milich v. ucf et al

8/19/2019 Milich v. UCF et al.

1/12

IN

THE

CIRCUIT

COURT

OF

THE

NINTH

JUDICIAL CIRCUIT,

IN AND

FOR

ORANGE

COUNTY, FLORIDA

CASE

NUMBER:

20 I

6-CA-002203 -O

DIVISION: 37

JACOB

MILICH

Plaintiff,

vs.

THE LTNIVERISTY

OF

CENTRAL

FLORIDA BOARD

OF

TRUSTEES;

DR.

MARIBETH EHASZ,

in

her

individual

and official capacity; THE

LTNIVERSITY

OF CENTRAL FLOzuDA

STUDENT

GOVERNMENT

ASSOCIATION;

CAITLYN

ZONA, in her individual and

official capacity

WHITNEY BARNES,

in

her

individual

and offrcial capacity;

and

THE

I.INIVERISTY OF

CENTRAL

FLORIDA STUDENT GOVERNMENT

ASSOCIATION ELECTION

COMMISSION, a collegial

body,

Defendants.

ORDER

ON PLAINTIFF'S

VERIFIED

EMERGENCY MOTION

FOR

EX

PARTE

PRELIMINARY

INJUNCTIVE

RELIEF

OR

IN THE ALTERNATIVE FOR

EXPEDITED

HEARING

THIS

MATTER

comes

before

the Court on

Plaintiff,

JACOB

MILICH's

( MILICH ),

Verified

Emergency

Motion

for Ex

Parte

Preliminary

Injunctive Relief

or

in

the

Altemative

for

Expedited

Hearing,

filed on

March

10,2016.

The Court,

having

reviewed the file, considered

Filing # 39013304 E-Filed 03/15/2016 10:08:33 AM


2/12

the

arguments

of counsel and the

applicable

law,

and

being otherwise

fully

advised

in

the

premises,

finds

and decides

as follows:

The

present

dispute

concems

MILICH's

efforts

to

secure

the

position

of Student

Body

President

on Defendant,

THE

LTNIVERSITY

OF FLORIDA,s

C,UCF),

Board

of

Trustees.

MILICH

seeks ex

parte

emergency injunctive

relief

on the

basis that

he is currently

being

subjected

to

election

procedures

that encroach

upon

of his First

Amendment

rights

and that

he

is

the subject

of Defendant,

THE LINIVERSITY

OF

FLORIDA

STUDENT

GOVERNMENT

ASSOCIATION's ( SGA ),

violations

of the Florida

Sunshine

law, particularly

section

286.0i 1,

Florida Statutes,

and

Family

Educational

and Privacy

Rights

Act,

20

U.S.C.

g

12329

(2013)

('FERPA').

Specifically,

MILICH

maintains

that the

SGA Elections

Commission's

regulations

regarding

when, where,

and

how

he may

engage

in

Active Campaigning

as

well

as how

disciplinary

proceedings

resulting from violations

ofthe

regulations

violate

said rights.

MILICH

alleges

that

he

is

subject

to

a

disciplinary

proceeding

to

occur on

March

16 and

Marchl7,

2016.

He

maintains that

unless he receives

preliminary

injunctive

relief,

Defendants

will

imminently

and

continuously violate his rights.

'A

preliminary

injunction

is

an

extraordinary remedy

which

should be

granted

only

if

the

party

seeking

the

injunction

establishes

the following

criteria:

(1)

the likelihood

of

ineparable

harm;

(2)

the

unavailability of

an adequate remedy

at law;

(3)

substantial

likelihood

of success on the merits;

and

(4)

consideration of

the

public

interest. '

Reserre

at

lYedgefield

Homeowners' v. Dixon,948

So.

2d

65, 67

(Fla.

5th DCA 2007)

(quoting

Dragomirecky

v.

Town

of Ponce Inlet,882

So.2d

495, 496

(Fla.

5th

DCA 2004).

Failure

to

show any

of the four

factors

is fatal,

and

the most common failure is not showing

a substantial

likelihood

of

success

on the merits. Am.

Civil

Liberties Union of Florida, Inc. v.

Miami-Dade

County

Sch. 8d.,557

Page 2

of

12

2016-CA-002203-O


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F.3d

1177, 1198

(1lth

Cir.

2009).

As

is

commonly the case, MILICH

fails to demonstrate

a

substantial

likelihood

of

success on the

merits.

As

a result, this

Court

need

not

address

the

remaining

factors

and denies MILICH's motion for

preliminary

injunctive

relief.

Given the

time

sensitive nature

of

the

Student Govemment elections, however,

this

Court

will

schedule an

expedited

hearing regarding MILCH's

Complaint seeking declaratory

relief,

permanent

injunctive

relief, and damages.

a.

First Amendment

Riqhts

MILICH first

contends that

he has a

substantial

likelihood of

succeeding on the merits

of

his

First Amendment claims

for two

reasons. One,

the

regulations

limiting the

scope

of

MILICH's

campaign efforts

encroach

upon

his frrndamental right

to

free

speech

and are

therefore,

presumptively

unconstitutional; and

two,

the

subject regulations

are

vague

such that

they invite

arbitrary

and discriminatory

enforcement.

Neither

position provides

merit

to

MILICH's

first amendment claims.

Although it

is

true

that strict

scrutiny of

policies

and legislation

applies

to

certain

fundamental

rights,

and

as

a

result

such

policies

and

legislation

are

presumptively

unconstitutional,

such does

not apply here,

in

the higher

educational

setting.

Alabama

Student

Party

v.

Student Gov't Ass'n

of the Univ.

of

Alabama, 867

F.2d

1344, 1346

(1lth

Cir. 1989).

Rather,

a

reasonableness

standard

is applied.

1d

Accordingly, this

Court considers whether the

regulations

imposed

upon

MILICH were

reasonable,

given

the

university's primary purpose

of

education. 1d

In

Alabama

Student

Party,

the

United

States Court of Appeals

for

the

Eleventh

Circuit

was

tasked

with

evaluating

the

constitutionality

of

student

government

association election

procedwes

similar to

those challenged here. Id. aa

1345. In

that

case,

the students challenged

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regulations which:

(1)

restricted

the

distribution of

campaign literatue

to tkee

days

prior

to the

election and only at

residences

or outside

of campus

buildings;

(2)

prohibited

distribution

of

campaign literature

on election day;

and

(3)

limited

open

forums or

debates to the week

of the

election. .1d.

In

upholding the constitutionality

of

the university's

regulations,

the

Court

emphasized the distinction

between

free speech claims in a

regular,

real

world

setting and those

in an educational setting:

The United States Supreme Court has consistently reaffirmed

the

right of state

universities

to

make

academic

judgments

as

to how

best

to

allocate

scarce

resources,

and

to

determine

independently

on

academic

grounds

who may

teach,

what may

be

taught, how

it

shall

be

taught,

and

who may

be admitted to

study. The

central

justification

for a

student

govemment

organization

is

that

it

supports

the

educational

mission

of

the

University.

This

deference

to

the

educational mission of institutes of

higher

learning has

resulted in the recognition

of a university's

right to

exclude even First Amendment activities that violate

reasonable campus mles

or substantially interfere with the

opportunity of other

students

to

obtain an

education,

/d

(intemal

cilalions omitted).

Indeed,

unlike traditional

notions of freedom of speech in a

general

setting,

a university's

judgment

on

the

manner

in which

it conducts

its

student

government

elections

should

be

given

great

deference. Id. at 1347. This

is because there

is

'reluctance to

trench on the

prerogatives

of state

and

local

educational

institutions. ' /d

(quoting

Regents

of

University of Michigan

v.

Ewing,474 U.S. 214, 226

(1985)).

'[A]cademic

freedom

thrives not

only

on the

independent

and uninhibited exchange

of

ideas among teachers

and students,

but also,

and

somewhat

inconsistently, on autonomous decisionmaking

by the academy itself. '

Id

(quoting

Regents of

University of

Michigan

v.

Ewing,474

U.5.214,226 n.

l2

(1985)).

The

Alabama

Student

Party

Court

proclaimed

that, in

that

case,

and

in

other

school

cases raising similar First

Amendment

challenges, these

principles

translate[d]

into a degree of deference to

school

officials

who

seek to

Page

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reasonably regulate

speech and

campus

activities in

furtherance

of the school's

educational

mission.

1d

In

analyzing the constitutional challenges

to

the regulations

in

Alabqma

Student Party,

the Court held

that the record reflected that the

university's

regulations

of

student

govemment

association elections were reasonable

given

the

university's

underlying

effort

to

minimize

the

disruptive

effect

of campus electioneeing.

Id. at

1347.

The university provided

evidence

indicating that

it

viewed

the

student

govemment

association

as

a

'leaming

laboratory '

that

provided

students an

opportunity to

'gain

some experience

and expertise

in better understanding

the

way

in

which

democracy

functions, '

among other

purposes.

1d

This

was sufficient

to

convince

the

appellate

court

that the

[u]niversity

should

be

entitled

to

place

reasonable

restrictions

on

this leaming

environment.

1d

Here, as

in

Alabama

Student

Party,

the restrictions

placed

upon MILICH

related to the

time and

place

that he campaigned. Surely UCF would be able

to

demonstrate some reasonable

basis supporting each

regulation,

given

that, as an educational institution,

its

primary

purpose

is

education,

not

electioneerin

g.

Id. at 1346

(emphasis

in

original).

As to

MILICH's

contention

that

the Election

Statutes are vague because

they

fail

to

provide

adequate

notice

as

to

what

constitutes

prohibited

conduct, this Court does not

find

a

substantial likelihood

of

success

on the merits

of

this claim. According

to

MILICH, it

is

unclear

what

constitutes

active

campaigning.

The

statutes

define

active campaigning, without

iimitation,

as

[a]ny

display

or

distribution

of

tangible items or electronic media

for a

candidate/ticket

for

an elective

office

of

the

student

body. Moreover,

the words

campaign and

campaigning

are

commonly

used in

the English language. The Commission's

definition of

active campaigning

likely

contemplates the ordinary

usage ofthe

word, campaign. See Powell

v.

Page

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State,508 So. 2d

1307,

1310

(Fla.

lst

DCA

1987)

(acknowledging

that terms

can

be

readily

understood

by

reference

to

commonly

accepted

dictionary

definitions.

See

also

Gardner

v.

Johnson,45l

So.2d 477

(F1a.1984);

Miller, The

Medium

is the Message:

Standards of Review

in

Criminal Constitutional

Cases

in

Florida,

11 Nova

Law

Review

97,

124

(1986)

(standard

dictionary

definitions

are

reliable

sources

for

plain

and

ordinary

language

definitions).

Campaign

is

defined

as

a

series of organized,

planned

actions for

a

particular purpose,

as

for

electing a candidate. Webster's

New

Colleee Dictionar.v,

211

(Michael

Agnes,

ed., Whitey

Publishing, Inc.

2005).

As

MILICH

points

out,

[a]

vague statute is one that

fails

to

give

adequate

notice of what

conduct

is

prohibited

and which,

because

of its imprecision,

may also

invite

arbitrary

and

discriminatory

enforcement.

S.E.

Fisheries

Ass'n,

Inc.

v.

Dept. of

NaL

Resources,453

So.2d

1351,1353

(Fla.

1984).

On the evidence currently before the Court,

the

statutes

do not

appear to

be vague.

The

provided

election

statutory

definition

of active campaigning

coupled

with the

common, dictionary definition

of

the word campaign, adequately notifies

a

candidate

of

what

conduct

is

prohibited.

Accordingly,

this Court

finds

that

MILICH has not

demonstrated

a

substantial

likelihood

of success on this issue.

b. Sunshine Laws

MILICH further maintains that SGA violated section 2&6.011, Florida

Statutes

(2016),

by

convening and discussing his alleged election

violations.

Section 286.011 requires that members

of a board

of

commission conduct

official acts

in

a

public,

open forum. MILICH

claims that the

SGA's

Elections Commission members

discussed

his alleged election violations

prior

to holding

any open

meeting

so as

to

violate section

286.01

1.

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In

support

of this

claim,

he

points

to

a

single

email he received

from Defendant

WHITNEY BARNES

C'BARNES),

SGA Supervisor

of

Elections,

which

indicated

that,

it

[had]

been brought

to the

Election

Commissions

[sic]

attention

that

[MILICH's]

ticket

has

made

several chapter

visits

within

the

Panhellenic

community. This

means

of distributing information

falls under active

campaigning

which,

cannot begin

until

after Declaration

of

Candidacy.

BARNES

continued,

I

and the Election Commission would

advise

that

you

all

proceed

with

caution in future

campaigning

prior

to

Declaration

of Candidacy. Because, it

can

be

assumed

that once

Declaration

of Candidacy begins these violations will appear.

Although it is true that

one

purpose

of

enacting

section 286.01I

was

to

prevent

at

nonpublic meetings the crystallization of secret decisions to a

point

just

short

of ceremonial

acceptance ; that

generally,

a

nonpublic

pre-meeting

conference

would

be considered

violative

of the

statute; and

that

[t[he

statute should be construed so as

to frustrate

all

evasive devices,

MILICH

presents

no evidence demonstrating that

such

pre-meeting

conference occurred

here.

Town of Palm Beachv. Gradison,296 So.2d

473,477

(Fla.

1974).

The language in BARNES'S

email

merely informs

MILICH

that

the

Commission

received

affidavits

accusing

him

and his

running mate

of

election violations. The fact that BARNES was speaking

on

behalf

of the

Commission,

as

persons

in supervisory

positions

often do, does

not indicate

that members

ofthe

Commission

had

privately

convened to discuss MILICH's

alleged violations. Accordingly,

MILICH has failed to

demonstrate

a

substantial

likelihood of

success

on

this

claim.

c.

FERPA

Lastly, MILICH

maintains that

in

order to

conduct the

disciplinary

hearing

conceming

his

alleged

election

violations, the SGA's

Elections Commission would be forced

to

violate

either

FERPA

or the Sunshine

Laws

because

FERPA

prevents

disclosure

of education

records,

PaBeT

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2016-CA-002203-O


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which

MILICH

claims the affrdavits

accusing

him of violative

conducts

are,

and

the

Sunshine

Laws require

the

Commission

to

conduct the hearing

in

public,

thereby

disseminating

his

o'education

records

to

the

public.

As

explained below, MILICH's

circular logic,

although

clever,

does

not

entitle him to injunctive relief

on the

facts present

in this record.

Section

100652

(2)(a),

Florida

Statutes

(2016),

provides

that: A

public

postsecondary

educational

institution

may not

release

a student's education

records without

the written

consent

of the

student

to

any individual,

agency, or organization, except

in

accordance with

and as

permitted

by the FERPA.

Under FERPA, education records

are

those

records,

files,

documents, and other

materials

which--(i)

contain information

directly

related

to a student;

and

(ii)

are maintained

by

an educational agency

or institution

or by

a

person

acting for

such agency

or

institution;'

20

U.S.C.A.

$

12329(a)(4)(A)

(2015).

MILICH contends

that the affidavits

accusing

him

of election violations

are disciplinary

records,

which

the

Fifth District

Court

of

Appeal recently

deemed to

constitute

education

records

within

the contemplation

of FERPA.

Knight News, Inc.

v.

Univ. of Cent. Fla.,No.

5Dl4-2951,

2016

WL

438252,

*l.t

Accordingly,

MILICH

asserts,

dissemination

of

these

affidavits, or the information therein, at

a

public

hearing

conceming

the

alleged

election

violations

would violate FERPA. He

also complains

that the statements

of

any witnesses

accusing

him of

such

violations

would violate FERPA

as

they

constitute

oral

disclosures

of

what

is

in

his

disciplinary,

education

records.

For

MILICH's

argument

to

hold water, the Court must assume that the anticipated

disciplinary

hearing regarding

his

alleged

election

violations is

open

to the

public.

This is

I

In an

abundance of

caution,

this Court

notes that the

Knight News decision has

not

yet

been

publication,

and

as

such, is

still

subject

to revision

or withdrawal.

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because, under

FERPA,

education records may be disclosed

to

appropriate

university

personnel,

in this case, the

Commission members charged

with

disceming

whether

violations

occurred and

any resulting

sanctions.

See

20 U.S.C.

$

t23Zg(b)(1)(A).

ln

Knight,

the

information

ordered

properly

withheld

was

disciplinary

records

that the school newspaper

sought

to

publish

and

the

university's decision

prohibit

media from

being

present

during

disciplinary

proceedings.

Id

Here,

there is nothing in the record to

suggest that the subject

disciplinary

proceedings

will

be open to the

public.

Indeed,

all

of

the Commission's Election

Statutes to

which

MILICH

refers

are

silent

as

to

who

is

permitted

in

the

hearings

and refer

only

to the Commission

members, the accused,

the

affidavit

filer, and

any

witnesses.

MILICH

attaches

an

election

statute entitled,

Student

Govemment in the Sunshine

Act

and

attempts to argue that

that statute

demonstrates

that his anticipated disciplinary hearing will

be open

to

the

public.

Such

statute

refers only to student

govemment

meetings and

does

not

mention disciplinary proceedings.

In

attempt

to

trap Defendanls in a calch-22,

MILICH

maintains

that the

SGA cannot

conduct

his disciplinary

hearing

without

opening

it

to

the

public

because

that would

violate

Florida's sunshine

laws.

On the same token,

MILICH

claims,

if

the SGA opens

the

hearing

to

the

public,

it is

disclosing

his

education

records

in violation

of FEMA. He emphasizes

a

provision

in

section 119.07(7),

which

indicates

that an exemption

from

section 119.07,

Florida

Statutes

(2016)

does not imply an exemption from s. 286.011.

However, the

Knight

case

upon

which MILICH

relies

explicitly

rejects this argument.

1d

(affirming

the trial court's

conclusion

that

$

1006.52(2)

effectually

exempts

the

hearings from

open

public

access due

to

the

disclosure of student

education records during

the

course

of such

hearings. 2

See

also Marston

2

The aflirmed trial court

case

was Knight News,

Inc. v.

The Univ. of Cent. Fla.

Bd. ofTrustees.2014

WL

3544418

(Fla.9th

cir.ct. July 15,2014).

Page

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2016-CA-002203-O


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v.

Gainesville

Sun

Pub.

Co.,341 So.

2d

783, 785

(Fla.

lst DCA

1976)

( There

is

no benefit to

the

student of

confidentiality

in

the

documentary

evidence and

report

of his infraction

if the

public

may

demand admittance to

the

[hearing]

where

that

evidence

is

exhibited and

the

substance of

that report

discussed; and

there

is little

purpose

in

presewing

from

public

view a

memorandum or

transcript

of a

witness'

testimony before the

[hearing

panel]

ifthe

public

is there

to hear

the

spoken

word. ); Florida Soc.

of

Newspaper Editors,

Inc.

v. Florida

Public Serv.

Comm.,543 So.2d,1262

(Fla.

1st DCA 1989),

rev. denied,551

So. 2d 461

(Fla.

1989)

(declining

to

recede from

Marston

after 1985

enactment of

$

119.07(5)

providing

that no exemptions

under

Chapter 119

shall

be

interpreted

as

providing

an

exemption

from

or exception

to

section

286.01 1. ).

The record

does

not reflect evidence supporting

a substantial likelihood

that the relevant

procedures

of

MILICH's

anticipated

disciplinary hearing violate

FERPA.

To the extent

MILICH

attempts to argue that Defendants'

alleged dissemination

of

an

affidavit

accusing MILICH

of election violations

to

UCF's

newspaper,

Knight News,

s:uch

isolated conduct

does

not

warrant

injunctive

relief.

Florida adheres

to

the rule that

'an

injunction

will

not

be

granted

where it appears that the acts complained

of

have already been

committed and there

is no

showing

by

the

pleadings

and

proof

that there

is

a

reasonably

well

grounded

probability

that

such course of

conduct

will

continue

in

the

future. '

Daniels

v.

Bryson, 548 So.

2d

679,681

(Fla.

3d

DCA

1989)

(quoting

City

of

Jaclaonville

v. l(ilson,

157

FIa.838,844,27 So.2d 108,

111

(1946)).

Although MILICH has

demonstrated that Defendants

released an

affidavit

accusing

him of

election violations,

which perhaps

violated FERPA, he

has

not

alleged

or demonstrated

that

this is a

practice

expected

to

continue. Indeed,

he

included

correspondence

from UCF's

legal team

which

indicates

an

intention

to

not

disclose

such

Page 10

of

12

2016-CA-002203-O


11/12

information

publicly

in

the

future.

Accordingly, this Court

shall

not

grant

injunctive relief

on

that

ground.

In accordance

with

the foregoing, it is hereby ORDER-ED

AND ADJUDGED

that:

1.

JACOB R.

MILICH's

Verified

Emergency

Motion for

Ex Parte Preliminary Injunctive

Relief is

DENIED;

2.

JACOB R.

MILICH's

Altemative

Motion

for Expedited Hearing

is GRANTED.

3.

The

parties

shall convene and contact the Court to set

a

date

wiulin

/D

days

ofentrance

ofthis Order.

DONE AND

ORDERED

at

Orlando,

Orange

County, Florida

on

this

(9

day

of

March,2016.

Page

11of

12

2016-CA-002203-O


12/12

CERTIFICATE

OF SERVICE

I

HEREBY

CERTIFY

thar

on

this

15

auV of March, 20i6,

I electronically

filed

the

foregoing

with

the Clerk of the Courts by using

the Florida

Courts

E-Filing

Portal

who

will

provide

a correct

copy

of

the

foregoing

by e-mail to

Alejandro

Felce,

Esquire,

Counsel

for

P laintiff,

at [email protected]

and

service@f'elcelaw.com.

I further

CERTIFY

that on this

){auy

of March,

2016,

a copy

of the foregoing was

mailed via U.S.

Mail

to:

The University

ofCentral

Florida

Board ofTrustees

4365 Andromeda

Loop N.

Millican Hall,

Suite 360

Orlando,

FL

32816

The

University

of

Central Florida Student Government

Association Election

Commission

4365 Andromeda

Loop

N.

Millican Hall,

Suite

360

Orlando, FL

32816

The University

of

Central Florida Student Govemment Association

4365

Andromeda

Loop

N.

Millican Hall,

Suite 360

Orlando, FL

32816

Whitney S. Bames

12725 Pegasus Drive

Student Union, Bldg.

52, Rm. 214

Orlando,

FL

32816

Maribeth Ehasz

4365 Andromeda

Loop N.

Millican Hall,

Suite 360

Orlando,

FL

32816

Caitlyn Zona

12725

Pegasus Drive

Student Union,

Bldg. 52, Rm. 214

Orlando, FL

32816

Page 12

of

12

2016-CA-002203-O

milich v. ucf et al

Documents