University of Colorado Student Union Appellate Court Case Number 1999-F-05

Transcription

1 Amanda BREEDEN, Petitioner v. David DEMARCO, Election Commissioner and UCSU Elections Commission, Respondents University of Colorado Student Union Appellate Court Case Number 1999-F-05 Argued November 14, 1999 Decided November 14, 1999 Judgment Issued November 16, 1999 Final Opinion Issued February 21, 2000 WELLING, C.J., delivered the opinion of the Court, in which VAN NICE, MARTINEZ, and LEWIS, JJ., joined. BARASH, J., filed an opinion concurring in the judgment. GARDNER-WOOD, J., filed a dissenting opinion. COHEN, A.C.J., did not participate. CHIEF JUSTICE WELLING delivered the opinion of the Court. Amanda Breeden appeals the Election Commissioner s decision disqualifying her from the Fall 1999 election for Representative-at-Large for failure to submit her expense report by the mandated deadline. The question presented by this case is whether the strict enforcement of the expense report deadline violated Ms. Breeden s right to take the office to which she was elected? Today we hold that Sections 9.4 and 9.9 of the Election Code, as a practical matter, create an irrebuttable presumption that failure to meet the expense report deadline will result in disqualification; such an irrebuttable presumption is per se unconstitutional. We further hold that failure to warn Ms. Breeden of the deadline for her expense report, and the of the consequence of failing to meet the deadline, at any time after the vote was tabulated, violated her right to take office. As a result, we reverse the decision of the Election Commission. I. In the Fall 1999 election twelve students ran for the position of Representative-at- Large; the top five vote getters were to take office. Ms. Breeden received the second highest number of votes. However, on November 8, 1999 Ms. Breeden was disqualified for failing to submit her expense report by the November 4, 1999 deadline. The events leading up to this case began on September 30, 1999, when Ms. Breeden picked up her petition in order to run for Representative-at-Large. On October 4, 1999, she turned in the completed petition, and attended the Mandatory Candidates Meeting. At the meeting all of the campaign rules were reviewed, and each candidate received a copy of the Election Code. One of the rules reviewed during the meeting was the expense report deadline. It was announced that expense reports were due at 5 p.m. on Thursday November 4, At the close of voting on October 27, 1999, Ms. Breeden was informed via telephone that she garnered sufficient votes to take office. No mention was made of the deadline for expense reports, nor the potential consequence of failing to meet the deadline. The next contact she had with any UCSU official was on the evening of Thursday November 4, 1999, after the deadline for turning in expense reports had passed. 1

2 On November 5, 1999, Ms. Breeden turned in her completed expense report. It demonstrated that she was within the proscribed spending limits. On November 8, 1999, she was officially notified by the Election Commissioner of her disqualification. She appealed the Election Commissioner s decision to the Election Commission. On November 11, 1999, she was informed that the Election Commissioner s decision would stand, and she was given notice of final disqualification. Ms. Breeden appeals the Election Commissioner s final disqualification to this Court. 1 Finding that jurisdiction is proper, 2 and that Ms. Breeden has exhausted all other remedies, we take her appeal. II. A. The hallmark of the UCSU Constitution is self-governance. 3 Membership in the University of Colorado Student Union is limited to students. 4 The critical positions within UCSU are reserved exclusively for members. 5 Representative-at-Large is a position within Legislative Council; 6 Legislative Council Representatives and Senators are vested with responsibilities in nearly all facets of UCSU governance. Legislative Council Representatives and Senators are elected by those they represent. 7 One of the primary rights the UCSU Constitution confers to its members is the right to seek and hold office. 8 These rights are by no means absolute; however, any limitation or restriction must be carefully crafted, and be rooted in a substantial interest. Because we recognize a member s substantial interest in seeking office, today we hold that if the Election Code is going to contain a provision, which, if violated, may result in the disqualification of a candidate, due process requires that the candidate have a genuine right to appeal. 1 There is a long history Election Commissioner decisions being appealed to this Court. For decisions reversing Election Commissioner decisions see Johnson v. Wamsley, # (3/19/1997) (Overruled an Election Commission decision to disqualify a candidate for failure to meet the definition of student. ); Hansen v. Election Commissioner, # (10/24/1996) (Overruled an Election Commission decision to not place a candidate on the ballot. The student failed to attend the mandatory candidates meeting due in part to confusion generated by the negligence of the Commission, and the failure of the Commission to adhere to their own procedures.); Andrade v. Election Commission, #23 (2/15/1979) (Overruled an Election Commission decision to not place a candidate on the ballot. The student failed to meet a petition deadline because of extenuating circumstances.); Houlehan v. Election Commission, #20 (10/19/1978) (Overruled an Election Commission decision to not place a candidate on the ballot. The student failed to meet a petition deadline after receiving erroneous information from a UCSU official). For a decision up holding an Election Commissioner decision see Dudon v. Election Commissioner, # (11/9/1997). 2 UCSU Constitution, Article XVIII(D) & UCSU Election Code UCSU Constitution, Preamble. 4 UCSU Constitution, Article I(B). 5 UCSU Constitution, Article I (A) & (B). 6 UCSU Constitution, Article III(A)(1). 7 See UCSU Constitution, Articles III & VI. 8 There is a companion set of rights vested in the student body at large which are implicated by this case. Those are the rights to select those who will represent them, and to have those selections honored. Since the petitioner is the candidate, and not a constituent, we will only analyze the case from her perspective. However, a member who voted for Ms. Breeden would likely have a colorable claim. 2

3 The Election Code provision at the center of this case is Section 9.4. This Section reads: B. All candidates, Representative-At-Large and Executive candidates, are required to submit a financial statement. It is due on the Thursday immediately following the election. Financial statements are due by 5:00 p.m. to the Election Commissioner, and there are to be no compromises. Lack of candidate compliance will result in disqualification. 9 Section 9.9 of the Election Code provides the only grounds for rebutting a disqualification under Section 9.4. Section 9.9 reads: Violations of this Section shall result in the disqualification of the candidate or removal from office. Candidates shall be disqualified unless the violations were committed by [sic] circumstances beyond the campaign/team s control. 10 The scope of circumstances that are truly beyond someone s control are quite narrow. As a result, virtually all disqualifications made pursuant to Section 9.4 will be unreviewable. Therefore, we hold that as a practical matter Sections 9.4 and 9.9, when read together, create an irrebuttable presumption of disqualification for failure to meet the expense report deadline. This irrebuttable presumption is a violation of a candidate s right to due process. 11 C. Under Section 9.4 and 9.9, a candidate who can show good cause as to why they failed to submit an expense report on time will, as a practical matter, be subject to disqualification without review. Because of the importance of the right to seek and hold office, we find this to be an unconstitutional deprivation of a member s right to seek and hold office. As a result of this holding all of Section 9.9 and the last portion of are stricken as unconstitutional. We find that there is a constitutional minimum that a 9 UCSU Election Code 9.4. Elections ran from Monday October 25, 1999 through Wednesday October 27, Therefore, according to the strict language of 9.4 the reports would have been due on Thursday October 28, At the Mandatory Candidates Meeting Mr. DeMarco clarified that the due date was in fact Thursday November 4, We hold that this clarification was sufficient to change the deadline to November 4, See Dudon v. Election Commissioner, # (11/9/1997) (announcement at the Mandatory Candidates Meeting sufficient to clarify vague language). 10 UCSU Election Code 9.9 (emphasis added). 11 See e.g., Vlandis v. Kline, 412 U.S. 441, 453 (1973) ([H]olding that a permanent irrebuttable presumption of nonresidence-- the means adopted by Connecticut to preserve [a] legitimate interest--is violative of the Due Process Clause, because it provides no opportunity for students who applied from out of State to demonstrate that they have become bona fide Connecticut residents. ). 12 Specifically, the unconstitutional language of 9.4 is: and there are to be no compromises. Lack of candidate compliance will result in disqualification. 3

4 disqualified candidate be able to have an appeal heard upon a showing that there was good cause for their failure to comply with the Election Code. III. Respondents relied quite heavily on our decision in Dudon v. Election Commissioner, # (11/9/1997). In Dudon we upheld an Election Commissioner decision, in which a candidate was disqualified for turning in her expense report two and a half-hours late. Respondents argued that Dudon stood for the proposition that Section 9.4 should be interpreted strictly, and that Ms. Breeden s disqualification should be upheld. A closer look at Dudon shows this reliance to be misplaced. There is a salient distinction between Dudon and the present case. Gretchen Dudon failed to meet the expense report deadline after several warnings. According to the record, Ms. Dudon was contacted by the Election Commissioner regarding her expense report the day before it was due and the day it was due. 13 In spite of these two reminders, Ms. Dudon turned in an incomplete expense report two and a half-hours after the deadline had passed. In the present case, the Petitioner received no communication from the Election Commissioner between the time the votes were tabulated and the deadline had passed. The only communication the Petitioner received from a UCSU official during this period was a congratulatory phone call; no mention of the deadline was made during the phone call. 14 In dicta in Dudon we stated that, the [C]ommission[er] went beyond his duty by calling [Ms. Dudon] twice [prior to the deadline] to remind her of the deadline. Today we note that while not strictly mandated, it illustrates what fair minded and reasonable people do. The reason Dudon lives on as a model case is because it encompasses the proposition that fairness and reason require that some effort is made to contact a prevailing candidate and remind them of their continuing responsibility to submit a campaign expenditure report. The penalty of disqualification is an extreme penalty that should not visited upon a candidate without this courtesy. The announcement made at the Mandatory Candidates Meeting alone is insufficient. On October 27, 1999, Ms. Breeden s status changed from candidate to Representative-elect. She was entitled to this courtesy after her change in status, but before the axe of disqualification fell. IV. We conclude that the non-discretionary disqualification mechanism contained in Sections 9.4 and 9.9 of the Election Code constitute an unconstitutional denial of a member s right to take office. Therefore, we reverse the judgment of the Election Commission. To pass constitutional muster a disqualification must be reviewable, and for conduct occurring after the close of polls the member must have received notice of the requirement after her change in status from candidate to Representative-elect. Ms. Breeden is to be sworn in as a Representative-at-Large. It is so ordered. 13 See Election Commissioner s brief in Dudon v. Election Commissioner, # (11/9/1997). 14 During oral argument it was uncontested that Tri-Executive Dan Pabon contacted Ms. Breeden on Wednesday October 27, 1999 to inform her of the outcome of the election, and during that phone call Mr. Pabon made no mention of the expense report deadline. 4

5 JUSTICE BARASH concurring in the judgment, in which CHIEF JUSTICE WELLING joins Part II. I agree with the Court that the decision of the Election Commissioner should be reversed, but I am in sufficient disagreement with the reasoning of Part III to write separately. Part III makes too much effort to avoid overruling Dudon. I would have omitted Part III, and let our decision today overrule Dudon. If Section 9.4 is not facially unconstitutional, then it should not be of any significance whether the Election Commissioner notified Ms. Breeden of the deadline. I think the majority is misguided when it imparts apparent constitutional significance to the lack of notice by the Commissioner. The Commissioner should not be required to contact a prevailing candidate regarding a pending expense report deadline. The prevailing candidate has sufficient notice because the rule is stated in the Election Code. I. II. The majority either fails to articulate, or fails to articulate clearly, the main reason that the latter portion of Section 9.4, and all of Section 9.9 of the Election Code are unconstitutional. A rule that merely serves to provide administrative convenience, but functions to disqualify a candidate is repugnant to the UCSU Constitution. Sections 9.4 and 9.9 are devices of mere administrative convenience. The goal of administrative convenience is not per se impermissible; it is in this case, however, because it functions to deprive a member an important right. Further, if the expense report deadline rule were tailored to avoid imposing an undue burden on the Election Commission, I believe it could then pass constitutional muster. III. For the foregoing reasons I dissent from Part III. I also dissent from the Introduction and Part IV of the Court's opinion insofar as those sections reflect the findings of Part III. JUSTICE GARDNER-WOOD dissenting. The arguments by the Petitioner include three major parts, a claim of violation of due process, a question of the severity of the infraction, and a question regarding the finality of the posted election results. The other opinion of this court finds merit in the due process claim. It is my opinion that none of the above arguments are in fact valid and certainly are not harmful enough to overturn the decision of the rightful decision maker, the respondent Mr. DeMarco, Election Commissioner. First, I want take a look at the issue of due process violation. I do see some merit to the petitioner s claim of having her due process violated. The three major claims by Ms. Breeden are: not receiving a copy of the Appellate Court By-Laws, not receiving a notice of pending disqualification before the actual disqualification, and not having been given the opportunity to allow the Legislative Council to overturn the decision of the Election Commissioner. 5

6 I have no doubt that the petitioners claim of not receiving a copy of the By-Laws is true, however this is in no way an offense that can allow the reversal of an otherwise valid disqualification. It was clearly stated in the Election Code in Article VI, Section 12.3, that Ms. Breeden could get the By-Laws by a simple trip to the UCSU Proper Office. If Ms. Breeden could not make this simple trip for herself, she may not be qualified to serve the students of the University of Colorado at Boulder. At this point in life and at this point in leadership a person must do things for themselves and not expect somebody to always lead them by the hand. Next, the petitioner claims that she was never notified of a pending disqualification against her. It is in my opinion that this is a simple miscommunication between the petitioner and respondent. Mr. DeMarco told Ms. Breeden that she was disqualified instead of using the proper wording of pending disqualification. Never the less, the proper procedure was followed and Ms. Breeden was given a formal hearing in front of the Election Commission, where the final disqualification decision comes from anyhow. Lastly, the petitioner claims that she was not given an opportunity to have her case heard by the Legislative Council. This is in no way a major due process offense since the final decision comes from this Appellate Court anyway. In Article VIII, Section 3.1, the Election Code states that the disqualified candidate does have the Legislative Council option, yet in Article VI, Section 12.3 and Article VI, Section 18.3 the Election Codes states that Election appeals are to be ultimately decided by the UCSU Appellate Court. Therefore, there may be some discrepancies in the Code, yet the petitioner was afforded her proper due process in this instance by having her case heard by this court. Now, I shall discuss the petitioner s argument in regards to the severity of her offense. It is the petitioner s stance that failure to submit an expenditure report is not an intentional offense, therefore not a major disqualifying offense. Rather, the petitioner feels her offense to be minor. Article VI, Section 10.7 of the Election Code states that A minor infraction is defined as a non-intentional offense which has a minimal impact on the outcome of the election as deemed by the Election Commissioner." Although Ms. Breeden may have unintentionally not turned in her expenditure report, Article VI, Section 9.5 of the Election Code states that failure to submit a financial statement is a disqualifying offense, regardless of intention. The expenditure report was added to the electoral process because the student body wanted to allow for fair competition, it is not Ms. Breeden s place, nor anyone s place, to undermine the wishes of the student body we are here to serve. So, regardless of what the petitioner feels about the expenditure report, it is clear that there is a reason behind it and the Election Code clearly states the consequences regarding the report. Finally, I shall look at the question of posting the election results. The petitioner states that once results were posted on I-Vote on Wednesday, October 27, 1999, she became an elected UCSU official. This is due to the election posting not qualifying the results as preliminary. Therefore, the petitioner argues that any disqualification at this point is improper delegation of impeachment power. It may be better in the future to clearly display along with preliminary results that they are in fact not the official final USCU results. However, the election code clearly states in Article VI, Section 17.4, that election results are not final until the deadline for appeals has passed. This deadline is two weeks after the election, therefore not making results final until two weeks after the election. It is not until this two-week mark that a candidate becomes a UCSU official, therefore any disqualification is the decision of the Election Commissioner and not an impeachment since the candidate has not yet become an official representative. Also, the petitioner claims that the UCSU Constitution does not state when a Representative-at-Large becomes an elected official. This claim is totally without merit. 6

7 The UCSU Constitution and By-Laws say that the Election Commissioner, using the Election Code, oversees all parts of the electoral process, and the Election Code states that a candidate is not a UCSU official until the Election Commissioner posts final election results (two weeks after the election). It is my opinion that the majority is very much misguided in their decision on this case. Simply interpreting the Election Code should have brought this court to the opinion that the respondent s decision should not have been overturned, and that the petitioner was rightfully disqualified from the UCSU election. 7