Central Student Judiciary
Michigan Student Assembly

Pat PANNUTO, College of Engineering Representative, Michigan Student Assembly, et. al.

v.

Abhishek MAHANTI, Student Body President

case number W-10-003
March 22, 2010

OPINION

Justice BEITNER delivered the Opinion of the Court, joined by Chief Justice HUSTON. Justice JIGA dissents.

Introduction

Petitioners Pat Pannuto, a Representative in the Michigan Student Assembly of the College of Engineering, and Thomas Stuckey, a Representative in the Michigan Student Assembly of the Ross School of Business (collectively “Petitioners”), have petitioned this Court to invalidate EXECUTIVE ORDER W-10-001 (“Order”). This Executive Order was enacted on March 9, 2010 by Student Body President (“President”) Abhishek Mahanti. The Order states:

1. That all incoming packages postmarked or equivalent after March 9, 2010 shall not be accepted by the Michigan Student Assembly or any of its agents.
2. That a webstuff email will be sent within twenty-four (24) hours of the issuance of this order to all registered student groups informing them of this policy.
3. That this policy shall take effect immediately and shall only be revoked upon the Assembly’s successful adoption of a comprehensive liability management policy for student organization mailboxes.

In their original claim, Petitioners asked this court for a temporary restraining order (“TRO”) to halt the Order’s enforcement. Petitioners advanced three theories upon which the relief they sought was based. First they argued the President did not have the constitutional authority to issue executive orders. In the alternative, they claimed that assuming he had such authority, this Order was unconstitutional because it was not enacted pursuant to any existing legislation and furthermore contradicted the will of the Michigan Student Assembly (“MSA”). Finally, Petitioners originally asserted that implementation of the Order would cause harm to the student groups that relied on the mail service to receive packages. Petitioners’ request for a TRO was denied by this court on March 13, 2010 for lack of a showing of irreparable injury. See W-10-002.

At a pre-trial hearing on March 19, 2010, Petitioners dropped two of the three claims mentioned above and instead chose only to pursue their claim that the Order was unconstitutional because it violated the express will of MSA’s legislative branch. Petitioners based this contention on a MSA vote conducted on March 9, 2010 in which the MSA rejected a proposed resolution to discontinue the mail service by a 24-9 margin.

During the pre-trial hearing, the President moved to have the action dismissed due to lack of standing. Because the Petitioners did not demonstrate how they were harmed by the Order or will be harmed by it in the future, this Court concludes they did not sustain their burden of establishing standing. Accordingly, we grant the President’s motion to dismiss.

Petitioner’s Case

Petitioners argued that they had standing to bring this claim because the Order harmed them in their capacities as MSA representatives. In particular, they allege that the President used the Order to overstep his constitutional authority and in doing so violated the MSA Assembly’s province to make rules and regulations governing MSA. Petitioners argued this harm was clearly demonstrated by the President’s decision to issue an order that expressly contradicted the will of MSA, evidenced by the March 9 vote that rejected the proposed resolution to discontinue the package service.

The President’s Case

The President maintains that the mail service is a purely executive function and that the President’s decision to discontinue MSA’s policy of receiving packages on behalf of student groups was well within his discretion. Furthermore, the President argued that there was no legislation from the Assembly creating the mail service, or affirmatively requiring it in any way. As a result, the Order did not contravene the legislative will of MSA. Accordingly, individual representatives were in no way harmed by the Order and do not have standing to bring a claim to invalidate it.

Discussion

Because we find that Petitioners failed to demonstrate any affirmative legislation passed by MSA that the President’s Order contradicted, we hold that Petitioners failed to establish standing to bring this claim and accordingly grant the President’s motion to dismiss.

In order to have standing to challenge an action taken by the government, the plaintiff must demonstrate that they were harmed in some capacity by the action. This ensures that courts will not issue advisory opinions, and instead will only hear disputes where there is a concrete case and controversy. In the present case, Petitioners predicated their claim on the contention that while they personally had not been harmed by the Order in the sense that they attempted to use the package service, the Order harmed them in their capacity as MSA representatives because it intruded upon MSA’s legislative authority and contradicted MSA’s will as evidenced by the March 9 vote.

Petitioners’ argument fails, however, because they were unable to point to any affirmative legislation the Order contradicted. While the March 9 vote rejected a proposal to discontinue the package service, that vote cannot be read as creating an affirmative duty requiring the MSA office to accept packages on behalf of student groups. While it is easy to conflate a measure not to discontinue the package service as a vote to require it, the correctness of our position becomes clearer when one understands the history of the MSA’s mail service.

At the hearing, both parties agreed that no one knew when and under what authority the policy of receiving packages on behalf of student organizations started. Petitioners could not point to any MSA resolution or legislation of any kind that brought the mail service into existence, or even mentioned it in any way (except of course the March 9 vote). In light of this legislative vacuum, the President argued that the mail service had always been an executive function and that its policies were under the discretion of the President. The President conceded, however, that at any point MSA could vote to require the MSA office to receive packages on behalf of student groups and at that point the measures taken in the Order could contravene MSA’s legislative intent.

In response, the best argument Petitioners could muster was that while the mail service could have been unilaterally implemented by the executive branch, it is also possible that MSA voted to enact it but that such a measure cannot be identified due to poor record keeping. Petitioners argument is undermined by the extensive legislative procedures the Compiled Code (“Code”) requires MSA to undertake to enact a resolution as long-lasting as the mail service. When Mr. Pannuto was asked why MSA did not simply enact a resolution requiring the office to continue receiving packages on behalf of student groups immediately after the Order was issued, he responded that such a measure would take weeks to pass and would require amending the Code. In light of these facts, it seems highly unlikely that any MSA body of the past failed to note something as momentous as a change to the Code.

Similarly, the cloud of uncertainty surrounding the mail service’s origins further accentuates the Court’s conclusion that the March 9 vote was not an affirmative legislative pronouncement of MSA’s intent to require the MSA’s office to receive packages on behalf of student groups. If the service is indeed an executive function (as seems to be more likely the case and the position the Court must take without evidence of a legislative act from MSA) then the March 9 vote is most accurately characterized as MSA saying that they do not vote to compel the executive branch to continue to receive packages. While this seems to be a fine distinction and a highly technical reading of the vote, courts must be weary of divining legislative intent where there is none and only attributing to legislatures exactly what they say. Indeed, if courts stray from this principle they will surely veer from their mandated task of adjudication and stumble into the realm of policy and law making. Furthermore, requiring such precision will force MSA to say what it means which will in turn encourage and foster greater clarity and accountability from our representatives – something the executive branch, this Court and most importantly the students will benefit from.

Legislatures demonstrate their intentions through legislation. In short, because Petitioners could not identify any affirmative legislative pronouncement from MSA that the Order contravened, their claim that the Order harmed them as MSA representatives is insufficient to prove they have standing to bring their claims. Accordingly, this Court has no choice to but to grant the President’s motion to dismiss.

We note that this decision in no way stands for the proposition that the Order was a permissible exercise of executive authority. Nor does this opinion endorse the position that the President has the constitutional authority to issue executive orders generally. Those issues go to the merits of this case, and they were not reached. All this opinion declares is that at these Petitioners were unable to demonstrate to the Court that they were actually harmed by the Order. Furthermore, the Court reiterates that MSA is free to pass legislation to undo the Order of the President. The Assembly is entitled to use its legislative function to mandate the creation of a mail service and to direct the President to carry it out. The Assembly may not, however, ask this Court to legislate for them.

Order

IT IS ORDERED that the action is DISMISSED WITH PREDJUICE for lack of standing with regard to these plaintiffs, and the suit will terminate.

Dated this 22nd day of March, 2010.

By Justice BEITNER, joined by Chief Justice HUSTON.

JIGA, J., dissenting.

I respectfully dissent from the Court’s majority opinion that the petitioners did not have standing in this case. The Court determined that the petitioners had not been harmed in their capacity as MSA Representatives by the President’s Order, but I respectfully disagree. On March 9, a two-thirds majority of the MSA Representatives motioned not to discontinue the MSA mail service. This clearly indicates that the Assembly did not wish to discontinue the mail service. The Court’s opinion implies that this motion leaves the discontinuation of the mail service up to the discretion of the President, but I disagree. The Assembly’s motion on March 9 implies one of two things: either, the Assembly wished that the mail service be continued, or, the Assembly was uninformed about or disinterested in the future of the mail service. If the Assembly wished that the mail service be continued, then the President acted explicitly against the will of the Assembly and, therefore, harmed its representatives in their capacity to vote and make decisions on that body. Even if the Assembly did not wish that the service be continued, however, the President still overstepped his bounds in issuing the order; just because the Assembly did not explicitly vote one way does not mean that the President is to issue an order for another way of action. In either case, the plaintiffs and the other Representatives were harmed in their capacity as MSA Reps. For this reason, I respectfully dissent from the Court’s majority opinion that the plaintiffs in this case did not have standing.

By Justice JIGA.