Collegians For a Constructive Tomorrow, Petitioner
v.
Timothy Schulz, in his official
capacity as Representative on the Student Services Finance Committee,
Respondent
` 2006 ASM SJ 1
FINAL JUDGMENT AND ORDERS
Cite As: 2006
ASM SJ 1
Appeal in Part
Of: 2005 ASM SJ 14
Before Fox, CJ, Hodgson, VCJ, Brusda,
Leonard, Romano, and Tyack, S.JJ.
JUSTICE BRUSDA delivers the Unanimous Opinion of the Court.
CHIEF JUSTICE FOX filed a concurring opinion.
SHANNON
BRUSDA, Associate Justice ¶1. The
Court granted an appeal filed by Appellant, Collegians for a Constructive
Tomorrow (CFACT), with regard to Representative Schulz and with regard to the
invalidation of ASM By-law §2.01(D)(III).
See, On Petition for Appeal,
2005 SJ Ord.28. We consider (1) whether the
panel erred in ruling that Representative Schulz’s reliance on previous budgets
for CFACT were neutral applications of fiscal responsibility, and (2) whether
the panel erred in ruling §2.01(D)(III) unconstitutional and void per the Due
Process Clause.
I. Representative
Tim Schulz
¶2
CFACT alleges that Rep. Schulz violated viewpoint
neutrality in deciding to minimally fund CFACT by relying on the façade of
fiscal responsibility to conceal his true concern over a 300 percent increase
based on his analysis of funding CFACT received in previous years. The panel found that Rep. Schulz did not
violate viewpoint neutrality because he did not use the percentage as a ceiling
and because fiscal responsibility has been established as a neutral criterion
that may be used in making decisions. Multicultural Student Coalition v. Otten,
2004 ASM SJ 8; Multicultural Student
Coalition v. Greenbaum, 2004 ASM SJ 9.
The appeal was granted so as to determine the line where fiscal
responsibility exemption ends and where the violation of reliance on previous
years begins.
¶3
CFACT argues that Rep. Schulz’s reliance upon percentage
increases as a validating criterion in making fiscal responsible decisions
discriminates against smaller organization because it holds the smaller organizations
to a higher standard. The court
disagrees. The decision-maker may make
inquiries of why a percent increase is justified because fiscal responsibility
is a neutral criterion. Multicultural Student Coalition v. Otten,
2004 ASM SJ 8; Multicultural Student
Coalition v. Greenbaum, 2004 ASM SJ 9.
Furthermore, SSFC representatives have the authority to “review all
budgets that include segregated fees as revenue.” ASM By-Laws §4.01(B)(III).
Thus, the role required by the By-Laws mandates that SSFC representatives
have a duty to actually review budgets through the budgetary hearings in order
to make informed decisions and not to merely rubber stamp them.
¶4
In the present case, Rep. Schulz questioned why CFACT
considered a 300 percent increase necessary for it to function properly. The evidence shows that Rep. Schulz made this
inquiry due to CFACT’s insufficient reasoning in the budget application. Although he considered the 300 percent
increase, the percent was not in any way definitive for him. Rep. Schulz made his decision based on a
number of factors, such as lack of position descriptions, non-justified salary
amounts, and an overall showing of the budget’s inadequacies. Furthermore, CFACT did not present any new
evidence that would reasonably justify the argument that Rep. Schulz was
applying a higher standard due to a hidden prejudice he had against CFACT. Rep. Schulz, in his want of a fiscally
responsible justification for the 300 percent increase, did not violate
viewpoint neutrality because he did not unreasonably rely on previous years
budgets.
II. By-Law Invalidation
¶5
The panel found that the SSFC
decision to minimally fund CFACT did not occur in a viewpoint neutral way due
to three Committee members’ viewpoint neutrality violations. Thus, the SSFC decision was reversed and the
cause was certified to Student Council for a new hearing because the violations
tainted the entire process. CFACT v. Kiernoziak Appeal, 2005 ASM SJ
1 (en ban). Because this marked the
second reversal of the Committee during one semester, §2.01(D)(III) called for
the removal of the entire Committee with the exception of those who filed safe
harbor requests because a reversal of a Committee decision is considered as a
non-malicious violation against that entire Committee. However, the panel unanimously concluded that
this By-law was in opposition to the spirit of the Constitution because it did
not afford committee representatives a process that protected their rights to
due process. CFACT v. Stone, et al. 2005
ASM SJ 14.
¶6
The appeal in this case was granted because the decision
marked a rare exercise of judicial power authorized by §5.02 in the panel’s
striking down of ASM By-law §2.01(D)(III).
Thus, the court agreed that the power should come from the full Court. CFACT
Appeal (granted in part), 2005 SJ Ord. 28. see also, Certification of Appeal, 2005 SJ Ord. 17
at ¶2; Evans v. Roulhac – Order Denying Appeal,
SJ Ord. 15 at 2 (Fox, J., dissenting).
¶7
In their appeal, CFACT suggests that a process does exist
that protects the due process rights of representatives and that process is
articulated in §2.01(D)(IV), which allows members safe harbor if they believe a
decision was not made in a viewpoint neutral fashion. According to §2.01(D)(I), “All members of any
ASM body making a grant allocation decision are responsible to ensure
compliance with paragraph (C)(I),” which states that “all officers…shall make
all grant allocation decisions in a viewpoint neutral fashion.” Thus, CFACT claims that in order to uphold the
legitimacy and expectations for the SSFC, all members that did not request safe
harbor should be removed since that is what the By-law calls for. Again, the court disagrees.
¶8
What CFACT suggested in its appeal was that committee
members must be punished for any viewpoint neutral violation whether or not the
members knew about the infraction.
Moreover, the removal would occur without affording each member a
trial. CFACT’s suggestion assumes that
all members of a committee must at all times be completely aware of every other
member’s motivations and thoughts. This
assumption is not feasible or realistic.
¶9
The process in due process refers to a judicial
process. The training that SSFC
representatives receive with regard to viewpoint neutrality, along with the
higher expectations that may come with their knowledge of the subject, does not
constitute a judicial process. Although the process of safe-harbor allows those
who are aware of infractions to protect themselves, it does not afford any
protection to those that cannot read other member’s minds when the infractions
are not so clear. In order to protect
the due process rights of the SSFC representatives, we must allow the
representatives a right to notice and hearing, as well as a right to defend
themselves. Subsequently, the panel
correctly found §2.01(D)(III) unconstitutional because the subsection merely
declares committee members guilty by association, which violates the rights of
the members.
III.
Judgment and Orders
¶10
WHERFORE, we hereby conclude that CFACT did not present
any evidence that would overrule the panel’s original ruling.
1.
IT IS ORDERED that the judgment of the panel to dismiss
charges against Representative Tim Schulz, published at 2005 ASM 14, is AFFIRMED.
2.
IT IS FURTHER ORDERED that the
judgment of the panel to invalidate ASM By-law §2.01(D)(III), published at 2005
ASM 14, is AFFIRMED.
Nicholas Fox,
Chief Justice
Amber Hodgson,
Vice-Chief Justice
Shannon Brusda,
Student Justice
Timothy Leonard,
Student Justice
Nathaniel Romano,
Student Justice
Joshua Tyack,
Student Justice
Published:
Attest: /s/ NJF
* * * * *
NICHOLAS J. FOX, Chief Justice (concurring). ¶11. I fully
concur with the Court’s decision today, but write to express a few concerns
which I think have not been fully presented by the case at bar.
¶12. Firstly, I
whole-heartedly agree with the Court that fiscal responsibility is a neutral
and generally-applicable criterion that does not discriminate against an
organization based on viewpoint. CFACT
presents an interesting point in arguing that this criterion discriminates
against smaller organizations (and, consequently, against less-favored
viewpoints) because a dramatic increase in the organization’s budget will be
brought under greater scrutiny than will the same increase in a larger
organization’s budget. It must be noted,
though, that organizations must justify their budgets to the members of the
SSFC. If an organization—regardless of
size or viewpoint—cannot justify its budget to the SSFC, then it should
logically expect to have its budget reduced based on that lack of
justification. As this Court has noted
on several occasions, “[I]t is the job of the SSFC to scrutinize budgets so
that organizations arte not frivolously spending segregated fees. The SSFC is not designed to rubberstamp
budgets: it must determine whether or not the funds requested are sufficient
for the organization, [and] whether those funds are utilized effectively.” MCSC v.
Otten, 2004 ASM SJ 8.
¶13. However,
fiscal responsibility may not always be a sufficient excuse for cutting an
organization’s funds, but the burden is considerably higher to undermine this
justification. Writing for the majority
in UWRCF v. SSFC, 2005 ASM SJ 16, I
noted, “While fiscal responsibility from year-to-year is vital to the
segregated fee system, that responsibility must be applied equally to all
groups. […] Merely invoking fiscal responsibility is not
enough to justify a cut or increase; instead, the invocation must be justified
through further analysis of why the cut or increase does not correlate with the
requested amount.” It is foreseeable
that in some instances “fiscal responsibility” could be used as a guise for an
underlying viewpoint neutrality violation.
¶14. A prime example
of this is reflected in CFACT v. Stone,
et al., 2005 ASM SJ 14, and one of its appeal cases, CFACT v. Sanders, 2005 ASM SJ 17.
In these cases, the Court affirmed at both the panel level and the
appellate level the SSFC Representative Sanders, given the record before the
Court, did have a bias against CFACT; however, she did not act on that bias in
any way that would materially affect CFACT’s budget. I would contend that this could be an example
where, had Representative Sanders voted in a way that would have materially
affected CFACT’s budget, a justification of “fiscal responsibility” would have
been suspect and possibly undermined. I
do not believe that an absolute blanket statement can be made with “fiscal responsibility”
as valid reason for amending a budget because not all situations will present
such a clear-cut case.
¶15. I would
also like to address the bylaw invalidation issue. The bylaw reads in a way that assumes guilt
instead of innocence, without any further individual investigation. This principle is clearly contrary to the
legal principles of this Court and of the Anglo-American legal system. There are many instances where individual
members of a committee may not even know that a violation is occurring until
after the fact. Indeed, in CFACT v. Stone, et al, supra, the Court noted that, in regards
to Chair Stone, several of the infractions on the part of the committee or its
members could not have been discovered until evidentiary hearings took place.
¶16. CFACT
contends that there are several processes in place which avoid an
unconstitutional bylaw (i.e.
¶17. By
extension, CFACT’s argument would not only assume guilt over innocence (without
trial), but it would shift the burden of proof to the individual committee
members. It is the Petitioner’s burden
to prove guilt of a committee or its members by clear and convincing evidence
in regards to viewpoint neutrality allegations.
However, the bylaw as constructed demands that the burden or proof shift
from “Petitioner proving guilt” to “Respondent proving innocence.” This is an absurd construction of due
process, since the burden of proof lies with the complaining party. To allow Petitioner to make general
allegations and then demand that specific individuals prove that they are
innocent of those general allegations absolves Petitioner of the responsibility
of proof. This is contrary to our
conception of justice.
Nicholas J. Fox, Chief Justice