Student Ass'n of University of Wisconsin-Milwaukee v. Baum, WISCONSIN-MILWAUKEE

• Decision Date: 03 November 1976
• Docket Number: No. 75--406,WISCONSIN-MILWAUKEE,75--406
• Citation: 246 N.W.2d 622,74 Wis.2d 283
• Parties: STUDENT ASSOCIATION OF the UNIVERSITY OFet al., Appellants, v. Chancellor Werner BAUM, Board of Regents of the University of Wisconsin System, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 622

246 N.W.2d 622

74 Wis.2d 283

STUDENT ASSOCIATION OF the UNIVERSITY OF WISCONSIN-MILWAUKEE

et al., Appellants,

v.

Chancellor Werner BAUM, Board of Regents of the University

of Wisconsin System, et al., Respondents.

No. 75--406.

Supreme Court of Wisconsin.

Argued Sept. 7, 1976.

Decided Nov. 3, 1976.

Curry First, Milwaukee (argued), Perry & First, S.C., Milwaukee, on brief, for appellants.

LeRoy L. Dalton, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondents.

BEILFUSS, Chief Justice.

Basic to a resolution of the issues is the construction of sec. 36.09(5), Stats.

In July of 1974 the legislature merged all of the state universities into one university system with one board of regents, with the chancellor of each of the several campuses responsible to the board of regents.

One of the sections of the statutes enacted to effectuate the merger is sec. 36.09(5). It is as follows:

'(5) Students. The students of each institution or campus subject to the responsibilities and powers of the board, the president, the chancellor and the faculty shall be active participants in the immediate governance of and policy development for such institutions. As such, students shall have primary responsibility for the formulation and review of policies concerning student life, services and interests. Students in consultation with the chancellor and subject to the final confirmation of the board shall have the responsibility for the disposition of those student fees which constitute substantial support for campus student activities. The students of each institution or campus shall have the right to organize themselves in a manner they determine and to select their representatives to participate in institutional governance.'

In April of 1974 the constitution of the plaintiff-student association was certified by the election commission. It provides that all students currently enrolled at the University of Wisconsin-Milwaukee are members of SA (student association); that all legislative power is vested in a student senate to be elected at large by the members; and that the president and the vice-president are to be elected at large. The powers and duties of the senate, the president, and various other officers are also set forth and power of recall is retained by the members.

The student senate is the legislative body. It delegated to the president, Michael J. DeLonay, the power to appoint student members to university committees in September of 1974.

We are here concerned with the appointment of student members to three university committees--the Physical Environment Committee, the Merger Guidelines Committee, and the Segregated Fee Advisory Committee.

On August 29, 1974, DeLonay, as president of the student association, appointed the two students allotted to the Physical Environment Committee. About two weeks later Werner Baum, the Chancellor of the Milwaukee campus, wrote to the student association appointees and advised them their appointments were illegal, and appointed two of his own choice. His opinion was based upon a UW Law and Regulations provision of 1969 which provided this committee should have thirteen members, including two students appointed by the chancellor. DeLonay then advised the two students appointed by the chancellor that their appointments were illegal because in violation of ch. 36, Stats.

On October 4, 1974, the regents adopted interim guidelines to implement sec. 36.09(5), Stats., and issued instructions to each campus to develop implementation plans: ¹ Chancellor Baum delegated his authority in this matter to Assistant Chancellor Spaights. Chancellor Spaights set up a committee consisting of administration, faculty and student members. Five students were to be appointed. Chancellor Spaights appointed all five, including Michael DeLonay and Elizabeth Wright, Vice-President of the student association. Both DeLonay and Wright declined to serve, claiming the chancellor had no authority to make the student appointments.

The Interim Guidelines Committee was not a standing or continuing committee. It was to formulate guidelines to be submitted to the regents within a specified limited period of time and was to be disbanded after this function had been performed.

The plaintiffs also dispute the manner in which the student members were selected for the Segregated Fee Advisory Committee. This committee reviews requests for program financial report and recommends allocations from the segregated student fees for various campus activities. The final allocation of the fees must have the approval of the chancellor. This committee was made up of ten student members, one faculty member and one administrative member.

On August 21, 1974, the chancellor wrote to DeLonay as president of the student association advising that he, the chancellor, would defer appointing the committee until the beginning of the second semester. However, in early November, 1974, the chancellor issued a directive setting up procedures and classifications for the nomination and election of the student committee members by the student body. The directive called for election of eleven students in nine classifications, including two from the student association. ²

President DeLonay and Brad Bloch were elected as student association members but refused to serve because of their belief that the students and not the chancellor had the right to determine how the students were to be selected under sec. 36.09(5), Stats.

The plaintiffs assert that the student association, through its president, has the exclusive right to select and appoint the students to the various university committees with student representation by virtue of sec. 36.09(5), Stats.

In support of this assertion they argue that the student association is the only campus student organization that includes all students as members; that the University of Wisconsin-Milwaukee administration, primarily the chancellor, has recognized the student association as representing the students and has not extended that recognition to any other student group; and that no student or student groups have challenged this position, at least since the enactment of the statute.

The plaintiffs argue that the final sentence of sec. 36.09(5), Stats., is plain and unambiguous upon its face and that no construction of the statute to determine legislative intent is necessary or permissible.

The sentence in question is as follows: 'The students of each institution or campus shall have the right to organize themselves in a manner they determine and to select their representatives to participate in institutional governance.'

If this sentence could be considered without regard to the rest of the section and balance of ch. 36, Stats., and if there is in fact no ambiguity in it, their position would be correct. ³ However, we conclude the sentence cannot be construed without reference to the balance of the section and the entire chapter because the whole chapter deals with the governance of the university system. We further conclude the sentence is not unambiguous. Therefore the rule does not apply and the court must construe the statute.

The first sentence of sec. 36.09(5), Stats., is as follows: 'The students of each institution or campus subject to the responsibilities and powers of the board, the president, the chancellor and the faculty shall be active purticipants in the immediate governance of and policy development for such institutions.' The rights of the student are therefore subject to some qualifications.

The student rights are subject to the responsibilities of the board of regents. The primary responsibility for governance of the system, as outlined in sec. 36.09(1)(a), Stats., ⁴ is vested in the board. To do this the board is mandated to enact policies and rules for governing the system. The chancellor is vested with the responsibility of administering board policies. ⁵ In September of 1974, the board established interimguidelines for implementation of sec. 36.09(5). The guidelines provide that '(w)here student membership on a given policy development agency is authorized . . ., procedures for establishing such membership should also be defined.' The guidelines went on to note that these procedures should be in the spirit of sec. 36.09(5). Student membership would be required by sec. 36.09(5) on any committee which deals with the immediate governance of and policy development for the university.

The establishment of the various university committees, the composition of the committees as to administration, faculty and students, and the scope of the activities and authority of the committees are matters clearly within the authority of the board of regents and administered by the chancellor.

We now turn to a consideration of the three committees in question and a construction of sec. 36.09(5), Stats., in relation to them.

As set forth above, the students were allotted two members of the Physical Environment Committee. In July of 1974, sec. 36.09(5), Stats., became effective and gave the students the right to select their representatives. DeLonay, as president of the student association, appointed the allotted two members in August of 1974. However, his authority to appoint them at that time is open to challenge. The senate of the student association did not authorize him to make committee appointments until September of 1974. The chancellor refused to recognize DeLonay's appointments and personally appointed two of his own choice in September, 1974. It was his opinion, until interim guidelines were established, that the UW Law and Regulations of 1969, as promulgated by the regents, controlled the appointment of student representatives.

We conclude that when sec. 36.09(5), Stats., became effective in July, 1974, the chancellor lost his authority to make these appointments. The statute gave this authority to the students as...