P. 1
Nimmer Brief

Nimmer Brief

|Views: 2,618|Likes:
Published by The Daily Texan

More info:

Categories:Types, Letters
Published by: The Daily Texan on Mar 23, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as DOCX, PDF, TXT or read online from Scribd
See more
See less

06/08/2014

pdf

text

original

The following are the thoughts and opinions of Eric D.

Nimmer:
1. The Election Supervisory Board did not err in their decision on the grounds that the complaint in question was improperly considered. a. A petitioner’s complaint is not absolute. i. The standards, as required by the election code, are explicitly drawn to err on the side of granting a hearing. Title II Section 4.02 of the election code lists the grounds for the dismissal of a complaint as being twofold: “(a) The complaint was not filed within a reasonable amount of time; (b) The complaint fails to state a cause of action for which relief may be granted.” 1. This means that a petitioner only has to substantiate a reasonable possibility that an infraction has occurred (not produce an exhaustive list or even file a brief). 2. This system is logically designed to provide a forum in which complaints can be brought up and defended against. Title II section 4.09 expresses that the purpose of a hearing is as follows: “The purpose of the hearing is to gather the information necessary to make a decision, order, or ruling that will resolve an election dispute.” a. Information being gathered implies that the information was not previously known definitively or else there would literally be no point and everyone would just be expected to brief.

3. This compensates for a petitioner’s lack of “discovery” power (in the legal sense of the term) and for a presumed lack of expertise in election matters by the average student. 4. To warrant the above, you can look to ESB past rulings in which the decisions are not held to the restrictive language that may be issued before a hearing is ever had. ii. The complications of a turnaround time administratively to admit something to an absolute public domain does not make a document private. 1. Much like the decisions, advisory opinions and every other issuance of any student judiciary body – the functional idea of something being “public” has to be judged by relative accessibility. Meaning that distribution is not entirely in the control of said body; therefore, as with most information released by this Board, public information is information that is reasonably assessable. a. Just like in decisions public information is not denied to anyone who requests it. The financial disclosure deadlines were also made publicly known therefore any rational person would have access to the forms. b. All financial disclosures by their very existence are open to the public in accordance with the election code.

b. The ESB can review previous rulings. i. Title II Section 4.15 states, “If, after a hearing, the Election Board finds that provisions of either this Code or decisions, opinions, orders, or rulings of the Election Board have been violated by a candidate, or a candidate’s agents or workers, has committed a Class D violation, the Election Board may disqualify the candidate.” 1. The Board can follow up on the carrying out of its own decisions, opinions, orders or rulings. a. The “hearing” that this current ruling was in reference to was In Res Madison Gardener/ Antonio Guevara (ESB / SG 2012 – 003). i. This hearing also is a direct example of the Board being able to rule on information acquired during a hearing. c. No ESB member filed a complaint. i. The issue in question was uncovered during the course of a hearing. ii. The “complaint” process is formalized and even has a form. This form was never submitted nor was a “complaint” filed in that regard. iii. A complaint filed by an ESB member would have to be submitted to the ESB in writing. 1. I did not write myself a complaint and admit it to the process of judging the merits of said fictional complaint.

d. Reasonable latitude is given to the ESB in the Election Code i. Financial disclosures are independent jurisdiction. 1. As warranted by past precedents and the reasonable limitations of student expectation, the election board is in charge of regulating disclosures and enforcing deadlines.

2. The Election Supervisory Board did not err in its ruling in regard to 4.10. a. 4.10 reads as follows: 4.10 Decisions, orders, and rulings of the Election Board must be concurred to by a majority of the Election Board present and shall be announced as soon as possible after the hearing. Such decisions may be delivered orally or in writing. The Election Board shall issue a written opinion of the ruling within twenty-four (24) hours of announcement of the decision. The written opinion must set forth the findings of fact by the Election Board and the conclusions of law in support of it. Written opinions shall set a precedent for a time period of three election cycles for Election Board rulings and shall guide the Election Board in its proceedings. Upon consideration of prior written opinions, the Board may negate the decision but must provide written documentation of reasons for doing i. The question of intent as brought up by the ESB 2011 -009 does not apply. 1. The stated case is not an accurate precedent in which to define this situation. a. The above case applied to a completely different set of circumstances and not to financial matters explicitly

referenced in the code or to the disregard of a punishment in its totality. i. In an election fines are not tangibly paid therefore only exist by way of documentation in disclosures as expressed by the deduction of a candidate’s useable budget. b. The scale in which governed the above case is no longer present in any governing document. i. I would assert that the removal of this language makes the infraction more objective than previously applied as well. Intent is no longer a guiding factor as a matter of law in regard to this statute. ii. The question of the procedural admittance of evidence as brought up by 2012-001, 2012-003 does not apply to the case at hand. 1. It was formally explained to the current petitioner prior to the hearing that items of public record did not need to be submitted. After the aforementioned statement the example of financial statements was used.

Breaking with the above format a tad, I wanted to address the following in particular and reiterate that these are just my own express views.
“5. Further, ESB erred in they failed to follow or consider the following as established by the election code in 4.12:

4.12 Violations of the Code shall be divided into four classifications: (a) Class A violation shall result in a fine. (b) Class B violation shall result in a moratorium of campaigning. (c) Class C violation shall result in a combination of moratorium of campaigning and a fine. (d) Class D violation shall result in a disqualification from the election. Within the ranges established by the Election Board, the Election Board shall select the amount of the fine or length of the suspension most appropriate to both the severity of the infraction and the intent of the violator as determined by the Election Board. At the candidate seminar, the Election Board shall clearly define what would constitute each class of a violation. “ I wanted to pull this out especially because not only is it an incorrect reading objectively... It makes very little sense even if you believed the above premise.

1. Why this is not an objective reading of 4.12: a. The part right after where the petitioner added emphasis says that intent shall be “determined by the Election Board”. By virtue of the same Board issuing a decision in which a line of reasoning was established that justified their interpretation that stipulation is satisfied. It doesn’t matter if the person being ruled against disagrees with this determination. b. This section is in regard to setting fines and suspensions. 2. Even if this faulty premise was to be held true: a. There was nothing ever presented to demonstrate any action taken not to be negligible. i. Black’s Law Dictionary defines negligence as the following: “the failure to exercise a standard of care that a reasonably prudent person

would have exercised in the same or similar situation. Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. The quality or state of being negligent; lack of due diligence or care; omission of duty; habitual neglect; heedlessness. An act or instance of negligence or carelessness.” 1. The reasonable standard of care was demonstrated by everyone who did not falsify their financial disclosures. 2. Turning in a blank disclosure in which you actually account for why the reason why it’s blank on your own accord displays some level of intent. b. The decision articulates multiple premises that yield the same result as prescribed by the code itself therefore the appropriate severity was applied.

The above just attests to the Board’s extensive effort to regulate these elections as fairly as we are allowed to and as possible. At no point does any other point of the decision (which justifies the same result independent of the above) come into question nor does the overall guilt of the offending party come into question. One could simply look to the decision to look at the various other ways outside of this claim that justify the Board’s decision and attempt to govern a fair election. I, personally, do not mind the entertaining of the appeal and intentionally submitted this brief in full knowledge that the hearing was already granted. Any forums of transparency as deemed by

the governing documents are welcomed and would hate for anyone to feel persecuted or judged unfairly without a proper recourse. //signed// Eric D. Nimmer

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->