Sigma Alpha Epsilon, Petitioner
v.
Committee on Student Organizations, Respondent
2006
ASM SJ 4
FINAL JUDGMENT AND ORDERS
Cite As:
2006 ASM SJ 4
Appeal of
2006 ASM SJ 2
Before Hodgson, VCJ, Brusda, Moe,
Thomson and Tyack, S.JJ.
Mr. Frey for Petitioners.
Mr. Fox, for Respondents.
JUSTICE THOMSON delivers the
Unanimous Opinion of the Court.
JUSTICE LEONARD took no part in the consideration of this case.
CHIEF JUSTICE FOX is recused from this case and therefore, took no
part in its consideration
MARK THOMSON, Student Justice. ¶1 Having granted Appellant, Committee
on Student Organizations’ (CSO), motion for appeal with regard to the Panel
Court’s decision in SAE v. CSO, 2006 ASM
SJ 2, we here consider (1) whether the panel overlooked accepted standards
of appellate review by considering certain arguments offered by Respondents,
Sigma Alpha Epsilon (SAE); and (2) if not, whether the CSO’s determination that
SAE had violated the University’s Code of Conduct was a reasonable application
of its shared governance authority under Wisconsin Statutes ruling §36.09(5).
¶2 In reviewing all cases that come before it on appeal,
this Court is bound by certain procedural guidelines which are fundamental to
Anglo-American law. Among these is the
principle that an argument not raised before the court of first hearing cannot
later be employed upon appeal. As was
established in our denials of the Knox
Appeal, 2005 SJ Ord. 29, and the Edwards Appeal, 2006 SJ Ord. 1, where a
party does not raise a defense before the court of first hearing, its failure
to do so constitutes a waiver of that defense in all subsequent appeals. This is so inasmuch as an appeal does not
constitute an entirely new hearing.
Rather, appellate courts are charged only with reviewing the record of
the lower court hearing in order to ensure that this initial hearing satisfied
the requirements of Due Process. The
first inquiry of this Court, then, when acting within its appellate
jurisdiction, ought to be whether or not the arguments raised are in keeping
with this fundamental component of Anglo-American law.
¶3 In the case at bar, the only defense raised by SAE on
appeal was that the CSO failed to act within the legally mandated time frame
(four weeks) in addressing SAE’s alleged violations of certain provisions
governing registered student organizations (timeliness defense). As such, the question directly before us is
whether or not SAE raised this timeliness defense at the initial hearing on
this matter. The record shows (and it was
not otherwise contended) that SAE did not raise this defense before the court
of first hearing (in this case, before the CSO’s Review Board). Indeed, the record indicates that SAE had
several opportunities to raise the timeliness defense (at several points prior
to the hearing, during the hearing, prior to the issuance of the decision from
the hearing, and prior to the filing of an appeal with this Court, for
example), but failed/declined to do so on each occasion. Because SAE were not procedurally capable of
raising the timeliness defense before the
Wherefore, for the reasons stated herein:
IT IS ORDERED that the decision of the original Student
Judiciary Panel in the matter of SAE v.
CSO, 2006 ASM SJ 2 be REVERSED.
Amber Hodgson, Vice-Chief Justice
Shannon Brusda, Student Justice
Leah Moe, Student Justice
Mark Thomson, Student Justice
Joshua Tyack, Student Justice
* * * * *
Timothy Leonard,
Student Justice, took no part in the consideration or decision of this case.
* * * * *
Chief Justice Fox,
being recused in this matter, took no part in the consideration or decision of
this case.
* * * * *
Published:
Attest:
/s/ NJF