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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
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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
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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
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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.
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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,
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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).
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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
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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
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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,
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
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2016-CA-002203-O