***The Student Judiciary Reserves the Right to move to Closed Session during this meeting when discussing matters involving an

Carl Williams, Petitioner

Aaron Werner and Sachin Dhawan, Respondents

2006 ASM SJ 6

JUDGMENT

Cite As: 2006 ASM SJ 6

Before Hodgson, VCJ, Moe and Thomson, S.JJ.

Mr. Williams for Petitioner

Mr. Werner for Respondents

LEAH MOE, Student Justice. ¶1. Petitioner Carl Williams, a write-in candidate for the law school seat in the ASM 2006 Spring election, has filed suit against fellow candidates Sachin Dhawan and Aaron Werner, whom he alleged violated ASM Election Rules. Mr. Williams claims that an alleged violation of Election Rule 5, regarding the use of email list serves, caused significant harm by giving an unfair advantage to his opponents. Mr. Werner and Mr. Dhawan both sent emails to students via Law School list serves during the third round of the election, and Mr. Williams claims this action was in violation of Election Rule 5, which states, “Candidates may not use any type of e-mail list serve for campaign purposes without delivering the prior written consent of the list serve moderator to the SEC Chair.” Spring 2006 Election Rules, Rule 5. The crux of argument rests within the notion of consent, which Petitioner claims was not met by either Respondent. The Court believes Petitioner has a valid argument, as stated by Chief Justice Fox in the Court’s denial of Respondent’s Motion for Summary Dismissal, because “Clearly there is an issue with a duly-promulgated election rule at stake, and therefore the complaint has merit” 2006 SJ Ord. 16. It is the duty of the Court to determine whether Respondents had obtained permission to use the list serve from both the list serve moderator and the SEC Chair.

¶2. The first issue at hand is the legality of using email list serves in candidate campaigns. The Court acknowledges that using email list serves owned by the University is a completely legal method of campaigning, provided permission is granted by both the list serve moderator and the SEC Chair. So long as those two criteria are met, candidates are allowed to use said list serves to campaign. Every candidate has access to this campaigning strategy, and it is up to the individual candidate to choose how to run their campaign. Petitioner had just as much access to the list serve as Respondents, and their decision to use one legal campaign practice did not create an unfair disadvantage for Petitioner.

¶3. Though the Court conduces that the use of email list serves is a perfectly legal campaign practice, the Court must stress that it is the responsibility of the individual candidates to obtain written permission from both the list serve moderator and the SEC Chair. In this case, it is obvious that neither Mr. Dhawan nor Mr. Werner met both criteria for consent. Respondents clearly had consent from the list serve moderator, who, as the sole person with access to the list serve, would not have sent the email in question if he or she had not consented to do so. However, Respondents failed to receive permission from the SEC Chair, and thus are in direct violation of ASM Election Rule 5.

¶4. In determining a remedy, the Court must consider the nature of the violation, specifically if the action was malicious or non-malicious in nature. There is no doubt that Respondents violated ASM Election Rule 5. However, the Court does not believe said violation occurred in a malicious manner. In prior cases, dating back to the 2000 case of Dean v. Unity, election violations of a malicious manner relate to abusing ASM resources, ASM offices and ASM Committees to promote a candidate or slate of candidates; remedies for malicious violations include the disqualification of a candidate or an entire slate of candidates, as well as prohibiting them from holding any appointed office for multiple sessions of the ASM. It is clear that this punishment would be much too severe in the case at hand. The issue of using web-based resources without proper permission has been determined to be a non-malicious offense, as evident in the case of Ejercito v. Badger Party, 2003 ASM SJ 9. The Court concludes that Respondents violated ASM Election Rule 5 in a non-malicious manner. The remedy available for said violation is a sincere letter of apology, written by Respondents and addressed to Petitioner.

Wherefore, for the reasons stated herein:

IT IS ORDERED, that Judgment be ENTERED for Petitioner.

IT IS FURTHER ORDERED that, as a remedy, both Mr. Werner and Mr. Dhawan write sincere letters of apology to Mr. Williams for violating ASM Election Rule 5. Letters must be delivered to Mr. Williams and to the Chief Justice, either electronically or in their mailboxs, no later than 72 hours after this decision is posted.

By the Student Judiciary,

IT IS SO ORDERED.

Amber Hodgson, Vice-Chief Justice

Leah Moe, Student Justice

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Mark Thomson, Student Justice, Concurring

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MARK THOMSON, Student Justice. ¶5. I agree with the bulk of the Court’s Opinion in this matter and, therefore, join it in full, except inasmuch as it runs contrary to what is below. First, individuals must follow the law. At times, I feel the Court’s Opinion in this case strays a bit from this seemingly obvious principle. For instance, after finding that the list serve moderator’s decisions to send out the e-mails at issue amounted to constructive consent, the majority holds that such consent satisfied the requirement (as set out in Rule 5 of the SEC’s Spring 2006 Election Rules) that candidates obtain written consent from list serve moderators before using list serves for campaign purposes. I disagree with this holding. The Rules explicitly require written consent. Since Respondents failed to obtain written consent, their actions were, per se, in violation of the Rules. By affirming the legitimacy of Respondents’ conduct in this aspect of the case, the majority allows that individuals need not always do as the law requires (as by substituting “constructive consent” for the “written consent” required by law). I’m surprised that any members of this Court subscribe to that philosophy.

¶6. The second point I wish to make involves the remedy provided by the Court in this matter. I’m uncertain that the distinction, for punitive purposes, between malicious and non-malicious campaign misconduct is (or at least ought to be) as determinative as we have previously held it to be (and re-affirm it to be today). Under the logic employed in today’s ruling, a candidate who, by virtue of sending out an illegal, but non-malicious campaign message, wins an election he would otherwise have lost is subject only to writing a few letters of apology as punishment. It seems to me that, where one candidate’s illegal conduct demonstrably generates a substantial electoral windfall for him, the correspondingly substantial harm done other candidates justifies a more potent remedy than that which our precedent would allow. In our capacity as a court of equity (and only in this capacity), we must take into account the substantive effects of an illegal action; fairness demands some appreciable degree of proportionality between the harm done and the remedy afforded. Where, as here, we are entirely responsible for fashioning a remedy to suit a case, we act as a court of equity. Yet, so long as Respondents could show that they acted without malice, our current, intent-based jurisprudence would deny Petitioner proportional relief, even were it shown that he lost the election because of Respondents’ misconduct. Petitioner would have lost an ASM Council seat and been compensated only with a letter of apology. In this hypothetical (and it is a hypothetical, because Petitioner has not shown that the election results would have been different had the e-mails at issue not been sent), I think that our precedent dictates a remedy that would be disproportionately small in comparison to the harm inflicted. Because our precedent in this area provides for such inequitable outcomes, and because such outcomes are plainly incompatible with this Court’s role as a court of equity, I feel that we ought to strongly consider abandoning it in favor of a more proportionality-oriented jurisprudence. However, since this Panel ought not to overturn precedent (an action better left to the full Court), I am in no way objecting to its application of our (in my opinion) flawed precedent to the present case. What I’ve written here is intended only for the future consideration of the full Court.