Appalachian School
of Law
Student Bar Council
HONOR COURT
………………………………………………………………………………………………
File No.: 2000-01
Date: October 11, 2000
Constitutional Provisions: Article
5 § 3 cl. 7
Article 10 § 4
………………………………………………………………………………………………
Chief Justice Young delivered the opinion of the Court.
Maroney, J., Thomas, J., Shelton, J., and Richardson, J.,
concur in the holding.
Pursuant to Article 6 § 2 cl. 7 of the Constitution
of the Student Bar, the Honor Court convened on October
11, 2000 to provide a written interpretation of a disputed
Constitutional provision. President Chad Napier requested
that the Honor Court interpret whether the SBA had the power
to enact by-laws without ratification by the Student Bar.
The hearing was held in the Appellate Courtroom and was
open to the Student Bar.
Senator Bill Bonilla presented argument on behalf of the
SBA. Senator Bonilla argued that a plain meaning interpretation
of Article 5 § 3 cl. 7 revealed that the SBA had the
power to enact by-laws without Student ratification. Senator
Bonilla also argued that a historical interpretation of
the Constitution showed that the Student Bar ratified an
amendment granting this power to the SBA on April 19, 2000,
thereby permitting the legislative history of the amendment
that was passed by the Student Bar on April 19, 2000. The
legislative history revealed that the Student Bar had indeed
passed an amendment to the Constitution under Article 5
§ 3 cl. 7 which allowed the SBA to enact by-laws without
Student ratification.
Prior to the amendment, Article 5 § 3 cl. 7 stated
that “[The Senate] shall approve any proposed by-laws
or amendments by a 66.6% (two-thirds) vote before presenting
the proposal or amendment to the full SBA for ratification.”
[Emphasis added.] After ratification, the amendment now
reads, “[The Senate] shall approve any proposed amendments
by a 66% (two-thirds) vote before presenting the proposal
or amendment to the full SBA for ratification.” The
relevant part of the amendment simply deleted the language
of “by-law” from the text of the Constitution.
Senator Bonilla argued that the SBA had the power to enact
by-laws without ratification by the Student Bar through
negative implication because the text of the amendment omitted
the express language of “by-law.”
A Constitution must be an affirmative grant of power to
the SBA and the language of the amendment did not affirmatively
grant the SBA the power to enact by-laws without Student
ratification. It simply deleted the word “by-laws”
from Article 5 § 3 cl. 7. The language of the amendment
essentially negated any grant of power by eliminating express
language from the text of the Constitution. The language
did not grant the SBA an enumerated power to enact by-laws
without Student ratification. Under basic Constitutional
principles, if a power is not expressly granted to the government,
then that power is retained by the people. Therefore, if
the Amendment did not affirmatively state that the SBA held
the power to enact by-laws without ratification by the Student
Bar, then the Student Bar retains the power to provide a
check on the by-laws. Accordingly, Senator Bonilla’s
plain meaning argument must fail.
In an attempt to remedy this problem, the SBA proposed a
new amendment to Article 5 § 3 cl. 7 in September of
2000. The amendment proposed to affirmatively grant the
power to the SBA to enact by-laws without ratification by
the Student Bar. The proposed amendment stated, “Proposed
amendments shall be ratified by a 66.6% (two-thirds) majority
vote of the SBA vote in favor of ratification. However,
the Senate members may create by-laws without SBA ratification
provided the by-law is (1) procedural in nature and (2)
in agreement with the SBA Constitution.” [Emphasis
added.]
The Student Bar voted against this amendment by a significant
majority. The nature of the proposed amendment was clearly
written. The preamble thoroughly explained the purpose of
the amendment. Consequently, the Student Bar clearly voted
against the proposed amendment. However, 1L Senator Allison
Hilliard stated that the results did not accurately reflect
public sentiment in the 1L class. Senator Hilliard explained
that many 1L’s did not know the meaning of the word
by-law, did not read the text of the proposed amendment
before voting, and consequently made an uninformed vote.
Senator Bonilla argued that most of the Student Bar was
apathetic to the undertakings of the SBA. Senator Larry
Scarberry, opposed to enacting by-laws without Student ratification,
stated that he did not think that requiring Student ratification
would unduly burden the SBA by merely requiring the elected
representatives to invest a few hours of work into preparing
the by-law for ratification. Senator Scarberry stated that
he was opposed to enacting by-laws without Student ratification
because many of his constituents had expressed their concerns
to him regarding this issue. Senator Scarberry evidenced
that many students are not apathetic to the activities undertaken
in the SBA.
The Honor Court has reached a unanimous on this issue. The
Honor Court has interpreted the Constitution to require
the SBA to present all proposed by-laws to the Student Bar
for ratification. The Honor Court reaches this decision
because the current Student Bar voted against the most recent
amendment that would have allowed the SBA to enact by-laws
without ratification. The Honor Court found that it would
be inequitable to interpret the Constitution to allow the
SBA to enact the by-laws when a majority of the present
Student Bar clearly voted against granting this unchecked
power to the SBA.
There was concern among the members of the Honor Court that
the by-laws, intended to be “merely procedural in
nature,” have a latent effect on the substantive rights
of the Student Bar. For example, one proposed by-law, submitted
to the Honor Court as an exhibit, provides that if a by-law
conflicts with a Constitutional provision, the by-law will
take precedence over the Constitution.
In essence, this proposed by-law will allow the SBA to circumvent
the substantive terms of the Constitution without Student
ratification. Although deemed to be “merely procedural
in nature” by the Senate, in effect it is substantive
in nature. The proposed by-law would allow the SBA to make
substantive amendments to the Constitution, cleverly disguised
as procedural by-laws, without requiring ratification by
the Student Bar.
Interpreting the Constitution to allow the SBA to enact
procedural by-laws that have a latent affect on substantive
rights would conflict with the plain meaning of Article
10 § 4, which requires all Constitutional amendments
to be ratified by a two-thirds majority of the Student Bar.
An important factor in this decision is that the Student
Bar is not apathetic, nor ignorant, of the issues undertaken
in the SBA. The Student Bar should be given the opportunity
to be actively involved in ratifying amendments to the Constitution.
The Honor Court determined that the Student Bar is the appropriate
entity to provide a check on the power granted to the SBA.
The Honor Court holds that the Constitution requires enactment
of any by-law to be ratified by 2/3 or 66.6% majority of
the Student Bar. Thus, it is so ordered by unanimous opinion
of this Court.
In response to Senator Hilliard’s concern that the
1L class made an uninformed vote, the Honor Court invites
the SBA to re-submit the proposed amendment to the Student
Bar. If the Student Bar votes in favor of allowing the SBA
to enact by-laws without ratification, then the Constitution
may be amended to so reflect. If the Student Bar votes against
allowing the SBA to hold this type of unchecked power, this
decision will stand an all proposed by-laws must be submitted
for ratification by the Student Bar.
***The SBA is holding a Student Hearing
on this issue on Wednesday, October 18, 2000. Check the
SBA bulletin board for the time and place. You are invited
to voice your opinion as a member of the ASL Student Bar.
Appalachian School
of Law
Student Bar Council
HONOR COURT
STEIDLE
v.
APPALACHIAN SCHOOL OF LAW STUDENT BAR ASSOCIATION
………………………………………………………………………………………………
File No.: 2002-01
Date: August 19, 2002
Constitutional Provisions: Article
4 § 2 cl. 10
Article 4 § 3 cl. 5
Article 6 § 1
Article 8 § 2 cl. 2
………………………………………………………………………………………………
Chief Justice Griffith delivered the opinion of the Court:
The Honor Court hereby interprets “rising 3L”
as a student “on track” to graduate with the
current 2L class and a “rising 2L” as a student
“on track” to graduate with the current 1L class.
The Honor Court defines “on track” to mean that
a “rising 3L” student currently lacks no more
than 2 courses from the courses required for students in
the class with which the student is scheduled to graduate,
with no more than one course having been omitted from the
“total number of courses” in either a Fall or
Spring semester.
The Honor Court defines “total number of courses”
as all required courses together with the appropriate number
of elective courses for all previous semesters, for the
respective class, to meet the requirement of “full-time
status” as defined by the Academic Standards of the
Appalachian School of Law.
The Honor Court defines “on track” to mean that
a “rising 2L” student currently lacks no more
than one course from the courses required for the class
with which the student is scheduled to graduate, as defined
by the Academic Standards of the Appalachian School of Law
for “full time status.”
To clarify, a current 2L student who lacks Civil Procedure
II, typically taught in the Spring semester of the first
year, and is not enrolled in Constitutional Law I, typically
taught in the Fall Semester of the second year, provided
that student is enrolled in Civil Procedure II in the Spring
semester of that current year, is a “rising 3L”
student for the purposes of the Student Bar Association’s
Constitution.
To further clarify, a current 1L student who does not complete
Civil Procedure I, for one reason or another, but successfully
completes all other courses in the first year, first semester,
and is currently enrolled in all second semester 1L courses
is a “rising 2L” for the purposes of the Student
Bar Association’s Constitution.
This judgment is hereby entered by the Honor Court:
[/s] [/s]
Justice Travis A. Griffith, Chief Justice Justice Daniel
Boyd
Class of 2003 Class of 2002
[/s] [/s]
Justice Rochelle Richardson Justice David Mullins
Class of 2003 Class of 2004
[/s]
Justice David Whitehurst
Class of 2004
Appalachian School of Law
Student Bar Council
HONOR COURT
………………………………………………………………………………………………
File No.: 2003-01
Date: August 29, 2003
Constitutional Provisions: Article
5 § 3 cl. 7
Article 10 § 4
Article 8
………………………………………………………………………………………………
Per curiam. Pursuant to the Appalachian School of Law (“ASL”)
Student Bar Association (“SBA”) Constitution,
Art. 6 § 2 cl. 6, the ASL Honor Court has been asked
to provide a written interpretation of the constitution
by the request in writing of SBA President Mitchell, dated
April 3, 2003. The specific constitutional clause in question
is Art. 10 § 4, which states: “Proposed amendments
shall be ratified by a 66.6% (two-thirds) majority vote
of the SBA vote in favor of ratification.” We note
that Article 2 of the constitution states: “Membership
in the SBA shall include all full-time and part-time students
enrolled in the Appalachian School of Law.” The key
question at issue is whether Art. 10 § 4 requires a
two-thirds vote of the entire student body, which may allow
low voter turnout alone to defeat any proposed amendment,
or a two-thirds vote of all the votes cast, which may allow
a minority of the student body to amend the SBA constitution.
The SBA constitution is the document from which each of
the three branches of the student council derives their
authority, and any question regarding its meaning, especially
one dealing with the methods of its alteration, should be
given careful consideration. In recognition of the importance
of the instant issue, the Court invited the SBA to submit
briefs on a proposed interpretation of Art. 10 § 4,
and invited the SBA to attend an open Honor Court Constitutional
Interpretation Committee meeting on April 22, 2003, where
student comments and arguments were heard.
The Court recognizes two primary sources of authority for
its decisions on questions of constitutional interpretation:
the plain meaning of the constitutional language, and any
previous interpretations by this Court. The language of
Art. 10 § 4 states the requirement for ratification
of a proposed amendment is “a 66.6% (two-thirds) majority
vote of the SBA vote (emphasis added).” By repeating
the word “vote,” the language used seems to
imply, though not unequivocally, that the requirement for
ratification is two-thirds of the votes cast. However, this
would require no minimum level of student participation
in the ratification process, which is at odds with the requirement
of Art. 10 § 1 cl. 2, that to merely propose an amendment,
a written petition must be signed by one-fourth of the membership
of the SBA. In the words of ABA-LSD representative Mr. Sparks
at the open committee meeting, “three students alone
could change the entire constitution.”
For judicial precedence, we look to the Court’s unanimous
opinion delivered by Chief Justice Young on October 11,
2000. At issue was whether the SBA Senate had constitutional
authority to enact by-laws, as differentiated from amendments,
without ratification by the SBA. The Court held that there
was no distinction between a proposed amendment and a proposed
by-law, and that to allow the SBA Senate to change the constitution
without ratification by the SBA would undermine the right
of the SBA to provide a check to the power granted the SBA
Senate. The Court concluded: “Interpreting the Constitution
to allow the SBA [Senate] to enact procedural by-laws that
have a latent effect on substantive rights would conflict
with the plain meaning of Article 10 § 4, which requires
all Constitutional amendments to be ratified by a two-thirds
majority of the Student Bar (emphasis added).” 2000-01,
1 H.C. 1, 4 (2000).
A look at the history of proposed constitutional amendments
at ASL reveals that the practice has consistently been to
require a two-thirds vote of the entire student body to
ratify a proposed amendment. At our open committee meeting,
President Mitchell confirmed that as recently as Spring
2002, two proposed amendments failed due solely to low voter
turnout. Precedence, both by judicial opinion and legislative
practice, clearly favors the interpretation that Art. 10
§ 4 requires a two-thirds vote of the entire SBA.
The ASL Honor Court therefore holds that Art. 10 §
4 of the SBA constitution is to be interpreted as requiring
a two-thirds vote of the entire SBA (student body) in favor
of any proposed constitutional amendment in order for the
amendment to be ratified. The Court is not unmindful of
the difficulties this requirement presents to those students
active in the political process, in light of voter apathy,
to effectuate any meaningful constitutional changes.
The Court therefore invites the SBA Senate to consider alternative
methods of holding a ratification vote that would encourage
and allow for greater student participation in the vote.
We note that the voting procedures specified in Art. 8 do
not expressly apply to a vote for ratification. Art. 8 provides
voting procedures specific to elections. The Constitution
is silent regarding how the vote for ratification of a proposed
amendment is to be conducted. The SBA Senate is responsible
for determining an appropriate and equitable procedure,
which can include voting methods more conducive to generating
higher voter turnout. For example, the voting could take
place over several days rather than on a single day to allow
students who are away at job interviews or other appointments
to vote. The vote could be held immediately preceding or
following class sessions where an entire grade level is
present at the same time, where the ballots are brought
to the students rather than having the students go to one
designated polling station. The ultimate challenge is, borrowing
from President Mitchell’s words, to maintain the appropriate
balance between stymieing the amendment process and allowing
a tyranny of the minority.
This judgment is hereby entered with all justices concurring.
[/s] [/s]
Justice David A. Whitehurst, Chief Justice Justice David
G. Mullins
Class of 2004 Class of 2004
[/s] [/s]
Justice Frederick Gore Justice William C. Pattisall
Class of 2005 Class of 2005
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