Student Judiciary Digest

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Preamble to the Official Digest of Reported Opinions of the Student Judiciary of the Associated Students of Madison

Updated October 31, 2010

 

To the Members of the Associated Students of Madison:

Attached you will find several chapters that represent the culmination in the latest phase of a long-running project of your Student Judiciary – a ―Digest of Reported Opinions.‖ Over the last several Terms of the Student Judiciary, we have worked hard to professionalize and standardize our work with a goal of making it accessible to students who may need to appear before us, but who lack knowledge about our procedures and caselaw. Over the past several months, various Student Justices have combed through nearly ten years of reported opinions – including official judgments, standing and specific orders, concurrences, and dissents – in order present, as best as possible, and clear and concise report of the law in the major fields in which the Student Judiciary works. It is our hope that you will be able to use this as a starting point for research through the cases and opinions reported in our website.

Please be advised that the Digest has no precedential authority itself. Please use it solely as a reference point. While we have strived to adequately and intelligently present the principles espoused in our cases, the language of the cases themselves represents the clearest and only binding authority. If you find a point of law relevant to your topics, be sure to check that specific case (and others) as authoritative.

With that caveat out of the way, we again express our hopes that this Digest will be a useful tool for those with business before the Student Judiciary, and who wish to understand better the functioning of the Associated Students of Madison. Feel free to contact us to correct any error you may spot.

 

Respectfully Submitted,

Miriam Liabo, Vice Chief Justice

Chair, Digest Committee 2011

Kenny Ho, Associate Justice

Anthony DaBruzzi, Associate Justice

Stephen Morris, Associate Justice

Nicholas Checker, Associate Justice

 

Timothy Hogan, Vice Chief Justice

Chair, Digest Committee 2010

Nicholas Checker, Associate Justice

Maureen Cleary, Associate Justice

Mickey Stevens, Associate Justice

 

Ben Beduhn, Vice Chief Justice

Chair, Digest Committee 2009

Noah Pearce, Associate Justice

Konrad Krebs, Associate Justice

Nathaniel Romano, Chief Justice Emeritus

Chair, Digest Committee 2005

Nicholas Fox, Chief Justice

Timothy Leonard, Student Election Commission Chair

 

Digest of Reported Opinions of the Student Judiciary of the Associated Students of Madison 


Cite As: ―[Chapter Number] Student Judiciary Digest [Holding Number]‖

 

Chapter One – General Principles Governing the Student Judiciary

On the Constitution and By-Laws

Students, in consultation with the Chancellor of the University and the Board of Regents, have the right and authority to set forth the rules governing student life and distributing segregated fees. Wis. Stat. 36.09(5).

 

The Associated Students of Madison is the group organized under the Wisconsin Statutes to exercise the rights guaranteed to the students. ASM Const. Art. III.

 

All currently registered students are members of the Associated Student of Madison, but failure to remain concurrently enrolled causes one to lose his or her membership by operation of the law itself. Amendola v. Brakken, 1998 ASM SJ 7.

 

The ASM Constitution establishes a ―volunteer oriented‖ system whereby the average student can participate in the governance of the university. Richards v. Student Council, 1997 ASM SJ 1.

 

It is the sole province of the Student Judiciary to determine what the law of ASM actually is. Richards v. Student Council, 1997 ASM SJ 1.

 

The rightful role of the Student Judiciary is as an independent arbiter within the ASM, faithfully applying and interpreting the law in an impartial manner. Lakwoski v. Becklin, 2003 ASM SJ 8.

 

Student Judiciary has authority to reapportion the Student Council. Order Reapportioning Student Council, 2005 SJ Ord. 20; Order Reapportioning the ASM Student Council, 2010 SJ Ord. 1.

 

The Student Judiciary generally agrees with the dictum of JUSTICE FOX that any invalidation of ASM law should come only from an appellate decision. CFACT v. Stone – CFACT Appeal, 2005 SJ Ord. 28 (quoting Evans v. Rouhlac – Denial of Appeal, 2004 SJ Ord.15 at 2 (FOX, J, dissenting)

 

On the Student Justices

The Student Judiciary is composed of eight students, holding no other appointed or elected office, appointed by a two-thirds vote of the entire Student Council, excluding vacancies. ASM Const. Art. X 1.

 

Should a vacancy arise before the expiration of a term, the entire Student Council may fill such vacancy by a two-thirds vote; such appointee serves only until the expiration of the term being filled and is not a new term. ASM Const. Art. X 2.

 

Student Justices serve a term of office expiring the second June 1 after they have been appointed; Justices may continue to serve an expired term pending the appointment of a replacement by the entire Student Council. ASM By-Laws 1.08(B).

 

The Student Judiciary has authority over all ASM elections, over cases and controversies arising under the ASM Constitution, ASM Bylaws, rules and laws of the ASM, and over all Registered Student Organizations, including the ASM Student Council. This includes the power to find ASM and RSO Bylaws, procedures, policies and rules unconstitutional under the ASM Constitution, and thus to strike them down. ASM Const. Art. X 3; ASM By-Laws 5.02.

 

The Student Justices elect from their own membership a Chief Justice, Vice-Chief Justice, the officers of the Student Election Commission, and other such officers as may be required or desired. ASM By-Laws 5.03(A), 6.01(B).

 

Chapter Two – Jurisdiction and Authority of the Student Judiciary

 

On the Jurisdiction of the Student Judiciary

The Student Judiciary has authority over all ASM elections, over cases and controversies arising under the ASM Constitution, ASM Bylaws, rules and laws of the ASM, and over all Registered Student Organizations, including the ASM Student Council. This includes the power to find ASM and RSO Bylaws, procedures, policies and rules unconstitutional under the ASM Constitution, and thus to strike them down. ASM Const. Art. X 3; ASM By-Laws 5.02.

 

Jurisdiction is the basic authority to decide cases and establish the law. Schober v. Evans, 2004 ASM SJ 14.

 

The Student Judiciary's jurisdiction in any matter must come from one of the specific grants of authority found in Art X 3 of the ASM Constitution. Schober v. Evans, 2004 ASM SJ 14.

 

Election powers of the Student Judiciary are plenary, and not limited by restrictions that may be found in the general adjudicative powers. Gordon v. Leonard, 2005 ASM SJ 3.

 

Jurisdiction arises under the ASM Constitution or other laws of the ASM in one of three specific ways. Either there is a specific provision authorizing the suit or creating the cause of action, there is a specific and articulated right that is judicially enforceable, or there is some specific procedure that has been illegally bypassed. Schober v. Evans, 2004 ASM SJ 14 (citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986)); Robbie Earl 4 ASM v. Finance Committee, 2005 ASM SJ 7.

 

Appeals from the Committee on Student Organizations, while dealing with potentially disciplinary infractions, are, in reality, cases arising under theASM By-laws, as it is the ASM By-laws that specifically authorize such appeals. Zyvix v. Fox, 2005 ASM SJ 8, Order on Summary Dismissal, 2005 SJ Ord. 12.

 

The ASM By-laws may establish a cause of action allowing the Student Judiciary to review actions of a body normally subject to review by the Student Judiciary, essentially creating a statutory form of the ancient common law writ of certiorari. Zyvix v. Fox, 2005 ASM SJ 8, Order on Summary Dismissal, 2005 SJ Ord. 12.

 

The jurisdiction of the Student Judiciary to discipline Registered Student Organizations is not the authority to discipline them for any ―bad act‖ but, rather, solely the authority to ensure that they conform to laws and regulations specifically promulgated by the Student Council. Schober v. Evans, 2004 ASM SJ 14.

 

The Student Judiciary has no authority to punish Registered Student Organizations for acts violating university, city, state, or federal laws, unless their acts also violate the law of ASM. Schober v. Evans, 2004 ASM SJ 14.

 

Student Judiciary has authority to require briefing and arguments on questions not presented by the parties, but that are jurisdictional in nature, such as standing. Fyrst v. Student Council – Certification on Standing, 2005 SJ Ord. 16

It is solely within the purview of SSFC to determine issues as to fact while the judiciary’s role is to examine the procedural methodology of those charged with finding fact. CFACT v. SSFC, 2011 ASM SJ 16

SJ cannot punish for thought crimes- that if a violation has not actually occurred there is no violation. VandenLangeberg v. After, 2011 SJ 10.

Any malfeasance in the ASM office shall be dealt with by Student Council. VandenLangeberg v. After, 2011 SJ 10.

The Student Judiciary has the power to interpret the eligibility requirements but not its application. This is the province of the SSFC. SSFC v. CFACT, ASM SJ 1.

When there is an eligibility complaint, the entire eligibility process is subject to scrutiny. SSFC v. CFACT, ASM SJ 1.

 

On the Requirements for the Valid Exercise of Jurisdiction

 

For any remedy to be proper, there must first be a harm. Schober v. Evans, 2004 ASM SJ 14, Order on Summary Dismissal, 2004 SJ Ord. 17 ; Halamish & Kumar v. Egan & Benishek, 2003 ASM SJ 21.

 

Without an allegation of wrongdoing or citation of material law, no remedy is available to the Student Judiciary. Wunk Sheek v. SSFC, 2009 ASM SJ 2.

 

The first requirement for there to be a true case or controversy is that the petitioner must show ―actual harm.‖ If there is no actual harm, the Student Judiciary has no authority to hear the case. Heigel v. Evans II, 2003 ASM SJ 14.

 

Challenges are moot when there is only a potential to infringe upon a student's rights, but the rights have not actually been infringed yet. Schober v. Evans, 2004 ASM SJ 14, Order on Summary Dismissal, 2004 SJ Ord. 17.

 

Students have no right to sue over non-final acts of committee-level structures unless there has been a clear violation of Art. IV of the ASM Constitution. Gathing v. Student Services Finance Committee, 1998 ASM SJ 2.

 

If a party consents to the Court's exercise of jurisdiction over him, the Court may exercise such jurisdiction, even if there is a potential defect. Lee v. Diner, 1996 ASM SJ 3.

 

The Student Judiciary may not simply impose its own policy preferences when the only issue is a political question. Eisenhardt v. Union Council, 1998 ASM SJ 9.

 

On solely political questions, the Court must simply defer to the choices of the political actors. Richards v. Student Council, 1997 ASM SJ 1.

 

Where the deadlines set out in the ASM By-laws have passed, all authority of the Court to act on a matter is lost; the Court has no jurisdiction over an untimely complaint. Tenant Resource Center v. Student Services Finance Committee (II), 2004 ASM SJ 17.

 

Officers and appointees of the ASM who are no longer in office may not be subjected to a complaint in the Student Judiciary. Neither may a current session of any ASM body be held accountable for the actions or inaction of a previous session. UW Infoshop v. Patzner Appeal, 2002 ASM SJ 11 (en banc); Baumgardner v. Student Election Commission, 2003 ASM SJ 1.

 

The Student Judiciary may not issue a subpoena if it would cause a witness to violate her Fifth Amendment rights against self-incrimination. CFACT v. Stone et. al – Sander Subpoena, 2005 SJ Ord. 21

 

Related complaints may be joined and tried together, if the factual and legal issues arise out of the same transaction and both complaints would stand independently. Tenant Resource Center v. SSFC II – Order on Joinder, 2005 SJ Ord. 1, CFACT v. Edwards – Order on Joinder, 2005 SJ Ord. 25.

 

When a Petitioner fails to meet his burden of proof (he cannot prove any due process infractions) judgment will be entered for the other party. Zyvix v. Huang et al. 2005 ASM SJ 9.

 

A party cannot seek relief from actions he/she caused. Zyvix v. Huang et al. 2005 ASM SJ 9.

Nowhere in the provision or SJ policy, is DIRECT HARM listed as a requirement for bringing a complaint. VandenLangeberg v. After, 2011 SJ 10.

 

On the Nature of Judicial Review

 

It is the province of the Student Judiciary to decide what the law of ASM is. Richards v. Student Council, 1997 ASM SJ 1.

 

By-laws which intend to interpret the ASM Constitution are void, as this ability is the sole province of the Student Judiciary. Granby v. Thalasinos, 1998 ASM SJ 1.

 

The Court will follow a four-step procedure in evaluating the constitutionality of an ASM statute: (1) identify the rule being challenged; (2) determine whether the challenge is facial or as-applied; (3) identify the constitutional right allegedly being infringed upon; (4) determine if applying the rule either generally (for facial challenges) or in this instance (for as-applied challenges) is consistent with the constitutional principle(s) identified. Amendola v. United Council, 1998 ASM SJ 3.

 

In a facial challenge, the petitioner must show that there is no situation where the by-law challenged could be applied. Murty v. ASM, 1998 ASM SJ 8.

 

In ASM, the ASM Constitution is the supreme law and all other acts must be judged against this law. Evans v. Rouhlac, 2004 ASM SJ 10, Denial of Appeal, 2004 SJ Ord. 15.

 

A motion for summary dismissal requires a unanimous vote by the panel to be accepted. CWC v. SSFC, 2009 ASM SJ 1.

 

The Student Judiciary is not bound by prior cases. While it may consider past cases for issues on which they are relevant, the Student Judiciary does not have a responsibility to strictly adhere to its own precedent. CFACT v. SSFC, 2009 ASM SJ Ord. 1.

 

On Constitutional & Statutory Construction

 

Construction of ASM law is the province of the Student Judiciary. Richards v. Student Council, 1997 ASM SJ 1.

 

The Court looks at the plain meaning of statutory language, and where that language is ambiguous, seeks the legislative intent from legislative history. Where that fails, it looks to more general policy goals. Riedl v. Student Election Commission, 1998 ASM SJ 4.

 

In construing the ASM Constitution or a statute, no words are deemed superfluous, and the interpretation used is the one that gives effect to all the words of the legislation. Richards v. Student Council, 1997 ASM SJ 1 ; Schober v. Evans, 2004 ASM SJ 14.

 

When the Court has interpreted an ASM By-law, the Student Council, through amendment of the ASM By-laws, may overrule such interpretation, as it did when altering the process of how open records requests would be handled. Baumgardner v. Courey, 2004 ASM SJ 3.

 

While the Student Council has general authority to set its own rules of procedure, those rules must be interpreted in light of the ASM By-laws and ASM Constitution, and fall when there is a conflict. McCabe v. Evans, 2004 ASM SJ 2.

 

On the Remedies Available to the Student Judiciary

 

For a remedy to be available, there must first be a harm. Schober v. Evans, 2004 ASM SJ 14, Order on Summary Dismissal, 2004 SJ Ord. 17 ; Halamish & Kumar v. Egan & Benishek, 2003 ASM SJ 21.

 

Because remedies imply a harm has occurred, the Court begins by asking who has been harmed and how. Gathing v. Student Services Finance Committee, 1998 ASM SJ 2.

 

Panels of the Court have broad power to fashion appropriate remedies. In re: “Ten Fat Tigers, ” 1998 ASM SJ 5.

 

Action of a remedy may not be issued against a party not named as a petitioner or a respondent. WISPIRG Appeal. 2008 ASM SJ 9.

 

Factors in remedies include the gravity of the offense, the harm caused, the ability of the accused to complete the sentence and the need to protect the integrity of ASM processes. Turner v. Staude, 2000 ASM SJ 7.

 

The Student Judiciary holds ASM officers to a higher standard and this will be reflected in the remedies imposed. Dean v. Unity, 2000 ASM SJ 2.

 

The Court cannot impose a remedy against a person no longer under its own jurisdiction. Jorgensen v. Associated Students of Madison, 2000 ASM SJ 5.

The Court will not impose a remedy retroactively where innocent parties relied on contrary interpretations and caused no substantial harm. Amendola v. Brakken, 1998 ASM SJ 7.

 

The Court has inherent powers of equity to shape a remedy such that innocent parties are not punished unjustly.In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2; Order on Motion of J. Clemen to be Added to the Ballot, 2005 SJ Ord. 6 (Romano, CJ dissenting).

 

The Court will not enforce a remedy on appeal, when to do so would cause the Court to be complicit in a due process violation. Student Election Commission v. Robbie Earl 4 ASM Appeal, 2005 ASM SJ 6 (en banc).

 

To deprive an ASM member of his rights during the pendency of a complaint is improper, and preliminary relief should be used to prevent that, whatever the ultimate disposition of the case. Fyrst v. Student Council – Preliminary Relief, 2005 SJ Ord. 14

 

Preliminary relief is an effective remedy to ensure that a viewpoint neutrality question in the funding process is not mooted by Student Council actions before a final decision on the neutrality issue. UWRCF v. SSFC II – Preliminary Relief, 2005 SJ Ord. 23; CFACT v. Stone – Preliminary Relief, 2005 SJ Ord. 24.

 

On appeal, the Court may modify the remedy imposed by a trial panel without holding an actual hearing, if the original remedy was inappropriate or overbroad. CFACT v. Stone – Sanders Appeal, 2005 SJ Ord. 26.

 

A trial panel may issue supplemental orders as it sees fit, either to resolve issues left open originally, or to correct blatant mistakes in the original order. Candidate Exclusion Order, 2005 SJ Ord. 3; UWRCF v. SSFC II – Supplemental Order, 2005 SJ Ord. 27.

 

Supplemental orders, or other emergency motions, may be sought from the full court, but will rarely be granted, and will only be granted in limited contexts to prevent explicit violations of ASM law. UWRCF Injunction, 2006 SJ Ord. 4.

 

It is unclear what level of burden of proof is needed in RSO election cases. If the party has not reached the lowest standard of burden of proof, judgment will be entered for the other party. Zyvix v. Huang et al. 2005 ASM SJ 9.

 

On the Requirements For an Appeal

 

Appeals will not be given for a panel decision when the basis is simply to rehear and reevaluate evidence in the record already heard by the trial panel. Legal Information Center v. Student Services Finance Committee –Denial of Appeal, 2005 SJ Ord. 15; CFACT v. Stone – Sanders Appeal, 2005 SJ Ord. 26; CFACT v. Stone – Knox Appeal, 2005 SJ Ord. 29. The Student Judiciary will not upset the factual findings of a panel; disagreement with a panel‘s decision does not warrant the Student Judiciary granting an appeal. CFACT v. SSFC , 2009 SJ Ord. 1.

 

In order to compel the Student Judiciary to hear an appeal under ASM Bylaw 5.05(3)(b), the evidence being offered must have been newly discovered. CFACT v. SSFC, 2009 SJ Ord. 1.

 

The Student Judiciary may, when no fact is in dispute and the question presented is one of substantial legal interest to the ASM community, dispense with an ordinary trial and hear the case en banc. Varney v. Student Judiciary – Certification for Appeal, 2005 SJ Ord. 17.

 

Requests based on ‗novel issues of law' and ‗the interests of justice' should not be used simply to restate arguments made in other areas of a petition for appeal; if they do, they will be summarily denied. CFACT v. Stone – Sanders Appeal, 2005 SJ Ord. 26.

 

The party prevailing at trial has no standing to appeal a remedy decision and such petitions will be dismissed. CFAT v. Stone – CFACT Appeal, 2005 SJ Ord. 28.

 

The Student Judiciary may order evidentiary hearings to determine if a petition for appeal has merit; such hearings are not dispositive of the underlying appeals. CFACT v. Stone – Edwards Appeal, 2006 SJ Ord. 1

 

Members of a committee who are not specifically named parties lack standing to appeal an adverse decision; they are not ‗materially affected' within the meaning of the By-laws or Rules of Procedure. UWRCF v. SSFC II – Frey Appeal, 2006 SJ Ord. 3

 

Chapter Three – Due Process

 

On the ASM Constitutional Protection of Due Process.

 

The ASM Constitution guarantees all members of the ASM and all student organizations the right to due process under law. ASM Const. Art. IV 2.

 

The Student Judiciary has never recognized elements of substantive due process under the ASM Constitution; as such, the Student Judiciary only recognizes the procedural element of due process. Zyvix v. Fox, 2005 ASM SJ 8; Robbie Earl for ASM v. Finance Committee, 2005 ASM SJ 7.

 

As long as a process that was duly established by the appropriate body of ASM is followed, and as long as that process does not violate a substantive right espoused in the ASM Constitution, Art. IV 1, due process is considered to be followed. The process itself may not be ideal and may be flawed, but such imperfections are left to the political processes to amend. 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.

 

On the Nature of ASM Due Process and Protections.

 

The foundational tenet of due process under ASM law is that all parties are innocent until proven guilty; consequently, the Student Judiciary will assume that the parties in question acted properly unless evidence which meets the appropriate standard of review proves otherwise. CFACT v. Kiernoziak Appeal, 2005 ASM SJ 1.

ASM due process does require an ―actual harm‖ requirement, so potential violations of rules and policies cannot be challenged. Schober v. Evans, 2004 ASM SJ 14; Hiegel v. Evans II, 2003 ASM SJ 13.

 

ASM due process can also be based on a broad standing rule, in that actions taken by the student government affect the entire student body, and therefore any student may as of right file an actionable complaint against the student government. Schober v. Evans, 2004 ASM SJ 14; McCabe v. Evans, 2004 ASM SJ 2; Kedziora v. McCabe, 2004 ASM SJ 1; Richards v. Student Council, 1997 ASM SJ 1.

 

Due process is ensured when all relevant rules, criteria, and texts of ASM are followed without addition, subtraction, or modification. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7; In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2.

 

Vague legislation, rules, bylaws, and texts of the ASM constitute a violation of due process, since the meaning of said texts is ill-defined. Evans v. Roulhac, 2004 ASM SJ 10; Amendola v. United Council, 1998 ASM SJ 3.

 

Complaints and appeals that are filed passed the specified deadlines as established in the ASM Bylaws cannot be considered. Tenant Resource Center v. SSFC (II), 2004 ASM SJ 17; UW InfoShop v. Patzner et al. Appeal, 2002 ASM SJ 11 ( en banc ).

 

Officers and appointees of the ASM are required to give notice of all applicable rules to any person who will be bound by that provision. Student Election Commission v. Robbie Earl for ASM Appeal, 2005 ASM SJ 6 ( en banc ).

 

Notice‖ has been defined by the Student Judiciary in the following manner: ―To be actual notification, there must be (1) information of the fact, (2) that is actually communicated, (3) by an authorized person, and (4) the recipient should reasonably have received it.‖ Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

If notification is not given (i.e. the ASM officer or appointee did not reasonably ensure that the recipient actually received the information), then the Student Judiciary can reasonably assume that notification failed, and that the recipient party in question could not have reasonably known about the rules and laws in question Student Election Commission v. Robbie Earl for ASM Appeal, 2005 ASM SJ 6 ( en banc ); Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

Procedural violations are grounds for vacating the committee's decisions and work, and are cause for a new hearing or re-authentication of the original work. McCabe v. Evans, 2004 ASM SJ 2; Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ); ALPS v. Patzner, 2002 ASM SJ 13.

 

Sending agendas directly to named individuals via the e-mail address on file with the Council Secretary constitutes per se actual notice under the Werner test. Fyrst v. Student Council, 2005 ASM SJ 12.

An ASM form or policy may provide more protections than due process would require under the By-laws, but if such extra protection is not extended, it does not raise a due process concern, so long as the minimum was followed and no other ASM right or law was violated. Fyrst v. Student Council, 2005 ASM SJ 12.

 

One personalized email is enough to meet the ―reasonable notification‖ test. Legal Information Center v. Student Services Finance Committee, 2005 ASM SJ 10.

 

RSOs must be responsible for knowing the funding process including deadlines. Legal Information Center v. Student Services Finance Committee, 2005 ASM SJ 10.

 

It is a constitutional violation to discriminate based on the protected classes recognized by local, state, and federal law, as well as the ASM Constitution. However, discrimination must be by an officer of an official body. Zyvix v. Huang et al. 2005 ASM SJ 9. Jorgenson v. Shared Governance Committee, 1998 ASM SJ 11 at. 2.

In order to make a valid argument proving unfair treatment using another GSSF group as a comparison, a group would need to present significant evidence that SSFC’s approach to their eligibility application was fundamentally different than SSFC’s approach to other GSSF applications and the eligibility process at large. SSFC v. WISPIRG, ASM SJ 13.

On Specific Violations of ASM Due Process

**The following subsection details instances in which the Student Judiciary has found a due process violation to occur. The general holdings here are fact specific and pertinent only to the context of the cases.* *

It is a due process violation for failing to provide adequate notification to all materially-affected parties in a matter. Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

It is a due process violation to circumvent an established appointment process. McCabe v. Evans, 2004 ASM SJ 2. UWRCF v. SSFC, 2005 ASM SJ 11.

 

It is a due process violation to use improper forms which conflict with the ASM Constitution or ASM Bylaws. UWRCF v. SSFC, 2005 ASM SJ 11. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7, Appeal Denied, 2004 SJ Ord. 9; State-Langdon Neighborhood Association v. Smith, 2002 ASM SJ 14; ALPS v. Patzner, 2002 ASM SJ 13; DES v. Patzner, 2002 ASM SJ 7; MEChA v. Patzner, 2002 ASM SJ 6.

 

It is a due process violation to allow a member to vote on an issue when a question has already been called and voted upon. ALPS v. Patzner, 2002 ASM SJ 13.

 

Procedural due process violations are, ipso facto, viewpoint neutrality violations. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7.

 

On Equitable Claims Arising under ASM Due Process.

 

When officers or appointees act ultra vires —that is, when they act without possessing the authority to act in a certain manner—and otherwise innocent parties reasonably rely on said action, the Student Judiciary has granted claims of equity by exempting the innocent parties from punishment. In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2.

On the Standard of Review for Cases Involving ASM Due Process.

 

In the review of an established process, the Student Judiciary must determine if the process in question was appropriately established by an ASM body, and if that process violates the ASM Constitution, ASM Bylaws, or any substantive rights contained therein. Robbie Earl for ASM v. Finance Committee, 2005 ASM SJ 7.

 

In most instances involving an individual officer or appointee of ASM, the standard of ―reasonableness‖ has been applied to determine if the officer or appointee complied with the procedural requirement of due process. Hip Hop Generation v. Finance Committee, 2000 ASM SJ 8; Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

For cases in which a claim of equity under due process is being made—essentially exempting a party from punishment—―clear and convincing‖ evidence is the standard to prove to the Student Judiciary that equity should be granted. In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2.

 

On the Special Processes in Funding Cases.

 

For special processes involving funding cases, see Digest, Chapter 4.

 

On the Committee on Student Organizations (CSO).

 

The ASM Bylaws and the Student Organization Code of Conduct authorize the Student Judiciary to ensure that decisions made by the CSO are in compliance with the procedures outlined in the Code of Conduct, and that decisions do not conflict with any affirmative right, law, or policy of ASM. ASM Bylaws 5.04(A)(IV).

 

The Student Judiciary's duty is to ensure that the integrity of the CSO complaint process was upheld. Zyvix v. Fox, 2005 ASM SJ 8, Order Denying Dismissal, 2005 SJ Ord. 12.

 

The standard of review of CSO decisions is limited to one of two facets: 1) was the established process violated to the extent that due process and fairness were violated, or 2) did the CSO or its Chair unreasonably interpret the Code of Conduct to the extent that power was exercised arbitrarily. Zyvix v. Fox, 2005 ASM SJ 8.

 

Reinstatement Probation‖ shall not be considered punishment of a Student Organization seeking reinstatement, as an organization is not required to seek reinstatement as a student organization. SAE v. CSO, 2008 ASM SJ 8

 

Chapter Four – Funding

 

On the General Funding Structure of ASM.

 

The Student Services Finance Committee (SSFC) and Finance Committee are the primary bodies for making eligibility determinations and funding allocations. ASM Const. Art. VIII 1 and Art. IX 3; ASM Bylaws 2, 3.07(A), and 4.

The Student Council has the authority to amend, refer, or reject proposed budgets by a two-thirds vote. ASM Bylaws 2.03(A).

 

The Finance Committee is considered a subservient committee to the Student Council, and therefore not a separate branch of the student government. Patzner v. Student Council, 2002 ASM SJ 4.

 

Early Student Judiciary cases have held that the ASM student government models a parliamentary system, and therefore the SSFC is a committee which is subservient to the Student Council. Gathing v. SSFC, 1998 ASM SJ 2; Goldstein v. Finance Committee, 2001 ASM SJ 4. Later Student Judiciary cases have taken an approach modeling the separation of powers theory, thus rendering the SSFC as an independent and autonomous branch of the ASM student government. MCSC et al. v. Gadow, 2003 ASM SJ 4; Patzner v.

Student Council, 2002 ASM SJ 4.

 

Lobby meetings may be granted to Registered Student Organizations (RSO‘s) at the discretion of funding committee members and shall provide a venue in which members may gather additional information necessary for making eligibility decisions; the substance of these meetings must be recorded on a ―Lobbying Disclosure Form‖. ASM Bylaws 2.01(5)a. Committee members are not, however, under any obligation to hold lobby meetings if they feel adequate information regarding a RSO has already been gathered. CFACT v. SSFC, 2008 ASM SJ 5; CWC v. SSFC, 2009 ASM SJ 9.

 

SSFC has the responsibility and discretion to determine and systematically evaluate the services an organization provides to students. This includes, but is not limited to, their responsibility to estimate the amount of time a group focuses on their direct services. CWC v. SSFC, 2009 ASM SJ 1.

Interpretive deference must be yielded to SSFC given their extensive training on, experience with, and knowledge of the eligibility process. SSFC v. WISPIRG, 2011 ASM SJ 13.

 

On Open and Closed Meetings.

 

All meetings of the SSFC and Finance Committee must be held in open session. ASM Const. Art. IV 3; Wis. Stat. 19.81 through 19.98.

 

Appropriate notice of all open sessions must be given. ASM Bylaws 1.04.

 

Decisions made in a meeting which violates open session and public notice guidelines are considered null and void and must be repeated to ensure authenticity. Jorgensen v. Finance Committee, 2000 ASM SJ 1.

 

Portions of the meetings of the SSFC and Finance Committee may be held in closed session, pursuant to the provisions listed in the ASM Bylaws 1.04(C) and (D).

 

On the Requirement of Viewpoint Neutrality.

 

The United States Supreme Court has defined ―viewpoint neutrality‖ in the following manner, ― The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.‖ Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000).

 

Allowing a potential group's eligibility and funding to be placed before the student body in a referendum is not viewpoint neutral and therefore unconstitutional. ASM Const. Art. IV 4 and Art. XIII 1; Board of Regents v. Southworth, 529 U.S. 217 (2000).

 

The Student Services Finance Committee (SSFC), Finance Committee, and Student Council must make all funding decisions in a viewpoint neutral manner, as defined in the ASM Bylaws. ASM Bylaws 2.

 

All members of the SSFC, Finance Committee, and Student Council are bound by the requirements of viewpoint neutrality. This includes ex officio members who can participate procedurally. CFACT v. Kiernoziak Appeal, 2005 ASM SJ 1 ( en banc ).

 

Individual members of a committee are deemed to be separate entities from the corporate entity to which they belong. CFACT v. Kiernoziak Appeal, 2005 ASM SJ 1 ( en banc ).

 

Viewpoint neutrality is an evolving and changing process, and that process is not defined solely by a final vote, nor is that process necessarily concerned with the substantive outcome. UW InfoShop v. Paztner et al. Appeal, 2002 ASM SJ 11 ( en banc ); Nichols v. Reyes, 2002 ASM SJ 8. Accordingly, viewpoint neutrality violations cannot be alleged solely on the basis of being the first group or corporate entity judged according to revised Bylaws or requirements. RCF v. SSFC, 2008 ASM SJ 1.

 

The requirement of viewpoint neutrality is not placed upon internal budgets of the ASM. ASM Bylaws 2.03(B).

 

Improper forms which do not conform to the language in the ASM Constitution or the ASM Bylaws have been found to be a violation of viewpoint neutrality, and in many instances the decision of the committee has been reversed and new hearings have been held.Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7, Appeal Denied, 2004 SJ Ord. 9; State-Langdon Neighborhood Association v. Smith, 2002 ASM SJ 14; ALPS v. Patzner, 2002 ASM SJ 13; DES v. Patzner, 2002 ASM SJ 7; MEChA v. Patzner, 2002 ASM SJ 6.

 

Decisions which require that a funding committee evaluate the identity and association of a given group are governed by the requirements of viewpoint neutrality; decisions that are solely internal to a funding committee (i.e. internal operation) are generally not evaluated under the requirements of viewpoint neutrality but are instead evaluated under the requirements of due process. CFACT v. Sanders Appeal (en banc), 2005 ASM SJ 17.

 

Applying the wrong criteria to a group is a viewpoint neutrality violation. UWRCF v. SSFC (II), 2005 ASM SJ 16. CFACT v. Sanders Appeal (en banc), 2005 ASM SJ 17. A defect in the technical application of proper criteria is not a viewpoint neutrality violation and instead is a claim to be evaluated under due process. CFACT v. Sanders Appeal (en banc), 2005 ASM SJ 17.

 

The fifth accountability criterion in SSFC‘s eligibility evaluation implies a violation of financial policies. CFACT v. SSFC, 2009 ASM SJ 3.

Objective standards established by the eligibility criteria outlined in 2.032(3)(c)v sufficiently constrain SSFC member discretion provided that they employ reasonable applications of that criteria and document their decision on record to justify the position. MCSC v. SSFC, 2011 ASM SJ 21.

History on campus‖ refers to an organization‘s past actions in relation to the length of time it has been in existence on the University of Wisconsin-Madison campus. ASM Bylaw 2.032(3)(c)1 is intended to insure no organization receives preferential treatment by virtue of length of time it has been on campus. Wunk Sheek v. SSFC, 2009 ASM SJ 2.

 

Failure to satisfy a single eligibility criterion is grounds for denial of funding. Admission of a failure to comply with ASM Bylaws supports the denial of eligibility rendered by the SSFC. Wunk Sheek v. SSFC, 2009 ASM SJ 2.

 

Repeated denial of eligibility does not, in itself, suggest a viewpoint neutrality violation has occurred. CFACT v. SSFC, ASM SJ 19.

The imposition of objective and standardized criteria over the heterogenic GSSF necessitates the introduction of subjective judgments and variant interpretation to the specifics of each group, as it is the prerogative of SSFC members to independently evaluate and scrutinize eligibility and funding requests to ensure compliance with the criteria. MCSC v. SSFC II, ASM SJ 21.

VPN violations can only occur in two ways. First, if a committee member intentionally uses an interpretation of a word, clause, or bylaw inconsistently between groups absent justification for the variance, a VPN violation has occurred. Secondly, violation of VPN can be demonstrated by a committee member advocating a change in application of a rule, seeing that all groups must be subject to the same standardized criteria. MCSC v. SSFC II, ASM SJ 21.

 

 

On the Types of Viewpoint Neutrality Violations

 

**The following subsection details instances in which the Student Judiciary has found a due process violation or viewpoint neutrality violation to occur. The general holdings here may be fact specific and may be pertinent only to the context of the cases.* *

 

Consistent evaluations based on set criteria do not violate viewpoint neutrality. CFACT v. SSFC, 2009 ASM SJ 3.

 

Procedural due process violations are, ipso facto, viewpoint neutrality violations. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7.

 

It is a due process violation and consequent viewpoint neutrality violation for failing to provide adequate notification to all materially-affected parties when determining a group's eligibility or funding. Legal Information Center v. Werner Appeal, 2003 ASM SJ 18. This notification need not include the interpretation of eligibility or funding requirements that will be applied within a funding cycle. RCF v. SSFC, 2008 ASM SJ 1.

 

SSFC‘s rules for determining eligibility are specific enough for representatives to rule consistently on their application from a year-to-year basis. CFACT v. SSFC, 2009 ASM SJ 3.

 

It is a due process violation and consequent viewpoint neutrality violation to use improper forms in the eligibility or funding processes which conflict with the ASM Constitution or ASM Bylaws. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7, Appeal Denied, 2004 SJ Ord. 9; State-Langdon Neighborhood Association v. Smith, 2002 ASM SJ 14; ALPS v. Patzner, 2002 ASM SJ 13; DES v. Patzner, 2002 ASM SJ 7; MEChA v. Patzner, 2002 ASM SJ 6.

 

It is a due process violation and consequent viewpoint neutrality violation to allow a member to vote on a group's eligibility or funding when the question has already been called and voted upon. ALPS v. Patzner, 2002 ASM SJ 13.

 

It is a due process violation and consequent viewpoint neutrality violation for officers and appointees to provide misleading statements. CFACT v. Kiernoziak, 2004 ASM SJ 16, affirmed at 2005 ASM SJ 1. However, it is not a viewpoint neutrality violation if the officer or appointee is merely misinformed about a question. CFACT v. Stone, et al., 2005 ASM SJ 14.

 

It is a due process violation and consequent viewpoint neutrality violation for repeatedly failing to completely fill out group eligibility forms. Nichols v. Reyes, 2002 ASM SJ 8.

It is a due process violation and consequent viewpoint neutrality violation if individuals or a committee as a whole blatantly disregards a university official's statements of fact. DES v. Patzner et al., 2002 ASM SJ 7.

 

It is a due process violation and consequent viewpoint neutrality violation if a funding committee applies different standard to a group in relation to other similarly situated groups. UWRCF v. SSFC (II), 2005 ASM SJ 16.

 

It is a due process violation and consequent viewpoint neutrality violation if ‗phantom criteria‘ are non-uniformly considered beyond the scope of any legally binding criterion for funding eligibility. TRC v. SSFC, 2004 ASM SJ 7. These shall constitute non-malicious – or good faith – viewpoint neutrality violations and arise as a result of unsound interpretation of eligibility requirements by the committee as a whole. APAC v. SSFC, 2007 ASM SJ 5. TRC v. SSFC, 2004 ASM SJ 7.

 

Fiscal responsibility is not a viewpoint neutrality violation, but instead a neutral criterion, provided that funding committees do not use a previous year's funding as a floor or ceiling. CFACT v. Stone, et al., 2005 ASM SJ 14, affirmed in part at CFACT v. Schulz Appeal (en banc), 2006 ASM SJ 1. UWRCF v. SSFC (II), 2005 ASM SJ 16. MCSC v. Otten, 2004 ASM SJ 8. MCSC v. Greenbaum, 2004 ASM SJ 9. Further, the notion of ‗fiscal responsibility‘ should never be used to require unnecessary spending. LIC v. SSFC, 2008 ASM SJ 3.

 

Considering past fiscal management does not qualify as assessing a group‘s ―history on campus‖ under ASM Bylaw 2.032(3)(c)1. Wunk Sheek v. SSFC, 2009 ASM SJ 2.

 

It may be a viewpoint neutrality violation if a funding committee member demonstrates a significant shift in his or her course of behavior towards one organization in relation to other similarly situated organizations. CFACT v. Stone, et al., 2005 ASM SJ 14. To a limited extent, using personal knowledge and experience to assess the fulfillment of funding criteria for a particular group does not necessarily qualify as a significant shift in behavior. CALS v. SSFC, 2008 ASM SJ 6.

 

Usage of personal experience and knowledge is not inappropriate when within the context of SSFC so long as done in a viewpoint neutral, objective fashion. Wunk Sheek v. SSFC, 2009 ASM SJ 2.

 

It is inevitable that funding committee members will rely upon different interpretations of criteria during the funding process. So long as each member remains consistent throughout a funding cycle and makes all decisions in a viewpoint neutral manner, no one interpretation is any more or less valid than another. CFACT v. SSFC, 2008 ASM SJ 5. If committee members remain consistent during a funding cycle, it is not inappropriate for the committee to define ―majority‖ as meaning the prevailing side. CWC v. SSFC, 2009 ASM SJ 9.

 

It is not necessarily a viewpoint neutrality violation on the part of the chair of a funding committee if evidence of a violation on the part of individual members or of the committee as a whole could not be discovered until after an evidentiary hearing. CFACT v. Stone, et al., 2005 ASM SJ 14.

Committee members can't be found guilty by association, because it violates the rights of the members of the committee. CFACT v. Schulz-CFACT Appeal, 2006 ASM SJ 1.

 

Inaction, specifically the absence of a motion to rehear, does not constitute an application of viewpoint neutrality. CWC v. SSFC, 2009 ASM SJ 5.

On Due Process in the Funding Process

 

The Student Judiciary has never recognized elements of substantive due process within the ASM Constitution, meaning that as long as the established process was followed, and as long as the process was compliant with the ASM Constitution, no infraction of due process occurs. Robbie Earl for ASM v. Finance Committee, 2005 ASM SJ 7.

 

All members of the ASM, including Registered Student Organizations and other groups receiving ASM funds, are bound by the rules and laws governing the usage of those funds. Student Election Commission v. Robbie Earl for ASM Appeal, 2005 ASM SJ 6 ( en banc ).

 

Criteria for eligibility and funding must be consistent with the ASM Constitution and ASM Bylaws, and that criteria must be interpreted and applied for all student organizations which seek funding, and each provision of those criteria must be given a plain reading of the text. In addition, funding criteria must be based upon reasonable interpretation of ASM Bylaws. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7. Roman Catholic Foundation v. SSFC (I), 2007 ASM SJ 7. In the case of open-ended criteria, funding decisions must be based upon reasonable interpretations that different persons of similar knowledge, background, and experience could logically reproduce; in other words, the applied reasoning should be clear and easy to follow. LIC v. SSFC, 2008 ASM SJ 3.

 

Officers and appointees of the ASM are required to give notice of all applicable rules to any person who will be bound by those provisions. Student Election Commission v. Robbie Earl for ASM Appeal, 2005 ASM SJ 6.

 

Notice‖ has been defined by the Student Judiciary in the following manner: ―To be actual notification, there must be (1) information of the fact, (2) that is actually communicated, (3) by an authorized person, and (4) the recipient should reasonably have received it.‖ Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

I f notification is not given (i.e. the ASM officer or appointee did not reasonably ensure that the recipient actually received the information), then the Student Judiciary has the discretion to reasonably assume that notification failed, and that the recipient party in question could not have reasonably known about the rules and laws regarding the funding process and usage. Student Election Commission v. Robbie Earl for ASM Appeal, 2005 ASM SJ 6; ( en banc ) ; Legal Information Center v. Werner Appeal, 2003 ASM SJ 18 ( en banc ).

 

Officers and appointees, in order to ensure due process in the eligibility and funding processes, should be reasonably helpful towards student organizations once the intentions of those organizations are made clear. Hip Hop Generation v. Finance Committee, 2000 ASM SJ 8. In addition, SSFC shall publish all procedures and formalize all documents it uses to determine eligibility, funding, and contract status as a requirement of due process. CFACT v. SSFC, 2007 SJ 4

 

To ensure the integrity of the funding system, all groups in one budget cycle must be held to the same standards. Shifting standards throughout one cycle are suspect and perhaps unconstitutional. UWRCF v. SSFC (II), 2005 ASM SJ 16. It is, however, a viewpoint neutrality violation to consider a funding decision made in a previous fiscal cycle in the process of determining eligibility. JCC v. SSFC, 2007 ASM SJ 6.

 

If a viewpoint neutrality or due process violation is found against the entire committee, each member is not held liable for the improper decision; rather, members must be accused and tried on an individual basis. A blanket conviction for all committee members without a fair hearing violates the members' due process rights. CFACT v. Stone, et al., 2005 ASM SJ 14, affirmed in part at CFACT v. Schulz Appeal (en banc), 2006

ASM SJ 1. APAC v. SSFC, 2007 ASM SJ 5.

As long as a body of ASM subscribes to an interpretation of the bylaws that they believe to be plain and appropriate at the time, such interpretations shall not be considered failures to follow procedure.

WISPIRG v. SSFC , 2011 ASM SJ 10

On the Appeals Process

 

An appeal is a measure to change a formal or official decision. CWC v. SSFC, 2009 ASM SJ 1.

 

Appeals against the SSFC alleging a procedural error (not involving a viewpoint neutrality violation) must be filed with the SSFC within the timelines specified in the ASM Bylaws. Said appeal will be heard by the SSFC within five days of the filing of the appeal. A formal, written decision will be issued by the SSFC within five school days of the hearing. All further appeals to the SSFC's ruling should be filed with the Student Judiciary pursuant to the procedures outlined in the ASM Bylaws Section 5. The Student Judiciary's decision shall be forwarded on to the Student Council, which will in turn make a final decision within ten school days on the group's funding, so long as that decision follows the Student Judiciary's ruling. ASM Bylaws 2.03(C )( VII)(2).

 

In order to ensure a proper appeal process, a motion to reconsider shall be extended to an appeal hearing. SSFC can motion to reconsider either in the following meeting of an eligibility decision or in the appeal hearing. CWC v. SSFC, 2009 ASM SJ 1.

 

According to ASM Bylaw 5.06(3)(e)1a.iv., in the instance that SSFC grants an appeal hearing and finds no reason or evidence to reconsider its original vote, then if the RSO deems necessary, it shall file an appeal with the Student Judiciary. CWC v. SSFC, 2009 ASM SJ 1.

 

Appeals against the SSFC or Finance Committee alleging a viewpoint neutrality violation must be filed with the Student Judiciary within the timelines specified in the ASM Bylaws Section 5. Complaints which fail to comply with these timelines should be dismissed by the Student Judiciary due to statute of limitations. Tenant Resource Center v. SSFC (II), 2004 ASM SJ 17.

 

If the Student Judiciary deems that the SSFC committed a viewpoint neutrality violation, the matter will be forwarded to the Student Council, which will consequently make a decision in line with the Student Judiciary's ruling on the group's eligibility or funding. ASM Bylaws 2.03.

If the Student Judiciary deems that the Finance Committee committed a viewpoint neutrality violation, the matter will be remanded back to the Finance Committee to make a new decision in light of the Student Judiciary's ruling. As of right, any ASM member can request that the Student Council evaluate the revised decision of the Finance Committee to ensure that it is in line with the Student Judiciary's ruling. ASM Bylaws 3.07.

 

Cases alleging procedural violations or viewpoint neutrality violations must be filed within the statute of limitations set forth in theASM Bylaws. All cases filed after this deadline cannot be considered. Tenant Resource Center v. SSFC (II), 2004 ASM SJ 17. LIC v. SSFC Appeal, 2008 ASM SJ 7.

 

The statute of limitations for complaints begins when the evidence to support a claim is reasonably discoverable.Tenant Resource Center v. SSFC (II), 2004 ASM SJ 17. The argument proffered in UW InfoShop v. Patzner et al. Appeal, 2002 ASM SJ 11 ( en banc ) that no new evidence can be discovered after the statute of limitations has been legislatively overruled.

 

Officers and appointees who no longer sit in their respective seats cannot be sued for past action in that official capacity, regardless if they hold a different office in ASM. One session of the ASM shall not be held accountable for a previous session's work. UW InfoShop v. Patzner, et al. Appeal, 2002 ASM SJ 11 ( en banc ); McCabe v. Evans, 2004 ASM SJ 2.

 

Preliminary relief is an effective remedy to ensure that a viewpoint neutrality question in the funding process is not mooted by Student Council actions before a final decision on the neutrality issue. UWRCF v. SSFC II – Preliminary Relief, 2005 SJ Ord. 23; CFACT v. Stone – Preliminary Relief, 2005 SJ Ord. 24

 

The Student Judiciary will presume ASM officers will act fairly in new hearings ordered by the Court, unless clear evidence to the contrary is presented. UWRCF Injunction – 2006 SJ Ord. 4.

Despite the fact that SJ bylaws identify specific types of complaints, it does not follow that the appeal of eligibility decisions must exactly fit or be limited by the boundaries of a single type of complaint. SSFC v. CFACT 2011, ASM SJ 1.

 

On the Standard of Review

 

Reversal of a committee's eligibility or funding decision requires the standard of ―clear and convincing‖ evidence that the body in corporate form violated the requirements of viewpoint neutrality. CFACT v. Kiernoziak Appeal, 2005 ASM SJ 1 ( en banc ); Nichols v. Reyes, 2002 ASM SJ 8; CFACT v. Pifer (FC), 2002 ASM SJ 1. CFACT v. Stone, et al., 2005 ASM SJ 14.

 

In past cases, the Court has deducted the illegal votes of members who violated viewpoint neutrality to determine if the overall committee decision would have been legal, minus the illegal votes. CFACT v. Stone, et al., 2005 ASM SJ 14. CALS v. SSFC, 2008 ASM SJ 6.

 

On Remedies for Viewpoint Neutrality Infractions

 

Malicious violations of viewpoint neutrality require that a person knowingly, willfully, or intentionally acts in a non-viewpoint neutral fashion. ASM Bylaws 2.01(C )( V). These actions are usually deliberate and premeditated. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7.

Non-malicious violations of viewpoint neutrality require that a person negligently violate the tenets of viewpoint neutrality. ASM Bylaws 2.01(C )( III). These acts usually do not cause any harm to an organization and can be generalized as mistakes on the part of the officer or appointee in question. Tenant Resource Center v. SSFC (I), 2004 ASM SJ 7.

 

Malicious violations of viewpoint neutrality are grounds for immediate removal of the representative from the committee. CFACT v. Kiernoziak, 2004 ASM SJ 16, affirmed at 2005 ASM SJ 1; MEChA v. Patzner et al, 2002 ASM SJ 6; ASM Bylaws 2.01(C )( V). CFACT v. Stone, et al., 2005 ASM SJ 14, reversed at CFACT v. Sanders Appeal (en banc), 2005 ASM SJ 17.

 

A first-time, non-malicious violation of viewpoint neutrality is grounds for a warning from the Student Judiciary. The complaint is usually forwarded on to the Student Council so it can take any additional action if it deems such action appropriate. CFACT v. Kiernoziak, 2004 ASM SJ 16, affirmed at 2005 ASM SJ 1; MEChA v. Patzner et al, 2002 ASM SJ 6. CFACT v. Stone, et al., 2005 ASM SJ 14.

 

A repeat non-malicious violation of viewpoint neutrality is grounds for removal of the representative from the committee.CFACT v. Kiernoziak, 2004 ASM SJ 16, affirmed at 2005 ASM SJ 1; MEChA v. Patzner et al, 2002 ASM SJ 6; ASM Bylaws 2.01(C )( IV).

 

Eligibility and funding decisions of a committee are void if the actions of the corporate decision-making body are procedurally flawed or it is clear that the majority of that corporate body was not viewpoint neutral in making its decision. If one or a few individuals violate viewpoint neutrality non-maliciously, the committee's decision need not be voided.Note: this statement is fact-specific to the cases and does not serve as a blanket statement for all cases. See, e.g. CFACT v. Kiernoziak Appeal, 2005 ASM SJ 1 ( en banc ); MCSC v. Otten, 2004 ASM SJ 8, Order Denying Dismissal, 2004 SJ Ord. 8; Nichols v. Reyes, 2002 ASM SJ 8.

 

While case law is sparse on this issue, if an individual member violates viewpoint neutrality in a malicious manner, it may be grounds for voiding the committee's decision and remanding the issue for a new eligibility or funding hearing. MEChA v. Patzner et al., 2002 ASM SJ 6.

 

The ruling of a court is not exclusive to the petitioner seeking redress and can retroactively affect other parties. SSFC v. RCF, 2007 ASM SJ 8

 

On the Scope of Committee Authority

 

The SSFC and Finance Committee are bound to their technical roles of reviewing and preparing budgets for Student Council approval. The SSFC and Finance Committee are not given the authority to pass general bills and resolutions taking a position on certain issues. Goldstein v. Finance Committee, 2001 ASM SJ 4.

 

The SSFC and Finance Committee may generate internal policies and rules of procedure, but those policies and rules must ultimately be coherent with theASM Constitution and ASM Bylaws, and must be approved by the Student Council. ASM Const. Art. IV 3(e); ASM Bylaws 3.07; MCSC v. Werner, 2003 ASM SJ 20.

SSFC may approve the Standing Rules carried over from the previous session during the summer session without altering them, and may propose any amendments to the Rules following the conclusion of the summer session. MCSC v. SSFC, ASM SJ 17.

Chapter Five – Student Elections

 

General Principles

 

The Student Judiciary is granted plenary authority over the elections and can take any and all actions within constitutional limits. Gordon v. Leonard, 2005 ASM SJ 3 (per curiam).

 

The Student Judiciary's authority over elections is generally delegated to the Student Election Commission. Gordon v. Leonard, 2005 ASM SJ 3 (per curiam ); In re: 2005 Spring Election Complaints, 2005 ASM SJ 2 (per curiam ); Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22; Dean v. Unity, 2000 ASM SJ 2.

 

The Student Election Commission has primary responsibility with prosecuting election complaints before the Student Judiciary. Student Election Commission v. Robbie Earl 4 ASM, 2005 ASM SJ 4, affirmed at 2005 ASM SJ 6 (en banc).

 

Both the Student Justices serving on it, its Commissioners, and pollworkers hired by it are ―members‖ of the Student Election Commission within the meaning of the By-laws and other ASM laws. Kukuljan v. Student Election Commission, 1994 ASM SJ 1.

 

Election to offices is generally determined by plurality. Kukuljan v. Student Election Commission, 1994 ASM SJ 1.

 

Student Election rules need not conform to Wisconsin state election rules. Kukuljan v. Student Election Commission, 1994 ASM SJ 1.

 

The Student Election Commission performs merely ministerial tasks; it has no authority to make any final decisions with regard to the outcome of elections. Varney v. Student Judiciary – Dismissal of SEC, 2005 SJ Ord. 19

 

Candidates and Eligibility

 

A candidate must be enrolled in the seat that he or she seeks to represent at the time the candidacy is declared in order to be placed on the ballot; the sole determination is what the university classifies a particular candidate as. In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2 (per curiam ); Gibson v. Student Election Commission, 1997 ASM SJ 2.

 

The Court rejects the notion that ―societal perspective‖ should be utilized when determining if a student qualifies for a particular seat. Evans & Krupp v. Student Election Commission, 2001 ASM SJ 11.

 

First-year undergraduates who are not classified by the University as ―freshman‖ may not run as ―Freshman Representatives.‖ Evans & Krupp v. Student Election Commission, 2001 ASM SJ 11; Gibson v. Student Election Commission, 1997 ASM SJ 2.

 

Each member of a recognizable ―slate‖ of candidates is jointly liable for acts of other members of the slate and, if several members engage is severe violations of election rules, the entire slate may be disqualified. Dean v. Unity, 2000 ASM SJ 2.

 

Statements, warranties, and qualifications made by the Student Election Commission on the official declaration form have the force of ―rules‖ and bind both putative candidates as well as the Commission itself. In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2 (per curiam ).

 

Any person may receive ―write-in‖ votes and be elected, even if he or she would not have qualified to be placed on the ballot. Eligibility for placement on the ballot is a separate issue as to whether a person may be validly elected. Rodriguez v. Student Election Commission, 2005 ASM SJ 5.

 

Referenda

 

Ambiguous referenda are not set aside when passed, as the Court will presume the voters prefer an ambiguous situation to the status quo. Riedl v. Student Election Commission, 1998 ASM SJ 4.

 

Sponsors of an ambiguous referendum bear the risk of misinterpretation. Riedl v. Student Election Commission, 1998 ASM SJ 4.

 

A ―NO‖ vote means that the status quo is retained, unless the contrary is self-evident. Riedl v. Student Election Commission, 1998 ASM SJ 4.

 

The validity of a referendum is subject to the same hierarchy of laws as any other legislation; a referendum whose effect will violate the ASM Constitution or ASM By-laws has no effect. Evans v. Roulhac, 2004 ASM SJ 10, Appeal Denied, 2004 SJ Ord. 15.

 

Constitutional and By-laws amendments must be clearly marked as such and unmarked referenda will be deemed to have no amending force. Evans v. Roulhac, 2004 ASM SJ 10, Appeal Denied, 2004 SJ Ord. 15.

 

Referenda may not be used to allocate funds, as this is a per se violation of viewpoint neutrality. Gates v. Student Election Commission, 2000 ASM SJ 6; Bd. Of Regents of the University of Wisconsin v. Southworth et. al., 529 U.S. 217 (2000).

 

The ASM Constitution bans the consideration of referenda and initiatives that involve the funding of expressive activities. Varney et. al v. ASM Student Judiciary, 2005 ASM SJ 13.

 

Referenda may not directly affect ―funding for expressive activities.‖ Varney et. al v. ASM Student Judiciary, 2005 ASM SJ 13.

 

Election Rules and Violations

 

Requiring candidates to observe neutral election rules does not impede freedom of speech. In Re: “Ten Fat Tigers,” 1998 ASM SJ 5.

 

Candidates and others may not be restricted simply to viewpoint neutral fora ; the Court will not enforce rules impeding longstanding traditional campaign methods. Amendola v. United Council, 1998 ASM SJ 3.

 

The Court will not restrict ―political discourse‖ other than believable lies. Fox v. Eisenhardt, 1998 ASM SJ 13; Herrero v. Sager, 1996 ASM SJ 6.

 

A candidate may be personally liable for acts done in his name. Turner v. Staude, 2000 ASM SJ 7.

 

Election violations must be proved by ―clear and convincing‖ evidence. Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22; Stephens v. Hill, 1997 ASM SJ 2.

 

Where the Commission authorizes activity that may have violated a rule, the Court gives deference to the Commission's conclusion that no violation occurred. Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22.

 

Use of ASM materials and resources is an unfair campaign practice. Dean v. Unity, 2000 ASM SJ 2.

 

The Court will enforce non-ASM rules only to the degree that they have been definitively incorporated into the election rules by the Commission, and do not violate any Constitutional restrictions. Egan & Benishek v. Halamish & Kumar, 2003 ASM SJ 22 (Romano, J, concurring in the judgment); Hopp v. Bauch, 1996 ASM SJ 2 (Vance, J, concurring).

 

Ambiguous rules will be construed to the benefit of candidates. Amendola v. United Council, 1998 ASM SJ 3; In Re: Spring 2005 Election Complaints, 2005 ASM SJ 2, Order Denying Motion of Clemen for Reconsideration, 2005 SJ Ord. 6 (Romano, CJ, dissenting).

Elections shall apply to include every item on the ballot in either spring or fall elections of ASM. VandenLangeberg v. After, 2011 AM SJ 10

When election rules violations threaten the integrity of ASM elections, the SEC and SJ reserve the right to disqualify violators. Huang et al, 2011ASM SJ 18

It is the duty of candidates to be vigilant in reporting election violations executed on their behalf regardless of whether or not they are responsible. SEC v. Maier, 2011 ASM SJ 20.

 

Appendix A

 

Classification of Remedies – At times, it may be difficult to determine what the effect of a remedy is. Also, there has been confusion as to the difference between types of remedies used by the court. The following is meant to be a ―layman's guide‖ to these remedies. These have never been formally defined in any opinion, to our knowledge, but reflect common usage in Anglo-American legal systems and the common law heritage which the Student Judiciary adheres to.

 

Affirm – To affirm a decision is to state that the final decision was correct. It can also be used to state that the reasoning is correct, but, sometimes the original reasoning might be flawed, but the decision is correct anyway. Be sure to review the actual opinion because, even though the judgment may be affirmed, the reasoning might not be and new reasons substituted.

 

Dismiss – To dismiss a petition, a motion, or a full complaint, is to determine that it is legally deficient. A dismissal is dispositive (i.e. it is a final judgment) but it does not reach the underlying merits. Instead, a dismissal is a conclusion that the Student Judiciary cannot decide the case either (a) there is a lack of jurisdiction; (b) the petitioner lacks standing; (c) the case was filed too late; or (d) the actions complained of are not technically illegal. Sometimes, the underlying complaint might be valid, and a petitioner can ―cure‖ the defect, either by re-filing against an appropriate party, by having a person with standing file the complaint, or re-phrasing the complaint to point out the illegal acts.

 

Reversal – To reverse a judgment, either of a trial panel, or of another ASM committee, is to conclude that the result reached was incorrect. Reversals may be due to an incorrect reading of the law, or some factual discrepancy. Similar to a vacatur, but usually used when the underlying legal standards were correct, but simply misapplied, or incorrect factual statements were used. Also, a reversal generally allows a final determination of the cause to be made by the reviewing tribunal.

 

Vacate – To vacate a decision (also known as a vacatur ) is to say that the decision had no legal effect whatsoever. When a decision is vacated, it is as though it never happened. Similar to a reversal, vacatur is generally used when the original decision-maker applied the wrong standard or lacked jurisdiction to do what it claims to have done. Good examples would be when SSFC uses non-bylaw standards ( TRC v. SSFC I) or when Student Council makes an appointment it is not allowed to make ( McCabe v. Evans ). Vacated decisions are generally sent back to the original decision maker for re-evaluation according to the correct standard, as set forth the reviewing panel.