Collegians for A Constructive Tomorrow, Petitioners
v.
Rachelle Stone, Lorenzo Edwards, Barbara Kiernoziak, Timothy Schulz,
Kellie Sanders, Jennifer Knox, in their official capacities as officers and
representatives of the Student Services Finance Committee; and the Student
Services Finance Committee, Respondents
2005 ASM SJ 14
JUDGMENT
Cite As: 2005 ASM SJ 14
Before Romano, VCJ. Tyack and Hodgson, S.JJ.
VICE-CHIEF JUSTICE ROMANO announced the Judgment and delivered the Opinion of the Court which JUSTICE HODGSON joins in full and JUSTICE TYACK joins as to all but part II.C
NATHANIEL ROMANO, Vice-Chief Justice. ¶1 Petitioner Collegians for a Constructive
Tomorrow (CFACT) has filed a complaint alleging various infractions of the
viewpoint neutrality requirements by the Student Services Funding Committee
(Committee) and various members during their latest budget hearing. The Complaint and Petition for Relief alleges
that six members of the committee violated their obligation to act in a
viewpoint neutral manner and that the committee as a whole should be reversed.
I –Background
¶2
Petitioner is a GSSF-funded
organization that was deemed eligible for funding. Last year, they received over $100,000 in
GSSF funds. For the current budget
cycle, they applied for funds totaling nearly $400,000. After listening to the CFACT budget proposal
and just under 45 minutes of debate, the Committee voted to reject the
budget. This rejection left CFACT with a
minimum funding amount of $5,000. See, ASM By-Laws §2.03(C)(VI)(3) (2005).
¶3
CFACT then filed this
Complaint and Petition for relief alleging viewpoint discrimination.
Prior to trial, we quashed a subpoena directed against one of the
respondents. CFACT v. Stone et. al. – Sanders Subpoena, 2005 SJ Ord. 21. We also granted preliminary relief, 2005 SJ
Ord. 24, and agreed to accept an amended complaint against Rep. Edwards after
the original was found defective. See, 2005 SJ Ord. 22; 2005 SJ Ord. 25.
II - Discussion
¶4
We now turn to the underlying
issues affecting each respondent in turn.
Viewpoint neutrality (VPN) is a requirement imposed by the ASM
Constitution’s non-discrimination clause, ASM
Const. Art. IV, §1 (2004). It is
itself an outgrowth of the First Amendment’s guarantee of free speech. See,
Bd. Of Regents of the
II.A – Rep. Kiernoziak
¶5
We now turn to address each
respondent in turn, first with Rep. Barbara Kiernoziak. CFACT alleges that she willfully lied about
their presentation in order to persuade others not to support CFACT. However, the evidence presented shows no such
acts by Rep. Kiernoziak. If anything,
the evidence shows that she was, at worst, woefully ill-informed about the
nature of CFACT’s activities and budgets.
However, even that is merely a stretch under the evidence presented.
¶6
CFACT would rely on their case
from Spring Term 2005, where they made similar allegations against Rep.
Kiernoziak (who was then Finance Chair).
See, CFACT v. Kiernoziak Appeal,
2005 ASM SJ 1 (en banc). However, in that case, the Court did not
convict Rep. Kiernoziak based on the allegations of misinformation. Rather, we convicted her based on the
improper comparison of CFACT with other groups, which tended to show the taking
into account of viewpoint.
II.B – Rep. Schulz
¶7
Turning to Rep. Timothy
Schulz, we find that CFACT accused him of violating viewpoint neutrality by
taking into account the amount of CFACT’s budget the previous budget cycle and
comparing it with the current application.
Petitioner asserts that this violates the Seventh Circuit Court of
Appeals’ ruling on remand in the Southworth
case that the GSSF process cannot take into account the length of time an
organization has received funds or the amount of funding received in the
past.
¶8
Petitioner is correct that, if
Rep. Schulz has used previous amounts of funding as a sort of ceiling, he would
have maliciously violated VPN. However,
the evidence does not show that he has done so.
Rather, the evidence shows that Rep. Schulz was concerned with a request
for a nearly 300% increase in funds.
CFACT was unable to justify to his satisfaction such a high
increase. This is eminently viewpoint
neutral. We concluded last year, in two
separate cases, that fiscal responsibility was a neutral criteria. Multicultural
Student Coalition v. Otten, 2004 ASM SJ 8; Multicultural Student Coalition v. Greenbaum, 2004 ASM SJ 9. Here, Rep. Schulz was merely seeking to act
in a fiscally responsible manner.
Accordingly, we cannot find a viewpoint neutrality violation. We will enter judgment for Rep. Schulz and
dismiss the complaint as applied to him.
II.C – Rep. Sanders
¶9
With regard to Rep. Kellie
Sanders, CFACT alleges a viewpoint violation in that she had a clear animus
towards Petitioner which manifested in her moving from a pattern of abstention
throughout the debate until she voted to cut off the debate when the question
was called. CFACT submits evidence in
the form of weblog, her previous involvement with a campus organization
ideologically opposed to CFACT, and e-mails from another Committee member. We find this evidence, along with her pattern
of abstention until the very end coupled with a sudden shift, to be clear and
convincing in favor of a malicious violation.
By-laws §2.01(C)(V).
¶10
Standing alone, none of this
evidence would be enough to find a violation.
However, put together, we are convinced that Rep. Sanders took into
account CFACT’s viewpoint during the budget process. Her weblog posts, which she objected to
having in the record, but never actually denied making, clearly show that in
the days prior to CFACT’s official presentation she became pre-disposed to
rejecting their budget. She posted that
she did not like them, that they were wasteful, and, worse, that they compared
unfavorably with other groups such as WisPIRG.
Such comparisons are, by their very nature, prohibited. CFACT
v. Kiernoziak Appeal, supra.
¶11
Further, at least one other
member of the Committee believed that she had an axe to grind against
CFACT. Rep. Adam Schlicht, in a series
of e-mails written soon after the CFACT decision, was highly critical of Rep.
Sanders, to the point of borderline ad
hominem attacks. The gist of these
e-mails was that Rep. Sanders was a “nutjob” and was out to destroy CFACT. While Rep. Schlicht submitted another e-mail
to the Court stating that he did not wish us to use his private e-mails, we
find such e-mails to be highly relevant, and, as such, admissible. See, Rule
15, Student Judiciary Rules of Procedure
(2005); cf. Dean v. Unity, 2000 ASM
SJ 2 (on use of electronic mail evidence).
Though he may regret his statements, they are probative.
¶12
Finally, this evidence should
be evaluated in light of Rep. Sander’s previous participation in WisPIRG. On her blog, she compares CFACT to WisPIRG,
which as we already stated is impermissible.
Funding decisions must not compare different groups in such a manner;
comparisons as this inherently violate VPN.
CFACT v. Kiernoziak Appeal,
supra. Given that CFACT and WisPIRG
are ideologically opposed, we find such a connection supports a finding of
violations.
¶13
These violations were
malicious, because we are convinced that she made them knowingly and
willfully. By-laws §2.01(C)(V). Rep.
Sanders took pains to stay completely out of the debate until the question was
called. She made no motions and never
spoke. Then, suddenly, she supported
calling the question; she did not vote in the final decision, however. Acts such as this leave us with the only
inference that she knew her bias, refrained from acting on it, then, for some
unknown reason, did act upon it. It
would thus be willful and malicious.
¶14
This is not to say that a
representative’s participation must be all or nothing. A representative may indeed choose to
participate in some or all of the debate as she sees fit. However, given the totality of the
circumstances surrounding Rep. Sanders’ involvement, we are left with the sole
conclusion that she willfully acted to punish CFACT for its beliefs. Accordingly, we enter judgment on this count
for Petitioner and find Rep. Sanders guilty of a malicious violation. We are left with no other option but to
discharge her from all offices of profit and trust in the ASM. By-laws
§2.01(C)(V).
II.D – Chair Knox and Rep.
Edwards
¶15
We next deal with Finance
Chair Jennifer Knox and Rep. Lorenzo Edwards together, as the charges against them
are essentially the same. Petitioner
contends that they violated VPN in changing from fiscally liberal to fiscally
conservative when it came to their group.
The allegations are supported by the testimony received at trial of
Committee Rep. Zach Frey and the safe harbor petitions of Rep. Frey and Rep.
Goessel, filed with the Court. The
evidence does lead to the inference of a change in behavior. Because we cannot say that such a change was
willful, however, we find only a non-malicious violation for each.
¶16
Evidence produced at trial
shows clearly that both Chair Knox and Rep. Edwards have a history of being
supportive of budget applications, of supporting continued debate, and giving
vague budgets the benefit of the doubt.
However, at CFACT’s hearing, these two representatives focused
obsessively on two vague line items – the speaker budget and the intern
program. Rather than engage with CFACT
and the members of the Committee, they simply rejected each amendment proffered
and announced their opposition to the budget.
The evidence shows that this was highly aberrational and out of
character for these two. Further, fellow
members, as evidenced by the testimony of Rep. Frey and the two safe harbor
notices, thought this wholly out of character.
We give the evidence presented in the Frey testimony and the Frey and
Goessel safe harbor requests much weight; these two representatives went
against their own best interests to support challenges to their peers and
fellow committee members. Given this
overwhelming evidence, it is clear to us that some sort of bias must have
influenced these two.
¶17
We are also persuaded by the
sheer irrationality of their response to the CFACT budget. They testified at trial that they believed
the budget to be too vague. However,
testimony by Rep. Frey shows that they supported other vague budgets, even if
they did try to cut those budgets and to get clarification. That makes sense. With CFACT’s budget, however, they simply
threw up their hands and voted to reject the entire budget. All of this was done because two line items
in a nearly $400,000 budget were “vague.”
A rational response would have been to limit, clarify, or cut these line
items. Rejecting the entire budget was
irrational, especially given the unbroken history by these two representatives
of working with budget groups and establishing an applicant-friendly
reputation.
¶18
Given what the evidence shows,
it is clear some sort of illicit concern entered into the considerations of
Chair Knox and Representative Edwards.
We do not believe that this was a willful violation, though. It is clear that this was, at most, a
negligence in carrying out of their duties, and so we find this to be a non-malicious
violation. By-laws §2.01(C)(III).
Accordingly judgment is entered for Petitioner on these counts and Chair
Knox and Rep. Edwards are found guilty of a non-malicious violation; their
cause will be forwarded to the Student Council for such action as it deems
fit. Id.;
see also CFACT v. Kiernoziak Appeal, supra.
II.E - Chair Stone
¶19
The sole allegation against
SSFC Chair Rachelle Stone is that she did not keep violations from
occurring. We can easily dispose of this
concern. The evidence is clear to us that
knowledge of the violations we have found could only be adduced after an
evidentiary hearing and trial. Most, if
not all, of the evidence against Rep. Sanders could only come out with a
trial. As with Chair Knox and Rep.
Edwards, the safe harbor and testimony obviously was not available. Thus, we can find no basis for sustaining a
complaint against Chair Stone. Judgment
on this count will be for respondent.
II.F – The SSFC Decision
¶20
Petitioner has proven
individual violations. However, the
decision of the Committee as a whole can only be overturned if these violations
tainted the entire process. CFACT v. Kiernoziak Apppeal, supra. Because the votes of the three violators,
taken together, would have altered the outcome, we believe that this causes
reversal of the SSFC decision.
¶21
The violations each occurred
not during final rejection of CFACT’s budget, but during the vote to call the
question on the budget. Voting to call
the question is a parliamentary move that ends all debate and puts the matter
to an immediate vote. As such a motion
restricts the rights of members, a call for the question must be supported by
at least two-thirds of the body present and voting. Robert’s
Rules of Order, Newly Revised §16, at 192 (10th ed, 2000).
¶22
At the CFACT budget, the
question was called by a vote of 10-4.
Any act done in violation of VPN is null and void. By-laws
§2.01(C)(II). Thus, we remove the
votes of the three violators. Removing
the three violator’s votes, each in favor of calling the question, leaves a
vote of 7-4 in favor. This means there
were 11 total votes; calling the question requires two-thirds, which would have
been 7.26 votes. Since you cannot have
fractions of a vote, that means it would have required 8 votes to call the
question. Seven votes would not meet the two-third threshold, as seven is not
two-thirds or more than two-thirds of 11.
¶23
Thus, removing the votes of
the violators, the question would not have, at that point, been called. Had the question not been called, the CFACT
budget would not have been rejected.
Calling the question was the proximate cause, the sine qua non of voting. It
is possible, of course, that CFACT’s budget could have still been rejected
after a neutral debate and call for the question. However, that is not what happened. While we will give a funding committee the
benefit of the doubt where possible, it is clear that, at this particular
point, CFACT’s budget was rejected as a direct result of non-neutral acts by
committee members.
¶24
There is, of course, nothing
inherently improper about minimum funding a group. However, such a decision, like all grant
decisions, must be made only after a neutral debate. That did not happen here. Accordingly judgment on this count will be
for Petitioner and the decision will be reversed and the cause certified to the
Student Council for a new hearing.
III - Remedies
¶25
We have already briefly
discussed remedies above. However, we
must make several notes. First and
foremost, the remedies for the three violators are prescribed in the By-laws. For the malicious violation, Rep. Sanders is
to be dismissed from the SSFC. By-laws §2.01(C)(V). For non-malicious violations, Chair Knox and
Rep. Edwards are reprimanded and, at this point, the Council may act to impeach
them, if it desires. By-laws §2.01(C)(III). A second violation on their parts will result
in removal from office. By-laws §2.01(C)(IV).
¶26
However, we must note that, in
reversing the overall decision, we are now making the second reversal of SSFC
in the course of one semester. See, University of Wisconsin Roman Catholic
Foundation v. SSFC, 2005 ASM SJ 11 (
¶27
Under the By-laws, a reversal
of an overall decision counts as a non-malicious violation against the entire committee. By-laws
§2.01(D)(III) (“Any member of an ASM body commits a violation [of viewpoint
neutrality] if the body makes a decision in violation of [viewpoint
neutrality].”). Under §2.01(D)(III), one
violation would have occurred on October 19 with the reversal of the UWRCF
eligibility decision, and now a second violation would occur today. A second violation, under the By-laws,
results in removal for the violators. By-laws §2.01(C)(IV). Thus, the By-laws seem to imply that the
entire Committee, save Reps. Frey and Goessel, who filed written safe harbor
requests, would be removed.
¶28
We do not believe that the ASM
Constitution would allow for such a result, however. To do so would violate the spirit of due
process. ASM Const. Art. IV, §2. Due
process has no substantive element in ASM.
Zyvix v. Fox, 2005 ASM SJ
8. It requires, though, that a process
be established that protects the rights of members, including officers.
¶29
To label in broad strokes all
members of any committee as violators, even when, as here, they may not be
named, or, indeed, may have been acquitted of specific charges, is simply
absurd. It does not guarantee process,
as the specific members had no formal notice of a possible challenge, had no
opportunity to be heard, except vicariously through their Chair, and have
little recourse. Their rights would be
adjudicated without any specific notice to them personally. It is clear that this results not from any
established, if flawed, process, but from no process at all. Cf.
Robbie Earl 4 ASM v. Finance Committee, 2005 ASM SJ 7.
¶30
Thus, to give any legal effect
to §2.01(D)(III) is to give effect to a lawless enactment. This we cannot do. This Court has long applied the
Anglo-American common law when appropriate, see
Legal Information Center v. Werner, 2003 ASM SJ 18 (en banc). It is clear from
the common law, and our own law, that constitutions are sacrosanct and no
provision of lesser law will be enforced if it violates the Constitution. Evans
v. Roulhac – Denial of Appeal, 2004 SJ Ord. 15. Indeed,
[I]f a law be in opposition to the constitution: if both the law and
constitution apply to a particular case, so that the court must either decide
that case conformably to the law, disregarding the constitution; or conformably
to the constitution, disregarding the law: the court must determine which of
these conflicting rules governs the case.
This is the essence of the judicial duty. If, then, the courts are to regard the
constitution; and the constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary act, must govern the case
to which they both apply. Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803) (Marshall, C.J. for the Court).
¶31
The law is clear, due process
under our constitution must mean that power is exercised only pursuant to an
actual predetermined process. Zyvix v. Fox, supra. Subsection 2.01(D)(III) sets forth no process
at all, it simply declares a person guilty by association. That is not due process. As such, we hold that ASM By-laws
§2.01(D)(III) to be unconstitutional and render it void and of no effect
whatsoever.
¶32
As such, the remedies we
prescribe are those applicable only to specified convicts. Rep. Sanders will be removed from
office. Chair Knox and Rep. Edwards will
be reprimanded and their cases forwarded to Student Council for its
consideration. The SSFC decision will be
reversed and the cause sent likewise to Council. These are the statutory remedies and we
believe that these remedies are “reasonable and proportionate to the offense,
sufficient to restore losses suffered and sufficient to deter future
violations.” Rule 16, Student Judiciary Rules of Procedure.
IV – Judgment and Orders
¶33
WHEREFORE we find all facts
stated above by clear and convincing evidence, and enter Judgment and the
following orders. To wit:
1.
Count One: Barbara Kiernoziak – JUDGMENT FOR
RESPONDENT. The
Complaint and Petition for Relief is DISMISSED as applied.
2.
Count Two: Timothy Schulz – JUDGMENT FOR RESPONDENT. The Complaint and Petition
for Relief is DISMISSED as applied.
3.
Count Three: Kellie
Sanders – JUDGMENT FOR PETITIONER. The Respondent is found GUILTY of a MALICIOUS violation of viewpoint neutrality by clear and convincing
evidence. She is hereby REMOVED from all offices within the Associated Students of
Madison and is DISQUALIFIED from any further
offices.[*]
4.
Count Four: Jennifer
Knox – JUDGMENT FOR PETITIONERS. The Respondent is found GUILTY of a NON-MALICIOUS violation of viewpoint neutrality by clear and convincing evidence and
the cause is CERTIFIED TO STUDENT COUNCIL for such actions as it may deem necessary and proper.
5.
Count Five: Lorenzo
Edwards – JUDGMENT FOR PETITIONERS. The Respondent is found GUILTY of a NON-MALICIOUS violation of viewpoint neutrality by clear and convincing evidence and
the cause is CERTIFIED TO STUDENT COUNCIL for such actions as it may deem necessary and proper.
6.
Count Six: Rachelle
Stone – JUDGMENT FOR RESPONDENT. The Complaint and Petition for
Relief is DISMISSED as applied.
7.
Count Seven: Student
Services Finance Committee. JUDGMENT FOR PETITIONER. The Funding Decision of the Student Services
Finance Committee is REVERSED and the cause CERTIFIED TO STUDENT COUNCIL for a new hearing
without prejudice or reference to the earlier decision.
It Is So Ordered.
Nathaniel V.
Romano, Vice-Chief Justice
Amber Hodgson,
Student Justice
Joshua Tyack,
Student Justice, to all but part II.C
* * * * *
JOSHUA TYACK,
Student Justice . While I agree
with the majority on the rest of the judgment, my dissent centers on numerous
disagreements with the majority concerning Rep. Sanders. First, I feel that
CFACT did not prove that Rep. Sanders had violated her viewpoint neutrality
previous to attending the meeting. Her previous involvement in WISPIRG and her
recent statements shown in the blog do not fully prove a violation in viewpoint
neutrality. Because of the grave nature of a malicious VPN violation, I feel
there should be a high standard held, which was not overcome in the hearing.
Second, the majority cited Rep. Sanders’ abstention in the hearing, which runs
counter to her previous behavior, as evidence that she questioned her
own VPN. Therefore, her vote to call to question, which allegedly showed a lack
of VPN, was malicious. I would argue, however, that a call to question, as a
parliamentary procedure, was not concerned with the budget request itself,
rather, the state of the proceedings at hand. Respondents have argued that at
the time of the call to question, it would be reasonable to assume that a resolution
would not be seen. Therefore, Sanders’ vote to call to question was a result of
the demeanor of the meeting itself, and not the content of the discussion. By
abstaining from the final vote, Rep. Sanders did not show any of her alleged
VPN violation.
Joshua
Tyack, Student Justice
Published:
12/12/05, 7:15PM
Attest: /s/ NVR