ASUCR JUDICIAL REMOVAL CASE OPINION by Kyle G. Levy INTRODUCTION On April 29, 2015, the ASUCR Senate voted to remove the following two members of the Judicial Council from office: Acting Chief Justice Melina Reyes and Justice Daniel Ojo. Questions about whether this action was constitutional under ASUCR's governing documents were raised by multiple parties. The proper channels of review and interpretation provided by the ASUCR Constitution and Bylaws which would normally provide a resolution to this dispute are uniquely unavailable in this circumstance. This is because they lie at the heart of the dispute itself, which is a situation the Constitution and Bylaws do not appear to have anticipated. In this unusual situation, ASUCR Executive Director Laurie Sinclair requested this thirdparty Opinion examining the initial removal of the Justices. Although a number of actions by various ASUCR officials were subsequently undertaken as a consequence of this dispute, and could no doubt merit Opinions of their own, this Opinion is limited in scope to addressing the constitutionality of the initial removal of the Justices. This Opinion will first discuss which provision controls the Removal Process, and then which elements are required to be met for Removal to be successfully achieved. As there are two individual Justices whose removal was considered, these elements must be separately satisfied for both. I. THE ONLY APPLICABLE REMOVAL PROVISION IS ASUCR CONSTITUTION ARTICLE VI, SECTION G. Article VI, Section G of the ASUCR Constitution, entitled Judiciary Branch, Removal from Office, is the law that governs the process of removing a Justice from the Judicial Council. In it’s entirety, it reads as follows:
1. Any justice shall be removed from office for malfeasance or dereliction of duty. Charges may be brought by any six (6) justices; 2. In an open session, the ASUCR Senate shall give equal opportunity to the accused member to defend him/herself as is given to hearing of the accusers; 3. Removal shall require a twothirds (2/3) vote of the entire Senate;
4. Interpretation of this section shall be the sole right of the ASUCR Senate. A brief note must be made here about why the ASUCR Judicial Council Rules of Procedures (hereafter “JCRP”) do not apply. While the JCRP address a number of questions about how exactly the Council should go about performing its designated functions, they also contain a modified restatement of the Removal provision. The JCRP Section 10 modifies the wording of Article VI, Section G, by replacing the word“may” with “must”. JCRP Section 10 also specifies some potential specific behaviors which could result in removal. Section 10(b) also adds that in addition to a vote of removal by twothirds of the ASUCR Senate, the ASUCR President must approve the removal and the Senate can only overrule a denial of such approval by a threefourths vote. No credence needs to be given to any of these modifications of Article VI, Section G in regards to the removal process. While the Constitution in Article VI, Section C specifies that the Judicial Council should devise its own rules which shall have the same force as the rest of ASUCR’s governing documents, the modification of the Removal provision is an impermissible abuse of the Judicial Council’s discretion. Uniquely among the provisions of the Judiciary Article, the removal provision is explicitly stated to be within the sole purview of the Senate to interpret. Far more than a procedure not otherwise provided for as most of the JCRP are, in Section 10, the Judicial Council has completely amended the wording of a provision already within the ASUCR Constitution. This is an encroachment on the Senate’s sole power to legislate. The intent of the framers of Article VI Section G in adding the limitation language was undoubtedly to provide a check and balance on the Judicial Branch that it would have no power to override. There would be no logical reason for this language favoring the Senate to be included otherwise. In this case, the Judicial Council has greatly overstepped their bounds in an attempt to cause the very mischief that the language was offered to prevent. The Judicial Council has no authority to unilaterally modify the provisions that govern the process for their own removal, Such a modification can only be made through the Constitutional Amendment process. As a result, JCRP Section 10 does Judicial Removal Opinion Page 2
not trump the Constitution’s Removal Provision. It need not be paid any further attention and should not be referenced as an authority in this matter. II.
ANALYSIS In summary, under Section G, Removal requires that three elements be satisfied in order to be
successfully carried out. The elements are: (A) THE CHARGES MAY BE BROUGHT BY ANY SIX JUSTICES, (B) THE SENATE MUST GIVE EQUAL OPPORTUNITY TO THE ACCUSED AND ACCUSERS TO BE HEARD IN AN OPEN SESSION, (C) TWOTHIRDS OF THE ENTIRE SENATE MUST VOTE IN FAVOR OF REMOVAL This Opinion will not examine whether either justice is in fact guilty of malfeasance or dereliction of duty. Such a determination of fact is solely the responsibility of the Senate to make under Section G. and it would be inappropriate for this Opinion to examine whether the charges were satisfactorily proved. The charges simply need to have been the basis for the Removal proceedings for this element to be satisfied. This Opinion agrees that these Removal proceedings, as flawed as they may have been in other areas, did indeed occur because concerns which meet the standard of malfeasance or dereliction of duty were raised. Aside from that matter, this Opinion will address these elements in the sequence in which they appear above starting with Element (A), and will address whether the element was satisfied for each Justice in question. For the purpose of completeness, each element will be analyzed, regardless of whether a preceding one was met or not. A.
In Regards to Acting Chief Justice Melina Reyes The Charges May Be Brought By Any
Six Justices NOT MET After stating that malfeasance or dereliction of duty are grounds for removal, Section G states that charges may be brought by any (6) justices. The correct interpretation of this provision is that charges of malfeasance or dereliction of duty may only be brought by any of the six justices. Some Judicial Removal Opinion Page 3
have argued, both during the Senate meeting in question and afterwards, that the use of the word “may” rather than the more definite “must” implies that the charges can be brought by individuals other than the justices. This interpretation is completely incorrect. If that were the case, and charges could be brought by any individual, there would be no need for the provision to specifically mention the six Justices at all. A basic and universally accepted cannon of statutory interpretation is the Rule of Surplusage, which states that where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred. It is applicable to this situation. As individual human beings associated with ASUCR, the Justices would have as much right to brings charges as any other person if the word “may” as used here meant that the charges could come from any source, and there would be no need to specifically point out that any Justice may bring charges. The language about the Justices would be “surplusage”, or superfluous. This cannot be the case. Therefore, the language must logically exist in order to limit the avenues the charges may originate from to only the six members of the Judicial Council. The hearing for Removal occurred after a presentation by Vice President of External Affairs Abraham Galvan regarding the Judicial Council. Vice President Abraham Galvan described himself as being the accuser in this case for the purposes of the hearing, and acted in that capacity against Acting Chief Justice Reyes and Justice Ojo. Galvan is not a member of the Judicial Council and thus had no authority to bring these charges. Galvan may bring his concerns to the attention of the Senate, as he did, but neither he nor any other Senator, under the wording of the article, has the authority to bring charges against a Justice which result in a removal hearing. The proper procedure for the Senate to have followed once these concerns were voiced by Vice President Galvan should have been to question the other Justices as to whether these concerns against Reyes or Ojo were accurate. Assuming that one of the other Justices confirmed the concerns or expressed concerns of their own, the Senate, through any manner they wished, should have invited that Judicial Removal Opinion Page 4
Justice to request a removal hearing. If that process seemed cumbersome or likely to result in Justices favoring their colleagues, then the Senate should have properly amended the Removal provision as provided through the procedures in Article XI of the Constitution. If Senators object to that amendment process by saying it would be too cumbersome, this Opinion reminds them that it is not desirable for the Constitution to be easily amendable by design, the amendment process is intentionally cumbersome and multifaceted. This is to protect the rights of the student body and the integrity of ASUCR itself. An easily amendable constitution is one that will inevitably be abused or rendered ineffective. It is incumbent upon the Senate to properly modify a provision accordingly if the existing language is too ambiguous to efficiently achieve the intended result, or if the current language incorrectly anticipated the practicalities involved. What the Senate absolutely should not have done is unilaterally modify the process specified in the Constitution without notice or even an attempt to properly modify the Constitution to allow for a more efficient process. The fact that the Removal Provision explicitly states that the Senate shall have the sole right of interpretation over it does not give the Senate license to ignore the wording or methodology of the Removal Provision. They may interpret the provision within the confines of its language, but may not alter those confines except through the proper formal amendment process. As the charges against Acting Chief Justice Melina Reyes were not brought by a member of the Judicial Council, this required element for her removal was not met. Acting Chief Justice Melina Reyes was thus improperly and illegally removed.
A2.
In Regards to Justice Daniel Ojo The Charges May Be Brought By Any Six Justices
NOT MET The same facts and analysis previously discussed above in regards to Acting Chief Justice Judicial Removal Opinion Page 5
Melina Reyes also apply to the case of Justice Daniel Ojo. Once again, the charges against Justice Ojo were brought by Vice President of External Affairs Abraham Galvan, who is not a member of the Judicial Council and thus had no power under the Removal provision to bring those charges. For this reason, Justice Daniel Ojo was also improperly and illegally removed. B.
In Regards to Acting Chief Justice Melina Reyes The Senate Must Give Equal
Opportunity To The Accused and Accusers To Be Heard In An Open Session MET This element provides the author of this Opinion with a difficult question to resolve. While it is unquestionable that a hearing in regards to Acting Chief Justice Melina Reyes occurred in an open session of the Senate, a closed session of the Senate preceded this hearing during which the removal of both justices was discussed by the Senate. The author of this Opinion has no idea what was said during this closed session, and it is unclear to him that the Justices in question were present during this session in addition to the open one. Without knowing the content of this closed session, this Opinion cannot definitively answer whether all of the reasoning and arguments which lead to the Removal vote occurred during the open session or not and whether equal time was given to the accused and the accusers. This uncertainty is likely the reason why the Removal Provision was written in such a way as to require a transparent hearing in open session. The open hearing should be the sole place during which the case for removal is heard. It should not be staged for the public’s benefit after the discussion has already taken place in closed session. Although this Opinion strongly feels that it was improper of the Senate to discuss this matter in closed session to any degree at all, the fact is that a hearing in an open session did indeed occur. For that reason, and that reason only, this Opinion concludes, with deep reservations, that this Element was met in regards to Acting Chief Justice Melina Reyes, B2.
In Regards to Justice Daniel Ojo The Senate Must Give Equal Opportunity To The
Accused and Accusers To Be Heard In An Open Session MET Judicial Removal Opinion Page 6
The same facts and analysis previously discussed above in regards to Acting Chief Justice Melina Reyes also apply to the case of Justice Daniel Ojo for this element. Once again, a hearing in an open session did indeed occur for Justice Daniel Ojo, but only after unknown discussion in closed session had taken place. While this Opinion concludes that this element was technically met in the matter of Justice Daniel Ojo, it again states its belief that this matter should not have been discussed in closed session at all. C.
In Regards to Acting Chief Justice Melina Reyes Two Thirds Of The Entire Senate Must
Vote In Favor of Removal MET For this element to be met, a simple mathematical threshold must be achieved. The Removal Provision language explicitly states that the vote in favor of removal must be made by two thirds of the entire senate. This is unambiguous the entire senate refers to the whole membership of the Senate, not just those Senators who were in attendance at this meeting. The full voting membership of the Senate is 16 members. Although the ASUCR Constitution specifies that the Executive Vice President relinquishes their general rights as a Senator when assuming that role, it also states that they shall be allowed to cast a vote to make or break a tie or a two thirds decision. The Executive Vice President is thus counted for the purposes of a removal vote which requires a two thirds majority. ASUCR Executive Director Laurie Sinclair has informed the author of this Opinion that a vacancy existed in the Senate’s membership at the time of this meeting. The ASUCR governing documents as well as Robert’s Rules of Order are ambiguous as to the affect a vacancy in the voting membership has on calculating the threshold for a two thirds vote. The general consensus, however, is that the phrase “entire membership” refers to actual members of the body rather than all of the seats that could potentially be filled. A vacancy is not a member it is simply an empty seat awaiting someone to fill it. Thus, vacancies are generally not counted for twothirds vote purposes. As such, the total voting membership of the entire senate at the time of this meeting was 15. Twothirds of 15 is 10, so a vote in Judicial Removal Opinion Page 7
favor of removal for Acting Chief Justice Melina Reyes must have had at least 10 votes to be effective. The vote to remove Acting Chief Justice Melina Reyes was 12 in favor of removal to 2 against. As 12 is a larger number than 10, the vote to remove Acting Chief Justice Melina Reyes met the required two thirds margin. This element was thus met in regards to Acting Chief Justice Melina Reyes. C2.
In Regards to Justice Daniel Ojo Two Thirds Of The Entire Senate Must Vote In Favor
of Removal NOT MET The matter of Justice Daniel Ojo is substantially different in regards to this element. All of the same provisions discussed above in regards to the required number of votes apply to the vote on Justice Daniel Ojo as well. To be removed by a two thirds vote of the entire Senate, there must have been at least 10 votes in favor of his removal out of the 15 that made up the voting membership of the entire Senate at the time of his removal. The vote to remove Justice Daniel Ojo was 9 in favor of removal and three against. 9 is a smaller number than 10, and is thus less than two thirds of the voting membership of the entire senate. The vote to remove Justice Daniel Ojo did not meet the required margin, and yet the reported result was that Justice Daniel Ojo was removed. He should not have been. This removal was improper on its face and should not have been allowed. This result was not the correct one when the vote count was announced and it has not been made any more correct with the passage of time. If the provisions of the ASUCR governing documents which specifically designate that certain matters are to be decided by twothirds votes are to mean anything, this injustice should not be allowed to stand. This Opinion makes no judgment as to whether this error was due to negligence or to deliberate misrepresentation, but in either case, an incorrect conclusion was reached and applied. Justice Daniel Ojo was thus improperly and illegally removed on this basis, and should be restored to his office immediately. III.
CONCLUSION As the above analysis demonstrates, both Acting Chief Justice Melina Reyes and Justice Daniel Judicial Removal Opinion Page 8
Ojo were improperly and illegally removed from office by the Senate. In regards to Acting Chief Justice Melina Reyes, although her removal probably satisfied the open hearing requirement and definitely satisfied the two thirds vote requirement, it entirely failed to meet the requirement that the charges against her be brought by a member of the Judicial Council. She was thus improperly removed, as her hearing should not have taken place at all. In regards to Justice Daniel Ojo, although his removal probably satisfied the open hearing requirement, it entirely failed to meet the other two elements. The charges against him were not brought by a member of the Judicial Council, and the vote by the Senate to remove him failed to meet the required two thirds threshold. On the two thirds vote issue alone, Justice Daniel Ojo’s removal should not be allowed to stand. It is a blatant violation of the ASUCR Constitution, and no reasonable argument regarding ambiguous wording can be made on this point. The ultimate conclusion that this Opinion thus reaches is that the process the Senate used for the removal of both Justices failed to comply with the requirements of the Article VI Removal Provision, and both Justices must be restored to their offices immediately to correct this injustice.
Opinion Prepared and Hereby Signed by x _____________________________________5/17/15 Kyle G. Levy, ASUCR Parliamentarian 20072009 B.A.Political Science, JD
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