Central Student Judiciary
Michigan Student Assembly

Hamdan A. YOUSUF,
Appellant

v.

Matthew TALLEY,
Respondent

case number F-09-03

Appellant's Brief on Appeal


Appellant's Answers to the Certified Questions


1. MSA Complied Code sections V.H.5.g and V.H.4.m are unconstitutional in light of MSA Constitution sections IX.A.15, IX.A.1, and IX.A.2.

2. The Election Board does not have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate and who seeks to obtain write-in votes for office in an MSA election

3a. The action of sending an email to all members of a university graduate student listserv seeking write-in votes for office does not constitute a violation of MSA Compiled Code section V.G.4.m.

3b. MSA Compiled Code section V.G.4.m was not “fully and clearly formulated, published, and generally made known to everyone concerned” such that it creates liability under MSA Constitution § IX.A.11 as of November, 2009.

4. The action of sending an email to all members of a list may only constitute a single offense under MSA Compiled Code section V.G.4.m, and does not constitute a series of offenses corresponding to the number of email recipients.

5. The sending of email to a list of which the sender is a member does not constitute “spam” as prohibited by MSA Compiled Code section V.G.4.m.

Background and Jurisdiction

On December 1, 2009, Hamdan Yousuf sent an email to his graduate student colleagues urging them to vote for him as a write-in candidate in the upcoming MSA election. In the email, Mr. Yousuf wrote:
Hamdan Yousuf is a graduate student in Biostatistics. He has served on the Michigan Student Assembly as SPH Representative since November 2008. As one of the few graduate students on MSA, he has been a consistent advocate for empowering the student body in all aspects of the educational experience. He has built bridges with communities across campus and has stood against secretive government, skyrocketing tuition costs, and intolerance and bigotry. If elected, he will strive to implement open governance and accountability on MSA, socially responsible investing of endowment funds, and will make MSA a relevant and independent advocate for the interests of the students.
As a means of protesting against inequitable and arbitrary decisions of the MSA leadership, Hamdan is running as a write-in candidate for the position of Rackham representative. A write-in campaign is a fundamental tool in the democratic process to ensure that the voice of the people is not subdued. We want this to be the most successful write-in campaign in the history of Michigan student government. Please vote NOW -- it only takes two minutes, and please encourage all your friends to do so as well. Non-Rackham students are encouraged to vote as well as a symbolic means of support.
Mr. Yousuf’s email was political in nature and referenced the MSA election. In an attempt to comply with electoral regulations, Mr. Yousuf included a “paid for by” line at the end of the email that included his own name. The email in question was sent to Mr. Yousuf’s graduate student colleagues at the University of Michigan using the “um.graduate.students” listserv, of which Mr. Yousuf is a member. The message was sent only once.
Later on December 1, 2009, respondent and law student Matthew Talley filed a complaint against Mr. Yousuf alleging violation of Compiled Code section V.G.4.m, which forbids the use of "spam" by candidates in an MSA election. The Election Board heard the case on December 3, 2009, and issued a ruling finding Mr. Yousuf "guilty" of violating the Compiled Code and "accessing (sic) two demerits" against him. Mr. Yousuf won his write-in campaign and was not removed from the election, but because the judgment below is a stain on Mr. Yousuf's public record and raises fundamental issues of democratic rights in student government, Mr. Yousuf appeals.
The Central Student Judiciary has appellate subject matter jurisdiction over this action under CSJ Manual of Procedure Rule 51.12, which states that “CSJ may hear an appeal of the decision of any … judicial body established (or otherwise established) by MSA to hear cases in which a student … may appear as a defendant” and Compiled Code section 5.H.5.i, which provides, “The respondent and/or petitioner may appeal any decision of the Election Board to CSJ.”



Certified Question 1: Sections V.H.5.g and V.G.4.m of the MSA Compiled Code are unconstitutional in light of MSA Constitution sections IX.A.15, IX.A.1, and IX.A.2.

The authority, granted to the Election Board by the Compiled Code in sections V.H.5.g and V.G.4.m, to remove a candidate from the ballot on the basis of email use, violates Mr. Yousuf's rights under the MSA Constitution to democratic government (IX.A.15), freedom of speech (IX.A.1), and freedom to publish (IX..A.2).
Part A of the Bill of Rights to the MSA Constitution bestows on University of Michigan students the following enumerated rights.
1. Freedom of Speech. The right to express their views on any subject without penalty except where the form of that expression endangers life, property, or the equal rights of others.
2. Freedom to Publish. The right to publish and disseminate their views
on and off campus free from censorship. …
15. Democratic Government. The right to form and maintain a democratic student government with the power to administer and regulate those affairs primarily concerning students, to levy and collect assessments on students, and to be represented in the formulation of all University policy.

Part C of Article I, which is titled “Democratically Constituted Governments,” requires that at all levels of student government, each institution “shall conduct its elections so as to insure that … open campaigning can take place.”
The MSA Constitution is much more expansive as regards democratic rights than the federal and state constitutions.[[#_ftn1|[1]]] The detailed enumeration of democratic rights in the MSA Constitution shows how seriously these rights were taken by its framers. The MSA Constitution’s Bill of Rights could have been simply copied from either the state or the federal constitution. That it was not evinces desire on the part of the framers of the MSA Constitution to protect fundamental democratic rights in all the ways those rights are protected in state and federal constitutions and more. The MSA Constitution assigns to the CSJ, as the final authority on the interpretation of the MSA Constitution, the task of safeguarding those rights so carefully and powerfully enumerated.
Compiled Code section V.G.4.m. prohibits the sending of “spam.” The full text of the section reads as follows.
Inappropriate and irresponsible use of email privileges prohibited. No party or candidate may knowingly spam members of the University Community. The following actions will also be prohibited under this rule: harvesting addresses from the online directory, running mass-mail programs, sending campaign email to individuals that are not students, and sending campaign email to groups or email lists that the sender is not a member. A violation of this rule will result in the assessment of two demerits for a single candidate and 4 demerits for a party.

The Election Board may remove offending candidates from the election, according to Compiled Code V.H.5.g (“Any candidate against whom five or more demerits have been assessed shall be removed from the election.”)
The provision of the Compiled Code in question, if passed by Congress, would not survive review under the US Constitution. The US Supreme Court has held that provisions that restrict access to the ballot impinge upon basic constitutional rights, including the right of suffrage and the rights of individuals to associate for political purposes. Such provisions are subject to scrutiny and may be struck down.
The CSJ is, of course, free to adopt its own standards for evaluating challenges to the constitutionality under the MSA Constitution of provisions of the MSA Compiled Code. However, the CSJ may look for guidance to the standards developed by the US Supreme Court. In the case of Anderson v. Celebrezze, in which the Supreme Court struck down an Ohio ballot access law, the Supreme Court outlined the following framework for evaluating challenges to laws impinging on democratic rights in an election.
“[A] court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson v. Celebrezze, 460 U.S. 780, 784 (1983).

An application of this framework to Mr. Yousuf’s case, substituting his challenge for the challenge raised by the plaintiff in Anderson v. Celebrezze, yields the result that Compiled Code section V.G.4.m is unconstitutional.
The character and magnitude of the injury to Mr. Yousuf’s rights cannot be understated. A free and open election is the foundation of every legitimate form of government, including student government, and an injury to that election is an injury to all. "Every man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature."[[#_ftn2|[2]]] Preventing Mr. Yousuf from appealing to his colleagues for support in an election implicates his freedom to speak and publish. The removal of a candidate from the ballot on the basis of that candidate’s speech and publications implicates the right of Mr. Yousuf every student to a democratic government. The injury to Mr. Yousuf’s freedom of speech, freedom of publication, and right to a democratic government is great.
On the other hand, the precise interests that might be put forward as justifications for Mr. Yousuf’s injury are minimal. The harm done to Mr. Talley consists in his finding one more email than he might have liked in his email box on November 25. The content of the email is an appeal for his vote in an election, and is completely inoffensive. The interest of the MSA in minimizing harm such as that suffered by Mr. Talley is likewise minimal.
Finally, the interests of the MSA in minimizing harm to Mr. Talley do not make necessary the burden on Mr. Yousuf’s rights. Indeed, the MSA could simply appeal to the moderators of large lists to prevent emails such as Mr. Yousuf’s from going out. Alternatively, a fine could be imposed. Candidates could mutually agree to limit email use. In the final analysis, the best check on “spam” is the political process itself: a candidate who sends out too many emails will lose votes. There is no need for the MSA to take steps to remove Mr. Talley from the ballot. Those are unnecessary steps that implicate the fundamental democratic rights of every student.
Using the framework outlined in Anderson v. Celebrezze as a guide, it is clear that each of the relevant considerations weigh heavily in Mr. Yousuf’s favor. The restrictions on his ability to write and publish, coupled with the threat of removal from the ballot, are substantial. The MSA’s interest in preventing Mr. Yousuf’s political appeal from reaching graduate students is minimal. Finally, the MSA’s interest can be achieved by other means, such as moderating large lists and imposing fines.
The basic invalidity of Compiled Code sections V.H.5.g and V.G.4.m is shown by analogy to the federal elections. What if, in November 2008, immediately before the US federal elections, the Federal Election Commission announced that candidate Barack Obama had been removed from the ballot because he sent an email to a few people who were not interested in his campaign? This is precisely the kind of authority the Compiled Code gives to the Election Board. This authority is simply incompatible with the democratic principles of the MSA Constitution and undermines the democratic integrity of student government, including the MSA and the CSJ itself. If the MSA is desirous of regulating the use of email during campaigns, it must do so another way. Section V.G.4.m of the Compiled Code should accordingly be declared unconstitutional and the judgment of the Election Board should be vacated.

Certified Question 2: The Election Board does not have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election.

The Election Board’s jurisdiction is confined to a narrow set of election-related issues affecting official candidates. The Election Board lacked jurisdiction over Mr. Yousuf because Mr. Yousuf was not an official candidate, and accordingly the judgment of the Election Board should be vacated.
The Election Board hears election-related complaints and may remove offending candidates from the election according to Compiled Code V.H.5.g (“Any candidate against whom five or more demerits have been assessed shall be removed from the election.”)
The Election Board only has jurisdiction in special circumstances. If a person sent a series of spam emails urging the recipients to vote for the sender for mayor in the Ann Arbor local elections, it is clear that the Election Board would lack jurisdiction to hear a complaint. If a person sent a series of spam emails inviting the recipients to a social event, the Election Board would also lack jurisdiction. The reason the Election Board lacks jurisdiction in these cases is that the ultimate relief offered in the Election Board – removal from the ballot – is not available. The Election Board cannot have jurisdiction over the mayor of Ann Arbor or the organizer of a social event when neither person is on the ballot controlled by the Election Board. In order for the Election Board to have jurisdiction, the complaint must be against a person who is on the ballot.
Mr.Yousuf was removed from the ballot on November 25, 2009, by the Election Board for filing his candidacy application 20 minutes late. The Election Board issued an opinion that reads, inter alia, “It is … determined that Mr. Yousuf’s request to be placed on the Fall 2009 ballot as a candidate be DENIED. It is … further determined that Mr. Yousuf is to be removed from the ballot, the official list of candidates, and the official candidates’ mailing list.” Having done this, the Election Board had imposed against Mr. Yousuf the maximum penalty available within its powers. When Mr. Talley filed his complaint a week later, the Election Board lacked jurisdiction to hear it.
The most Mr. Talley could hope for when he filed his complaint was that the sender of the email would be removed from the ballot. However, Mr. Yousuf was already off the ballot by virtue of the decision on his 20-minute late application, so the Election Board had no relief to offer Mr. Talley.
The assessment of demerits against Mr. Yousuf is incongruous. Once five demerits are accumulated, Mr. Yousuf could be removed from the ballot according to Compiled Code section V.H.5.g. But since Mr. Yousuf was already off the ballot, the accumulation of a hundred demerits would signify exactly nothing. The Election Board does not have jurisdiction to hear complaints where the only penalties it can impose are meaningless.
The Compiled Code’s provision regarding the jurisdiction of the Election Board does not resolve the question of whether the Election Board had jurisdiction over Mr. Yousuf. Compiled Code section V.H.1 reads as follows: “Jurisdiction. The Election Board shall hear cases involving the alleged violation of any campaign rule, and shall meet to determine whether demerits should be assessed against any candidate(s) or party(ies).” The word “candidate” appears throughout Section V of the Compiled Code and is used to mean official candidate in some places and write-in candidate in others. Compare V.A.2 (defining candidate broadly as “a person seeking office in an election”) with V.B.d (“candidates must file their candidacy applications with the Election Director or Administrative Coordinator”); V.B.e (“the Election director shall hold a meeting of all candidates); V.C.d (“Candidates shall be informed of any Election Code changes made by the Assembly after candidacy applications are available”); V.E3 (“Any candidate may withdraw from the election by submitting a written request to the Election Director no later than 8 days prior to the election”) (emphasis added). The word “candidate” as it appears in the Compiled Code is not helpful in determining the intended limits of the Election Board’s jurisdiction.
The MSA may have desired, when it adopted the section V.G.4.m email regulation in March 2008, to regulate the use of email during elections by both official and at-large candidates. If so, creating a cause of action before the Election Board was poorly suited to those goals, since the Election Board only has jurisdiction over official candidates. If the use of email by at-large candidates remains a concern in the MSA, then a different method of regulation needs to be devised.

Certified Questions 3 and 5: Mr. Yousuf’s email to fellow graduate students was not “spam” in the ordinary sense of the word. Mr. Yousuf’s email did not violate Compiled Code section V.G.4.m, and that section was not “fully and clearly formulated, published, and generally made known to everyone concerned.” The sending of email to a list of which the sender is a member does not constitute “spam” as prohibited by V.G.4.m.

The MSA Constitution protects all students against regulation except under “uniform regulations” in section IX.A.11. The Constitution provides to each student “[t]he right to be subject only to such uniform rules and regulations as have been fully and clearly formulated, published, and generally made known to everyone concerned.” This provision in the MSA Constitution is not shared with the federal or Michigan constitutions, and the final authority on its interpretation is the CSJ.
A plain reading of this provision of the MSA Constitution suggests that three elements must be satisfied for a regulation to be considered uniform: (1) full and clear formulation, (2) publication, and (3) general knowledge. The wording and context suggest a standard of the reasonable student – that is, what would constitute a full and clear formulation to a reasonable student, what publication would be sufficient to put a reasonable student on notice, and what is within the general knowledge of reasonable student. The second and third elements – publication and general knowledge – are primarily factual and can be resolved at the full hearing. The first element – a full and clear formulation – is primarily a question of law and can be addressed here. Because each element must be satisfied for a regulation to be considered constitutionally uniform, judgment for appellant is appropriate if any element is not.
Compiled Code section V.G.4.m. prohibits the sending of “spam," The section contains a general rule against spam in the second sentence, which is then illustrated by four examples of prohibited conduct. Mr. Yousuf did not violate the rule in any of the four ways contemplated in the illustrations. In other words, it is not disputed that Mr. Yousuf did not harvest addresses from an online directory, run a mass mail program, send campaign email to individuals who are not students, or send email to groups or email lists of which he is not a member. Compiled Code section V.G.4.m does not enumerate specifically any other actions that would constitute “spam.” No person other than Mr. Yousuf has been prosecuted under V.G.4.m, so the question of interpretation before the Election Board was one of first impression.
The Election Board found that Mr. Yousuf violated this section when he sent an email to his colleagues on a graduate student list of which he is a member. For the reasons below, either the Compiled Code section V.G.4.m is not “fully and clearly formulated” with respect to Mr. Yousuf's conduct, or Mr. Yousuf's conduct did not violate the Compiled Code. In other words, the word “spam,” as it is ordinarily understood in our language, does not describe the email that he sent.
The word “spam” in American English refers to a wide variety of practices, some illegal and some not. The word may refer to the use of email, cellphones, online forums, online message boards, instant messaging, and other electronic media to bombard a target audience with unwanted messages, usually of a commercial nature. It is undisputed that Hamdan Yousuf was punished for sending one email to a graduate student list of which he is a member making a political appeal for write-in votes in the upcoming election. The word “spam,” as it is ordinarily understood, does not refer to Mr. Yousuf’s conduct.
The word “spam” originally referred to a variety of canned meat. The word acquired a second meaning after a skit on the British television series Monty Python's Flying Circus featured the actors chanting of the word “spam” to override the other dialogue.[[#_ftn3|[3]]] While the skit did not refer to email in particular, frustrated computer users began to recall the skit when sifting through dozens of unwanted advertisements in their email inboxes while looking for letters from friends. The word’s connotation is decidedly pejorative. Few computer users can boast of never having received an unsolicited email message offering “male enhancement” drugs or lucrative transactions involving Nigerian bank accounts. Such undesired emails are widely understood to be “spam.” Some computer users use the words “junk mail” and “spam” interchangeably.
For reasons already indicated above, there is no direct analogy to the MSA’s email regulation in US federal law. The only similar law is the aptly titled US Federal CAN SPAM Act, passed in 2003 and subsequently amended, which targets business use of unsolicited emails. The Federal Trade Commission summarizes the substantive command of the Act on its website under the following headlines: “Don’t use false or misleading header information. Don’t use deceptive subject lines. Identify the message as an ad. Tell recipients where you’re located. Tell recipients how to opt out of receiving future email from you. Honor opt-out requests promptly. Monitor what others are doing on your behalf.”[[#_ftn4|[4]]] The email for which Mr. Yousuf was punished would clearly not violate any of these restrictions. The penalty for violating the CAN SPAM Act is a fine; ballot access restrictions are not among the penalties.
The email for which Mr. Yousuf was punished differs from the ordinary understanding of the word “spam” in five important ways: (1) Mr. Yousuf’s email was not commercial in nature, (2) it did not come from an unknown or untraceable source, (3) it was not sent indiscriminately, (4) it was sent to a list of which Mr. Yousuf is a member, and (5) the same message was not sent repeatedly. Because the ordinary meaning of the word “spam” in the Compiled Code differs so significantly from the conduct the Election Board wishes Compiled Code section V.G.4.m to criminalize, either the statute is not a “uniform regulation” that is “fully and clearly formulated” or Mr. Yousuf did not violate the Compiled Code.
Mr. Yousuf’s email is political and relates to an election. Free political speech is protected by the federal, state, and MSA constitutions, and is a cornerstone of our democratic society. Mr. Yousuf’s letter to his fellow graduate students urging them to vote for him as a write-in candidate is part of that democratic tradition, and is simply not in the same category as an unsolicited advertisement for “male enhancement” drugs. Because a reasonable student would know that an election campaign email to fellow students is at the center of a protected category of speech, a reasonable student would not suspect that, under the circumstances, the email could be considered illegal “spam” and that the sender could be the target of criminal proceedings.
Unlike most “spam,” as the word is commonly understood, Mr. Yousuf’s email did not come from a mysterious or masked sender. Mr. Yousuf made no attempt to disguise the origin of the letter, instead openly identifying himself. In attempted compliance with electoral regulations, he included a “paid for by” line at the end of the email that included his own name and address. A reasonable student would think that an email from a sender identified properly according to the electoral regulations is less likely to be considered spam.
Mr. Yousuf did not send the email indiscriminately. He sent the email to his colleagues, each of whom was a graduate student at the University of Michigan and a voter in the election in which Mr. Yousuf was running. It is the indiscriminate effect of a “spam” campaign that generates such widespread antipathy against the practice. This is why the Election Board specifically made a rule against “sending campaign email to individuals that are not students.” Mr. Yousuf’s email went only to a specific targeted audience: his graduate student colleagues. A reasonable student would think an email to a group of colleagues is less likely to be illegal “spam.”
The recipients to Mr. Yousuf’s email shared a list with him.[[#_ftn5|[5]]] When a student receives an email from a list of which he and the sender is a member, this is not “spam” in the ordinary sense of the word, however undesired the content of the particular message may be. Students routinely receive, by virtue of membership in any number of university and non-university lists, messages regarding university safety and administration; information on student group meetings and social events; class announcements, assignments and readings; campus news; information regarding and local events, and so on. Students widely use email lists to spread news, organize events, and facilitate discussion. While individual messages from a list is not solicited directly, they are not “spam” as they play a significant role in maintaining the lively campus social, political, and academic atmosphere that attracts students to the University of Michigan. A reasonable student can expect to receive countless emails from colleagues and students such as the one sent by Mr. Yousuf as part of the ordinary course of student life, and they are not aggrieved when they do.
Mr. Yousuf’s letter was sent only once. Unlike the circumstances in the Monty Python skit that gave rise to the meaning of the word “spam” in question, Mr. Yousuf’s letter did not drown out anyone’s conversation and did not cause any substantial disruption to the email boxes of his colleagues. It appeared once and could be easily ignored if the recipient was so inclined. A reasonable student would consider a single email less likely to be illegal “spam.”
In the final analysis, a reasonable student would think that an email is not “spam” that is (1) related to an election campaign and not commercial, (2) from a source properly identified according to electoral regulations, (3) not sent indiscriminately, (4) sent to a list of which the sender is a member, and (5) sent only once. Because the understanding of a reasonable student of what constitutes “spam” differs so significantly from the conduct the Election Board wishes it to criminalize, either Mr. Yousuf did not violate compiled code section V.G.4.m or section V.G.4.m is not a “uniform regulation” that is “fully and clearly formulated.”
If Matthew Talley, as a member of the graduate student list in question, is desirous of limiting the use of the list to particular purposes, then he may petition the owners of the list to implement the necessary restrictions. He does not need MSA, through the Election Board, to take steps to remove Mr. Yousuf from the ballot. He needs his list to be moderated. That is not for the MSA to decide.
The definition of “spam” formulated by the Election Board is simply unworkable. The Election Board identified “spam” where two elements are satisfied: the email was (1) “unsolicited” and (2) “bulk.” This definition includes too much. Every email sent to a list is “unsolicited” in the sense that the sender does not have an invitation from each member of the list to send the message in question. Further, an email sent to a list is by definition “bulk,” because it will be received by each member of the list. The Election Board’s definition would criminalize a significant fraction of legitimate and constitutionally protected email usage during election campaigns for student government. Indeed, if the Election Board’s definition were accepted, any political email sent to a list by a candidate would be illegal.
Because this definition departs so significantly from the ordinary understanding of a reasonable student, either Mr. Yousuf did not violate the Compiled Code or the regulation under which Mr. Yousuf was punished was not “uniform” and “fully and clearly formulated” as required by the MSA Constitution.

Certified Question 4: The action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitutes a single offense under MSA Compiled Code section V.G..m and not a series of offenses corresponding to the number of email recipients.

The Election Board made a clear error when it interpreted the Compiled Code to mean that a single email sent to a list is treated as a violation for each recipient. On the basis of this erroneous interpretation the Election Board determined that Mr. Yousuf's email to a list of his graduate student colleagues with 19,000 members would constitute 19,000 violations of the Compiled Code. This translates to 38,000 demerits, or enough to remove Mr. Yousuf from the ballot 7,600 times.
Compiled Code section V.G.4.m defines the offense for which Mr.Yousuf was convicted as follows: “No party or candidate may knowingly spam members of the University community … A violation of this rule will result in the assessment of two demerits for a single candidate.”
The Election Board defined “spam” as “unsolicited bulk email.” However, on the question of how many demerits could be imposed, the Election Board went on to hold that “an email is defined as a single message sent between one email account and another … An email alias (“listserv”) is, by design, a proxy device used to replicate email messages to save the author the laborious task of manually sending many copies of an email with the same message body to multiple recipients. Sending to a listserv of 19,000 members is functionally equivalent to manually specifying 19,000 recipients at the time an email is authored and sent. Whether each copy of the message is sent directly, or after a layer of indirection, is incidental to the fact that 19,000 copies are made and sent.”
The Election Board held additionally that “the email sent by the Defendant and received by the Plaintiff constituted a single and distinct email, one of nearly 19,000 sent by the Defendant…the stipulated penalty of two demerits should be accessed (sic) to the Defendant for his infraction, and moreover that the scope of this judicial action only applies to the single email.”
The Election Board’s ruling is not internally consistent. In one place the offense is described as “unsolicited bulk email,” and in another as a “single and distinct email.” If one accepts the Election Board’s definition of the violation as “unsolicited bulk email,” then a plain reading of V.G.4.m indicates that two demerits must follow: “A violation of this rule will result in the assessment of two demerits …”
The Election Board’s interpretation of V.G.4.m clearly contradicts the intention behind the rule. The preceding campaign rules defined in the Compiled Code – sections V.G.4.a through V.G.4.l (bribery, fraudulent voting, prohibited posting, and so on) – do not multiply themselves in the way that the Election Board suggests V.G.4.m does. The authors of the Compiled Code indicated their disapproval of multiplication of demerits in V.G.H.2: “No single piece of campaign material may violate more than one campaign rule. All campaign rules shall be mutually exclusive. No candidate or party may be in violation of more than one campaign rule for a single act or campaign material.”
Finally, a second prosecution of Mr. Yousuf over a single email would violate his right under the MSA Constitution against Double Jeopardy in IX.A.20 (“The right not to be twice put in jeopardy for the same offense”). According to the Election Board’s definition of an offense under V.G.4.m – “unsolicited bulk email” – a trial in which demerits were assessed for the same email would put Mr. Yousuf twice in jeopardy for the “same offense.”
For the above reasons, the Election Board made a clear error when it interpreted the Compiled Code to mean that a single email sent to a list is treated as a violation for each recipient.



Conclusion and Relief Sought

By reason of each of the grounds for appeal stated above, Mr. Yousuf requests that the Central Student Judiciary reverse the decision of the Election Board, enter a judgment of "not guilty," and remove the two demerits assessed against him.




Thomas Seabaugh, Counsel
seabaugh@umich.edu
University of Michigan Law School
J.D. expected May 2010
1042 S. Main Street Apartment B2
Ann Arbor, MI 48104

on behalf of

_

Hamdan Yousuf, Appellant
yousufh@umich.edu
Department of Biostatistics
School of Public Health
University of Michigan
1420 Washington Heights
Ann Arbor, MI 48109-2029



[[#_ftnref1|[1]]] The Michigan Constitution provides in Article 1, Section 5 that “Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.” The First Amendment to the US Constitution reads, “Congress shall make no law … abridging the freedom of speech ... or the right of the people peaceably to assemble …”
[[#_ftnref2|[2]]] Thomas Jefferson. Opinion on the Residence Bill (1790).
[[#_ftnref3|[3]]] See Spam. Marriam-Webster’s Online Dictionary. http://www.merriam-webster.com/dictionary/spam.
[[#_ftnref4|[4]]] The CAN-SPAM Act: A Compliance Guide for Business. Federal Election Commission. http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm (headlines only).
[[#_ftnref5|[5]]] This issue was also separately certified by this Court as Certified Question 5.