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

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

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
Florida Statutes, and Family Educational and Privacy Rights Act, 20 U.S.C.

1,

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

fundamental rights,

and as

applies

to

certain

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

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

MILICH

has failed to demonstrate a substantial likelihood

violations.

Accordingly,

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 of

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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 released for

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.
statute entitled, "Student Govemment in the Sunshine

MILICH attaches an election

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

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

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,

isolated conduct does not warrant injunctive

relief.

s:uch

"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
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to not disclose such

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

March,2016.

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(9

day of

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

alejandro@felcelaw.com 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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