Supreme Court of Saginaw Valley

16-008

AMICUS CURIAE BRIEF

James Gault, advocating for an answer in the negative to the
petitions first three questions, on April 30, 2016.
The answer is negative. The Association is a single
integral organization but certain specific responsibilities
or prerogatives are assigned to selected individuals.
The Speaker does not vote except for breaking a tie,
yet that doesnt mean that the Speaker isnt still part of
the deliberative body. The President has the prerogative of
proposing legislative acts, budgets and of veto, all of which
demonstrate a participation in the legislative function.
The Student Association Charter doesnt explicitly
mention a model of distinct branches of government. It talks
about functions and roles, but there is no explicit the
government of Student Association is constituted in three
distinct departments: the legislative, executive, and the
judicial. At most, it is either assumed or thought to be
implied.
The concept of an executive is very broad when there
isnt definition. For example, the C.E.O. of the typical
corporation is limited in authority to act independently of
the board, so it could be considered that the president,
as the executive of Student Association is more like a
delegated agent of the entire Association, the principal face
and voice of the organization rather than a separate branch
of governance in the true sense. The fact that the President
is expected to be present and participate in Student
Association meetings is indicative of a more integrated
model than a separate model. In separate branch models,
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like the United States model, the executive must be invited

to participate. The parliamentary operation of Student
Association established by those who wrote the Charter and
continued, subsequently shows that the President is more like
a non-voting member of Student Association who has something
of a role like a corporate C.E.O. (who is not a voting member
of the board) or a city manager or even the President of the
University. He or she can be powerful, but ultimately has no
actual power. Being powerful is through influence and the
extent that the board, council, legislative body, whatever
gives credence to the advice and opinion of that executive.
Merely carrying out routine actions or fulfilling the
directives of the board is a ministerial function, not an
executive function. So, simply spending the money that the
board has already directed to be spent, for example. It
is not, of necessity, that it be done by the president or
subordinates to the president. It is a convenience and useful
for efficient administration to make the agent of the board
the president.
Another question for the court fundamental to this
question is whether, indeed, the student association even
constitutes a student government, or even a government of any
kind. The nearly universal opinion of political theorists is
that government derives its authority from those governed.
Could it not be argued that the Student Association is
instead a committee of the universitys Board of Control
delegated with a limited amount of discretion to spend moneys
that the Board of Control has first appropriated as a kind of
block grant?
And it is treated as a limited advisory body for the
universitys administration. But, in the end, it still isnt
a government.
In my opinion, for it to constitute a government it must
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arise, de novo, from the independent action and will of

students.
For reference, one should look at the Magna Carta and
the subsequent evolution of the understanding of political
authority within the English-speaking nations of the world.
It is not the king who gives the authority to the subjects,
it is the king who recognizes the authority that was already
always there.
Actions of the Board of Control or university President
in the past notably the suspension of the Valley Vanguard
newspaper at one time indicates that the Board of Control
has not recognized the authority of students to act
independently as a body politic.
The court may opt to defer opining on the question as
to whether the SA constitutes a student government. As for
myself, I assert that it does not.
So, then, we face the question of defining an executive,
a legislature, and a branch of government. From this point
I will use the term governance instead of government when
referring to Student Association in actuality, as it pertains
to its mode of governance.
It is entirely valid for branches to exist in a
governmental model wherein the executive is responsible to
the legislative. This is the inherent understanding of the
Westminster parliamentary system which is more common in the
world (among English-speaking nations following the common
law tradition of jurisprudence) than our U.S. model of a
Congressional-Presidental republic.
Whether the head of state is a monarch or president
in these systems, it is constitutionally regarded that
parliament consists of the queen in parliament or the
president in parliament (cf. the constitutions of Australia,
Canada, and South Africa, to name a few examples of both
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monarchies and republics with this understanding).

So, I freely offer that the separate branch theory of
government does not require a literal and formal distance and
separation between the legislative and executive.
The definition is more an examination of powers,
prerogatives and authority particularly the authority to
act autonomously. The Student Association is, in the sense of
parliamentary law, a deliberative assembly. This is without
dispute.
Let me delve into an unresolved question whether the
Student Association consists of solely those elected as
Representatives (or appointed by the elected Representatives)
or whether it consists of all the students collectively of
which the body of Representatives is merely the governance
body for the association.
The fact that students fund the Association and
constitute the electoral body for the President and
Representatives would suggest, on one hand, that the student
body is the Student Association in the broader sense and the
Representatives and President are more appropriately to be
regarded as the means of governance for the association.
But, numerous statements and actions of the body of
Representatives as a whole and individually throughout the
years has indicated that the Student Association regards
itself exclusively rather than inclusively of the broader
student population. Therefore, the organizations own actions
and statements are to be regarded as the most relevant as to
answering this question.
I do not know the particular intentions or desired
outcome of the petitioner in this case. That is to say,
I do not know whether the petition wishes for a clear
distinction between the president as executive and the body
of representatives as a legislature so as to bring about a
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desired political outcome. And, I could offer my own opinion

as to what I would like to see evolve from the Student
Association as it presently exists. I will neither draw
inference regarding the petitioners desires nor offer my own
vision for student government at SVSU here.
But, I state that I do believe that it is of such
importance that the students of the university ought not to
defer and ignore this question. My conclusion is simple:
there is no true branch structure in the governance of
student association for these reasons:
1.) The Association is a single integral organization.
Certain specific responsibilities or prerogatives are merely
assigned to selected individuals, but this could be changed
without any consequence to the integral nature of the
organization.
2.) The limitations of the President in governance are
of no consequence as shown by the example of the Speaker.
He or she does not vote except for breaking a tie, yet that
doesnt mean that the Speaker isnt still part of Student
Associations deliberative body.
3.) Some legislative functions are exercised by
the President, but are not, of necessity to the integral
organization; namely, the President has the prerogative of
proposing legislative acts, budgets and of veto. Each of
these shows that the President has a participation in the
legislative function.
4.) The executive functions of the President are
of a ministerial or administrative nature rather than an
exercise of autonomous decision-making authority. Indeed,
there is no real authority possessed by the President that
is not delegated or conceded to him or her by the entire
deliberative body of Student Association.
5.) The Charter itself does not express or assert a
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branch theory of governance. It is, at most assumed or

vaguely implied. An assumption or vague implication is not
sufficient to make a conclusion that there is a branch model
in place. And the lack of express statement of it most
certainly is not.
6.) The Association is not a government of any kind, or
specifically, is not a student government. This has been
elaborated by me already.