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16 C.C.

(2012/13)

ASUO Constitution Court


JOANNA STEWART V. ASUO PRESIDENT LAURA HINMAN
[Decided January 22, 2013]

OPINION By Chief Justice Schultz Joined by Associate Justices Cosner and Apana. Justices Nicholson and Huegel dissenting. I On December 3, 2012, ASUO student Joanna Stewart (hereinafter Petitioner) filed a grievance against ASUO President Laura Hinman (hereinafter Respondent) with the Constitution Court. Petitioner alleges that Respondent is in nonfulfillment of her duties for violation of Article 13 5 of the ASUO Constitution. Petitioner reasons that although Respondent appointed four members to the Elections Board by the required time established in 8 C.C. (2012/13), she did so in an improper fashion. Petitioner argues that the Elections Board Chair must be confirmed to the position before being qualified to submit recommendations for the Board. Petitioner also argues that Respondent has been in nonfulfillment of duties for three weeks, because she did not make valid appointments by 11:59 PM on November 22, 2012. See 8 C.C. 2012/2013. Petitioner asserts that because Respondent is in nonfulfillment of duties, this Court should rule that the office of the ASUO President is vacant pursuant to Article 14 3 of the ASUO Constitution. Evidence provided by Petitioner includes a Senate agenda announcing the confirmation date for Mr. Patrick Chaney to the position of Elections Board Chair on November 28, 2012. On December 7, 2012, Respondent filed a brief asking the Court to dismiss Petitioners grievance. Respondent cited state and federal court guidelines which require a Statement of Facts to review a case. Petitioners

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original brief did not include a statement of facts section. Additionally, Respondent challenged Petitioner's interpretation of Article 13 5, claiming that the provision was ambiguous. Moreover, Respondent offered her interpretation of the provision. According to Respondent, the Elections Board Chair must be appointed by November 1st, but that the deadline is unclear or nonexistent for the four members of the Elections Board. Respondent's brief also suggested that the Elections Board Chair appointee is capable of recommending further appointments to the Elections Board prior to confirmation. Respondent argues that the Courts decision in 8 C.C. 2012/2013 gave her until November 23, 2012 to submit appointments, but did not indicate that these appointments would need to be made on recommendation of a confirmed Elections Board Chair. Respondent also argues that, as the Elections Board Chair was confirmed on November 28th, the appointments are valid, and as no damage was done from nonfulfillment, the case should be dismissed. Mr. Patrick Chaney was appointed by Respondent as Elections Board Chair on November 15, 2012. Evidence provided by the Respondent includes an email between the ASUO President and the Senate announcing the appointment of the Elections Board Chair on November 15th, 2012. This letter also states that advertisement for the position began on October 22nd. A second email between Respondent and Senate is provided, dated to November 22nd announcing four appointments to the Elections Board. It describes the hiring panel for the Board as consisting of Respondent, the ASUO Executive Chief of Staff, and the Elections Board Chair appointee. The Constitution Court was in Winter Recess upon receipt of the Respondent's brief, and did not revisit the issue until reconvening on January 10, 2013. After preliminary discussion, the Court decided to allow both parties an opportunity to amend their briefs. Petitioner submitted an amended grievance, which included a Statement of Facts. Respondent chose not to amend her brief. The Constitution Court invited both parties to participate in a public hearing held on January 19, 2013. The Hearing took place in Room 241 of the University of Oregon School of Law. Chief Justice

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Schultz and Associate Justices Nicholson, Cosner, Apana and Huegel were in attendance.1 II Pursuant to Article 11 2 of the ASUO Constitution, the Constitution Court shall have supreme and final authority on all questions of interpretation of this Constitution and any rules promulgated under it. Article 13 5 of the ASUO Constitution requires the ASUO President to appoint an Elections Board Chair and, no later than November 1st of each year; appoint four members to the Elections Board upon recommendation of the Elections Board Chair. Article 14 3 of the ASUO Constitution further provides that Non fulfillment of duties for three weeks will be considered a vacancy of any office elected or appointed under this Constitution. Because the Constitution Court has jurisdiction to adjudicate this dispute between Petitioner and Respondent, it will turn to a discussion of Petitioners allegations. III We begin by evaluating Petitioners claim that Respondent is guilty of non-fulfillment of duties. Article 13 5 of the ASUO Constitution clearly states that the ASUO President shall appoint an Elections Board Chair and, no later than November 1st each year [,] appoint four members to the Elections Board upon recommendation of the Elections Board Chair. Petitioner alleges that Respondent failed to appoint four members to the Elections Board upon recommendation of the Elections Board Chair. Petitioner agrees that Mr. Chaney was appointed Elections Board Chair on November 15, 2012. However, Petitioner points out that Mr. Chaney was confirmed by the ASUO Senate on November 28, 2012. Petitioner does not contest that Mr. Chaney independently evaluated several candidates for the Elections Board positions. Similarly, Petitioner concedes that Mr. Chaney independently selected and
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A digital recording of the transcript is available upon request from the ASUO Constitution Court Chief Justice. A written transcript of the hearing will soon be made available on the Constitution Court website: http://asuo.uoregon.edu/concourt.php

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recommended four candidates for the Elections Board positions to Respondent. See Amicus Curiae Brief: Mr. Patrick Chaney. Petitioner asks this Court to interpret Article 13 5 to clarify that the Elections Board Chair must be confirmed by the ASUO Senate prior to giving recommendations for filling the four Elections Board positions. Respondent concedes that Mr. Chaney gave his recommendations as an unconfirmed appointee to the position of Elections Board Chair. However, Respondent asks this Court to interpret Article 13 5 to simply require that the ASUO President appoint a student to the position of Elections Board Chair prior to receiving recommendations from the student. Simply put, Respondent suggests that a student appointed to the position of Elections Board Chair may act with the equivalent responsibilities and powers of an elected or confirmed ASUO officer. The Court cannot accept Respondents interpretation of Article 13 5 for three reasons. First, the plain meaning of this provision clearly reflects a requirement that the Elections Board Chair make recommendations to the ASUO President prior to November 2nd. Nowhere in the ASUO Constitution is a student empowered to exercise the privileges and duties of an officer without being either (1) elected or (2) appointed by the ASUO President and confirmed by the ASUO Senate. Respondent presents a novel and creative claim that asks the Court to essentially create new law empowering an appointed student to act with the powers and privileges of the Elections Board Chair. But this Court does not create the law; it interprets the law according to its original intent and its plain meaning. Second, Respondents theory of interpretation would seriously interfere with the ASUO Senates duty and privilege to review and confirm candidates to official positions. According to Article 6 20 of the ASUO Constitution, the Student Senate shall confirm or deny appointments[to the] ASUO Elections board. Respondents interpretation would grant an appointed student the powers of an office that were intended to be conferred only after confirmation by the ASUO Senate. This system of checks and balances preserves the careful selection of qualified candidates by subjecting the Executives appointments to review by the Senate prior to acquiring the office.

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Third, the Court concludes that both custom and tradition in the ASUO clearly demonstrate that appointed students do not possess the authority to act as an elected or confirmed student officer. For example, a student appointed to the Constitution Court can neither issue an injunction nor rule on a grievance unless and until he or she is confirmed by the ASUO Senate. This logic applies to the position of Elections Board Chair as well. These three reasons compel the Court to accept Petitioners interpretation of Article 13 5. As a result, the Court concludes that this provision requires the following to occur prior to November 2nd of each year: (1) the ASUO President must appoint a student to the position of Elections Board Chair; (2) this student must be confirmed by the ASUO Senate to become the official Elections Board Chair; (3) the confirmed student must make recommendations regarding the four other positions on the elections board to the ASUO President; and (4) the ASUO President must appoint four students to the positions of the Elections Board upon receiving these recommendations from the Elections Board Chair. IV All members of the Constitution Court (including those dissenting today) agree that Respondent is guilty of non-fulfillment of duties for at least two weeks, because she failed to appoint Mr. Chaney by November 1st. See 8 C.C. 2012/2013. The dispositive issue, therefore, is whether Respondent remedied this violation within three weeks. The parties agree that Mr. Chaney was confirmed by the ASUO Senate on November 28, 2012. Consequently, Mr. Chaney could not make valid recommendations to Respondent before November 28th. This means that Respondent did not properly appoint four members to the Elections Board upon recommendation of the Elections Board Chair by November 1, 2012. Although Respondent appointed four students to the Elections Board, she did so without the recommendation of the Elections Board Chair, which is required by Article 13 5 of the ASUO Constitution. As a result,

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this Court has no choice but to rule that Respondent was in non-fulfillment of duties for at least three weeks.

V In the matter of Sam Dotters-Katz v. the ASUO Executive, 35 C.C. 2011/2012, this Court held:

Article 14 [] 4 of the ASUO Constitution states in unequivocal terms that Impeachment and removal from office of the ASUO President may be under the process set for in [Article 5 1] of this Constitution, in addition to the process of Section 14 [] 3. Hence, the ASUO Constitution requires that where the removal of the ASUO President is concerned, the only two avenues for achieving this goal are impeachment and nonfulfillment of duties. Unless either of these alternatives is exercised, the Court cannot arbitrarily vacate the office of the ASUO President.
Petitioner has proven that Respondent was in nonfulfillment of duties for at least three weeks. As a result, she requests that this Court declare the office of ASUO President vacant. Article 14 3 of the ASUO Constitution provides that [n]on-fulfillment of duties for three weeks will be considered a vacancy of any office elected or appointed under this Constitution. In recent years, the Court has twice ruled that the position of ASUO Student Senate President was vacant. The first was in 23 C.C. (2006/07). In that case, Senate President Sara Hamilton was found in non-fulfillment of duties by this Court and her office was declared vacant. Hamilton had failed to distribute the Senate agenda on time, and although the court found the mandatory removal that was dictated to be harsh, it nonetheless imposed the constitutional mandate. Similarly, in 33 C.C. (2011/12), ASUO Senate President Lamar Wise was found to be in non-fulfillment of duties because he did not hold mandatory multicultural trainings by the deadline. Again, the Court declared the position of ASUO Student Senate President vacant. In the 2004 Melton decision, Chief Justice Harris gave the following words of cautionary advice:

Though I appreciate [the] reluctance to impose such a severe sanction, I can see no other course of action other

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than this which would remain consistent with the duty we owe to the students of the University of Oregon.
Despite the differences in fact and legal conclusions drawn from this Courts precedent, one judicial principle remains true today: it is not the Courts discretionary privilege to enforce the rules; it is the Courts duty to do so. Article 14 3 clearly states that [n]on fulfillment of duties for three weeks will be considered a vacancy of any office elected or appointed under this Constitution. As Justice Benevento eloquently stated, [i]f this Court chose to simply ignore these rules it would be taking the power out of the hands of the elected representatives of the people, and therefore the people themselves, and placing it into its own hands. Furthermore, the only way that equality under the law can be guaranteed is if the rules of law are followed. If this Court took it upon itself to decide what rules to follow and when, it would be creating a situation by which its unbridled discretion would allow for abuse. See 33 C.C. 2011/2012 (citing 28 C.C. 2006/2007). In light of this Courts precedent, we rule that the position of ASUO President is vacant. VI In summation, the Court concludes that the Respondent has been in non-fulfillment of duties for at least three weeks. As a result, the Court rules that the position of ASUO President is vacant pursuant to Article 14 3 of the ASUO Constitution. In accordance with Article 5 22 of the ASUO Constitution, Vice-President Nick McCain shall assume all duties pertaining to the office of the President effective immediately.

It is so ordered.