SUPREME COURT ASSOCIATED STUDENTS OF THE UNIVERSITY OF ARIZONA OPINION FACTUAL AND PROCEDURAL BACKGROUND

Transcription

1 SUPREME COURT ASSOCIATED STUDENTS OF THE UNIVERSITY OF ARIZONA Stefano Saltalamacchia, Petitioner Candidate for ASUA Executive Vice President v. ASUA Elections Commission, Respondent Argued March 10, 2016 Decided March 10, 2016 OPINION SALVATORE, J. delivers the opinion for a unanimous Court. FACTUAL AND PROCEDURAL BACKGROUND On March 1 and March 2, 2016 the Associated Students of the University of Arizona (ASUA) held elections for Executive Vice President (EVP). Mr. Stefano Saltalamacchia and Mr. Kenneth Trey Cox ran for EVP and Mr. Cox was declared the winner of that contest on March 2. That day, Elections Commissioner Diego Alvarez investigated complaints alleging that Mr. Cox had engaged in violations of the elections code. After investigating the formally filed complaints Commissioner Alvarez ruled that Mr. Cox was disqualified, pending appeal. Mr. Cox timely appealed Commissioner Alvarez s decision to the Elections Commission on March 3, (Elections Code ( ).) The Commission determined that the complaints against Mr. Cox were insufficient, according to recently revised requirements for elections complaints. (See EC ( ).) The Commission reversed all five strikes that Commissioner Alvarez issued against Mr. Cox, and reinstated Mr. Cox s election victory. The Commission based its decision on its interpretation of the word testimony in EC Specifically, the revised version states, Testimony shall not be the sole basis of a complaint. The Commission found that the first two complaints, which resulted in three strikes, were insufficient because the evidence supporting the complaints consisted of nothing more than testimony of the occurrences by friends of the complainants. The Commission then ruled that the final complaint, which resulted in two strikes, was insufficient because it lacked any supporting evidence beyond statements from witnesses. On March 4, 2016 Mr. Saltalamacchia timely appealed the Election Commission s decision to strike the complaints and to reinstate Mr. Cox s victory. Mr. Saltalamacchia asks this Court to reverse the Commission and to reinstate the decision of Commissioner Alvarez to disqualify Mr. Cox. 1

2 The primary issue this Court decides is whether EC , which operates to void complaints which are supported by nothing more than testimony, bars the complaints that led to the disqualification of Mr. Cox. This Court exercises de novo review over these issues of law. For the reasons that follow we hold that EC is unenforceably vague, and that the decision of Commissioner Alvarez to disqualify Mr. Cox must be reinstated. A. Jurisdiction I. STANDING AND JURISDICTION Jurisdiction for this Court is governed by the Article IV of the ASUA Constitution, the Elections Code, and the ASUA Supreme Court Special Rules of Procedure (SCSRP). In the context of election disputes, this Court has jurisdiction over timely filed appeals from decisions made by the Elections Commission. EC ( ). Parties may appeal to the Supreme Court following a timely decision by the Commission or may appeal in the event that the Commission fails to issue a timely decision. S.C. SRP Rule 2(b) (c). Here, the Court has jurisdiction because Mr. Saltalamacchia appealed the Commission s decision within 24 hours, using the required forms. B. Standing Candidates have standing to appeal decisions by the Commission in two situations. First, candidates may appeal decisions that are directly adverse to them. This occurs when the Commission votes to uphold a disqualification. Second, a candidate may appeal a decision by the Commission that favors their opponent in the election. For example, if candidate A and B are running for President of ASUA, and candidate A is disqualified as a result of misconduct, candidate A may appeal to the Commission. If the Commission reversed candidate A s disqualification, candidate B would have standing to challenge that decision to this Court. Here, Mr. Saltalamacchia has standing to bring this appeal because the Commission reversed his opponent s disqualification, reinstating Mr. Cox s election victory. As his opponent, Mr. Saltalamacchia has standing to appeal the Commission s decision because it was favorable to his opponent in an election. II. VOID FOR VAGUENESS This case turns on whether the revised version of EC , stating that testimony alone is insufficient to sustain a complaint, is detailed enough to fairly put interested parties who act with due diligence on notice of what is required to sustain a complaint for election misconduct. This is an issue of law, specifically an interpretation of new terms in the Elections Code. 2

3 This Court reviews issues of law de novo. Sager v. ASUA Elections Commission, 3 S.C. at 5 ( ). De novo review means that this Court is not required to give deference to the definition of testimony adopted by the Elections Commission, and urged by them here. (See Judicial Review, Black's Law Dictionary (10th ed. 2014) (defining de novo review as nondeferential review). Instead, this Court is free to weigh the various possible interpretations of testimony for ourselves. If possible, we will give a construction to the contested verbiage that matches with the policy goals and expressed intent of the ASUA legislature. Where that is not possible, however, the regulation is unenforceable until it is corrected or clarified. A. No Clear Meaning of Testimony in EC If the meaning of a word in the Elections Code is clear in the context of a given set of facts, then this Court must interpret that word according to its clear and established meaning. Ambiguity exists when text can be reasonably interpreted more than one way under the circumstances. Carcieri v. Salazar, 555 U.S. 379, (2009). In this case the word testimony is the critical word at issue. The definition that the Commission urges, A formal written or spoken statement, especially one given in a court of law, seems simple enough. However, oral argument and deeper analysis reveals that this definition is unsatisfactory in the context of student election disputes. When pressed, the Commission was unable to specifically identify what types of hard evidence would reliably sustain a complaint. Notably, does not contain any type of safe harbor 1, nor does it list types of evidence that might be non testimony, and thus able to sustain a complaint, in all cases. Another ambiguity with the definition of testimony that a dictionary definition fails to address is what the non testimony evidence needs to show. In other words, whether the complainant needs to attach non testimony evidence tending to prove the substance of the allegations in the complaint or evidence that merely tends to support and provide foundation for the statements in the complaint is not clear. Given that the changes to EC clearly aim to reduce the number of frivolous complaints, even at the potential cost of barring some legitimate ones it is vital that the rules clarify what a legitimate complainant needs to do to pursue justice. In practice, the definition urged by the Commission fails to distinguish between common types of evidence that might be available to the typical student complainant. For instance, if only supporting evidence is required, a student might be able to provide GPS logs from their phone or car showing that they were in the location where they claim to have witnessed the events in the complaint. This would provide non-testimony evidence that supports and provides foundation for the testimony about the substance of the complaint. However, if non testimony evidence of the substance of the complaint is required instead, the GPS log would be insufficient. The GPS log provides no actual evidence of the events that give rise to the complaint. It only it only proves that the complainant was where they claim to be. A requirement that evidence of the substance of the violations be attached would also give rise to significant ambiguities. For instance, if video or pictures were submitted of a 1 A provision defining conduct that does not violate the rule. In this case, types of complaints that could be sustained with testimonial evidence alone. 3

4 candidate engaging in alleged misconduct it is likely that the pictures or videos would themselves show innocent behavior. This is because capturing the moment of violation, in a video complete with factors that verify the identity of the candidate and any attendant circumstances necessary to make it a violation, such as being in university owned as opposed to private housing, is incredibly unlikely. Thus, whether physical evidence such as a video provides any guarantee of authenticity beyond testimony evidence is questionable in the absence of further clarification. Or, consider an audio recording of alleged misconduct. Although this is certainly hard evidence, it will give rise to disputes about whether the voice on the tape actually belongs to the accused person, and other such issues. In effect, there is often no significant distinction between evidence that provides foundation versus evidence that tends to prove the substance of a complaint. To some extent both rely on the testimony statements that form the basis of the complaint to prove the complaint, and the physical evidence is merely secondary. Further, because there is no distinction between the two, physical evidence requirements, such as the one found in , might allow for screenshots of text messages, copies of s, or even something as ridiculous as taking a picture of a hand written statement to count as non testimony evidence. Given the wide range of possible interpretations of testimony as used in its meaning, here, is ambiguous. B. Policy and Legislative Intent Where possible, this Court will try to give effect to ambiguous provisions that best reflects the objectively verifiable and expressed intent of the ASUA elected officials with authority over those respective rules. The Elections Commission and Elections Commissioner write and update the elections code. Thus, where the Court seeks to interpret an ambiguous provision from the elections code, the intent of the Commission and Commissioner should control if can be shown from objectively verifiable evidence. It is clear that the Elections Commission and Commissioner Alvarez did not intend the revisions to EC to completely eliminate the complaint process. If they wished to eliminate the complaint process entirely they simply could have removed the provisions that authorize complaints. Thus, the Commission and Commissioner Alvarez sought to rebalance conflicting policy goals. On the one hand they sought to prevent electoral gamesmanship by preventing frivolous complaints from going forward. On the other hand, Commissioner Alvarez and the Commission sought to recognize legitimate complaints and ensure clean elections. There is wide variation in the possible degrees of restriction that the Commission and Commissioner Alvarez may have intended by barring complaints that consist solely of testimony. The underlying policy concerns are delicate, balancing two conflicting principles in an effort to protect ASUA s democratic accountability. This Court finds insufficient objective evidence available, given the wide variation in possible meanings, to responsibly inform a construction of EC

5 C. Void for Vagueness This Court applies external principles of law to inform its analysis in the event that no explicit ASUA Constitution, Elections Code Provision, or ASUA Supreme Court Rule addresses the issue. EC ( ). When this Court is faced with a dispositive provision that is ambiguous, and there is insufficient basis to interpret the provision and resolve the ambiguity, the Court must invalidate the provision as impermissibly vague and unenforceable. This doctrine is often referred to as the Void for Vagueness doctrine. The Supreme Court of the United States articulated the Void for Vagueness doctrine by saying, It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The Court went on to say that vague laws offend important American values. Id. First, they threaten individual autonomy by denying people of ordinary intelligence the freedom to choose between lawful and unlawful conduct because the line between the two is unclear. Id. Second, vague rules delegate too much discretion to various authorities to resolve basic policy decisions on an ad hoc basis, with different results individual to individual. Id. at The law should not vary based on the person applying it or the person to whom it is applied. Finally, where the law restricts First Amendment freedoms, vagueness will force citizens to censor themselves more than necessary in order to prevent potential violations. Id. at 109. Clear prohibitions are less antithetical to freedom of speech. Id. All three of the concerns discussed above are implicated by the vagueness in the word testimony. First, the nuance in the definition as the Commission urges it, where even among physical evidence only some of it would make the cut, gives no notice to potential complainants as to what type of evidence they need to gather to sustain a complaint. Because the timelines for submitting a complaint are tight, potential complainants likely will not have a second chance to gather physical evidence, even if it could be gathered after the fact. Thus, the ambiguity in the provision removes the student voter s autonomy to choose to pursue a complaint or not because it fails to give them sufficient instructions to reliably vindicate their rights. The vagueness of the word testimony leaves Commissioner Alvarez and the Commission free to accept or deny complaints even when they attach physical evidence because there is no articulable limit to their discretion in classifying a given piece of evidence as either testimony or non testimony. Although some categories are clearly out, the Commission was unable to point to any type of evidence at oral argument or in its briefing that would reliably make the cut. Sometimes the Commission suggested that different physical records of conversations could be either testimony or not depending on whether the content of the evidence consisted of hearsay. Undergraduate students, campaign officers, and at times even lawyers are mistaken as to whether a particular piece of evidence is hearsay. Bringing a complicated and amorphous concept such as hearsay to the mix provides a dangerous and convenient vehicle for those who wish to exercise unfettered discretion. Thus, the vagueness in failing to define the word testimony, and the failure to provide some safe harbor provision detailing evidence that 5

6 will always qualify to sustain a complaint gives unacceptable discretion to those enforcing the code. Finally, the vagueness at issue threatens democratic participation through community policing and enforcement of election rules. For those seeking to participate in the ASUA elections, democratic legitimacy is very important. Voters should feel like candidates are abiding by the elections rules, and that every vote is fairly obtained and counted. One way that a voter can express their right to democratic participation is by filling out a complaint form when they witness conduct that they believe to be forbidden. Notably, this expression is not without social consequences because whistle blowers may receive retribution for making a complaint even if the allegations are legitimate. Where there is too much discretion and ambiguity, as here, whistle blowers will think twice before exercising their rights. Taking the risk and incurring the retribution might not be worth it when you cannot be assured in advance that your legitimate allegations, if properly supported, will be taken seriously. Under the code, as written, the rules ask the potential complainant to gamble their social fortunes for a mere chance that the word testimony will be interpreted to allow whatever hard evidence of the allegations they managed to muster. To avoid chilling the speech and participation of the students of the University of Arizona, the Elections Code must specify more accurately what a student must do to ensure that their social sacrifice in the name of legitimate elections is not futile. There are many ways the Elections Code could be modified to require hard evidence and give sufficient detail about what evidence would qualify. If the rule had enumerated categories of evidence that would typically qualify, that would go a long way in its favor. If the code indicated what the evidence needed to show, either foundational details, or substantive proof of the allegations, that would also help. A safe harbor of specific concrete types of evidence showing the necessary elements of the violation would cure the issue here as well. Alternatively, the rule could be written to prohibit complaints based solely on third-party statements. E.g., X files a complaint that simply states that Y told him that Z committed a violation and Y does not corroborate the statement. These examples are not intended to limit the ability of the Commission and Commissioner to craft rules, but are merely provided as a guide of potential ways to build guarantees of fairness into the evidence restrictions. III. PROCEDURAL EFFECTS The Court must decide what to do with the complaints that were admitted by Commissioner Alvarez and evaluated by the Elections Commission under the now void In the event that a revision to a standing rule is found void, we look to the surviving parts of the rule and the prior version if necessary. We hold that the complaints are sufficient under the pre-revision complaint rule, and that Commissioner Alvarez s decision to disqualify Mr. Cox must be reinstated. The Court notes that upon disqualification of a candidate, the Elections Code mandates a special election. 6

7 A. Status of Complaints Under Prior Version of Complaint Rule The complaints that were admitted under the stricter revised EC ( ) would have qualified for admission under the old EC ( ). The changes to the rule made it more restrictive by specifying that testimony shall not be the sole basis for a complaint. There were no other changes to the rule and it was not made less restrictive in any way. Thus, regardless of how vague EC is, there is no interpretation possible for the statute in which a complaint would fail under the old version, but be admitted under the new version. As a result, the complaints that Commissioner Alvarez deemed valid against Mr. Cox under the more restrictive new version remain valid even though the new EC itself is void. Because there is no need for the Court to reexamine the facts underlying the complaints, we defer to the ruling of Commissioner Alvarez and hold that the complaints were valid, and that Commissioner Alvarez s decision to that effect should be reinstated. B. Effect of Reinstatement The final issue that the Court addresses here is the effect of reinstating Commissioner Alvarez s decision. To reiterate Part I(A) of this opinion, under Article IV of the ASUA Constitution, it is this Court s responsibility to decide any constitutional disputes of interpretations. Because the ASUA Constitution makes elections a constitutional matter by dictating in Article V that [e]lections shall be governed by the ASUA Elections Code, the Elections Code is a matter of constitutional interpretation reserved for this Court. The Elections Code itself reinforces this point in by providing that the final decision of disqualification [of a candidate] or interpretation of the Code is reserved for the Supreme Court. At oral argument, Mr. Saltalamacchia argued that the Elections Code requires a special election only in the event that a disqualification occurs in the ten days following a General Election Results Show, but that a special election is not mandated if a disqualification occurs in the ten days preceding a General Election Results Show. The Court disagrees with Mr. Saltalamacchia s reading of the Elections Code. The Elections Code clearly contemplates a special election when a winning candidate is disqualified within 10 business days of the General Election Results Show. EC ( ). Specifically, states [i]f a candidate has received enough votes to win an elected position and is disqualified within 10 business days of the General Elections Results Show, a special election set at a later date will occur for said position. (Emphasis added). A natural reading of the verbiage in EC reveals its meaning; if a candidate is disqualified within ten business days, either before or after, the General Election Results Show, a special election for that position must follow. If a special election were to be triggered only if the disqualification came within 10 days after the Results Show, the Elections Code would have used the word after and not the word of. Thus, there is a 20-business-day window surrounding the General Elections Results Show in which a special election may be required upon the disqualification of a candidate. To illustrate the point, it would be absurd for someone to argue that the number 15 is 7

8 not within a ten digit range of 20, but that the number 25 is; both 15 and 25 are within a 10 digit range of 20. It is uncontested that Mr. Cox would have won the election but-for his disqualification, which occurred on March 3, 2016, the day of the election. Thus, it is clear that the disqualification occurred inside the 20-business-day timeframe of the General Elections Results Show in which a special election is required. To put it simply, of the 20-business-day period in which a special election was possible, this disqualification occurred on day number ten. This Court s precedent leaves the procedure surrounding special elections unclear. The most relevant case on the matter is Hernandez v. Colletti, a 2011 case in which we remanded a matter to the Elections Commissioner after reversing several strikes against a candidate in order for the Commissioner to determine whether disqualification remained proper. In the present case however, we have determined that because the most recent version of of the Code is void for vagueness, the prior version controls and under that version of the rule the complaints are sufficient and deference must be given to the decisions made by Commissioner Alvarez. Accordingly, because we are accepting Commissioner Alvarez s previous decisions, the reasoning employed in Hernandez for remanding is inapplicable in this situation. Due to the fact that this Court lacks any precedent on the procedure surrounding a special election resulting from the disqualification of a would-be victorious candidate, the proper procedure is a matter of first impression. Accordingly, the final interpretation of the elections code and thus the proper procedure for a special election is vested in this Court. EC ( ). The ASUA Senate is vested with the authority to call a special election and the ASUA President is to be made aware of such an election. ASUA Const. Art. II, sec. IV-V. Specifically, the Elections Commissioner is to oversee any special election and to offer dates on which the special election will occur to the Senate. EC ( ); EC ( ). Upon the Senate s approval, the dates for a special election are to be published and posted in the Elections cubicle. EC ( ). Any student who wishes to run in the special election must obtain the signatures of 150 qualified voters and must complete a Candidate Packet by a deadline to be determined by the Elections Commission. EC ( ); EC ( ). CONCLUSION This Court has the final decision regarding interpretation of the Code, and the meaning of terms used therein. EC Here, the court finds that our discretion may not be permissibly exercised because we have insufficient information to responsibly interpret the provisions in new EC on the facts before us. Elections Code is unconstitutionally vague on its face, and is therefore void and unenforceable. Because the complaints against Mr. Cox would have survived under the prior rule for election disputes, the decision of Commissioner Alvarez in this case to admit the complaints 8

9 deserves deference, and is hereby reinstated. A Special Election for the position of ASUA Executive Vice President must follow this decision. Based on the foregoing, we VACATE the decision of the Elections Commission and REINSTATE the decision of Commissioner Alvarez. It is so ordered. 9