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Central Student Judiciary

Michigan Student Assembly

Case #: W-10-001
March 12, 2010
Before TORRES (Presiding), HORWITZ, and JIGA, Associate Justices. TORRES, J., delivered the opinion of the court.

This is an original action before this court. Over the course of the 2010 Winter term, Students for Progressive Governance (“SPG”) has engaged in the process of designing an amendment to the current constitution (“the Amendment”).

FN1. SPG was created in response to CSJ’s determination that the constitutional
convention called by MSA in Fall 2009 was unconstitutional. For more information,
see Stenvig v. Michigan Student Assembly, No. F09-01 (November 30, 2009).

This Amendment is intended to replace the entire contents of the Michigan Student Assembly Constitution (“the Constitution”). Pursuant to M.S.A Const. VIII, § B, SPG sought to place the Amendment on the Winter term ballot by a “petition signed by at least 1,000 current students, filled [sic] in the same manner as the petition to initiate legislation.” SPG obtained greater than 1400 signatures and submitted the question to the Michigan Student Assembly (“MSA”). Following the submission of the proposal to the Michigan Student Assembly (“MSA”), MSA Resolution W-10-021 (“the Resolution”) was passed. In this Resolution, MSA adopted the proposed ballot question without changes per M.S.A Const. VII, § A (2).

Consistent with MSA Compiled Code § 5.J.4, CSJ examined the proposed ballot question in order to “verify that the ballot question complies with the provisions of the Compiled Code and the MSA Constitution, is worded in a manner that is accurate, fair, concise, and reflective of the content of the amendment or legislation (or meets the requirements for a recall question), and (in the case of petitions) is in the proper form.” In addition, consistent with MSA Compiled Code § 5.J.5, CSJ, with the assistance of the election board staff, validated the petition to ensure, among other things, that “[n]o more than 80% of the signatures [came] from one school or college” and that no fewer than 100 signatories to the petition are students enrolled with the Registrar’s office. This was a procedural hearing mandated by the code, and intended to ensure that proper procedures had been followed, not to rule on the wisdom of the legislation proposed. In the course of the hearing it came to light that a separate hearing would be necessary to determine the validity of the MSA resolution adopting the petition. This matter was treated as a second question during this hearing for the sake of judicial expediency and to satisfy the timeline laid out in MSA Compiled Code § 5.J.4 for review

Issues Presented
This was a procedural hearing to verify the petition question to be presented on the ballot, although the addition of the resolution presented substantive questions of law in addition to this original function. As regards the petition, the primary issues were to verify the petition and ensure that the wording of the question was “accurate, fair, concise, and reflective of the content of the amendment.” MSA Compiled Code § 5.J.4. Regarding the Resolution by MSA, the primary issues were whether MSA can ‘adopt legislation’ that places a question on a ballot, whether a second question was presented or the Resolution simply co-sponsored the Amendment (M.S.A Const. VIII, § E (2)), and how to treat identical ballot initiatives to minimize voter confusion.

Part I: Does the petition fulfill the criteria laid out in MSA Compiled Code § 5.J.4-5?

A constitutional amendment, in the colloquial sense, is the addition or deletion of a section of a constitution. This terminology may confuse a casual observer in this particular situation, who might believe that a vote to amend the Constitution would leave the document largely intact. In this case, the Amendment, so extensive in scope as to entirely rewrite the substantive portions of the Constitution (leaving only the title page), is a full and actual replacement of the Constitution. The wording of the question, “Should all text on pages 2-25 (including the title and preamble) of the All-Campus Constitution be struck and replaced with all text (title, preamble, and lines 1 through 367) of the Students For Progressive Governance Constitution of the Student Body of the Ann Arbor Campus of the University of Michigan?” explained clearly that the Amendment is replacing the current Constitution. In order to facilitate an informed decision on this matter, the court has ordered that both the old and new versions should be available by hyperlink in the body of the question.

The question was raised whether or not such an extensive rewriting of the Constitution is valid under the process intended to amend the Constitution. The amendment process is the only avenue for constitutional adjustment open to the student body at large (as opposed to action by MSA or a formal constitutional convention, which may only be called by MSA). Students must be afforded the liberty to modify the document by which they invest the student government of the University with sovereignty and, even when the modification extends as far as replacement, this right should be respected by the Court. Although the composition and spark of SPG was originally heavily derivative of the ‘unconstitutional convention’ this court disbanded in Stenvig v. Michigan Student Assembly, No. F09-01 (November 30, 2009), the method and success of this petition, by employing the sanction of the student body, sufficiently convinced the Court that this was truly a student action, and not a subversion of our judgment in Stenvig.

The technical requirements found in MSA Compiled Code § 5.J.5 were found to be duly satisfied. Significantly, no more than 80% of the petition signatories came from any one school (S4PG Petition Statistics, Election Board Report (February 22, 2010) (results of statistical analysis by Elson Liu)), and 100 unqinames were verified as to their owners student status (E-mail from Office of the Registrar – University of Michigan, to Anika Awai-Williams, Program Manager/Advisor, Michigan Student Assembly (March 10, 2010, 16:48 EST) (on file with court)).

Part II: What was the effect of MSA Resolution W-10-021?

Pursuant to M.S.A Const. VIII, § A (2), MSA has the privilege of adopting, or by default submitting to the student body, any legislation (as the Amendment is treated) brought before it by petition. In this instance, adoption of the legislation is not enactment of the content of the question that SPG petitioned to be placed on the ballot, but rather adoption of the ballot question itself. This results in a curious situation – has MSA’s Resolution sponsored the question along with the petitioners, or has adoption of the question placed the question on the ballot a second time, through a second procedure? As the petition is valid in and of itself, and as it would be improper to divest students of the initiative that they have shown in successfully petitioning for the placement of the Amendment on the ballot (a violation of the Constitutional right to amend by petition found in Article VIII, § B), the MSA Resolution simply cannot co-opt that process and supercede the petitioners. Yet MSA’s own right to adopt legislation in this context must also be respected. Because MSA acted positively to adopt the legislation as its own, rather than to allow the default of placement on the ballot, the Court finds that MSA has placed the question on the ballot independent of the petition.

Given this holding, there would now be two identical questions on the ballot, serving to confuse voters and unnecessarily complicate a simple, democratic process. We hold that, as the questions are identical and the method of placement on the ballot is not evidenced on the ballot (and thus attribution of sponsorship, for purposes of the vote, is irrelevant), the two proposed, identical questions should be presented as a single initiative on the ballot. Either sponsor may withdraw their question, but only withdrawal by both would remove the question from the ballot entirely.

Finally, the court importantly notes that the majority of two thirds of MSA that would be necessary to propose an amendment to the Constitution per M.S.A Const. VIII, § A was met handily in this circumstance. The court withholds consideration of whether a Constitutional amendment could be placed on the ballot by adoption of petition per M.S.A Const. VII, § A (2) and maintained on the ballot after withdrawal of the question by the petitioners, where the voting majority required for independent submission of the question was not met, effectively subverting the limitations on MSA to present Constitutional amendments.

For the reasons stated above, we hold that both the SPG petition and the MSA Resolution have validly placed the Amendment on the ballot for the Winter term election.

For these reasons,

IT IS ORDERED that the SPG Amendment be placed on the Winter term ballot in its entirety.

IT IS FURTHER ORDERED that plainly titled hyperlinks to “The current Constitution” and “The proposed Amendment”, the targets of which are to be devoid of any promotional material or notice of sponsoring organization information, be placed in the ballot question such as to make them conspicuously available for the perusal of voters.

IT IS FURTHER ORDERED that no information in the ballot question identify the sponsoring organization, and that the two questions, identical in content, be placed on the ballot only once.

Dated this 12th of March, 2010

Carlos J. Torres, Administrative Justice, joined by Associate Justice Alex Jiga and Associate Justice Daniel S. Horwitz.