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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT

STUDENT GOVERNMENT
www.utsg.org
Opinion of the Court
NOTE: This is a bench opinion from the Court responsible for addressing the official
findings of the Court and does not constitute a final draft. The final version of this
opinion may be edited into the Courts journal to reflect minor changes or additions to
the decision not impacting the ultimate decision of the Court.
THE JUDICIAL COURT
OF THE STUDENT GOVERNMENT OF THE
UNIVERSITY OF TEXAS AT AUSTIN

No. 2014SE 002
MEAGAN ABEL V. RYAN LUTZ, IN HIS CAPACITY AS CHAIR OF
THE ELECTION SUPERVISORY BOARD
Delivered February 27, 2014

CYRUS, J. delivered the opinion of the Court; WISEMAN, C.J., GRUENER, J.,
WILES, J., and OLIVER, J. join in all parts of the opinion.


Pursuant to the authority of the Judicial Court as the tribunal of supreme
authority in all cases arising under The University of Texas Student
Government Constitution, its associated rules and codes, and all entities acting
within the framework of official Student Government business (UTSG Const.
Art. V, 5.21), we grant petitioner ABELS request to review the actions of the
ELECTION SUPERVISORY BOARD.

The respondent requested a motion to dismiss this case based on the
consideration that the communication and decision of the ESB which
prompted this case was the result of a reckless error, and not established
consideration on the part of any agent of the ESB.
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However, after reviewing
the submitted evidence, a cause of action still remained due to evidence of
further considerations of the matter in question (a requirement for prior

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Respondents Brief

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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT
STUDENT GOVERNMENT
www.utsg.org
negotiation to take place before any official action of the ESB) beyond the
initial complaint. Respondents motion to dismiss was subsequently denied.

Upon receipt of both the plaintiffs and respondents briefs, both parties agreed
to a summary judgment dictated by this court based upon the arguments
presented in each brief and the disclosed evidence. As such, upon
confirmation of this mutual agreement, the Court retired to conference to
deliberate and deliver its opinion.

I. SUMMARY
On February 24th, Mr. LUTZ, acting in his capacity as CHAIRMAN OF THE
ELECTION SUPERVISORY BOARD, informed Ms. ABEL, a non-candidate student
that had filed an Election Code violation complaint with the ESB earlier that
day, that the Board would require that petitioners personally contact and
attempt to negotiate with alleged transgressors before taking any official
action on the matter. In the absence of any prior negotiation requirement
codified in the prolixity of regulations and procedures governing Student
Government elections, Ms. ABEL petitioned this Court to review the actions of
the ESB in the promulgation of this extraneous rule.
After an initial refusal to turn over documents pertaining to the matter and
comply with an official Court request for the aforementioned documents, for
which he was held in contempt, the respondent claimed that his explicit
instructions to the petitioner, which gave rise to the controversy at hand, were
the erroneous result of recklessness, and not an official statement of ESB
policy.
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However, as was made clear once the requested documents were
made available; subsequent references to prior negotiation with an alleged
infractor as a necessary condition for the holding of hearings,
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and an internal
correspondence in which the reasons for placing this additional burden on
petitioners are explicated,
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serve to erode the foundation of this claim.
It is for these reasons that the Court has determined that the prior negotiation
requirement is aptly described as a rule promulgated by the ELECTION
SUPERVISORY BOARD if not as an established de jure regulation, at least in the
capacity of a de facto practice which was taken into consideration when
deciding standing in at least some of the cases brought before it. However, it
is worth reasserting that it is beyond the evidence to indict the ESB for
implementing the rule de jure. At the same time, it is also worth reasserting

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Respondents Brief
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Respondent Evidence B
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Respondent Evidence D1

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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT
STUDENT GOVERNMENT
www.utsg.org
that it is also proven by the submitted evidence that it was a de facto practice
taken into consideration on multiple occasions.
It was argued by the respondent this practice was to ensure efficiency of the
involved parties time and was not a capricious attempt to circumvent the
responsibilities of the ESB. The Court will for these purposes assume the
claims truth.
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It is of some importance to note that the resolution of the original complaint is
irrelevant as far as this case is concerned except where the plaintiff was
denied her constitutional opportunities on the grounds of an extraneously
promulgated rule of standing. Rather, the scope of our consideration is
narrowed to the question of whether the rule of standing promulgated by the
ELECTION SUPERVISORY BOARD therein is constitutional. We hold that it is
not.
II. PROMULGATION OF ELECTION CODE REULGATIONS
The rules enshrined through the process of codification into the Student
Government Constitution represent the will of the student body, as expressed
by the approval of the elected Assembly of the student body and approval via
campus-wide referendum. If one were of the mind that the implementation of
some particular policy would aid in the efficacy or efficiency with which the
duties of Student Government officers are discharged (including non-officers
discharged with official duties relating to Student Government business as is
the case with the ELECTION SUPERVISORY BOARD), the proper avenue of
adoption is prescribed by our governing documents enacted legislation
which codifies the policy. In contemplation of a system by which to govern
the conduct of those that vie to represent the students, the Student
Government Constitution entrusted the creation of an Election Code with the
stipulation that creation of and amendments to the document were to be,
submitted to the Assembly for approval, and that, no election rules may be
enacted within four (4) weeks prior to an election (UTSG Const. Art. V,
5.44)
It being the case that selection to serve as an ELECTION SUPERVISORY BOARD
member is an honor, that members receive monetary compensation for
performing their duties, and not least that the student body has placed its faith
in those who serve in such posts to skillfully discharge their tasks; members
should at least be familiar enough with the documents they have been

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This is not a trivial assumption as the prior negotiation rule would have raised the bar of standing higher than the Election Code
permitted and would had the effect of chilling the reporting of election violations of particularly the non-SG affiliated student
body serving to erode trust in the judicial processes of SG elections and potentially prevent the ESB from fulfilling its
prescribed duties in the Election Code.

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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT
STUDENT GOVERNMENT
www.utsg.org
entrusted with enforcing that they can distinguish between rules that have
been enacted and those which have not. The prior negotiation rule falls into
the latter category.
As such, should the ELECTION SUPERVISORY BOARD implement such a rule
mandating prior negotiation as a necessary condition for calling a hearing (or
acting in any official capacity) in regards to filed complaints would be an
unacceptable and unconstitutional usurpation of legislative power belonging
exclusively to the Student Government Assembly as empowered by the Board
of Regents of The University of Texas System (Regents Rule: 50203, 2.4).
Disturbingly, the ELECTION SUPERVISORY BOARD has seemingly allowed their
internal promulgation of an unofficial rule to override the Election Codes
limitation of complaint dismissals to those instances delineated in UTSG Elec.
Code Title II, Chpt. IV, 4.3. The subsequent section elucidates this point
further by showing that refusing a hearing is necessarily a case dismissal
(UTSG Elec. Code Title II, Chpt. IV, 4.4), and, in the absence of a
petitioners complaint meeting any of the other exclusionary criteria, the
ELECTION SUPERVISORY BOARD would have to render its decision not to hold
a hearing on the basis of some super-legislative basis.
Respondent contends that the extraneous rule was not the basis for the denial,
and thus dismissal, of the complaint registered at all. Instead, he asserts,
Meagans complaint was denied a hearing on the basis of: No candidate
was adversely affected by and no candidate gained any advantage from this
minor infraction. [The violation was] determined to be well below any
necessary amount to have a full hearing on.
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The Court finds it impossible to believe that the practice of prior negotiation
was not a consideration when the submitted decision to the plaintiff indicated
as such. The email communication sent to the plaintiff set up the conditional
statement, If the candidate doesn't comply with taking down his poster in the
dorms, then we can move to a hearing, but not before you talk to him
personally.
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The necessary condition was prior negotiation, and thus, the
Court finds the denial of considering prior negotiation as a qualifier for
standing highly suspect (emphasis added).
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Respondents Brief.
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Plaintiffs Brief.
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Even when Respondents assertion, which the Court holds to be true, that the explicit instructions of requiring the plaintiff to
engage in prior negotiation are held as a result of reckless error, and not predetermined intent, the evidence shows that there were
other indicators beyond that particular wording to indicate at least the consideration of prior negotiation as a qualifier was present
and was not something that was entirely dismissed from consideration of the plaintiffs original complaint by agents of the ESB.

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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT
STUDENT GOVERNMENT
www.utsg.org
That aside, what is alarming to the Court is that the consideration of
requesting prior negotiation (again, the Court is holding this is not a de jure
regulation, but instead de facto practice)
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is the looseness of the determination
that a complaint can be, well below any necessary amount to have a full
hearing on,
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without a published standard, record of criteria, etc.
In this particular matter it may have worked out. However, the administrative
precedent set through the looseness by which the ESB was utilizing this
standard to dismiss complaints without a public declaration of any standard, or
notice of doing such, while at the same time considering the notion of prior
negotiation for the sake of expediency and efficiency and allowing the
responsibility of adjudicating grievances to be preemptively prohibited is of
grave concern. It flies in the face of the spirit and letter of Election Code law
that the actions of the ESB should be public in order to establish integrity of
the process beyond reproach. Additionally, in the spirit of equal justice under
law a standard by which past ESBs and Judicial Courts alike have operated
and a standard which the Election Code demands, as published precedent
plays a key role in establishing stare decisis between election years
consistency cannot be maintained with such loose and non-public standards.
While the Court appreciates the need for flexibility on the part of the ESB for
handling election disputes, some standards at least need to be in place to
ensure integrity and consistency in the process and that decisions are not
arbitrarily made and/or kept from the public eye. Furthermore, any dismissals
through the means available to the ESB should be made public and the
reasoning for doing so made public as well (emphasis added).
While a standard of efficiency may not in and of itself be unconstitutional, the
way in which it has been currently practiced by the ESB certainly is.
III. RULING AND CONCLUSION
Pursuant to the authority granted by The University of Texas Student
Government Constitution (UTSG Const. Art. V, 5.33), we hold the
ELECTION SUPERVISORY BOARD to its claim that it has not nor, will require
any complaint filer to try to rectify the situation before a hearing is made,
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and further reassert the unconstitutionality of such a rule and the
unconstitutionality for the ELECTION SUPERVISORY BOARD to operate under
any standards not expressed by the Student Government Election Code. That
tribunal, bound by the Constitution to obey the rulings of this body, is to

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See note about assuming the truth of the respondents claim that the indication of the requirement by using the word require
in the decision correspondence with the plaintiff was a result of reckless error instead of predetermined intent.
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Respondents Brief.
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Respondents Brief

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SENATE OF COLLEGE COUNCILS & STUDENT GOVERNMENT
STUDENT GOVERNMENT
www.utsg.org
conduct its subsequent proceedings not inconsistent with this opinion (UTSG
Const. Art. V, 5.34).
We additionally conclude that while information may be gathered by the ESB
regarding any prior actions taken by the complainant to engage in prior
negotiation with the accused party in a properly submitted complaint, this
information shall not be mandatory for consideration of a complaint nor shall
the submission of such information be first required for any complainant
before consideration of the complaint by the ESB. As such, we recommend to
the Office of the Dean of Students to expeditiously remove, or otherwise
significantly alter to ensure complainants understand the exclusively optional
nature of, the questions on the digital complaint form which request
information of prior negotiations with any accused parties.
We further conclude that THE CHAIRMAN OF THE ELECTION SUPERVISORY
BOARD willfully refused to comply with a Court order for evidence, and as a
result formally hold Mr. LUTZ in contempt of court.
Additionally, the lack of transparency in the application of standards of
review, recommendations for alternative dispute resolutions, and the failure of
any of this to be duly published is of great concern to the this Court.
Transparency in government operations is a cornerstone of any democratic
process and a necessary requirement for maintaining the trust of constituents.
As such, this Court, in keeping with the spirit and letter of transparency found
within the Election Code, further requires for all future complaints filed with
the ESB (in any form) that a public record be published and maintained by the
ESB of the actions taken, reasoning of the ESB, and outcomes of all
complaints submitted which meet the strictest interpretation of proper
submission and standing explicitly expressed in the Election Code.
It is so ordered.