Robert Fyrst, Petitioner

Robert Fyrst, Petitioner

ASM Student Council, Repsondent

2005 ASM SJ 12

PETITION FOR PRELIMINARY RELIEF

Cite As: 2005 SJ Ord. 14

Before Fox, CJ.

On Petition for Preliminary Relief.

NICHOLAS J. FOX, Chief Justice. 1. Petitioner Robert Fyrst is an ASM member who alleges in his complaint that the ASM Student Council violated the ASM Bylaws 3.01(E)(VIII).Petitioner’s Complaint at 1. Mr. Fyrst argues that on 12 October 2005, the ASM Student Council removed two of its representatives—Representatives Wick and Crozier (School of Engineering and Professional student, respectively)—for poor attendance at Student Council meetings. Mr. Fyrst argues that the ASM Student Council, acting through Student Council Secretary Bruning, did not fulfill its obligation under the ASM Bylaws 3.01(E)(VII) to notify, in writing, both of the Representatives of their poor attendance. Mr. Fyrst states that the Representatives were only notified of their removal at the next Student Council meeting, but received no prior notice generally about their poor attendance and its potential ramifications. Under the ASM Bylaws 5.04(G), THE CHIEF JUSTICE shall grant relief when four specific criteria are met.

2. Under Criteria 1 for Preliminary Relief, the Relief itself must be sought by Petitioner.ASM Bylaws 5.04(G)(I)(1). Since Petitioner has requested Relief, this criterion is met.Schober v. Evans, Petition for Relief, 2004 SJ Ord. 16; Vogel v. Schlict, et al., Petitioner for Relief, 2004 SJ Ord. 6.

3. Under Criteria 2 for Preliminary Relief, Petitioner must be unable to receive an effective final remedy without said Relief.ASM Bylaws 5.04(G)(I)(2). To evaluate this criteria, we must determine what it is that Petitioner seeks as a remedy to the alleged infraction, and then determine that, without said Relief, the requested remedy would so ineffective so as to substantially violate Petitioner's rights.See, Schober v. Evans, Petition for Relief, 2004 SJ Ord. 16; Evans v. Roulhac, Petition for Preliminary Relief, 2004 SJ Ord. 13; Vogel v. Schlict, et al., Petitioner for Relief, 2004 SJ Ord. 6; Evans v. Werner, Petition for Relief, 2004 SJ Ord. 1. Petitioner asks, as a final remedy, that the removal of Representatives Wick and Crozier be vacated.

4. Preliminary Relief in an action pending before the Court is designed to freeze the status quo, so that irreparable harm cannot come to Petitioner's rights when the judicial process is determining the merits of the complaint. While Petitioner's ultimate relief sought is to vacate the Student Council's decision based on procedural grounds, the Preliminary Relief sought is to ensure that the students of the College of Engineering and Professional Schools still have representation in the Student Council while appeals to the Student Council's decision are still pending. Indeed, to completely deprive Representatives Wick and Crozier's rights as Student Council members would consequently deprive their respective constituencies' rights of representation. The question before the Court in this complaint is whether there was a due process violation under the ASM Constitution and ASM Bylaws. Until this question can be determined, to deprive the students of representation would substantially infringe upon their rights, as well as the rights of the representatives who were duly elected to represent them.

5. In Hiegel Request for Preliminary Relief, 2003 SJ Ord. 5, CHIEF JUSTICE KRASCHNEWSKI argued that, since the relief Petitioner sought was the ultimate relief requested, there was no reason to grant such relief. In addition, in Schober v. Evans, Petitioner for Relief, 2004 SJ Ord. 16, CHIEF JUSTICE ROMANO, echoed by former VICE-CHIEF JUSTICE GREEN, argued that again, since the ultimate relief is the same as the Preliminary Relief, there is no need to grant relief because Petitioner's rights would not be substantially infringed. Moreover, since the process was still underway, there is no evidence that could be presented that an infringement of rights will occur, since the Committee on Student Organizations had not acted yet.

6. In this case, the ASM Student Council has acted by voting to remove said Representatives from their elected offices. The ASM Student Council process has been completed; however, since there are appeals pending in the Student Judiciary, the removed Representatives could be reinstated because of procedural errors, as Petitioner alleges. If the Student Council undertakes any business without these Representatives, and the Court determines that the Representatives' removal was in fact a violation of the ASM Bylaws, the students of this University would have an injustice placed upon them by denying them adequate representation. Accordingly, I find that this criterion is fulfilled.

7. Under Criteria 3 for Preliminary Relief, the complaint itself must have substantial merit.ASM Bylaws 5.04(G)(I)(3); see also, Schober v. Evans, Petition for Relief, 2004 SJ Ord. 16; Evans v. Roulhac, Petition for Preliminary Relief, 2004 SJ Ord. 13; Vogel v. Schlict, et al., Petitioner for Relief, 2004 SJ Ord. 6; Evans v. Werner, Petition for Relief, 2004 SJ Ord. 1. While there may have been cases in the past regarding attendance policy and removal of representatives, this issue raises a due process claim under the ASM Constitution and ASM Bylaws. The complaint does have merit under the criteria for Preliminary Relief.

8. Under Criteria 4 for Preliminary Relief, we must look at the burden imposed on Respondent if relief is granted.ASM Bylaws 5.04(G)(I)(4). The burden placed upon Respondent is quite simple: if the Court fails to resolve the complaint by the next Student Council meeting, the Student Council will be required to permit Representatives Wick and Crozier to act with all rights and privileges which are theirs by virtue of their elected offices. While it can be argued that if the decision of the Student Council is upheld by this Court, actions taken by the Student Council in the intervening period would be undermined because non-Student Council members would have participated in those actions. However, I feel the burden here is far greater on the student body should relief not be granted, in that if actions are taken by the Student Council without proper representation, the actions are undermined as well. In the latter case, though, the students were deprived of their representational rights because their Representatives were removed and forbidden to participate because of a potential due process violation.

9. Accordingly, for the reasons stated above, in successfully meeting all of the criteria required for Preliminary Relief under the ASM Bylaws 5.04(G)(I), Preliminary Relief is GRANTED to wit:

That Representative Wick's and Representative Crozier's removal from the Student Council is STAYED until the Student Judiciary resolves all complaints and appeals regarding this matter, and that said Representatives retain full rights and privileges as Student Council members until the Student Judiciary resolves all complaints and appeals regarding this matter.

By THE CHIEF JUSTICE, IT IS SO ORDERED.