Given the recent revelations about the cases filed against the Senate and other ASUN officials challenging their legal sufficiency, the Senate might want to wake up and take notice about what is happening.
Just today the Judicial Council informed the parties that it intends to grant summary judgment against ASUN on all remaining cases in light of two ASUN officers admitting liability in the cases.
Sen. Sean Hostmeyer's project to revise and codify all ASUN law is in serious jeopardy given these cases. Practically, the Senate should scrap this project so it can get its bearings in light of the Judicial Council decisions. Much of what ASUN has done during the 76th Senate Session is now invalid, and the application of the precedents could invalidate much of what the 77th Session has done.
The biggest problem at this point is it is entirely unclear what is the law and what is not the law given the decisions against ASUN. Sen. Hostmeyer's project only works if what is being revised and codified is in fact currently law. But under the Open Meeting Law (OML), any action taken in violation of that law is void. The Judicial Council has now ruled that the Senate has engaged in countless OML violations. This is fatal to the revised statutes (now called the revised code) project.
Although in three of the cases the Judicial Council declined to declare the ASUN actions invalid under the OML, ASUN should nonetheless treat them as invalid for a couple of reasons. First, it is the right thing to do. Second, the University and Board of Regents could later step in and invalidate the acts with much more severe consequences. And if some other entity invalidates the underlying acts, the revised statutes would instantly become worthless. There would be no ability to rely on it, defeating its very purpose. The safest thing to do is treat any actions taken as invalid, within the scope of the considered cases, and fix them. Therefore, the senators should scrap the revision proposal, at least until they determine where everything stands. This will take some time.
Most of my previous concerns with the project still apply. I have new concerns about the implementation bill because it creates an inherent conflict in what is the law. The original enactment and the codification? This isn't how codification works. Since ASUN's law and constitution borrows much from the federal system, the Senate would be well advised to borrow the code style the feds use. This would promote consistency and stability, as well as promote the ability for students to learn the styles because many resources are readily available.
Update: For anyone who cares, this is our 200th post. Yay us!
Showing posts with label ASUN Revised Statutes. Show all posts
Showing posts with label ASUN Revised Statutes. Show all posts
Wednesday, March 24, 2010
Wednesday, January 20, 2010
Trying to solve the wrong problem
Tonight the Senate will resume consideration of a bill to create a codified version of ASUN law, the ASUN Revised Statutes. I have previously discussed the bill here. In light of the President and Senate's joint failure to follow the ASUN Constitution and laws on reapportioning the Senate (discussed here), it has become ever more clear to me that Sen. Sean Hostmeyer's bill is unnecessary.
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
Read more...
Wednesday, December 16, 2009
ASUN Revised Statutes: An interesting idea, but poorly executed
Tonight, the ASUN Senate is set to take up Sen. Sean Hostmeyer's ASUN Revised Statutes bill. The bill is an attempt to create a single volume codification of ASUN law of a general and permanent nature. The bill, while an interesting and even anticipated idea, is poorly executed.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
Read more...
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