Central Student Judiciary
Michigan Student Assembly

Case #: F09-01

Kate STENVIG, Rackham Graduate School Representative, Michigan Student Assembly, et. al.

v.

MICHIGAN STUDENT ASSEMBLY

November 2, 2009

ORDER

PER CURIAM

Introduction

Plaintiff Kate Stenvig, a Representative in the Michigan Student Assembly of Rackham Graduate School, has filed an original action against Defendant, the Michigan Student Assembly (“MSA”) challenging the constitutionality of a recent MSA Resolution, Resolution Number F-09-008 (the “Resolution”), which calls for the forming of a constitutional convention

Stenvig alleges that the Resolution calling for the formation of the constitutional convention is not in compliance with the MSA Constitution or the MSA compiled code. Stenvig has petitioned this Court for a Temporary Restraining Order (“TRO”) to prevent a meeting of the delegates to the constitutional convention that is to take place on November 2nd. The Court did not hear argument on the petition and MSA did not file a response. For the reasons that follow, Stenvig’s petition is DENIED and DISMISSED WITHOUT PREJUDICE.

Facts

The MSA Constitution provides that “[a]mendments to this Constitution may [] be initiated by a vote of two-thirds present and voting of a duly called and elected Constitutional Convention. The manner of calling, electing, filling vacancies, and submitting and dividing questions, and the operating procedures for such a convention, shall be specified in the Assembly’s Operating Procedures. Any amendments initiated by such a convention shall be referred to the student body at an election. If three-fifths of those voting on an amendment approve it, the amendment shall be adopted.” MSA Const. art. VIII, sec C.

Plaintiff Stenvig alleges that Defendant MSA, in passing the Resolution calling for a Constitutional Convention, and in making the Executive responsible for appointing representatives to said Convention, has violated her right and the right of other students to run for and be elected as delegates to the constitutional convention. Complaint at 1. She further alleges that the calling of a constitutional convention requires that students be able to “nominate delegates utilizing the norms of proportional representation” and that the Resolution fails to comply with this requirement. Id. She seeks a TRO from this Court in order to prevent the convention from meeting. Id.

Discussion

Pursuant to Section 51.312 of the CSJ Manual of Procedure, the Court may issue a TRO when the following conditions are met: (a) the requesting party has filed a CSJ Form 51-1 (with all attachments) initiating an action . . . ; (b) the requesting party has filed with CSJ Form 51-2 accompanied by a short and plain statement explaining the need for the order; (c) the party seeking the order will suffer immediate and irreparable injury, loss, or damage before a hearing could be held (emphasis added); (d) there is some evidence to indicate that the party requesting the order will prevail at trial; (e) the order, if issued, will not cause irreparable injury, loss, or damage to the opposing party; and (f) four justices agree that the above conditions are met. Id. In addition, the TRO shall expire 48 hours after it is issued. Id.

By the terms of the CSJ Manual of Procedure, the TRO requirements are independent criteria that must each be satisfied in order for a TRO to issue. That is, even where a plaintiff has shown a substantial probability of success on the merits and that a TRO will cause the opposing party to suffer no loss, the TRO will not issue where the plaintiff has not also shown that, without the TRO, the plaintiff will suffer “immediate and irreparable injury, loss, or damage.”

The Court finds that Stenvig has not met her burden of establishing that the TRO is necessary in order to prevent immediate and irreparable injury, loss, or damage before a hearing can be held. Because a TRO only lasts 48 hours, Stenvig must demonstrate that without the TRO, she will suffer harm that cannot be fully remedied in the next 48 hours. This Stenvig has failed to do.

The Court recognizes that, given the scheduled meeting of the delegates to the constitutional convention on November 2, without the TRO, the delegate meeting will proceed as scheduled. This delegate meeting may in fact cause harm to Stenvig. Should Stenvig prevail on the merits of her claim and show that the constitutional convention was improperly called, and that her right to participate in it was violated, then her exclusion from a meeting of that convention will cause her to suffer harm. The delegate meeting will also lend credibility to the constitutional convention that Stenvig and other similarly situated plaintiffs may wish to avoid.

However, the harm that may occur from the delegate meeting is not “irreparable” because it may be fully remedied by this Court. Should Stenvig go to trial and prevail on her claims, this Court is capable of issuing a declaratory judgment, if necessary, declaring that the MSA Resolution is void, that the constitutional convention was improperly called, and that any actions or resolutions passed pursuant to the Resolution are void. The Court may also award injunctive relief, if necessary, prohibiting the constitutional convention from meeting until it is brought into compliance with the Constitution. If Stenvig prevails at trail and obtains such relief, she will be fully restored to her rightful position and will have suffered no injury at all.


Conclusion

Nothing in Stenvig’s Complaint leads us to believe that she will suffer any harm, in the next 48 hours, that this Court is not capable of fully remedying after a trial in which Stenvig prevails. Because Stenvig’s Complaint is dismissed without prejudice, she is fully entitled to re-submit her Complaint and seek a trial before CSJ, rather than a TRO. Given Stenvig’s concern that CSJ adjudicate this matter quickly, if Stenvig chooses to re-file her complaint and seek a trial, the Court is prepared to hold a pretrial conference in this matter as early as Tuesday, November 3rd.


For these reasons,

IT IS ORDERED that Plaintiff’s petition for a Temporary Restraining Order is DENIED.

IT IS FUTHER ORDERED that Plaintiff’s complaint is DENIED WITHOUT PREJUDICE.

Dated this 2nd Day of November, 2009.



By the Court