Manish PARIKH and Katherine TYLUS, Petitioners
v.
UNIVERSITY ELECTIONS COMMISSION, Respondent
Appeal from the decision of Respondent, dated Mar. 23, 2012
Brief for Respondent
I. SUMMARY OF THE CASE
Petitioners claim separate causes of action against Respondent (UEC)
stemming from Petitioner Parikh’s involvement in sending unsolicited campaign
emails to listservs he did not own in violation of Comp. Code VI.G.4.b.vi. In a UEC
opinion dated Mar. 26, the UEC found Parikh was subject to demerits. It issued four
demerits after considering six mitigating factors.
Parikh challenges the UEC’s ruling as a violation of his rights under the AllCampus Constitution. Tylus challenges the UEC’s use of mitigating factors as clear
error.
II. STATEMENT OF THE ISSUE
1)
Whether the UEC violated Parikh’s rights under the All-Campus Constitution,
specifically his rights to fair and uniform regulation and freedom of speech.
2)
Whether the UEC committed clear error in issuing four demerits for Parikh’s
violation of Comp. Code VI.G.4.b.vi; that is, whether any reasonable body
could have relied on the mitigating factors listed in the UEC’s opinion.
III. STATEMENT OF THE CASE
The facts on record have been stipulated by the parties. See App. A. Since
Tylus’ claim regarding the emails sent to listservs other than the SSW listserv, this
Court should hear no evidence regarding that claim.
A.
The UEC Did Not Violate Parikh’s Rights Under the All-Campus Constitution.
Petitioner claims the UEC’s decision subjected him to unfair regulation,
abridged his right to equal protection, and curtailed his freedom of speech. But the
UEC’s actions and the language of the Compiled Code are adherent to unchallenged
norms of statutory construction within the Central Student Government and as used
by state and federal legal systems.
1.
The UEC Did Not Violate Parikh’s Right to Fair Regulation.
The All-Campus Constitution states that students “shall be free from all rules
and regulations not uniform in nature or not fully and clearly formulated, published,
and made known to all students.” Const. Art. VIII § 3. The regulation of which he
complains is the provision of which he was found in violation. That provision
provides: “iv. Inappropriate and Irresponsible Use of Email Privileges
Prohibited. No party or candidate may knowingly send an unsolicited electronic
communication or email to members of the University Community. The following
actions will also be prohibited under this rule: harvesting addresses from the
University of Michigan online directory, running unsolicited mass-mail programs,
sending campaign email to individuals that are not students, and sending campaign
mail to groups or email lists that the sender does not own.” (Emphasis in original.)
Parikh complains that the second half of this provision “applies to no one in
particular,” but fails to cite the full language of the provision. The phrase “under this
rule” connects the litany of abuses at the end of the section with the parties
identified in the first half. That is, since the listed actions are also prohibited “under
this rule,” the parties of whom the actions are prohibited are parties and candidates.
Parikh was found in violation of the code by the provision restricting
activities by non-candidates. Comp. Code Art. VI.H.3.d. The UEC found ample
coordination between Parikh and his associate, Andrews. It therefore attributed, for
which the code clearly provides, Andrews actions to Parikh. Parikh complains that
the coordination provisions are unconstitutionally vague because it does not
explicitly define coordination. Not every term need be defined to avoid vagueness
claims. In administrative law cases like the issue at present, the Supreme Court has
held a regulation must only “provide fair warning of what is proscribed.” Village of
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 503 (1982). Here, the
UEC found Parikh clearly coordinated with Andrews to send the emails in question,
knowing this to be a violation of the election code. Parikh understood that his
activity was violative of the code. See also, Stip. Facts. He cannot therefore claim
that no reasonable person would be able to avoid the same.
2.
The UEC Did Not Violate Parikh’s Right to Free Speech.
Parikh makes an extended argument that the prohibition on listserv emails
violates his right to free speech. This Court, however, has considered this provision
of the Code and has never questioned its conformity with the First Amendment.
It has avoided that argument for good reason. The Supreme Court has
upheld many limits on campaign speech, especially when legislative intent to
proscribe the speech is reasonable and clear. See, e.g., Buckley v. Valeo, 424 U.S. 1
(1976), upholding limits on campaign contributions. This Court has also altered its
interpretation of this provision consistent with legislative intent. Cf. Yousuf v.
Talley, Mandell v. UEC. Here, legislative intent is reasonable and clear, and this
Court, though not explicitly considering this facet of this provision, has treated it as
such without question.
B.
The UEC Acted Within its Discretion in Identifying and Using Mitigating
Factors.
The UEC repeats and affirms the arguments advanced by Parikh in § 4 of his
brief. See App. B.
This Court must find each mitigating factor listed by the UEC in its Mar. 26
opinion so manifestly unreasonable that no reasonable body so composed could
have relied on any one to reach its decision. In Mandell, this Court found that Code
changes in response to a previous CSJ decision indicated a clear legislative intent to
restrict the discretion of the UEC. In response to Mandell, the UEC and Parikh have
presented evidence that the Assembly has here expressed intent that the UEC be
granted wide latitude to determine aggravating and mitigating factors, and wide
latitude to determine the number of demerits to be assessed to a violator. See UEC
Motion to Dismiss, Parikh Br. These changes and the notes supporting them make
manifest the Assembly’s desire that, except in extreme and outrageous cases, the
UEC should determine election violations and penalties without micromanagement
from this Court. Moreover, the UEC explicitly relied on this desire in listing and
using mitigating factors in this case. See UEC Opinion, 2012-W-009, p. 10-11.
The mitigating factors cited by the UEC include (1)Parikh’s behavior, while
violative of the purpose of the rule at issue, bore a loose relationship to the way in
which the Assembly assumed the rule would be violated; (2) Andrews’ explicit
license to send other emails to the SSW listserv; (3) the lack of clarity about what
Andrews told Parikh regarding his proprietorship over the listserv; (4) the UEC
received evidence that a similar email was sent by Parikh’s opponents, mitigating
any persuasive influence Andrews’ email may have had on the electorate; (5)
Parikh’s attenuation from the actual sending of the emails; and (6) no student who
received the emails seems to have complained about reading them. See UEC
Opinion, 2012-W-009, p. 11-14. This last factor is of critical importance, because
meeting notes and previous opinions of this body suggest that the “once-perreceipt” clause was added to the Code because so many students complained about
receiving campaign emails. Reader irritation was the reason such a stiff penalty was
imposed for Parikh’s violation. No reader irritation was evidenced here. Relying on
these factors, the UEC determined four demerits was an appropriate number for
Parikh’s violation. Under the increased discretion granted to the UEC by the
Assembly, each of these factors is reasonable, and several were used in a revised
opinion for the Mandell case for which Tylus turns to as precedent.
IV. CONCLUSION
The UEC did not violate Parikh’s right to fair regulation or free speech, and
acted within the wide discretion given it by the Assembly when it assessed only four
demerits to Parikh. For these reasons, this Court should affirm the decision of the
UEC in this case.
APPENDIX A
Statement of Facts
Manish Parikh is an independent candidate for President of the University of
Michigan Student Body, running with Omar Hashwi. Throughout the course of the
campaign, Parikh actively campaigned, creating a grass-roots style effort to spread his
message, by reaching out to many student groups. In doing so he met Victor Andrews,
the current School of Social Work Student Union “SSWSU” president.
Parikh and Andrews decided that Andrews would send an email to the SSW
advocating for Parikh’s candidacy. Apparently Andrews wrote the email on Parikh’s
computer a few days prior to the start of voting, with the idea that Parikh would email it
to Andrews to send out to the “SSW” when Parikh felt it was strategically appropriate.
Parikh intended and knew that Andrews would send the email to the SSW, but the SSW
only. At no time was there ever any discussion of forwarding it to any other groups.
The list-serve is maintained by the SSW administration, but testimony revealed
that it is mostly students that use the list serve. Further, under the SSW Student Union
Constitution, Andrews, as president, has a duty to keep SSW students informed about
what is happening on campus. Parikh knew Andrews was not the owner, but both
believed his position effectively granted Andrews extra leeway in utilizing the list-serve.
The list-serve, while official, is often used for SSW-related social announcements.
Andrews has this month alone sent about 10 emails to the group, and even a person
loosely affiliated with OurMichigan’s party sent out a campaign email to this list-serve in
this election on behalf of one of their candidates before Andrews’ email. The one
difference was that the owner (SSW administrator) approved this message.
Parikh was informed numerous times of University email rules, in a mandatory
candidates’ meeting, as well as the seriousness of potential consequences (candidates’
meeting and in a meeting with Commissioner Borock). Moreover, at various points
throughout the hearings both Parikh and Andrews testified at one point or another that
they each knew Andrews was not the actual owner. However, Mr. Andrews acts like an
owner, and the actual owner apparently views Andrews as an owner. Exactly what
Andrews told Parikh about his role as President remains unclear.
Parikh did not thoroughly explain the rules and procedures of the CSG Code to
Andrews. After Parikh sent the email to Andrews to send to the SSW list serve (on March
21), Andrews, independent of Parikh, decided to forward it to 20 other list serves,
including official school and faculty groups. This occurred in the morning of March 21st.
Parikh had no knowledge of the additional list-serves until he was served with this
complaint on March 21 in the evening.
No social work student had complained about the emails to the UEC. The
ssw.msw and msw.doc list-serves are official University list-serves. Many graduate
schools have both an official list-serve for academic functions as well as a separate one
for social purposes; it appears the SSW does not.
APPENDIX B
IV. The UEC did not abuse its discretion in mitigating demerits against Petitioner
Parikh
Finally, Petitioner Tylus’s claim that the UEC acted improperly in mitigating
Petitioner Parikh’s demerits is without merit. The Compiled Code was drafted to
grant great latitude to the UEC in the case of mitigating factors or extreme
circumstances. Compiled Code Art. VI § H(3)(d)(ii) differentiates between a
collaboration with a single candidate, and that of a party or group of candidates. In
the latter case, the UEC “may assess…demerits” (emphasis added). In Mandell, CSJ’s
order of remand [reconsidering in light of new guidelines from the CSJ] to the UEC
specifically noted that UEC would have discretion in levying demerits, though it
must consider each complaint or violation. After the Mandell case, which held that
the UEC must allow each complainant against an email violation the opportunity to
have their complaint heard, the CSG Assembly explicitly increased the discretion
granted to the UEC in assessing demerits.
As the UEC majority in this case stated:
“It has been the clear will of the Assembly in recent Code amendments to provide
the UEC with such broad discretion (CSG minutes 03/13/12, 03/20/12). Moreover,
Code Article VI § F(5) grants the UEC the power to “assess demerits outside of the
guidelines specified … given mitigating factors, extreme circumstances, or a lack of
intent”. Even more importantly, the UEC “may find a candidate or party in violation
of the campaign rules but nonetheless assess no demerits against the candidate or
party.” Compiled Code Art. VI § H(4)(j) . . . . Moreover, the Assembly has granted the
UEC broader discretionary power since the Mandell decision on two different dates
(see CSG minutes from 03/20/12) (whereby the Assembly granted additional
discretion (beyond the 3/13/12 changes) to assess demerits just to a party if a
violation was committed by a candidate).”
General principles of judicial review in the U.S. courts also demand that the CSJ
respect the broad discretion granted to the UEC in assessing demerit. “If the intent
of Congress [or legislature, here the CSG] is clear, that is the end of the matter; for
the court, as well as the agency [i.e., the UEC], must give effect to the unambiguously
expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984)(footnotes omitted).
The UEC listed numerous reasons to mitigate demerits, further supporting the
discretion granted to UEC. Mitigating factors listed in the UEC majority opinion (pp.
10-16) included:

The purpose of the ‘owner’ clause is to vet emails, accomplished by going
through Mr. Andrews



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
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Parikh was not the person who committed the violation
Parikh’s mental culpability was mitigated through reliance on Andrews’
portrayal of himself as the owner of the SSW listserv
The SSW listserv was widely used for social purposes
No School of Social Work students complained; no harm was done
Hesitation of chilling email listservs in future elections
Allegations of email spam were leveled against all major parties
“Parikh had consent from the effective owner of the list”
“The list in question has a history of partisan campaign emails being sent and
approved by the actual owner”
“An advisory opinion by the Election director indicated that he agreed with
such notions of constructive ownership ex ante [before the fact]”
“The sender of the email has a constitutionally mandated responsibility to
communicate with the membership of such list.”
The CSJ must find clear error in overturning a decision of the UEC in appellate
review. See Mandell. Given this extensive list of reasons, the high burden of proof
that Petitioner Tylus must prove, and the clear legislative intent to grant discretion
to the UEC in mitigating punishments, Petitioner Parikh urges CSJ to reject
Petitioner Tylus’s challenge of the UEC decision.