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J-Board Hears Newburgh and Steven v. Tacoma Case

Ruling to be released within 30 days

07 Feb, 2012 1:07

Written by Dan Novick

The Judicial Board heard the case on Monday of former SSMU President Zach Newburgh and Brendan Steven v. Rebecca Tacoma in her capacity as CEO of Elections McGill in the Lev Bukhman Room of the SSMU building. Newburgh and Steven’s appeal, which was originally scheduled to be heard on January 30, questions the validity of the fall QPIRG referendum that validated another five years of operation for QPIRG and removed the ability of students to opt-out online. “Our contention here is not that the referendum is undemocratic, but by the By-Laws and Constitution, that the referendum was not in fact a referendum,” stated Carmen Barbu, the legal advocate for Newburgh and Steven.

The adversarial legal system was used, and Barbu and Tacoma’s advocate Gab Joshee-Arnal, represented their respective parties’ positions before the J-Board chaired by Chief Justice David Parry. Witnesses Nick Drew, Eliana Schwartz, and Zach Newburgh were called to the stand by the petitioners’ side. Witnesses Rebecca Tacoma and current SSMU President Maggie Knight were called by the respondent.

The main issue of the hearing involved whether the referendum question involved two issues and not one. The question stated, “Do you support QPIRG continuing as a recognized student activity supported by a fee of $3.75 per semester for undergraduate students, which is not opt-outable on the Minerva online opt-out system but is instead fully refundable directly through QPIRG, with the understanding that a majority “no” vote will result in the termination of all undergraduate fee-levy funding to QPIRG?”

The petitioners’ side argued that the QPIRG referendum question is unconstitutional because it includes two questions, contrary to article 25.2 of the SSMU Constitution, and it is not clear, contrary to article 25.3 of the Constitution.

The respondent’s side argued that the referendum question does in fact pertain to one issue and is thus constitutional. They asserted that if QPIRG fees are opt-outable on Minerva, QPIRG would be unable to continue to exist due to a lack of funding. Former SSMU VP Finance Nick Drew argued that QPIRG’s existence is not threatened by the online opt-out procedure, based on estimates that only QPIRG loses only 12% of its revenue from students opting out of the controversial organization.

Newburgh, when called to the stand, said that “I had no doubt in my mind that the CEO would null the referendum question.” Tacoma supported her decision to uphold the referendum question on the grounds that she was acting in the best interests of the Student Society’s membership as a whole. “The decision made by respondent was in conformity with the rule of law, the principles of the Constitution, by-laws, and fundamental values of the Society,” noted her legal advocate Joshee-Arnal. Current SSMU President Knight supported Tacoma’s decision, noting that “it’s very clear in the by-laws that the CEO has the ultimate authority.”

The J-Board will release their ruling within the next 30 days. If the J-Board rules in favour of the petitioners to nullify the fall QPIRG referendum results, that decision could still be overturned by the SSMU Board of Directors by a four-fifths majority vote. This is because of proposed SSMU Constitutional changes which would, if implemented, change the Constitution to make it necessary for J- Board decisions to be ratified by the Board of Directors before they become binding. This would effectively remove the J-Board’s ability to be the final authority to interpret the Constitution.

The McGill administration has already made it clear that they do not intend to uphold the results of the CKUT and QPIRG referendum questions, citing a lack of clarity in the referendum questions. In 2007, the administration did not uphold the results of the QPIRG referendum.