Six of the seven justices, including Chief Justice Carlos Hernandez (right), Senior Associate Justice Ansel Garcia (center) and Elliot Madsen (left), voted to overturn the act. | Emma Christensen/The Cougar
On March 9, the supreme court voted 6-1 to strike down The New SGA Act. The court found that the bill, which would create constitutional reforms and make sweeping changes to the judicial system within student government, was unconstitutional.
The bill was brought to the court by petitioner and economics junior Micah Erfan, who filed a complaint against SGA President Benjamin Rizk, author of the New SGA Act. Although the court ruled in Erfan’s favor, since then, he and Rizk have set aside their differences and worked together to create a revised version of legislation that satisfies both parties and, ideally, the student body.
“There’s been a little bit of a tug of war there,” Erfan said. “But we’ve been able to come together on everything that’s going to be included in the final version of the text and we’re pretty happy with it.”
The newly revised legislation, fittingly dubbed the Best SGA Act, enacts reforms similar to those first proposed in the New SGA Act. In many ways, the Best SGA Act, which will be voted on during the next senate meeting, represents a far more extensive overhaul than the changes proposed under Rizk’s now-defunct bill.
For an organization more commonly associated with division and controversy than collaboration, Rizk and Erfan’s apparent reconciliation marks a welcome deviation from SGA’s established norm . Understanding why this is remarkable and the full scope of the proposed reforms requires starting with a beginning familiar to SGA – a disagreement.
The New SGA Act
The New SGA Act was introduced in November and passed by the senate in February, was authored by Rizk and created conflicts within legislation because of the dramatic changes it would make to the SGA Constitution.
The constitutionality of the Act first caught Erfan’s attention while attending an SGA Senate meeting Feb. 18 – the same day the bill was passed. The next day, he filed his petition to the court.
Among some of the most controversial changes included in The New SGA Act were constitutional amendments that intended to shake up the structure of student government, including a complete overhaul of the supreme court.
“It’s clear that the bill was more of a reactionary response from Rizk and some other folks in his party to what former SGA president Joshua Martin had done – overturning the previous election with the support of the court,” Erfan said. “The New SGA Act was a clear attempt to gut the court and remake it in a fashion that made future instances impossible. ”
Another detail that stood out to Erfan and the court was the transfer of power to appoint supreme court justices from the president to the attorney general, which he described as creating an imbalance of power.
The Chief Justice would have been granted the authority to select from a group of alternates appointed by the attorney general and approved by the senate.
“If they’re appointing the members of this court, that presents a very clear-cut conflict of interest,” Erfan said during the hearing. “This is a very bad institutional design which creates an attorney general that appoints the court and the court ends up nominating them.”
Particularly, Erfan emphasized the potential conflict of interest that could arise during future judicial proceedings.
“So you appoint the people that hear your cases and nominate you,” Erfan said, “At that point, the attorney general doesn’t have very much accountability, and you can expect our legal system to have fair rulings.”
The final argument in Erfan’s case was that there were inaccuracies contained in the text that have caused the bill to expire, further calling into question the bill’s constitutionality.
Economics junior and petitioner Micah Erfan gives his opening arguments to the court on March 1, 2023.| Emma Christensen/The Cougar
Author of The New SGA Act, Rizk defended the constitutionality of the bill in his pre-trial brief statements and hearing earlier this month.
Speaking in his defense, Rizk criticized Erfan’s characterization of the bill as a violation of separation of powers. Chiefly, he pointed to the fact that the Senate would ostensibly have to approve any nominee put forth by the attorney general.
In effect, Rizk argued that, since the senate would have final approval on any judicial appointments, the proposed changes distributed judicial authority more evenly. Further, Rizk pointed to the fact that currently, the power to appoint justices is vested in the office of the president and that the New SGA Act would weaken the executive branch rather than grant it more authority.
Secondly, Rizk argued the petitioner’s complaints lacked merit because he incorrectly filed the case.
He said Erfan was required to file the complaint directly through the attorney general first who would then decide on the merit and present the case to the election commissioner.
Rizk referenced Article 7, Section 1, Clause 4, of the SGA Election code which states that any election complaints must first be filed to the attorney general.
“This case never should have gone to the supreme court in the first place,” Rizk said. “It isn’t a case regarding the constitutionality of a document for what is and isn’t allowed within senate duties or presidential duties, but regards the election.”
Student Government Association’s 60th administration President Benjamin Rizk and author of The New SGA Act swore under oath before his defense arguments.| Emma Christensen/The Cougar
Hearing and Decision
Throughout the court hearing earlier this month, Rizk was bombarded with more than five times the amount of questions that the petitioner Erfan received.
After leaving the stand, Erfan echoed the same statement explaining Rizk may have received more of the grilling than him.
“The hearing seemed pretty favorable to me. It seems like my case was clear and they understood my arguments and it seems like the President’s case required more questions,” Erfan said. “I ultimately think I did a good job presenting my arguments and that’s all I could ask for.”
Rizk had opposing feelings, arguing the court justices and hearing were not in his favor that day. He summed up the hearing in just one word.
“Shitty,” he said.
He felt the questioning from the court was lopsided, that they were dogpiling on him and further stated that there were internal biases before the hearing and throughout the trial.
“Considering Chief Justice Hernandez had such a problem with my constitutional revisions, I honestly wouldn’t be surprised if he told Erfan to file the petition himself,” Rizk said.
Ruling
Last week, the court ruled against the bill, arguing that it would create a constitutional crisis, according to the court’s majority opinion authored by Chief Justice Hernandez.
The court wrote in their opinion that the attorney general does not have the authority to appoint justices or alternates for the supreme court, and The New SGA Act was unconstitutional because the proposed amendments failed to obtain the required language that clearly outlines the attorney general as accountable to the judicial branch.
Another major part of the New SGA Act was that it called for a complete “reset” of the court, meaning all sitting justices would be removed and the senate would have to reappoint them.
“The New SGA Act does not clarify which Justices are to be considered for removal or justify why they are to be forcefully removed,” The court opinion read. “Although the New SGA Act establishes new criteria for the removal of justices, it contradicts itself by mandating the removal of justices even if those criteria are not met.”
The court opinion cited that the defendant failed to consider a critical factor that conflicted with the removal of all current sitting justices in the court. That the supreme court justices have a right to their positions and could not be removed without due process.
The court argued, that supreme court members will continue to maintain their position so long as they are currently enrolled at UH, are in good academic or disciplinary standings, or served more than three years in office therefore, cannot be forcefully removed from the bench.
The Student Government Association Supreme Court Justices (left to right) Associate Justice Elliot Madsen, Senior Associate Justice Ansel Garcia, Chief Justice Carlos Hernandez, Associate Justices Christian Medrano, Derrick Cooper and Jaden Kirven. | Courtesy of Carlos Hernandez.
The Best SGA Act
In the wake of the court’s decision, Erfan and Rizk decided to do something almost unheard of in the current political landscape — collaborate. The two came together, and, after hashing out their differences, presented a new and improved bill to the senate.
The Best SGA Act details provisions to the constitution including clarification of election procedures and ballot structure, a streamlined impeachment process and the creation of a justice branch.
“This is the biggest constitutional revision in the last six to 10 years. There are a lot of formal powers that SGA has done for decades that were never put into the constitution,” Rizk said.
Rizk and Erfan authored the new act and changes to the constitution in light of the trial earlier this month.
“Even though y’all saw me and Micah arguing, I would argue that there is no one more qualified at this university to help pull this off,” Rizk said.
The election procedures have been revised to incorporate a mixed-member proportional representation system, which allows for all parties and candidates to receive representation proportional to their level of support among the student body.
The new allocation process takes into account the winners of individual races and the overall party vote in order to determine the distribution of at-large seats.
Voters will place checkmarks next to candidates’ names on the ballot, and candidates will be elected to at-large seats based on their position on the party list and the number of approvals they receive. Parties with remaining unallocated votes after the initial seat allocation process may receive additional seats, ensuring all votes contribute to representation in the senate.
According to Rizk, the new system will prevent the phenomenon of “free riders” who benefit from party tickets without actively contributing to the campaign or governance process, allowing only the most involved and active campaigners to secure seats.
In the new constitution, any member of office can be nominated for impeachment through various means, including nomination by the president with senate consent and nomination through the attorney general.
The attorney general will play a more central role by having the authority to review impeachment charges and determine guilt or innocence. This grants them significant power to adjudicate impeachment charges independently.
“We have given the attorney general more authority in that regard because we think it’s very important that if somebody is engaging in illegal behavior, we can immediately take actions to hold them accountable,” Erfan said.
Additionally, the supreme court’s role of oversight is strengthened due to the new constitution specifying that individuals nominated for impeachment will stand trial in front of the supreme court.
If a member of the supreme court is nominated for impeachment the new constitution stipulates that the justices must temporarily resign from their position, ensuring they do not participate in the adjudication process.
The new constitution lays out the creation of a justice branch that encompasses the attorney general, deputy general and the student government auditor.
According to Rizk, the creation of a fourth branch eliminates any ambiguity and clearly lays out the attorney general’s powers without any negotiation.
Previously, university-wide committees were listed under the legislative branch. In the new constitution a new article was created for university-wide committees to properly represent their institutional status as a separate entity.
“The whole point of changing the constitution is to make it idiot-proof and extremely explicit so it cannot be argued in the future,” Rizk said.
Looking Forward
The senate will vote on The Best SGA Act on March 20 and if passed, will go up for a vote before the student body.
If passed, SGA will announce the date for students to vote through an Instagram post. The bill will officially pass if a majority of students vote ‘yes’ on the poll held via Get Involved.
Rizk’s one-year term as president will conclude on April 1 and March 20 will mark the last regularly scheduled senate meeting of the 60th administration.
