 4) that is reasonably believed to have been received by the
recipient. It is quite clear that, based
on Petitioner’s argument, the Student Judiciary in no way fulfilled the test
espoused in Werner.
¶30
However, a counter to this
claim could be that the ASM Constitution
mandates an ASM Bylaws process. The doctrine in Werner is merely caselaw; it is not an ASM Bylaws process. To
equate caselaw with an established ASM
Bylaws process could circumvent the mandates of the ASM Constitution. In
addition, the Student Council can legislatively overrule caselaw through
constitutional or bylaws amendments. In
essence, all caselaw is binding insofar as the Student Council does not
constitutionally overrule said ruling through legislative amendments. The Court should not adopt a caselaw test
when the ASM Constitution
specifically mandates that the Court look to the ASM Bylaws to find the appropriate measures to comply with a
constitutional provision.
IV-C
¶31
It is important to note,
though, that dismissing a caselaw test in favor of a bylaws test which does not
even exist appears problematic. Indeed,
it could quite reasonably be argued that in the absence of a bylaws test, a
caselaw test should be followed. If a
constitutional provision instructs the Court to look to the ASM Bylaws for a test, and that test is
non-existent, it would be reading a constitutional provision unnecessary and
superfluous, which I believe this Court would be unwilling to do in light of
our past caselaw.
¶32
It becomes apparent, then,
that the Court should have used the Werner
test—in the absence of any Bylaws
test—to notify the student body of a legal Referendum which was going to be
placed on the election ballot. It cannot
be reasonably argued that the Court met the requirements of Werner in any way; indeed, the Court did
little to nothing to notify the student body about the pending Referendum.
IV-D
¶33
In my view, though, this does
not necessarily mean that the Referendum should be struck down as Petitioner
suggests. I think there is a very strong
claim for equity here. If a body of ASM
takes an illegal action, there is a general harm to both specific individuals
and to the student body writ large. Fyrst Certification, 2005 SJ Ord. 16. Schober
v. Evans, 2004 ASM SJ 14, ftnt. 2.
If the SSFC or Student Council took an illegal action, the Student
Judiciary would vacate that action and remand for new proceedings consistent
with the rules and laws of ASM. In
effect, the Student Judiciary would remedy the infringed rights by restoring
them to their pre-illegal action state, and would also demand that a new
process be followed or that a new hearing be conducted.
¶34
In this case, though, the ASM members who
filed the Referendum to be placed on the ballot complied with all
constitutional requirements demanded of them; it was the Student Judiciary who
failed to properly notify the student body.
The Student Judiciary infringed upon the rights of those who filed the Referendum
to be placed on the ballot: acting in
good faith, those ASM members relied on the Court to do its part once those
members did their part. To invalidate a Referendum
solely on these grounds does not remedy the rights which were infringed;
instead, it merely justifies that infringement.
To strike down the Referendum based on that fact that the Court failed
to do its duty holds the ASM members accountable for an action which the
Judiciary failed to undertake, and under any claim of equity, this cannot stand. Accordingly, under the Second Approach to
notification, I would still argue that although Werner should have been applied, and although the Court failed to
comply with Werner's requirements, a
claim of equity would require that the Court let the referendum stand, because
to strike it down would only affirm the violation of rights. A remedy is designed to right a wrong, but to
strike down the Referendum in this case would be to affirm the wrong that was
committed.
V
¶35
While all of the Petitioner's
challenges in my view have failed, there are still some issues present which
would have to be addressed. Still
assuming that the Referendum is legal in all regards, I would not consider it
legally binding. The Referendum’s
objective is clearly to amend the ASM
Bylaws. In Richards, TRC v. SSFC (I), and
Riedl, supra, the Court
consistently has affirmed that a plain reading of the text must be given so
that no word is read as superfluous, or that so no provision of the ASM Constitution and ASM Bylaws is read with addition or subtraction. This principle was elaborated upon in Schober v. Evans, 2004 ASM SJ 14, where
the Court noted that the Student Judiciary is given distinct and separate
grants of power and jurisdiction by the ASM
Constitution. Consequently, one
provision cannot be the same as another provision, “Thus cases and
controversies arising under ASM law does not include the discipline of RSOs and
the discipline of RSOs does not include cases and controversies arising under
ASM law”; to hold one provision as the same as another would be to read
constitutional provisions as superfluous and unnecessary, which I believe the
Court refuses to do.
¶36
The same analysis can be
applied in this case. The ASM Constitution, Art. XIII
distinguishes between referenda, initiatives, and recalls. In addition, the ASM Constitution, Art. IV §§ 4, 5 give specific purposes and
requirements for initiatives and recalls, but does not specify purposes or
requirements for referenda beyond the constitutional deadline, supra.
¶37
While I feel the Court cannot
definitively state what a referendum is, the Court can affirmatively say what a
referendum is not based on the principles in Schober. A referendum cannot
be an initiative and a referendum cannot be a recall. The ASM
Constitution, Art. IV § 4 gives the student body the power to amend the ASM Bylaws through the process of
initiative, provided that such an amendment is constitutional. The ASM
Constitution has defined the purpose and requirements for this process.
¶38
The Referendum in question
attempts to amend the ASM Bylaws in
the same manner as an initiative would; however, to allow this would not only
permit a specific constitutional process to be circumvented, but it would also
necessarily require that the constitutional provision regarding initiative to
be superfluous because referenda and initiatives would be one in the same. The framers of the ASM Constitution intended for referenda and initiatives to be
separate entities, and this is reflected in the fact that they are separately
enumerated in the ASM Constitution.
¶39
Consequently, assuming that
the content of the Referendum in question is legal, the Referendum in question
has met all constitutional requirements to be placed on the ballot. However, because the Referendum attempts to
accomplish something that is solely reserved for the initiative process, it
cannot be said that the Referendum is binding in any way whatsoever. To say that the Referendum is binding upon
ASM would circumvent a constitutional process and would require that elements
of the ASM Constitution be deemed
superfluous, thus negating this Court’s entire jurisprudence in this
matter. While such a referendum may be
considered advisory, there is a specified constitutional process in place for
what the referendum attempts to do, so the referendum itself cannot be
considered binding.
VI
¶40
Up to this point I have
assumed that the referendum is legal in all aspects. Since I have already joined the majority
opinion in this matter, I feel no need to excessively elaborate upon the legality
of the referendum itself.
¶41
Southworth specifically held that the referendum process was
inherently non-viewpoint neutral. This
fact is so obvious that both parties to Southworth
stipulated that the process was non-viewpoint neutral. Moreover, as THE VICE-CHIEF
JUSTICE notes in the majority opinion, the University
abolished the referendum process as a means to determine eligibility and
funding before arguing the case on remand.
Because the process is not viewpoint neutral, no funding decisions can
come from it, including criteria to be placed on funding. Such power is reserved for the respective ASM
bodies to adopt and consequently apply.
To allow ASM members, who are otherwise not bound by the requirements of
viewpoint neutrality, to draft and adopt criteria for funding in a referendum—a
process which is inherently politically biased—would allow any safeguards in
the system to be eroded by pure majoritarian power. If the theory of viewpoint neutrality is that
minority views are given the same respect as majority views, then that type of majoritarian
imposition cannot occur.
¶42
I am under the impression from the Court's opinion that
the amendments to the ASM Bylaws are
illegal not because the amendments relate to the distribution of student
segregated fees but because the amendments cannot be made through the
referendum process which is based on majoritarian power. See,
Majority Op. ante, at ¶12 fn.4.
Should the ASM members who submitted the Referendum wish to have their policy
amended into the ASM Bylaws, they can
certainly solicit the support of the ASM SSFC and Student Council to adopt such
a policy. However, the process used for this type of amendment is, under
the ASM Constitution and Southworth, unconstitutional.
Nicholas Fox,
Chief Justice
Published:
Attest: /s/ NJF
[1] Mr. Joel Feingold took appointment
by the Court to be our representative in this matter. See,
Heigel v. Student Judiciary, 2003 ASM SJ 15 (inherent authority of the
Court to appoint persons to represent it when a complaint if filed against
it). The Court now takes this
opportunity to thank Mr. Feingold for his eloquent and vigorous defense of the
issues raised.
[2]
The Southworth case has two major decisions
that bind the ASM and the University.
First is the one just cited and denominated as Southworth I. This is the decision of the Supreme Court of the
[3] At the original trial hearing,
both the Board of Regents and the students challenging the Segregated Fee
system stipulated to the viewpoint neutrality of the SSFC/FC funding
process. There was no stipulation
regarding the referendum process, however.
Accordingly, the judicial record is clear that the Referendum process
has never been considered viewpoint neutral by any tribunal.
[4]
We agree with
the observation of CHIEF JUSTICE FOX that we are not here passing on the
validity of a wage policy, or even a “living wage” policy per se, provided that it meets all other requirements of viewpoint
neutrality. Post, at ¶42 (FOX, CJ, concurring).
The Court is simply concerned about the nature of this enactment.
[5] It may very well be that the
payment of wages is an expressive activity, for it deals with internal
valuations of employee worth and other internal decisions. However, because the focus is on the
proscribed nature of the referenda funding process as a whole, we need not
determine that issue here.
[6]
On remand before
the Seventh Circuit, the referendum process was not explicitly before the
Court. As stated above, the University
expressly removed the referendum option.
307 F.3d at 570. However, this
Court believes that, had the process been properly presented, the Seventh
Circuit would have applied the same analysis.
Thus, we will likewise apply the governing law of the Circuit Court.
[7]
See, e.g., Collegians for A Constructive Tomorrow v.
Kiernoziak Appeal,
2005 ASM SJ 1 at 13 (WANG, J. dissenting).
[8] We do take this opportunity to note our basic agreement with the issues presented by the concurrence’s analysis of these questions. Generally, we are united in our opinion that these procedural issues presented no real impediment to the certification of the Living Wage Petition, had it been legal.