Central Student Judiciary
Michigan Student Assembly

Case #: F-09-001
Kate STENVIG, Rackham Graduate School Representative, Michigan Student Assembly, et. al.
v.
MICHIGAN STUDENT ASSEMBLY
November 30, 2009
Opinion

Before HORWITZ (Presiding), BEITNER, and HUSTON, Associate Justices. BEITNER, J., delivered the opinion of the court.

Background
This is an original action before this court. Sometime in the beginning of the Fall 2009 semester, the Michigan Student Assembly (“MSA”) decided that the All Campus Constitution (“Constitution”) was in need of an overhaul. The Constitution provides for three ways in which amendments to it can be made. See ACC Art. VIII. Constitutional amendments may be initiated by MSA. If 2/3 of those voting in MSA approve of a proposed amendment, it is put to a general vote of the student body. If 3/5 of those voting vote in favor of the amendment it will be adopted. ACC Art. VIII, § A. An amendment may be initiated by a petition of 1,000 student signatures, and adopted by a similar 3/5 vote of the general student body. ACC Art. VIII, § B. Finally, amendments “may also be initiated by a vote of two-thirds present and voting of a duly called and elected Constitutional Convention.” Art. VIII, § C.

MSA decided to utilize this third option, and called for a constitutional convention (the “Convention”). Although Article VIII, § C states, “[t]he manner of calling, electing, filling vacancies, and submitting and dividing questions, and the operating procedures for such convention, shall be specified in the Assembly's Operating Procedures,” there is no provision in the Assembly’s Operating Procedures governing the calling or electing of constitutional conventions. Accordingly, MSA passed Assembly Resolution F-09-008 (the “Resolution”). The Resolution purported to create the procedures for calling and electing those who would participate in the Convention. The Resolution called for the President to nominate candidates for 41 vacancies from a variety of schools, organizations (including MSA and the Central Student Judiciary (“CSJ”)) and for MSA to elect such nominations through confirmation of a simple majority.

Issues Presented
Kate Stenvig, a Rackham Representative, brought this action against MSA claiming that the Resolution’s procedures for calling and electing the participants of the Convention violated the Constitution. Specifically this panel is asked to decide whether the process of nomination and election by confirmation satisfies ACC Art. VIII, § C’s requirement that participants be elected, and whether the Convention’s composition as created by MSA through the Resolution conforms with ACC Art. IX, § C. Article IX is the Constitution’s Student Bill of Rights, and section C guarantees that no action taken by any student government of the University shall deny students equal protection or the “equality of the weight of his or her vote.” Equality of the weight of the vote means “that the vote of each student of The University of Michigan is as nearly equal as possible to the vote of each other student with regard to the election of voting representatives on student governments and all other types of decision-making.” Art. IX, § C. For the reasons discussed below, we hold that the process by which the Resolution purports to select the Convention’s participants does not constitute an election as contemplated by the Constitution, and furthermore, that the current composition of the Convention’s participants does not satisfy the proportional representational requirements of Article IX. The trial was held on Monday, November 23, 2009.
Discussion
Part I: Were the Convention’s Participants “Elected”?
Plaintiff argues that the term “election” means a direct election of the entire student body, and that in order for the Resolution to be constitutional it must require that participants be voted in by the student body in a general election.

MSA argues that while ACC Art. VIII states that those who preside over the Convention must be elected, that term is nowhere defined in the Constitution. Accordingly, they argue that “election” contemplates one of the dictionary definitions of the word, which is to select a person to hold an office. Furthermore, MSA contends that an election does not necessarily have to be a vote of the entire student body.

While we do not believe that only votes of the entire student body can constitute an election for the purposes of Art. VIII § C, we hold that the procedures outlined in the Resolution do not amount to an election as that term is fairly understood. Although MSA dubbed the process a nomination and subsequent “election by confirmation,” such labels cannot obscure what is obvious on its face – namely that the Resolution allows the President of MSA to chose who will participate in Convention, subject only to the approval of a simple majority of MSA. These procedures are nearly identical to the process by which United States Supreme Court and presidential cabinet vacancies are filled. No one could possibly claim that those positions are elected, even by the Senate that confirms them.

We emphasize that the Constitution specifically gives MSA a substantial role in forming, and determining the selection of delegates to, the Constitutional Convention in Art. VIII § C, and our holding today does not alter the significance of that role. Simply put, MSA is free to create nearly any kind of procedure it desires for selecting delegates to the constitutional convention, subject only to the requirement that those delegates must be elected. Because the constitutional convention is necessarily not merely a sub-entity of MSA, non-MSA students must have an opportunity to be elected to the constitutional convention.

Part II: Does the Convention’s Current Composition Conform with ACC Article IX Section C?

Plaintiff next challenges the Convention’s current composition by arguing that it does not provide for proportional representation of the student body. This deficiency, it is argued, is especially egregious considering the momentous and far-reaching effects the Convention’s actions will have on the entire university. Indeed, there can be few events more significant in student government than conducting a thorough and critical analysis of the Constitution and proposing amendments to it. Plaintiff specifically cites the Constitution’s Bill of Rights, Article IX § C, which states that no student shall be denied the equal weight of his or her vote. Plaintiff argues that because the participants of the Convention do not proportionally represent the student body, Article IX is violated.

Defendants argue that not all decision-making bodies in the student government are proportionally represented. Specifically, they point to committees within MSA. Furthermore, MSA asserts that any recommendations for amendments proposed by the Convention must still be ratified by 3/5 of those students who vote in a general election. The argument goes that this subsequent ratifying election alleviates any “equality of the weight of the vote” concerns because each student’s single vote is worth the same.

This panel finds MSA’s arguments unpersuasive and holds the Convention’s current composition violates Article IX § C. First, we note that the proportional representation requirements apply to the “election of voting representatives on student governments and all other types of decision-making.” Art. IX, § C (emphasis added). Certainly deciding what amendments to the Constitution will be proposed to the student body for ratification constitutes a “type of decision making.” This broad application of the Bill of Rights to any and all types of decision making highlights the importance of the proportional representation requirement.
After analyzing the participants of the current Convention it is clear that the Bill of Rights’ promise of proportional representation has been violated. Although Article IX § C states that “[d]eterminations of compliance with this section are entirely judicial matters,” the Constitution itself provides some guidance for making such determinations. When deciding whether equality of the weight of the vote has been preserved the Constitution instructs that, “[t]he existence of equal representation or equal decision-making power among constituencies of significantly different populations indicates a denial of inequality of the weight of vote.” Conversely, “the existence of unequal decision-making power among constituencies of similar sizes indicates a denial of equality of the weight of the vote.” Art. IX, § C. The Resolution called for an arbitrary and disproportional delegation of representatives among various constituencies and leaves many constituencies unrepresented at all. There are eight MSA representatives, one representative from a variety of schools on campus, twelve representatives from different student groups with no explanation of why these groups were chosen out of the hundreds of different student organizations, and eight “students at large.” Aside from being unclear on what basis the President would choose to nominate the twelve student groups or eight students at large, this configuration violates Article IX’s proportional representation requirements because it provides for equal representation (one delegate each) for schools of very different sizes. For example, the Law School and LS&A are each afforded one delegate despite the fact that LS&A is significantly larger than the Law School.

Defendant’s argument that committees within MSA are not represented proportionally is unpersuasive. Those committees are merely segments of MSA and only have the authority delegated to them from MSA. Because they derive all of their authority from a larger body which is proportionally representative, they are distinguishable from the Convention at issue which is not a subcommittee of MSA, but rather an independent decision-making body. Nothing in our holding today should be read to require sub-committees or other decision-making entities of MSA itself to be proportionately representative, with the exception of the assembly itself, which must obviously be proportionately representative and is so.

It is also the case that the requirement of proportional representation is only implicated when various constituencies of unequal size are specifically represented. Thus, if MSA wishes for representatives of various schools/colleges to sit on the constitutional convention, then each college/school is entitled to some representation, and the representation among them must be as nearly proportional as possible. However, where representatives of various schools/colleges are not called for, then the proportional representation requirement is not operative. Thus, it would be entirely consistent with the Constitution for MSA to determine that 36 members will sit on the constitutional convention, and then hold a school-wide general election in which those 36 candidates with the most votes become delegates.

While we hold that as the Convention stands now it is unconstitutional, the court would like to clarify a few points in order to help guide MSA in formulating future procedures for the selection of delegates to constitutional conventions. First, the Constitution only requires that representation be “as nearly equal as possible.” Art. IX, § C. This does not demand that representational proportions must be determined with mathematical precision. Such attempts would be nearly impossible to calculate and could prove impractical even if possible to calculate. As a result, MSA could decide that the Convention cannot function smoothly if its participants exceed a certain number. While we believe this is the type of discretion the Constitution envisioned when it stated that the procedures for calling and electing the Convention would be governed by MSA’s operating procedures, Art. VIII, § C, such discretion must be exercised within the limitations proscribed by the rest of the Constitution. For example, if MSA believes that the Convention will be most effective if limited to forty delegates, MSA’s procedures must provide the opportunity for a representative from each school to be elected to the Convention, utilizing the remaining spots to make the representation proportional “as nearly equal as possible.” Art. IX, § C. We note, however, that the opportunity to be represented is all that is constitutionally required. For example, if no one from the School of Music volunteers to represent their school at the Convention, MSA is not required to force a student from that school to participate, nor is the Convention unconstitutional simply because the School of Music is not represented at it, provided that the school had an opportunity to be represented.

Next, we believe that representatives from the various schools are not the only types of constituencies that may participate in the Convention. MSA may believe that the Convention would benefit from having some delegates with a certain expertise or familiarity with the Constitution, student government or statutory interpretation. As such, MSA may decide, in accordance with the discretion vested to it by the Constitution in Article VIII, that a certain number of delegates will be elected from MSA (who bring special expertise on the assembly’s functions), CSJ (who bring special expertise on the judicial function) or other large constituencies such as the Greek Community. MSA might also allow representatives of various student organizations to serve as delegates, subject to a fair system for electing them. Finally, because executive officers of MSA have special expertise in their own domain, it is not inappropriate for MSA to delegate an MSA executive officer as the Chair of the constitutional convention, subject to an approval vote of the entire assembly. Such an officer should be the only such delegate that is specifically provided for in a resolution calling a constitutional convention. Which entities should be represented at the constitutional convention and which should not is a matter of legislative discretion that we leave to MSA. However, as stated above, if MSA wishes to have schools/colleges represented at all, then each school must be represented and must be represented as nearly proportionately as possible. When adding representatives to the Convention, MSA should identify the specific reasons why these representatives were selected to join the Convention and what perspectives their presence adds.

Finally, MSA must ensure that the procedures they formulate provide for the election of all delegates. We believe that it could be possible to have an election without a general vote of all students in a constituency. We specifically approve of using a constituency’s dually elected representative governing board to elect the candidates that will represent that constituency, provided that all students in the constituency may run to be a delegate. For example, it could be permissible for the Law School Student Senate (“LSSS”) to receive nominations and statements from law students who wish to represent the law school at the Convention and elect the Law School’s representatives from the applicable pool. MSA could simply leave it up to each school within the university’s board or governing body to decide how their delegates are to be elected. Such policy determination must ultimately be decided by MSA. This opinion merely serves to illustrate some of the deficiencies of the current Resolution and provide guidance to avoid future litigation. Ultimately, to be constitutionally permissible, the ability to “run” for election must be available to all students within a constituency (of course a law student cannot be a representative for the medical school).

Conclusion
For the reasons stated above, we hold that the procedures in the Resolution providing for the calling and “electing” of the Convention, and the Convention itself as currently composed violated the Constitution and are therefore hereby declared null and void. Any actions taken by the Convention up until the date of this order are also unconstitutional and carry no weight.
For these reasons,

IT IS ORDERED that the Convention as currently composed is unconstitutional and shall be disbanded.

IT IS FURTHER ORDERED that Assembly Resolution F-09-008 is unconstitutional and is null and void.

Dated this 30th of November, 2009

Jonathan A. Beitner, Associate Chief Justice, joined by Associate Justice Michael R. Huston, and Chief Justice Daniel S. Horwitz concurring in part and dissenting in part.

Dissent

HORWITZ, C.J., concurring in part and dissenting in part.
I concur with the Court’s holding and with the overwhelming majority of its analysis. I respectfully dissent as it relates to the Court’s determination that “MSA may decide, in accordance with the discretion vested to it by the Constitution in Article VIII, that a certain number of delegates will be elected from MSA (who bring special expertise on the assembly’s functions), CSJ (who bring special expertise on the judicial function) or other large constituencies such as the Greek Community.” I think it unnecessary and a violation of afore-stated principles to allow MSA to have CSJ justices, MSA delegates, Greek Community delegates, and the like serving on the Constitutional Convention solely by virtue of their positions in such organizations. If, for example, a CSJ Justice who happens to be a law student wishes to be a part of the Convention, said Justice will have the opportunity to be elected by the law school as the school’s representative to the Convention. The fact that the student happens to be a CSJ justice should not provide an extra avenue for that individual to serve as a Convention delegate. The Court’s concern as to experience and insight on the Convention can be addressed by allowing the elected delegates of the Constitutional Convention to call upon sitting CSJ Justices, MSA representatives, etc., for advice and guidance at Convention meetings (and/or subcommittee meetings). As a result, I see only favoritism for those already entrenched in the system by allowing MSA the reserve seats for certain groups, which I think runs counter to ACC Art. IX § C’s call for proportionate representation. Therefore, on this particular point, I respectfully dissent.

Daniel S. Horwitz
Chief Justice

MSA Resolution F-09-008
MSA Compiled Code
MSA Constitution
Letter from Stenvig's Counsel in Support of Appeal