Independent Special Prosecutor v. Kisswani (2024)
| ISP v. Kisswani | |
|---|---|
| Decided December 1, 2024 | |
| Full case name | Aiden Michael Burke, Independent Special Prosecutor v. Hana Kisswani |
| Citations | F-24-059 |
| Decision | Opinion |
| Case history | |
| Prior | Original action filed in Central Student Judiciary. |
| Case opinions | |
| Majority | Lobbezoo, joined by Farmer, Bidari |
| Concurrence | Lobbezoo, joined by Bidari |
| Laws applied | |
| A.C. Const. art. VIII; Compiled Code art. IV § 7.4.1.2, 7.5.1 | |
This case overturned a previous ruling or rulings | |
| Parikh v. UEC (2012) (in part) | |
Independent Special Prosecutor v. Kisswani (F-24-059, December 1, 2024), was a landmark decision of the Central Student Judiciary. The case concerned Hana Kisswani, a School of Social Work Assembly candidate who accepted a donation from her non-student sister and exceeded the $125 campaign spending limit. The Court held that a rule prohibiting donations from non-students did not apply to candidates' acceptance of such donations, and only prohibited non-students from making donations. More significantly, the Court struck down the Candidate Expenditure Limit as unconstitutional under the Free Speech Clause of the All-Campus Constitution, applying strict scrutiny and overturning Parikh v. UEC (2012).
Background
During the fall 2024 elections, Independent Special Prosecutor Aiden Burke filed a complaint against Hana Kisswani, a candidate for the School of Social Work's single Assembly seat. The complaint alleged that Kisswani violated two provisions of the Compiled Code: the prohibition on donations from non-students and the candidate expenditure limit.
Kisswani admitted to accepting an in-kind donation of campaign stickers from her sister, Heedaya Kisswani, who was not enrolled at the university. Kisswani was therefore accused of violating Compiled Code Article IV § 7.4.1.2, the "Donation Rule," which prohibits donations from individuals who are not University of Michigan students. Additionally, Kisswani conceded that she exceeded the $125 "Campaign Expenditure Limit" imposed by Compiled Code Article IV § 7.5.1.
Kisswani challenged both rules as violating her constitutional rights to free speech.
Holding
Opinion of the Court
Donation Rule
In addressing the Donation Rule allegation, the Central Student Judiciary determined that the rule itself did not apply to Kisswani's conduct, making it unnecessary to reach her constitutional challenge.
The Court focused on the precise language of the rule, which states:
Each student eligible to vote in a CSG election is eligible to donate to candidates running in that election. All other individuals and organizations are forbidden from donating to candidates
The Court observed that this language only prescribes what eligible students can do and what other individuals cannot do—it does not regulate candidates' acceptance of donations.
The Court contrasted this with the Expenditure Limit's explicit regulation of candidate conduct, which specifically states that candidates "may expend up to" a certain amount. This textual difference reinforced the Court's conclusion that the Donation Rule does not cover a candidate's acceptance of donations from non-students.
The Court acknowledged that its interpretation might seem odd since it creates a prohibition without a penalty (as CSG cannot penalize non-students for making improper donations). However, the Court rejected applying the "absurdity canon" of interpretation, noting that the result was merely "odd" rather than truly "absurd," and that correcting it would require more than a minor technical alteration of the text.
The Court also rejected the "presumption against ineffectiveness" canon, explaining that such a presumption only applies when choosing between multiple textually permissible interpretations, and here the language simply did not allow for an interpretation that covered candidates' acceptance of contributions.
Based on this textual analysis, the Court dismissed the Donation Rule allegation against Kisswani.
Campaign Expenditure Limit
In addressing the Campaign Expenditure Limit, the Court first determined that the rule implicated free speech concerns, citing Buckley v. Valeo's reasoning that "expenditure ceilings impose direct and substantial restraints on the quantity of political speech." The Court observed that Kisswani's campaign buttons and stickers constituted classic political speech, and that limiting expenditures effectively reduced permissible speech.
When considering the standard of review, the Court rejected the Independent Special Prosecutor's argument that Flint v. Dennison required a relaxed inquiry. The Court distinguished Flint as inapposite, explaining that it addressed whether the federal First Amendment permits a university to restrict student government campaign expenditures, whereas the current case asked whether CSG itself could impose such restrictions under its own Constitution.
The Court also addressed its own precedent, noting that a previous advisory opinion's discussion of limited public forums was non-binding dicta, and overturning Parikh v. UEC (2012)'s rational basis review of regulations on campaign-related speech.
Applying strict scrutiny, the Court evaluated whether the Expenditure Limit was narrowly tailored to achieve a compelling governmental interest. The ISP offered two interests: equity in elections and preventing "unjust" spending. The Court rejected the equity rationale, citing Buckley and Szendro-Arceo et. al. v. LSASG & Jung (2024) in concluding that restricting speech to equalize candidates' financial resources contradicts free speech principles. The Court also found this interest "so vague that it renders narrow tailoring analysis impossible." The Court similarly dismissed the interest in preventing "unjust" spending as fundamentally at odds with the Free Speech Clause, which protects against governmental determinations of appropriate speech levels.
Concurrence
Associate Chief Justice Lobbezoo filed a concurring opinion, joined by Justice Bidari, focusing on the flaws in the Court's earlier decision in Parikh v. UEC (2012). While agreeing that Parikh did not control the present case, Lobbezoo went further, characterizing Parikh's free speech analysis as "deeply flawed" and criticized it for "inhabiting a law-free zone."
The concurrence identified several specific problems with Parikh's approach: it invoked Buckley v. Valeo but adopted an inconsistent approach; relied on precedents unrelated to the Free Speech Clause; suggested that legislative intent to restrict speech favored a restriction's constitutionality; implied speech restrictions were acceptable as long as some expression remained; and subordinated constitutional rights to policy judgments of "nine unelected students." Lobbezoo observed that more recent decisions recognized a Free Speech Clause quite different from what Parikh imagined. While acknowledging that Parikh's outdated framework had been limited to its facts, the concurrence expressed concern about letting it "lie about like a loaded weapon ready to be brandished by the hand of any authority in a future case" (quoting Justice Jackson's dissent in Korematsu).
Though the opinion of the court overruled, in part, the underlying reasoning of Parikh, the concurrence suggested explicitly overruling Parikh's free speech analysis altogether.