Collegians For a Constructive Tomorrow, Petitioner
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 17
FINAL JUDGMENT AND ORDERS
Cite As: 2005
ASM SJ 17
Appeal in
Part Of: 2005 ASM SJ 14
Before Fox, CJ, Romano, VCJ, Brusda,
Hodgson, Leonard, and Tyack, S.JJ.
VICE-CHIEF JUSTICE ROMANO delivers the Opinion of the Court, which CHIEF JUSTICE FOX, and Justices Brusda, Hodgson, and
Tyack join in full.
Justice Leonard dissents.
NATHANIEL
ROMANO, Vice-Chief Justice ¶1. Respondent-Appellant Rep. Kellie Sanders
appeals her conviction for a malicious violation of viewpoint neutrality on the
grounds that the Court misapplied the legal standard. The panel below concluded that she had a bias
against Petitioner-Appellee Collegians for a Constructive Tomorrow (CFACT) and
that her vote to call the question and end debate on the case was therefore not
a neutral vote. The panel voided her
vote and ordered her removed from office.
Appellant argues that the panel either misapplied the law of viewpoint
neutrality (VPN) or, in the alternative, that the law should be amended to
limit its application in technical, non-substantive actions. We agree and now
conclude that the complaint against Rep. Sanders was deficient as a matter of
law and the decision against her must therefore be reversed.
¶2
The panel below found the following facts by clear and
convincing evidence. See, Collegians for a Constructive Tomorrow
v. Stone et. al., 2005 ASM SJ 14 at ¶33.
This appeal did not challenge the facts as found by the panel. 2005 SJ Ord. 26, ¶¶4-5. Rep. Sanders was convicted of a malicious
violation of viewpoint neutrality. She
wrote several statements on her personal weblog, or “blog,” that compared CFACT
to another GSSF-funded group, WisPIRG, and further stated that because CFACT
was not popular or well-known, it did not receive funding. These statements are clearly
non-neutral. On this basis, the Court
convicted her and ordered her removed from office in accord with ASM By-laws, §2.01(C)(V) (2005). This appeal then followed.
¶3
Rep. Sanders was under these motivations, the Court
found, when she voted in favor of a motion to call the question on CFACT’s
budget. Under Robert’s Rules, a motion to call the question ends all debate on an
issue and puts it to an immediate vote. Robert’s Rules of Order, Newly Revised
§16 (10th ed. 2000). Because
Rep. Sanders’ vote was motivated by non-neutral concerns, the panel removed her
vote from the final tally. CFACT v. Stone, et. al., supra, ¶22; cf. By-laws §2.01(C)(II).
B. Rep.
Sanders’ Actions
¶4
We wish to be clear from the outset that the record
clearly shows that Rep. Sanders had, at the time of the vote, a clear and
unmistakable bias against CFACT. Nothing
presented in this appeal has led us to believe that the panel erred when it concluded
that there was clear and convincing evidence of bias. Rep. Sanders on her personal website or
“blog” clearly engaged in two types of prohibited behavior.
¶5
First, she clearly stated that CFACT did not deserve
funding because it was not a popular or well-known organization. This is clearly a gross violation of the
neutrality required of her. The Supreme
Court made it abundantly clear that “[t]he whole theory of
viewpoint neutrality is that minority views are treated with the same respect
as are majority views.” Bd. Of Regents of the
¶6
Additionally, she made an
illicit comparison between CFACT and WisPIRG.
While she did not specifically compare them line by line, she did state
on her blog that WisPIRG has more services, is a better organization, and so is
more deserving of funds. CFACT, being
the “lesser” group did not deserve what it received. This is clearly proscribed by our caselaw. It compares groups, clearly taking into
account different views and comparing them.
Such behavior has been the basis for a violation before. CFACT v
Kiernoziak Appeal, 2005 ASM SJ 1 (en banc).
Just because Rep. Sanders was responding to a newspaper article does not
mean she does not have a bias. The bias
is there regardless of why she expresses it.
C. Standard of Review
¶7
However, that said, we do not
believe that we can, in accordance with our By-laws, punish her for her
bias. Rep. Sanders did only one actual
“act” that CFACT can complain of. She
voted in favor of calling the question on their budget. In the end, she abstained from the final
vote. Having carefully reviewed the
by-laws, and after careful consideration, we cannot say that this motion is one
that is actionable under the rubric of viewpoint neutrality.
C1.
Problems with the Standard As Currently Applied
¶8
When analyzing any claim, we are not charged with simply
“doing good” in the abstract. Rather, we
are here to review the decisions
made by other entities that have been specifically charged with making these
decisions. Our review then, ought to be
limited. The first point then is always
to determine how broad the proper review is.
While we are reversing the panel decision, we are convinced that both
the panel below and our decision today are correct at the times issued. The panel applied a murky standard as it
understood it. Reviewing the law and the
brief presented by Rep. Sanders, we are now convinced that this Court should
clarify the standard. Thus, while the
panel was correct at the time, a new standard is clearly appropriate.[1]
¶9
It is clear to us that we need
to clarify the operative standard for VPN review. At several points, panels of this Court –
including members of the majority today – have operated under the assumption
that any and all official acts are susceptible to analysis under VPN. Other times, this Court has utilized an
analytic framework that more closely resembles due process analysis. It is time to clearly and finally establish
the requirements for a valid viewpoint neutrality complaint.
¶10
As always, we begin with the
first principles of law. Cf. Varney v. Student Judiciary, 2005 ASM
SJ 13, ¶5 (en banc) (see cases cited therein).
Here, the starting block is Subsection 2 of the ASM By-laws, which
governs segregated fee disbursement. The
general rule is that SSFC must make “all grant allocation decisions in a
viewpoint neutral manner.” ASM By-laws §2.01(C)(I). A “grant allocation decision” is “a decision that results in the allocation of
Segregated University Fees to a Registered Student Organization or student
service, other than an ASM body.”
¶11
This Court has been far too liberal in its application of
the viewpoint neutrality analysis. In
fact, this is clearly the first decision since the Kiernoziak Appeal, 2005
ASM SJ 1, to take a strong look at §2.01(B) and the first ever, in our collective experience, to actually analyze the term
“allocation” in that section. We are
dancing between a Scylla and Charybdis; on one side is the right of student
groups to be judged neutrally and on the other the right of ASM to function
effectively. We have simply ignored the
one and dived headfirst at the other, to the detriment of both.
¶12
Instead, we should seriously look at the rules and rework
the standard to be appropriate, rather than simply assume any bias taints any
decision. We were on the correct path
last year when we rejected JUSTICE WANG’s call for strict liability in all funding
cases, 2005 ASM SJ 1 at 6-7 (Romano, CJ for the Court) and 13 (Wang, J.
concurring in part and dissenting in part).
Following that start, we should clearly adopt a rule that sets forth a
standard that is faithful to the Bylaw, a standard which prohibits bias in
grant allocations, but allows for the freedom to organize and manage the
internal affairs of a committee free from constant oversight. Otherwise, we will become lost in a morass of
constant reviews of niggling details that we have no business reviewing. That standard is the standard we set forth
here – does the decision challenged actually allocate funds or require a
judgment as to the fundamentals of an applicant group? If not, then we should allow SSFC the right
to govern itself, just as we allow RSOs that right.
C2. – Fashioning An Appropriate Standard
¶13
We are concerned that Rep.
Sander’s action, supporting a call for the previous question, cannot reasonably
be construed as a “grant allocation decision.”
A “grant allocation decision” is defined as “a decision that
results in the allocation of Segregated University Fees to a Registered Student
Organization or student service, other than an ASM body.” ASM
By-laws §2.01(B)(I). On its face,
then, the requirement of viewpoint neutrality is limited to those official acts
that actually affect an organization’s rights to receive funds. There are clearly actions that individuals
and corporate bodies can take that, even though part of the budget process, do
not “result in the allocation of Segregated University Fees.”
¶14
Our cases seem to recognize this principle as well. As a general proposition, we have several
times reversed or vacated a decision by the Student Services Finance Committee
(SSFC) on procedural or technical grounds and simply remanded, rather than
certifying to the Student Council. In ALPS v. Patzner, 2002 ASM SJ 13, a vote
was voided because it was improperly taken.
The Court’s remedy was simply to order a revote on the issue. Likewise in Legal Information Center v. Werner, 2003 ASM SJ 18 (en banc) a due
process violation merely required SSFC to rehear the matter. Both these cases involve procedural
violations, yet no viewpoint neutrality issues were considered. Indeed, neither case even mentions
nondiscrimination, they assume, without discussion, that procedural violations
are different and do not turn on questions of bias or neutrality.
¶15
This can be compared with the Court’s actions in Tenant Resource Center v. Student Services
Finance Committee (I), 2004 ASM SJ 7, appeal
denied 2004 SJ Ord. 9. In that case,
the Court found viewpoint neutrality to be violated as a matter of law, without
any evidence of motivation or actual bias, when the SSFC failed to apply proper
procedural standards. In that case, the
procedural elements of viewpoint neutrality, By-laws §2.01(B)(II)(1), were limited to applying the proper
procedures. A panel of this Court just
this term unanimously reaffirmed this criteria in University of Wisconsin Roman Catholic Foundation v. Student Services
Finance Committee (I), 2005 ASM SJ 16.
The TRC-UWRCF rule contrasts
distinctly with
¶16
The difference is subtle, but exists. The difference comes from where in the
decision a potential violation occurs.
Viewpoint neutrality is violated when the procedural standards are
violated. As VICE-CHIEF JUSTICE
GREEN
explained in TRC, “[o]nly the
criteria plainly written upon the page [are] legally applicable.” 2004 ASM SJ 7 at 1.
¶17
Even if the By-laws
could not be read as to substantively differentiate between VPN claims and
procedural claims, the ASM Constitution definitely
does. The ASM “bill of rights,” located
in Article IV of the Constitution,
clearly establishes different substantive rights for non-discrimination and for
due process. Viewpoint neutrality is
specifically an expression of the non-discrimination clause, not the due
process clause. By-laws §2.01(A)(I). In
order to ensure that each and every clause is given effect, we should
consciously differentiate between procedural claims, and between substantive
claims.
¶18
Evaluating CFACT’s claim against Rep. Sanders, we think
her behavior more aptly falls under the rubric of a technical procedural claim,
rather than a substantive procedural claim.
It should be treated as a due process claim, not as a nondiscrimination
claim.
¶19
Even after substantial study, we fail to see how voting
to call the question is making “a decision that results in the allocation of Segregated
University Fees.” The direct effect of
calling the question is to end all debate on a subject and to move to
voting. Roberts Rules of Order, Newly Revised §16. Whether the call carries or is rejected no
segregated fees are directly effected. A
vote must actually be ordered on the question before fees will be in any way
affected.
¶20
It is true, as the panel decision under review noted,
that moving the previous question can be “the proximate
cause, the sine qua non of
voting.” CFACT v. Stone et. al., 2005 ASM SJ 14, ¶23. Clearly it is, for calling the question is
the only way to get a vote on a budget or motion to amend a budget. However, this does not make calling the question
a grant allocation. Immediately
following the line just quoted, the decision states that CFACT’s budget still
could have been rejected or accepted and no one can tell what would have
happened.
¶21
Further, the interests
implicated in voting to call the question are manifestly not the same interests
as those involved in actual grant decisions.
Grant allocation decisions, the votes that actually amend, accept, or
reject a budget, are focused on the budget actually on the table directly and
completely. An organization is directly
under evaluation. This is the reason
viewpoint neutrality is required.
Organizations are to be judged solely on the neutral criteria
established by the by-laws. TRC v. SSFC, supra. JUSTICE HODGSON put it succinctly this term when she stated that “[funding committees]
cannot say that they disprove of an organization and deny it funding.” Monkey
Hoes v. Finance Committee, 2005 ASM SJ 15, ¶6. Because votes that directly affect an
organization’s budget are the votes whereby SSFC and its representatives are
actually judging an organization, they must be restricted in their discretion
to not judge inappropriately.
¶22
However, technical procedural
votes do not implicate value judgments of organizations. Rather, they have special concerns that
affect, first and foremost, the organization and structure of the
committee. Calling the question, for
instance, in no way focuses on the group applying for funds. It deals with concerns over length of debate,
the rights of representatives to speak, and on the timing of a vote. Robert’s
Rules, §16. Undoubtedly, these will
have some indirect effect upon the budget(s) under consideration. Yet, that effect is remote and, in any event,
does not implicate the fundamental viewpoint concerns we have identified in
previous cases.
¶23
The fundamental concerns are
those concerns that the panel highlighted most recently in Monkey Hoes. They are
concerns with approval or disapproval of an organization. 2005 ASM SJ 15 at
¶6. They are those concerns that would
force a group to abandon the essence of who they are. These concerns boil down to two distinct
issues – identity and association. ASM
cannot tell a group with whom they may associate. Monkey
Hoes, supra, ¶8; UWRCF v. SSFC (I),
supra, ¶22-23 (Fox, CJ, concurring).
Nor can ASM define a group’s identity.
UWRCF v. SSFC (II), 2005 ASM
SJ 16, ¶¶5-10; MEChA v. Patzner et. al,
2002 ASM SJ 6. Any viewpoint is allowed
in, regardless of association or identity, so long as it is reasonably related
to the educational process. Monkey Hoes, supra, ¶¶16-17 (Romano,
VCJ, concurring).
¶24
Yet, for merely technical
aspects, those fundamental concerns are not implicated. The focus is on internal functioning of an
ASM body, here the SSFC. The concerns
implicated are concerns that do not implicate the viewpoint of any group
directly. Certainly, one can take a
broad and expansive reading of viewpoint neutrality and say that a person might
be motivated by an infinite number of thoughts even in procedural-technical
issues, some of which might very well be related to the group under
consideration, thus implicating these fundamental concerns. Indeed, this was the point taken by CFACT’s
learned counsel at oral argument.
However, the Court has consistently rejected reading viewpoint
neutrality so broadly as to render ASM officers and bodies into the narrow
straights that this implies. In CFACT’s
funding appeal last year, we clearly rejected reading viewpoint neutrality so
broadly as to make it standardless. CFACT v. Kiernoziak Appeal, supra, at
3-4. Likewise, we would do well to
reject a broad reading here. Instead, we
should recognize that representatives, whether they are biased or not, do not
make these technical motions in a way that implicates the fundamental concerns
of viewpoint neutrality.
¶25
The concerns are concerns
about the internal affairs of the organization.
Internal ASM affairs are never judged by viewpoint neutrality. The By-laws are clear, viewpoint neutrality
only affects decisions about groups “other than an ASM body.” By-laws
§2.01(B)(I). This makes sense, as
well. There is no need to be neutral
when considering your own organization.
Yes, you may very well be affecting its fundamental principles of
identity and association. However, the
people making that decision are the very people appointed or elected to make
that decision. They are not forcing their
concepts of what is proper for a group on another group; they are deciding for
themselves. The members of ASM have
chosen, either directly or indirectly, the members of the SSFC for the specific
activity CFACT complains of. If CFACT
believes that the internal affairs of SSFC have been corrupted, the proper
recourse is the political process, either election or appointment, that
empowers SSFC.
¶26
Accordingly, before we make an
analysis under the rubric of viewpoint neutrality, we must determine if the act
complained of actually is a grant allocation decision within the meaning of the
bylaws. If it is not, we should either
dismiss the complaint as failing to state a claim upon which relief may be
granted, see Rule 12(a)(1), (2), SJRP, or consider it as a due process
claim. The standard should be two
pronged. First, will the motion directly
allocate funds to an organization?
Second, does the motion require a representative to judge or evaluate
the organization in a manner that could be manipulated by bias? These two questions mark the outer boundary
of what is appropriately judged under the viewpoint neutrality standard. For, these two questions focus completely on
the concerns we have consistently reviewed in viewpoint neutrality cases –
identity and association.
¶27
This standard is, further,
completely consistent with the idea we expressed in the Kiernoziak Appeal that viewpoint neutrality is a process. 2005 ASM SJ 1 at 4. In that case, the Court instructed that we
should look at the entire decision, from the time the budget is submitted until
it is accepted, rejected, or killed by another procedural motion.
¶28
In Kiernoziak Appeal,
though, we were analyzing the concept of “decision.” Here, we are analyzing the idea of
“allocation.” In the previous case,
there was no debate over whether an allocation was involved. Chair Kiernoziak made a motion that would
have cut CFACT’s budget by about $10,000.
Clearly, allocation was involved.
Here, though, Rep. Sanders simply wished end debate; no money was
involved, allocation was not an issue. A
decision is not limited simply to the final act of a committee. It is limited, however, to those acts which
directly involve the allocation or non-allocation of fees. Consistent with Kiernoziak and my opinion today, I would say that, at the very least,
acts reviewable under viewpoint neutrality would be the main votes on a budget,
any motions to amend the budget, and any other motion which as the natural
effect of killing a budget proposal.
Those acts which are not reviewable under viewpoint neutrality would be,
at a minimum, calling the question, quorum calls, recess calls, calls for
division or roll, and points of privilege, order or information. Other motions that may be made would need
further evaluation under the standards set forth here.
¶29
This is not to say that issues
not reviewable under viewpoint neutrality are lawless or escape review. Instead, they are reviewed under the Due
Process Clause of the ASM Constitution.
That clause offers protection for arbitrary and lawless acts. If technical manipulation of procedures is
occurring, a group can bring a complaint under the due process clause.
¶30
Finally, it is possible for a
bias to be so pervasive across the entirety of a body that neutral evaluation
is simply not possible. In that case, surely
viewpoint neutrality would apply, as the allocation process as a whole will be
tainted.
D. Application
¶31
Applying those standards to
the case at bar, we cannot say that Rep. Sanders should be punished for her
bias. She acted to call the
question. Her participation was limited;
she did not even actually call the question, she simply voted in favor of
calling the question. Because calling
the question should be seen as per se
viewpoint neutral, as it implicates none of the concerns raised by a Southworth style review, a viewpoint
neutrality complaint cannot and should not be sustained.
¶32
It is possible that we should
remand this case to the panel to reevaluate under due process concerns. However, we do not believe that a remand is
necessary. Due process is not a
substantive review; it is a review for process.
3 Student Judiciary Digest §2 (2005) (see cases cited therein). As long as a process is set out prior to
making a decision and that process is followed, no violation has occurred, even
if the process is faulty. Zyvix v. Fox, 2005 ASM SJ 8; Robbie Earl for ASM v. Finance Committee, 2005 ASM SJ 7; Baumgardner v. Courey, 2004 ASM SJ
3.
¶33
In this case, the record is clear that a process was set
out and that process was followed. SSFC
has, without exception, utilized Robert’s
Rules since the 12th Session began. Those rules clearly allow for a question to
be called and for roll to be taken on the question. It further specifies that a
vote will be ordered if two-thirds are in favor. Robert’s
Rules §16. That process was
followed. Rep. Edwards called the
question, division was called, and Rep. Sanders voted “aye.” She was within her procedural rights. Simply having a bias against CFACT did not
mean she lost her rights as a committee member.
True, she could not use that bias when making a grant allocation
decision; but, as we have suggested, calling the question was not a grant
allocation decisions. As such, so long
as the process was followed, no violation occurred. On remand, no reasonable panel could find the
process to not have been followed as prescribed. As such, a remand is unnecessary, for it
would lead to nothing more than a swift summary judgment in favor of Rep.
Sanders. See, Rule 12(c), SJRP.
E.
Judgment and Orders
¶34
WHERFORE, we conclude that the Complaint and Petition for
Relief filed by CFACT was defective as a matter of law. The activities complained of simply cannot be
said to have violated any affirmative rule or law of the ASM. Rule 12(a), SJRP.
1.
IT IS ORDERED that the Judgment of the Panel below
entered against Rep. Kellie Sanders, published at 2005 ASM 14, is hereby
REVERSED.
2.
IT IS FURTHER ORDERED that the
Complaint and Petition for Relief filed against Rep. Kellie Sanders is
DISMISSED.
Nicholas Fox,
Chief Justice
Nathaniel Romano,
Vice-Chief Justice
Shannon Brusda,
Student Justice
Amber Hodgson,
Student Justice
Joshua Tyack,
Student Justice
* * * * *
Timothy Leonard, Student Justice, dissents from the Opinion of the
Court.
* * * * *
Published: 9 January 2006, 12.00PM
Attest: /s/ NJF
[1] Considering that it
is now apparent the law needs to be clarified, the author of this opinion, who
dissented to the original order granting appeal, wishes to state that he was
mistaken to dissent from the Order granting respondent’s petition to
appeal. Though no formal dissenting
opinion was filed, on the record I stated that there was no reason to review
the standard. I was wrong. -- This footnote should be read as a
concurring opinion filed by VICE-CHIEF JUSTICE ROMANO alone.