(No. 2014 SC - 006) Wilson v. Rady

STUDENT GOVERNMENT JUDICIAL COURT

THE UNIVERSITY OF TEXAS AT AUSTIN

1 University Station, A6210 Austin, TX 78712-0810 (512) 471 - 3166 www.utsg.org

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Opinion of the Court

NOTE: This is a slip 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. 2014SC - 006

ANDREW WILSON v. KORNEL RADY & CHRISTOPHER

JORDAN, ET AL.

Delivered May 14, 2014

WISEMAN, C.J. delivered the opinion of the Court; CYRUS, J., GRUENER, J., WILES, J., and

OLIVER, J. join in all parts of the opinion.

I. SUMMARY

On Monday, April 28, 2014 Mr. Andrew Wilson, Petitioner, filed a petition for review with this

Court regarding the attempted nomination of several dozen appointments to internal and external

Student Government positions by Mr. Kornel Rady, Respondent, as a function of the office of Mr.

Radys Chief of Staff, Mr. Chris Jordan, Respondent. Petitioner alleged that, These nominations

contradict the April 5th opinion of the Court1 and violate the [Student Government] Internal Rules2.3 Petitioner contended that Mr. Jordan, in acting as an agent of Mr. Rady, failed to disclose

1 Reference to this Courts decision on (No. 2014SA 004) In Re: The Student Government Appointment Process.

(Delivered April 5, 2014). 2 Mr. Wilson is referring not to the collective whole of controlling authorities upon Student Government actions per

se, but is instead directly referencing the provisions outlined within The Internal Rules of Procedure for the Student

Government of The University of Texas at Austin. 3 Wilson, Andrew. Petition for Review (No. 2014SC 006). Received April 28, 2014, 2.




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all necessary documentation to the public and to the Student Government Assembly which would

have allowed the representatives of the Assembly to fully review candidates prior to their

confirmation hearings at the April 29, 2014 Student Government General Assembly meeting as required by the articles in the Internal Rules cited in the petition and echoed in this Courts early

opinion.4 Mr. Wilson concludes that this inhibited the Student Government Assembly from

sufficiently carrying out their constitutionally assigned duty to, to properly vet each nomination

brought forth by the President for appointed positions.5

In defining the scope of his allegations, the Petitioner called into question all nominations

published by the Student Government Assembly Clerk6 prior to the April 29, 2014 meeting of the

Student Government General Assembly7 as well as specifically guiding attention to two specific

sub-categories of those appointments: the nominees for Spirit & Traditions, Student Life FC,

and Rec Sports FC8, and any other nominees in which their nomination wasnt their

[preferenced]9 choice.10

In replying to the petition for review, and in stating their opinion regarding Petitioners motion for

a preliminary injunction against the Student Government Assembly hearing any of the proposed

nominees at the April 29, 2014 Student Government General Assembly meeting, Respondents

clarified that the first sub-category of nominees would not be nominated and determined that this

4 (No. 2014SA 004) In Re: The Student Government Appointment Process. (Delivered April 5, 2014).

5 Wilson, Andrew. Petition for Review (No. 2014SC 006). Received April 28, 2014, 1.

6 As contained within the 4-29.docx attachment to the email titled Updated Agenda, which contained the list of

nominees by the Respondent for various internal and external Student Government appointments, which was sent

from the Assembly Clerks email account to the standard public notification list of email addresses on Tuesday, April 29, 2014 at 4:10PM (CST). 7 This was the proper logical conclusion of the allegation by the Petitioner that the Respondents had, failed to provide

all interview questions, answers, and evaluations to the public as required by Article IV 8 of the Internal Rules, as outlined in the Petitioners Petition for Review. Credulity would be outlandishly and preposterously strained if we were to accept that this contention invoking the Courts previous opinion, which applied to all nominations by the executive, would be limited in this instance to only three nominees, as has been contended by the Respondents

throughout these proceedings, as in his Petition for Review the Petitioner asserts allegations which implicate the full

list of proposed nominees and in both his Trial Brief and Response Brief the Petitioner applies the scope of his

arguments to the entirety of the proposed nominees for the April 29, 2014 meeting of the Student Government General

Assembly. Thus, the only logically sound conclusion is that the scope of the Petitioners allegations applies to the entire list of nominees proposed for the April 29, 2014 Student Government General Assembly meeting. Hence, the

Court considers the nature of the allegations to apply to the full scope of proposed nominees for the April 29, 2014

Student Government General Assembly meeting and treated the allegations in such a manner. 8 Wilson, Andrew. Petition for Review (No. 2014SC 006). Received April 28, 2014, 1.

9 Petitioners original claim was first choice. However, upon further clarification since applications allowed up to

three preferenced choices (a first, second, and third), the Petitioner clarified he was referring to any of the three choices which an individual may have listed in their application. 10

Wilson, Andrew. Addendum to Petition for Review (No. 2014SC 006). Received April 28, 2014.




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contention of the Petitioners petition was a moot point.11 This was agreed to by the Petitioner

upon the understanding that the Respondents had, reopened the applications for these

positions.12 Thus, the only nominations left in the scope of the question to be considered by the

Court were all other proposed nominees.13

In reviewing arguments submitted by both sides and the submitted amicus curiae briefs by

members of the Student Government Assembly, the Courts attention focused on the central

question of if the proper process for confirming executive nominees for internal and external

Student Government positions was violated in a way that would undermine the integrity of the

process and legitimacy of the outcomes.

The Court first examined the issue of whether or not the Executive Board had the responsibility of

providing documentation to the public and to the Assembly regarding the qualifications of the

proposed nominees. The Court turned to its earlier opinion regarding this very issue for guidance:

The selection of nominees is followed by the confirmation proceedings of the

Assembly. It is critical during these proceedings that the Assembly selects only the

most qualified of applicants, as it is in the best interests of the Student Government

to have the most qualified individuals serving in each of the appointed positions. In

order to do this, the standing rules require that the full applicant pool and

accompanying information for each applicant be made available to the Assembly,

but and also that, All interview questions, answers, and evaluations shall be made

public by the Chief of Staff, as well (UTSG Int. Rules Art. IV, 8) The Court believes that in order to ensure transparency, but also continuity, between the acts

of Student Government; appointment applications, interview questions, answers,

and evaluations should be made at least as public as the Student Government

General Assembly agendas. Therefore, the Court holds that the information

required to be made public by UTSG Int. Rules Art. IV, 8 must be digitally sent

out to the same email addresses and listservs as the General Assembly agendas, and

that a hardcopy must be made publicly available in the Student Government office

in a similar manner to the General Assembly agendas At the very latest, the

mandate in UTSG Int. Rules Art. IV, 8 should be fully completed, at least 48

11

Aimuyo, Nosa. Respondents Response Brief to Petitioners Motion for Preliminary Injunction (No. 2014SC 006). Received April 29, 2014, 1. 12

Wilson, Andrew. Petitioners Brief for Motion for Preliminary Injunction (No. 2014SC 006). Received April 29, 2014. 13

As contained within the 4-29.docx attachment to the email titled Updated Agenda, which contained the list of nominees by the Respondent for various internal and external Student Government appointments, which was sent

from the Assembly Clerks email account to the standard public notification list of email addresses on Tuesday, April 29, 2014 at 4:10PM (CST).




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hours prior to the start of the Assembly meeting, if not before (UTSG Int. Rules Art. II, 3).14

The Court reaffirmed its determination that there is clearly an outlined requirement for this

information to be made available prior to any Assembly confirmation for executive appointments thereby establishing a requirement that the Assembly be given the opportunity for prior consideration of all nominee materials substantive to their qualifications before any legitimate confirmation process may take place. Respondents never deny this to be a responsibility nor

suggest they took even the slightest good faith effort to comply with these provisions. Thus, the matter of the Petitioners allegation that there was an intentional procedural error on the part of the

Respondent(s) is an established matter of fact.

The next consideration of the Court was whether this procedural error violated or otherwise

deteriorated the legitimacy of the nomination and confirmation process again, something that is an equal function of both the executive and legislative branches in this instance. For this, the Court

again returns to its previous opinion on the matter of the appointments process.15 It was previously

established that, it is in the best interests of Student Government to have the most qualified

individuals serving in each of the appointed positions.16 Furthermore, through invoking the same

ruling, the Petitioner argues, it is necessary for the Assembly, in providing its advice and consent,

to be able to properly vet each nomination brought forth by the President for appointed

positions.17 The Court found that in order for this proper vetting to take place and serve the constitutionally mandated interest of the appointments process, the Assembly must be able to come

to its own independent determination of a proposed nominees qualification(s) for a particular

position. While the determination of the candidates qualifications is purely a political

consideration,18 and not something the Court elects to discuss here, the process of providing the

Assembly with the ability to determine those qualifications is entirely procedural and within the

jurisdiction of this Court to review and address.

At its heart this is an issue of ensuring the Assembly is given the ability to review an amount of

information about each particular nominee that would be sufficient to reach a determination of a

candidates qualifications independent from just taking the executive branchs word on it. It would render the entire confirmation process moot if the Assembly was not given the ability to

14

(No. 2014SA 004) In Re: The Student Government Appointment Process. (Delivered April 5, 2014); The Appointment Process, 3-4. 15

(No. 2014SA 004) In Re: The Student Government Appointment Process. (Delivered April 5, 2014). 16

(No. 2014SA 004) In Re: The Student Government Appointment Process. (Delivered April 5, 2014); The Appointment Process, 3. 17


Political in the sense that it belongs in the jurisdiction of the political branches of Student Government (as far as

executive nominees are concerned) and not necessarily in the judiciary.




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review a sufficient amount of information about the qualifications of a candidate in order to

determine the candidates qualifications. Thus, this Court must ensure a minimally-sufficient

amount of information is provided (in an effort to ensure prior consideration is even able to take place) for a confirmation to have any meaning, integrity, or validity. Fortunately, Student

Governments rules already provide for such a threshold to be met if the process for appointments,

as outlined in this Courts April 5th ruling, is simply followed. In providing the Assembly with all

the substantive information about a candidates qualifications for a position, application, resume,

associated initiatives or addendums, and meaningful interview notes and the ability to seek further

relevant information from the candidate him/herself or from their given reference, the burden of

sufficient information is easily met. This is the same information utilized by the Executive Board

to make such nominations, thus it only makes sense that the Assembly have access to the same

information in an effort for it to reach a valid independent consideration as well and ensure the

executive branch reached a proper decision. While there could be any number of standards applied to preventing the deterioration of the validity of the confirmation process due to

insufficient information being made available to the Assembly, it is not necessary to discuss all of

them. It is only necessary to determine if the process outlined in Student Governments rules is

sufficient for the prevention of that same deterioration.

The Court determined that this is the same information available to the Executive Board in making

nominations. Respondents did not believe they lacked any information regarding the qualifications

of their candidates in providing their nominations, nor did the Petitioner assert that if all this

information was taken into consideration that it would fall short of a threshold of allowing

sufficient consideration.19 Thus, this Court has determined that if this information is sufficient for

making a meaningful determination of a candidates qualifications as to provide a valid basis to

nominate them then its also sufficient for confirming them as well.

While this information would have been sufficient information from which the Assembly may

have reviewed each candidates qualifications and reached a valid and independent decision during

their confirmation, it is clear that this information was not accessible in any meaningful manner.

In the amicus curiae brief submitted by Mr. James Nalley, College of Engineering Representative

in the 108th Student Government Assembly, it was disclosed that, None of the previously stated

application items were made as public as the Student Government Assembly agendas, to what

he felt was the detriment to members of the Assembly being able to consider them.20 In another

amicus brief submitted by Mr. Sergio Cavazos, College of Liberal Arts Representative in the 108th

Student Government Assembly, he discusses how interview notes, contact information for each

candidate and their given reference, and resumes were not made available for all applicants and

that, [He] strongly believe[s] that this hampered [the Assemblys] ability to properly vet

19

In fact, the Petitioner asserts the exact opposite throughout his entire case. 20

Nalley, James. Amicus Brief (No. 2014SC 006). Received May 4, 2014, 1.




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candidates for these internal and external appointments.21 Mr. Cameron Crane, College of Natural

Sciences Representative in the 108th Student Government Assembly, asserted in his amicus brief

that, I do not feel that we, The Student Government Assembly, were provided with sufficient

information about the applicants that were nominated by the Executive Board for these

appointments.22 Respondents countered that, it is worth noting that [most] appointments were

approved unanimously. As a result of the fact that all Representatives, including [Representative]

Cavazos chose to vote Yes to all interview candidates rather than abstaining, it is apparent that even in absence of the interview notes, [they] still felt there was adequate information available

to make a decision.23 However, the fact that several representatives (more than just those

mentioned in this opinion) filed amicus curiae briefs saying the exact opposite raises doubt to the

validity of the Respondents claims particularly when several briefs assert the opposite of this claim almost verbatim. In the end, the Court does not take any political vote by any representative

for or against any nominee as evidence of sufficient information being provided (or even the

belief thereof by the representative) particularly when several of the representatives in-question state the exact opposite. The Court is inclined to believe the unimpeachable statements of an

individual as to his/her perceptions of sufficiency than a third-party. In this case, it means that for

representatives Cavazos and Long, as well as any other representatives who submitted an amicus

brief, the Court accepts their personal assertions of their beliefs over the Respondents. While these

statements certainly do not cover every individual member of the Assembly (as many members

have not spoken on this specific issue and their votes do not speak for themselves as to this matter); it is enough to raise the suspicion of the Court that even within the Assembly there are

members who believe they made a decision based on insufficient information. This goes to support

the Petitioners argument that the information provided to the Assembly (and the public) was

insufficient for the prevention of the deterioration of the confirmation process.

However, for the sake of humoring and fully contemplating the Respondents arguments that the Assemblys vote was evidence that it believed it had sufficient information to determine the

qualifications of each candidate and thus sufficient information was given let us examine a hypothetical instance where individual decision-makers believed they had sufficient evidence but

did not and their conclusions were entirely invalid as a result. Coupled with the admittance24 by

the Respondents that the Executive Board withheld numerous facets of information from the public

and the Assembly which were used by themselves to arrive at a determination of a candidates

qualifications;25 the Court finds greater evidence to support the claims made in the amici briefs

21

Cavazos, Sergio. Amicus Brief (No. 2014SC 006). Received May 3, 2014, 2. 22

Crane, Cameron. Amicus Brief (No. 2014SC 006). Received May 4, 2014, 3. 23

Aimuyo, Nosa. Respondents Trial Response Brief (No. 2014SC 006). Received May 5, 2014, 2. 24


During the April 29, 2014 Student Government General Assembly Meeting, multiple members of the Executive

Board went on the record as stating information gleaned from interviews, initiatives, and recommendations not




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that the Assembly was given insufficient information to make a legitimate determination as to each

of the nominees qualifications than the Respondents claims that sufficient information was provided.

Upon accepting cross-motions for summary judgment from the Petitioner and Respondents, the

Court, in determining that such a necessity exists to disclose sufficient information to the Assembly

to allow for prior consideration in fulfilling its duty to properly vet each candidate in an effort to, have the most qualified individuals serving in each of the appointed positions,26 and in

establishing the facts that such information was not sufficiently disclosed, reached the

determination that the Executive Board greatly erred in choosing to withhold critical information

about their proposed nominees from the public and the Assembly (in violation of the Internal Rules

and this Courts April 5th opinion). Additionally, and as a result of that error, the Assembly was

prohibited from making a legitimate confirmation decision for nominees heard during the April

29, 2014 Student Government General Assembly meeting. It is worth noting that during these

proceedings the Respondents agreed to publicly release all requested documents by the Petitioner27 which would meet the sufficiency criteria previously established for future confirmations of these nominees by the Assembly.28 However, Respondents ex post facto release of pertinent

documents to this tribunal does not constitute compliance with the rules of the appointment process

sufficient to legitimize the actions taken in nominating candidates for appointment at the April 29,

2014 Student Government General Assembly meeting.

II. STANDING OF PETITIONER AND JURISDICTION

The Court determined the Petitioner held standing as a student at The University of Texas at Austin

and as a member of Student Government. The Student Government Constitution reads, The court

shall hear all cases in which any student, faculty member, staff member, administrator, or student

organization at The University of Texas at Austin brings an actionable complaint.29 Additionally,

as a member of Student Government,30 he has access to a redress of grievances through the powers

of the Court should an actionable complaint be submitted. Thus, despite not being an Assembly

representative, Mr. Wilson does have standing to file a petition as a member of the student body

keeping his elected officials accountable to the principles established in the most recent version of

the Student Government Constitution.

disclosed to the public and the Assembly in accordance with the Internal Rules, helped them arrive at nomination

decisions. 26



Thus, any ruling that the Assembly erred in confirmation the first time would not preclude it from properly vetting and confirming these same candidates at a future date if the appropriate process was followed. 29

UTSG Const. Art. V, 5.16(c). 30

UTSG Const. Art. I, 1.2.




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It has been commented throughout these proceedings that this Court should not have jurisdiction

over a case such as this. However, these claims come not from interpreting the authority and

jurisdiction of this Court as based within the Student Government Constitution, but instead from

failing to read what the organizing documents of Student Government actually say or

misinterpreting what is written to further personal objectives. Nonetheless, the Court feels

compelled to clarify this in order to ensure this opinion clearly outlines all necessary facets of this

case including jurisdiction.

The boundaries of this Court are actually clearly spelled out in plain language in the Student

Government Constitution. It reads, All judicial powers and authority shall be vested in the

[Judicial] Court of Student Government.31 Additionally, The [Judicial] Court shall have sole

original and supreme jurisdiction in all cases arising under this Constitution and its associated

rules, regulations, or bylaws; as well as any matter concerning controlling authority upon the acts

of Student Government. This language, although broad and far reaching, does clearly define the boundaries of the jurisdiction of this Court any official acts of Student Government.32 While some dislike the supreme nature of this Court, it is the nature upon which the student body created this tribunal and the manner in which it demanded it act in service to the students of The University

of Texas at Austin.

The Judicial Court has three primary functions: to advise, adjudicate, and serve as liaison. This

Court was established in a capacity to advise the officers of Student Government about the

appropriate way to execute the provisions of Student Governments governing documents to

ensure transparency, responsibility, and accountability. This Court also assists in liaising between

Student Government and the Office of the Dean of Students, Office of the Vice President for

Student Affairs, and the Office of the Vice President for Legal affairs in matters concerning the

revision(s) of Student Government documents or seeking out information to address concerns

about the legalities of the actions of Student Government and their potential consequences.

More consequential to the topic at hand though is the fact that this Court was also established to

adjudicate instances where allegations of wrongdoing on the part of a Student Government officers

are raised. The purpose of these proceedings is to establish if something was done inappropriately

that would compromise the integrity of the institution, and if so issue a necessary remedy to correct

it and reaffirm the confidence of the student body that the officers of Student Government are

appropriately representing them and being held accountable for their actions. The fact is, like

Courts established by local, state, and federal authorities, the Judicial Court serves as a check on

the other branches of Student Government to preserve the principles which form the foundation of

all that Student Government does and hold Student Government accountable to the student body

31

UTSG Const. Art. V, 5.1. 32

Additionally, it gives appellate and supreme jurisdiction over Student Government campus-wide elections to this

body as well, but that is outside the scope of the purpose of this opinion and need not be discussed at this time.




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which it serves. Again, while some may wish to withhold this case, and others like it, from the

purview of the Court, they would do so exclusively and entirely in error of the Constitution.

As explained earlier in the summary, this case is not about whether or not the nominations by the

executive branch for the April 29, 2014 Student Government General Assembly meeting were

qualified for their respective positions. It is a matter of whether or not the process of nominations

and confirmations was properly followed in order to ensure integrity of the process and legitimacy

of the outcome. As such, it is a matter of an official act of Student Government and a matter of process (not politics) thus being entirely within the jurisdiction of this Court to act upon and issue an effective remedy as empowered by Article V of the Student Government Constitution.33

III. THE NATURE OF PRESCRIPTIVE WRITS AND OPINIONS

In the Respondents trial brief, Respondents attempt to shield themselves from the alleged liability of acting in violation of this Courts April 5th opinion by stating:

[I]t should be noted that the April 5 opinion by the Court is not binding on our

body per the Student Government Constitution 5.23: The Judicial Court shall have

the power, at its discretion, to issue non-binding advisory opinions. We took into

account the advice of the Court and decided not to release the documents for the

reasons outlined at the beginning of this document.34

Aside from the obvious fact such a Constitutional statute no longer exists and is thus no longer an

operating provision35, there is an issue with the Respondents interpretation of such a statute even if it were to still exist. For the sake of clarifying this fundamental issue of the binding nature of

this Courts prescriptive writs (also known as advisory opinions), the Court will humor the

33

With particular emphasis to the duties, powers, and authority granted to the Judicial Court in UTSG Const. Art. V,

5.16. 34


While this clause does appear in the 2011 draft of the Constitutional reforms passed by a student referendum, it has

since been overridden by the Constitutional redrafts which passed by student referendum in February of 2014. While

some may argue that the most recent draft of Constitutional revisions has not yet reached final approvals and thus we

should operate exclusively under the 2011 version until such a time as final approvals are granted, this line of reasoning

is fundamentally flawed and ignores the major factor that if it was uniformly applied to the 2011 reforms, it would

require operations to go back to an even older version of the Constitution as the document did not reach final approvals in 2011 either. When consulting with the Office of the Vice President for Legal Affairs in the course of investigating when the last time a Student Government Constitution had been finally approved with all necessary approvals, it was discovered that this process had not fully taken place since at least the 1990s. If the aforementioned logic of not complying with enacted constitutional mandates until they reached final approvals was to be followed,

Student Government would need to suspend operations immediately to comply with a document that is out of date by

over two decades (and that is not even certain since complications with the 1990s approval may push the date of the

last finally approved document even further into antiquity). The simple fact is that the most legitimate constitutional draft is the one that has most recently undergone approval by the student body (since both the 2011 and 2014 versions

of the Constitution have not reached final approvals) which would be the 2014 version of the Constitution.




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argument and address the reasoning as to why it is misguided in its application to the April 5, 2014

opinion.

In 2012, this Court issued an opinion in (No. 2012FA 004) In Re: 2013 Spring Elections Association Rule regarding a provision in the previous years election code suspending

association between Student Government candidates and any other candidate in a campus-wide election (with the exception of associations between Student Government Executive Alliance

candidates and their respective running mate). In referencing the Ninth Federal Circuit Court of

Appeals decision in the matter of Flint v. Dennison (488 F.3d 816, 833 (9th Cir. 2007)) and the Eleventh Federal Circuit Court of Appeals decision in the matter of Alabama Student Party v. Student Govt Assn of the Univ. of Alabama (867 F.2d 1344 (11th Cir. 1989)) under the advisement

of the Office of the Vice President for Legal Affairs, the Court held in its advisory opinion that:

[E]xcept in cases of a bona de executive alliance as provided for in the Election

Code, no candidate is allowed to contribute nancially or provide any other form

of tangible support to another candidate. This includes, but is not limited to, sharing

of campaign materials, campaign money, and campaign resources or jointly

soliciting votes between and amongst candidates who are not in a bona de

executive alliance. As a general rule and absent of other facts, insubstantial

appearances or social interactions to include but not limited to non-campaign based

photography and conversations are not restricted.36

This is significant due to the fact that this was not done through a legislative amendment to the

definition of association, nor was it something that was non-binding advice to the body administering Student Government spring campus-wide elections (the Election Supervisory

Board). Due to the Constitutional function which mandated, Opinions of the Judicial Court

shall have binding precedential value over subsequent proceedings of the Election Supervisory

Board. The passage of time shall not cause the precedential value of an opinion to expire.37 The

direct logical conclusion of this mandate is that despite the name advisory, prescriptive opinions

delivered by the Court actually were binding in nature in at least some capacities. Therefore, the logical implication was also that the Court, in addition to non-binding advisory opinions, could

also issue prescriptive binding opinions as well. Therefore, even if the assumption was made for

us to exclusively follow the 2011 limitations on the Courts authority to issue prescriptive opinions,

which this Court cannot emphasize enough how misguided such a notion would be, the April 5th

36

(No. 2012FA 004) In Re: 2013 Spring Elections Association Rule. (Delivered December 21, 2012); Conclusion, 4. 37

UTSG Const. Art. V, 5.34 (since amended). This is referenced from the same outdated version of the Constitution

cited by Respondents in their trial brief from 2011. While the provisions location has since been updated to UTSG Const. Art V, 5.18 (in 2014), it made the most sense to make the comparison with the same source used by the

Respondents in order to better articulate the demonstration of facts.




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ruling would still be binding. It would be binding because it clearly could not be considered

advice since it was only a rearticulating of what was already written into the statutes of operation for Student Government. These rules dont advise how processes should be undertaken they mandate. And since such a mandate was already in existence at the time and the Court merely

rearticulated such, there could be no confusion that in addition to the Courts authority to mandate

actions via binding advisory opinions there was a procedural mandate form Student Governments

Internal Rules as well.

Nonetheless, this demonstration was merely to reemphasize the fact that the nature of prescriptive

writs from this Court can be merely advisory38 if expressly stated as such within the opinion; but

that it should not automatically be assumed any prescriptive writ is of this nature including (No. 2014SA 004) In Re: The Student Government Appointment Process because the Court also has the authority to issue binding prescriptive recommendations. Such a limitation cited by the

Respondents no longer exists as the boundaries of Court remedies were restructured in the 2014

reforms to clear up this very point of confusion. Thus the issue of the Court being limited to issuing

only what would equate to non-binding suggestions in advisory opinions is actually no longer an

issue since the 2014 constitutional rewrites.

All entities should understand that the term advisory opinion does not mean advice as much as it means advisement of an appropriate course of action39 as it is binding on Student Government

and inferior entities (i.e. the Election Supervisory Board). The Court will ensure that anything

which could be equated to a non-binding suggestion in future opinions is clearly delineated as such

but reasserts that anything not delineated as such should be considered binding.

IV. TRANSPARENCY AND COMBATTING THE APPEARANCE OF CORRUPTION

This Court holds that there is no conclusive evidence proving that Mr. Rady or his administration

engaged in corrupt practices when selecting nominees for appointments by promising positions to individuals prior to the application process or anything of such a nature. However, the suspicions of the Petitioner and the concerns expressed by those representatives who submitted

amicus curiae briefs in support of the Petitioners allegations on the matter serve to underline the

importance of adhering to Student Governments enacted procedures particularly when they deal with the openness and transparency of Student Government operations. As the petitioner notes,

the actions of the Executive Board have, [aroused] suspicion regarding the integrity of the

38

In the colloquial non-binding nature of the word as used in the Respondents trial brief. 39

This would be issued ex-ante or before something has occurred (such as the Courts April 5, 2014 opinion) versus

issuing a ruling on a matter brought before the Court ex-post or after something has occurred (such as the current opinion).




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nomination process.40 This Court feels that even this suspicion41 is detrimental to the ability of

Student Government to, facilitate responsible student participation in the policy and decision-making processes of the University community, and to, transparently, effectively, and responsibly utilize student fees to promote student welfare.42 Transparency is crucial to Student

Governments ultimate function to serve as the official voice of students at The University of Texas

at Austin. One such area of operations where this transparency is of the utmost importance is in

the appointment process to internal and external positions. Many times, the ability to execute the

enacted policies of Student Government is dependent on the caliber of the internal appointment

charged with executive such a policy. Additionally, external appointments to the boards and

communities of the University, City of Austin, and State of Texas are oftentimes a louder voice for students than even the full Student Government Assembly as their proximity to the discourse

seeking to involve students amplifies what they have to say above any other student even to the point where many times this is the only source of student input on these various committees and

boards. Thus, it is critical the student body is assured that their representatives in these capacities

are the most qualified.43

The public disclosure of, all interview questions, answers, and evaluations, as well as the applications of all executive nominees prior to confirmation proceedings serves to promote and

secure this interest.44 If the student body can see what is done and how it is done this serves to

reaffirm the public that it can understand why it was done and that it was done in the best interests

of responsibly serving the constituency of Student Government and not through malfeasance,

nepotism, or other corrupt interests.

This line of reasoning was established for democratic institutions on any level, but particularly the

United States Federal Government, in the U.S. Supreme Courts ruling in the matter of Buckely v.

Valeo (424 U.S. 1 (1976)). It is clear that Student Government, as an institution partially based on

democratic principles like the federal government, has, substantial interests in informing the electorate and preventing the corruption of the political process.45 When the Executive Board

fails to follow procedures aimed at ensuring transparency in Student Government operations, as

outlined in the Constitution and Internal Rules; regardless of whether corruption actually takes

place, the failure to follow the rules undermines trust in Student Government among the student

40

Wilson, Andrew. Petitioners Trial Brief (No. 2014SC 006). Received May 4, 2014, 3. 41

As there was no conclusive evidence presented to this body that the allegations of corruption were true beyond a

reasonable doubt. 42

UTSG Const. Preamble. 43



Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)




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body triggering the suspicions of corruption which, apply with equal force,46 and are just as dangerous (and worth preventing) as actual corruption.47 In order to combat a lack of trust in the

institution, Student Government must remain transparent as failure to do so only contributes to the

growing gulf between students and their representatives. To be clear, this Court has not been

presented with conclusive evidence to determine beyond a reasonable doubt that any members of

the Student Government Executive Board have engaged in any kind of bona fide corruption. Only

that their actions have contributed to an environment of suspicion surrounding their actions which

have served to give rise to a suspicion of such corruption to the detriment of Student Governments

ability to effectively gain the trust and support of the student body and carry out its mission.

V. THE LIMITS OF THE COMPELLING INTERESTS OF PRIVACY

First and foremost, Student Government must ensure operational compliance with state and federal

privacy laws. Doing anything else would not only be a disservice to the student body which it

serves, but would also potentially place the University in legal jeopardy.48

The Court is not considering the actions of the Executive Board in withholding information

protected by the Federal Educational Rights and Privacy Act of 1974 to be in violation of Student

Government enacted policy.49 In fact, the Court applauds the fact that the Executive Board took

actions to redact FERPA-protected information in working with the Office of the Dean of Students

and the Office of the Vice President for Legal Affairs. It is both the recommendation and order of

this Court that similar practice be kept in place in all future operations of Student Government to

ensure compliance with higher authorities beyond Student Governments internal governing

documents and not subject the University to legal liability.

46

The appearance of corruption diminishes the regard students have for the work Student Government does to

represent the student body. Practically speaking, the relationship between Student Government and the constituents it

represents is strained. Perhaps the one of the most quantifiable and obvious indicators of support for Student

Government is seen in the form of the number of students participating in campus wide elections which are at historic all-time lows and show no signs of improvement. Issues like candidates suing the University over being disqualified in elections and former Student Government Presidents blog posts have been widely (even internationally) covered and associate Student Government with conduct frowned upon by the Student Body and have only served to widen

the gulf between constituents and their representatives. This is a substantial detriment to the ability of Student

Government to represent the student body. If students do not wish to support Student Government, representatives are

hampered in their ability to solicit student opinion, work to build grassroots coalitions for advocacy campaigns like

Invest in Texas, or even count on student support for campaigns like the Bastrop fire relief efforts. These effects are

widely felt throughout every operation of Student Government and should be taken as a serious threat to Student

Governments ability to represent students and combatted as ferociously as possible. 47

Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) 48

As Student Government has been confirmed on many occasions to not be independent from the University but

instead a loosely affiliated, but nonetheless still a part of, The University of Texas at Austin. 49

Accessible at: http://registrar.utexas.edu/students/records/ferpa.




14

Where the condemnation of withholding information occurs is in the actions by the Respondents

in withholding self-professed, information [that] is not protected under federal law.50

Respondents assert that applications, addendums, interviews, etc. were confidential spaces and that they, believe it is in the best interest of the applicants to keep the information private.51

It is clear that the Executive Board went beyond what is necessary by federal law to redact to

protect the privacy of students to the point where substantive information that should not have

been withheld was withheld in violation of the Internal Rules.52 The question for the Court is in

determining when the line was crossed and if interviews and applications are truly confidential

spaces for applicants and balancing that against the public interests of transparency and the Assemblys necessity for being given sufficient information to make an independent determination

about the qualifications of each individual nominee for an internal or external position.

First and foremost, this Court will not comment as to how FERPA-protected information should

be redacted beyond reaffirming its stance that following the guidelines presented to Student

Government by the Office of the Vice President for Legal Affairs is an absolute necessity. As

suggested by the Respondents, the Court will assist Student Government, in working with all

necessary entities to develop guidelines for how this should occur in the future, but only with the

guidance of the Office of the Vice President for Legal Affairs.

The Court will next address the issue of redacting information beyond what is required by law and

creating confidential spaces for reviewing applicants. Nowhere in any of Student Governments documents does it provide that the privacy of any individual applicant, beyond what is protected

by federal law, compels certain information submitted in the application or disclosed during an

interview to be withheld (particularly information relating to the qualifications of an applicant).

Thus, any confidentiality of this nature is exclusively being administered on the Executive Boards prerogative alone.

The purpose for the disclosure of documentation, and indeed the entire process of nominations and

confirmations, is in, ensuring that the most qualified and competent nominees are selected.53

Thus the Court holds that anything which would obstruct this process is not only not compelled to

be done, but is constitutionally prohibited and compelled not to be done. Thus, any standard used

by the Executive Branch in withholding information, beyond what is federally protected, from an

50



See this opinions Summary section for a further discussion of how the enacted policies of Student Government were violated by the Executive Boards intentional decision to withhold certain information from the public and the Assembly. 53

(No. 2014SA 004) In Re: The Student Government Appointment Process. (Delivered April 5, 2014); The Appointment Process, 2.




15

applicants submitted materials or interview should be subjected to judicial review to ensure that

it does not obstruct with this process.

While the Court appreciates the concern of the Executive Board in ensuring applicants and

potential nominees are comfortable to speak up about their qualifications and experiences, this

cannot overcome public interests of combatting corruption (particularly nepotism) and ensuring

transparency or the Assemblys need to be provided with sufficient information to make at least

as an educated decision about the qualifications of individual applicants as the Executive Board.

Applicants should be made to understand that, beyond what is federally protected, they have no

expectation of privacy as to what is said during their interviews, submitted in their applications, or

revealed about them by their given reference, and that these items will be available for review by

the public and the Assembly in the process of vetting them for what is public office. Ultimately,

these positions are being appointed on the authority of the student body. In addition to the interests

in combatting corruption, this means that the student body has the right to ensure these individuals

are qualified to represent them (and potentially speak up to challenge the process or a particular

applicant). Additionally, the Assembly has the right to at least as much information about each

applicants qualifications as the executive membership selecting them for nomination.

Thus, the Court rejects the notion that interviews and applications can be treated as confidential

spaces where relevant information, beyond what is federally protected, can be withheld from public view or the Assemblys consideration. The Court holds that any information relating to an

individuals qualifications to serve in an appointed capacity shall not be restricted or withheld by

members of the executive branch particularly if this information was reviewed in the process of selecting nominees by members of the executive branch.54 In short, anything members of the

executive branch use in determining selections for nominees, beyond what is federally protected,

shall not be restricted or withheld and instead be made publicly available under the provisions of

UTSG Int. Rules Art. I, 7(a)-7(b), UTSG Int. Rules Art. IV, 8, (No. 2014SA 004) In Re: The Student Government Appointment Process, and the order at the conclusion of this ruling.

Additionally, for purposes of reiteration, this ruling does not in any way comment on the use of

FERPA beyond what is already in place per the instructions of the Office of the Vice President for

54

This would include all submitted materials by the applicant, statements made by their given reference or other

official recommendations given by other individuals. As far as this pertains to interviews, while a digital recording or

transcript of this information would be sufficient to fulfill the requirements of this order, it is not necessary. For this

issue, the Court returns to the guidance issued by the Office of the Dean of Students regarding committee meeting

minutes when a similar issue surrounding public disclosure was raised in the past the official record must reflect the spirit of what was discussed and contain all pertinent information of interest. While things like how an applicants day was may not be relevant and thus not need to be recorded, questions pertaining to substantive information relating to

their competency, past experiences, interests, or qualifications, as well as their responses, should be recorded as

accurately as possible to provide a third-party reader the opportunity to review the interview notes and understand

what was said. (The given list of what should be recorded is by no means exhaustive and may be expanded to include

other necessary information as well.)




16

Student Affairs and the Office of the Vice President for Legal Affairs. The only comment this

Court will make regarding the protection of student information required by federal law is that

while it is happy to discuss implementing a process to ensure this information is properly redacted

prior to public release, any conversation of this nature must include the Office of the Vice President

for Legal Affairs.

VI. ORDER AND RELIEF GRANTED

This Court, as stated previously, finds the Executive Board to be in violation of the Student

Government rules governing the disclosure of applicant information for internal and external

applicants. Additionally, as a result of this violation, this Court also finds all appointments that

were confirmed by the Assembly during the April 29, 2014 Student Government General

Assembly meeting were confirmed in violation of the same mandate, which requires the disclosure

of, all interview questions, answers, and evaluations,55 to ensure the opportunity for prior consideration and proper vetting. As a result the outcomes of the associated confirmation hearings within the scope of this petition are illegitimate. The Court hereby finds in favor of and

grants the Petitioners request to render null and void all confirmed appointments of that evening.

Furthermore, should members of the executive branch choose to nominate future appointments for

any internal or external positions, the Chief of Staff must make all documentation publicly

available in accordance with (No. 2014SA 004) In Re: The Student Government Appointment Process and the Administrative Director shall ensure that all appointment applications and

accompanying information is made public to the Assembly in proper order.56

The Court wishes to remind that the Executive Board may make interim appointments to fill

current vacancies in accordance with the ruling in (No. 2011FC 003) Carlson v. Butler until such a time as the Assembly reconvenes in session and is able to meet quorum to administer appropriate

confirmation hearings.57 In this manner the business of Student Government may not be

unnecessarily hindered by the results of this ruling and only brought into compliance with the

ruling as necessary but not beyond. Interim appointees shall be eligible to be nominated for

reappointment, provided that the required documents are made public and to the Assembly in

accordance with this opinion.

It is so ordered.

55

UTSG Int. Rules Art. IV, 8. 56

In accordance with UTSG Int. Rules Art. I, 7, (No. 2014SA 004) In Re: The Student Government Appointment Process, and the outlined provisions of this opinion to ensure the Assembly is able to have prior consideration in order to properly vet each nominee brought before it. 57

Most likely at this point that would be at the beginning of the Universitys fall academic calendar for 2014.

Documents

(No. 2014 SC - 006) Wilson v. Rady