Devron Zyvix, Petitioner

v.

Yu Huang, Lu Shang, and Kai Wang, Respondents

2005 ASM SJ 9

JUDGMENT

Cite As: 2005 ASM SJ 9

Before Romano and Leonard, S.JJ.

Chief Justice Emeritus Romano delivers the Unanimous Opinion of the Court.

NATHANIEL ROMANO, Chief Justice Emeritus. ¶1 Mr. Devron Zyvix alleges that Respondents, members of the Chinese Student and Scholar Association (CSSA), conspired to violate his rights to due process and nondiscrimination, as guaranteed in the ASM Constitution. ASM Const. Art. IV, §§1, 2 (2005). His claim arises out of his loss in the CSSA presidential election at the end of the Spring 2005 academic term.

Facts and Background

¶2 The Chinese Student and Scholar Association is a Registered Student Organization on the University of Wisconsin – Madison campus. According to its governing documents, it is “open to all UW Madison students and scholars who are willing to be members.” CSSA Const. Art. II (2001-2002). The organization’s goal is to “promote cultural exchange between Chinese culture and other cultures.” Id. Art. I.

¶3 The CSSA is governed in its day-to-day operations by a “working committee.” Id. Art III(a). This committee consists of three elected officers, the President, Vice-President, and Treasurer, as well as “at least 3 other committee members in charge of public relation [sic], finance, recreation, sports, newsletter and web site.” Id. Art. III(b), III(c). These officers serve terms of one year. Id.

¶4 The CSSA held its annual election on June 18, 2005. Complaint at ¶1. The election started at 11:30am and was concluded approximately one hour later. Affidavit of Wang Xin Xiang, Lin Liu, and Jie Hou.[1] Respondent Lu Shang, then head of the Committee, presided over the counting of the ballots. Id. Petitioner Zyvix and Respondent Yu Huang were candidates. Id. The final vote was 64 for Yu Huang, and 4 for Mr. Zyvix. By his own admission, and according to the testimony of others, petitioner did not arrive until well after the balloting was completed.

¶5 Mr. Zyvix, and possibly others[2], began almost immediately after the end of the balloting. When complaints to the leadership of the CSSA were fruitless, Mr. Zyvix then filed a complaint with the Office of the Dean of Students’ Committee on Student Organizations (CSO). The CSO dismissed the complaint for lack of jurisdiction, and we upheld that dismissal, finding that the CSO had not violated its own rules.[3] Zyvix v. Fox, 2005 ASM SJ 8 at ¶10. We remanded the case to the CSO to determine if it fell under the discretionary authority of the Chair to forward the complaint to this Court, to determine if it fell under our jurisdiction. Id. at ¶11; cf. Code of Conduct §II.11. Before any action was taken on remand, Mr. Zyvix himself filed this complaint with the Student Judiciary.[4]

Due Process Claim

¶6 Mr. Zyvix’s complaint first contends that his right to due process was violated by the actions of CSSA leadership during the election. He complains that, on the date of the election, “various due process infractions occurred, namely that a candidate for the presidency was managing the elections, that those running the elections told potential voters that the elections were held elsewhere or were canceled, that there was no specified time frame for the elections, that no records were kept of the ballots, and that collection methods for the ballots were suspect.” Complaint at ¶1.

¶7 Due process under the ASM Constitution is a guarantee that, before acting, an institution exercising authority upon students will establish procedures, and then follow those procedures, in exercising its authority. Robbie Earl 4 ASM v. Finance Committee, 2005 ASM SJ 7. We have explicitly refused to recognize a claim based simply upon a disagreement with the end result of the process. Id. Nor do we allow for a person to complain that the process was faulty in some way. Unless the process was so distorted as to be no process at all, we defer to the policy-making body to correct any perceived problems. Id.

¶8 Here, there is no concern at all that the process was not established, or so unfair as to be no process at all. E-mails submitted by the Petitioner establish that a formal election was scheduled for June 18, 2005 at 11:30am at the Brown Shelter of Eagle Heights; the voting procedures to be followed that day were clear. Posting of CSSA Committee, uwcssa2004@yahoo.com, to CSSA List-serv, cssa-info@lists.services.wisc.edu (May 31, 2005). Under questioning from the Court, all parties agreed that this basic pattern was followed. Thus, the only basis for sustaining Mr. Zyvix’s claim would be that some irregularities interrupted the process.

¶9 While he alleges as much in his original complaint, the evidence fails to support his theories. This Court generally applies the “preponderance of the evidence test” to disputes arising under the Constitution. Stephen v. Hill, 1997 ASM SJ 3 at 2. We have also said that, when attempting to remove students from elected office, we apply the stricter standard of “clear and convincing evidence.” Id. This Court has never determined which standard to use in a case like this, one arising under our disciplinary authority, but involving a request to undo a student election. We are of the opinion, though, that Mr. Zyvix has failed to meet even the lowest burden of proof. As he would fail under either test, we see no need to determine which one binds; this Court needs not decide more than necessary for the current case. See, Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22 at 3 (Romano, J. concurring in the judgment)

¶10 We believe that the Petitioner has simply failed to meet his burden. He has submitted several e-mails, but none that actually prove any irregularities. His claims that such irregularities actually occurred is not supported by any evidence that he has given us. All of it was rebutted by the testimony given not only by respondents, but also by other members of the CSSA. A litigant cannot simply rest upon the allegations made in his complaint and petition for relief, he must actually prove the specific facts that he has alleged. MultiCultural Student Coalition v. Otten – Order on Summary Dismissal, 2004 SJ Ord. 8 at 2 (per curiam). The evidence Mr. Zyvix has brought to this Court on this count are simply inferences and innuendos, a vague sense that something went wrong. He cites numerous activities in his complaint, but has evidence of none of them. His only evidence suggesting due process violations is that one of the candidates looked into changing the place of the location because the original spot was already in use – but even Mr. Zyvix admits that this change did not happen.

¶11 Further, as stated above, ¶5 n.2, there is unrefuted testimony from the CSSA webmaster that many of the e-mails submitted as evidence are of questionable origin. Many come from e-mail addresses that were unverifiable. In any event, they did not join the list until June 19, 2005 or later, after the election, and casting doubt upon their veracity. While the Court generally accepts e-mails as authentic, this is solely a prima facie determination. Dean v. Unity, 2000 ASM SJ 2 at 7-8. This determination can be rebutted. Id. The testimony of the CSSA webmaster is hardly a “conjectural scenario” and supports our conclusions. Id.

¶12 The one point that he can prove is that Mr. Zyvix was denied his chance to give a speech. However, Mr. Zyvix himself is responsible for this. He did not arrive at the polling site until nearly an hour after the election was scheduled to begin. The general rule of law and equity is that a person cannot seek relief from actions that he caused. See, e.g., Wis. Patients Comp. Fund v. St. Mary’s Hosp. Milwaukee, 209 Wis. 2d 12, 37, 561 N.W.2d 797 (1997); Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, ¶11, 246 Wis. 2d 785, 632 N.W.2d 485.[5] Because it was his absence that caused the CSSA to forego the election speeches, Mr. Zyvix directly caused the sole irregularity that he can prove happened. He cannot then seek relief from actions he caused.

¶13 Ultimately, Mr. Zyvix cannot prove any due process infractions that would allow us to grant him any relief. The vast majority of his allegations are simply unproven. The one proven allegation is something that he himself caused. Judgment on this count is for respondents.

Non-Discrimination

¶14 Mr. Zyvix also alleges that he was discriminated against because of his ethnic background. Complaint at ¶2. He alleges that various members of the CSSA believed that he would not be a good president because he was not of Chinese ethnicity. Mr. Zyvix characterizes this as violating his “right to equal participation and opportunity within this RSO.” Id.

¶15 The ASM Constitution guarantees that no member of ASM (i.e. no student) will be discriminated against on the basis of certain protected categories. ASM Const. Art. IV, §1. These categories include both race and ethnic origin. Id.

¶16 The fundamental standard used by this Court in evaluating whether discrimination has occurred is to ask whether official action was taken that was intentionally based upon protected classifications. Jorgensen v. Shared Governance Committee, 1998 ASM SJ 11 at 2. However, this applies only to acts that are fairly attributable to the official organization. Jorgensen applied only the acts taken by the official arms of the Associated Students of Madison; we can see as much in their remedies. The Court in Jorgensen did not prohibit individuals from considering relation to the protected classifications, but rather required that the official selection forms used by the Shared Governance Committee be standardized. Id. at 2-3.

¶17 Here, there is no evidence of official discrimination taking place. By its very nature, the CSSA is open to all students. CSSA Const. Art. II. Further, the official e-mail from the CSSA setting out the time and place of the election specifically stated who the candidates were and that all were eligible. Post of CSSA Committee, uwcssa2004@yahoo.com, to CSSA List-Serv, cssa-info@lists.services.wisc.edu (May 31, 2005). Mr. Zyvix[6] was included in that posting. Mr. Zyvix gave us absolutely no evidence that he was officially denied his rights as a member of this organization based on any invidious discrimination.

¶18 Several members may have questioned Mr. Zyvix on account of his ethnic and racial background. It appears from e-mails in the record that some were nervous and skeptical of having a “foreigner” or “non-Chinese” lead a group dedicated to Chinese culture. See, e.g. Posting of Kai Wang, susygut@gmail.com, to CSSA List-Serv, cssa-info@lists.services.wisc.edu (May 27, 2005); Posting of Jian Zhang, faintagain@yahoo.com, to CSSA List-Serv, cssa-info@lists.services.wisc.edu (May 27, 2005). None of these, though, came from an official source. Indeed, even in the record we have, all “official” CSSA e-mails came from the CSSA Committee’s own e-mail address and were signed by the CSSA Committee corporately. The e-mails identified here were from individual accounts, and signed personally.

¶19 This Court cannot punish individuals for their individual behavior. We have said as much in recent viewpoint neutrality cases.[7] We have explicitly rejected a broad reading of “neutrality” that would encompass numerous neutral persons. Collegians for a Constructive Tomorrow v. Kiernoziak Appeal, 2005 ASM SJ 1 at 3-4 (en banc). This Court was afraid of the “chilling effect” on the free speech rights of the general student body. Id. at 4.

¶20 The same concern is with us here. By its own admission, the governing body of the CSSA is the CSSA Committee. CSSA Const. Art. III. The general membership of CSSA does not make these decisions. Nor are they even included in the decision-making process, as opposed to the ex-officio members at issue the in the CFACT Appeal. As such, they are not bound in the manner as are official leaders of organizations. They represent the archetype of the non-governing; indeed they have no official role in the day-to-day operations of the organization. Accordingly, as then JUSTICE FOX noted in his separate opinion in the CFACT Appeal, we cannot bind them in the same manner we do the official leaders of an organization. See, CAFACT Appeal, 2005 ASM SJ 1 at 8-9 (Fox, J., concurring in part and dissenting in part).

¶21 Aside from the unofficial musing of the general membership, there is no evidence of official discrimination occurring to the prejudice of Mr. Zyvix. He offered no proof of an alleged conspiracy to discriminate against him. Accordingly, we will enter judgment on this issue for the Respondents.

Conclusion and Judgment

¶22 WHEREFORE, the Student Judiciary finds that Petitioner has failed to meet his burden of proof with respect to his claim of a due process violation, and that the conduct engaged in by members of the Chinese Student and Scholar Association does not rise to the level of official discrimination, Judgment is entered to wit:

1. On the First Count, Due Process Violations contrary to Article IV, §2 of the ASM Constitution, JUDGMENT FOR RESPONDENTS.

2. On the Second Count, Illegal Discrimination in violation of Article IV, §1 of the ASM Constitution, JUDGMENT FOR RESPONDENTS.

3. The Complaint and Petition for Relief filed by Devron Zyvix against Yu Huang, Lu Shang, and Kai Wang is DISMISSED.

Published: 11:15AM, August 29, 2005

Attest: /s/ NVR

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[1] All documentary evidence is on file with the Court, unless otherwise indicated.

[2] E-mails were produced with names other than Mr. Zyvix. However, Respondents produced evidence, namely the CSSA webmaster, indicating that these individuals were not members of CSSA until after the election, if ever, and, in any event, their identities could not be proven.

[3] Obviously, our decision in that case has no bearing here, other than to fill out the background. In Zyvix v. Fox, we dealt with the issue of whether Mr. Zyvix’s rights had been violated by the Committee on Student Organization’s dismissal of his claim. As such, our review was limited by the nature of that case. We did not cover or address the merits of Mr. Zyvix’s underlying complaint, which is before us now.

[4] At trial, CSO Chair Fox, who also acted as Mr. Zyvix’s advocate, sought to join the Committee to this case, thus exercising its authority under the remand. However, Chair Fox withdrew his motion on the objection of Respondents. See, Tenant Resource Center v. Student Services Finance Committee (II) – Order on Joinder, 2005 SJ Ord. 1.

[5] We reiterate the long-standing holding of the Court that, when appropriate, we will adopt and apply longstanding principles of the Anglo-American common law and equity jurisprudence. Student Election Commission v. Robbie Earl 4 ASM Appeal, 2005 ASM SJ 6 at 7 (en banc); Gordon & Halamish v. Leonard, 2005 ASM SJ 3; In Re 2005 Spring Election, 2005 ASM SJ 2 (applying equity); Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 at 4 (en banc).

[6] The CSSA Committee even included his “Chinese” name.

[7] It should be noted that viewpoint neutrality is a subset of the nondiscrimination clause, reflecting attempts to reconcile the political ideology non-discrimination requirement with the needs of a limited budget and the First Amendment. ASM By-laws, §2.01(A)(I) (2004).