Sunday, October 22, 2006
And another one
Dimitri Garcia responded to a constituent's concerns, as well, which were forwarded to me. I will present them here, because I believe that these discussions should be held in public, rather than through personal discussions between ASUC Senators and those who happen to know them.
Thank you for taking the time to understand this issue in the ASUC. $22,679 is a lot of money. First, I would like to refer you to Phia Xiong's letter to the Daily Cal http://www.dailycal.org/sharticle.php?id=21913. She is a current UCBerkeley student who was at the last ASUC meeting at which all 4 Student Action executives spoke about the legal fees; and she has changed her mind on the matter.
Second, although it seems that you are well convinced that Oren Gabriel, Joyce Liou, Jason Chu, and Vishal Gupta should each pay $5,669.75 for legal fees ($22,679 divided by 4 as revealed at the senate meeting), allow me to divulge the matter so far.
A) You refer to the fees as only pertaining to Oren Gabriel, but they are also Vishal Gupta's, Joyce Liou's, and Jason Chu's. They were all disqualified by the Judicial Council. Moreover, it was revealed at the last senate meeting that they all made an agreement during the Summer, in case they lost the lawsuit, to each pay their equal share. This amounts to $5,669.75 each. If they pay this out of their own pockets it will set a precedent that only students willing to pay can run for office; furthermore, these fees can be demanded in a court of law, but the executives are choosing not to do so because this would only increase the amount. The alternative precedent, if the ASUC stands up and fights this, might be that those who run for the ASUC office agree to work within the ASUC's constitutional structure, which puts these decisions in the hands of specific ASUC officials. This approach protects the ASUC's autonomy. The alternative approach, which is to give in to every lawsuit and then pay fees, means the ASUC will agree to cower under a rock anytime a rich student with a lawyer has a problem.
If you have a problem with the structural properties of the ASUC, then you need to try to change them using the internal processes of the ASUC. In a democratic system, this is how we deal with problems. Sometimes, you don't get what you want. If students can go and find a lawyer and sue to get what they want, then we don't have a democratic system at all.
Finally, using the DAAP case as an example, it is actually fairly unlikely that the ASUC would have been on the hook for the fees, since Student Action got everything they wanted using the internal processes of the ASUC. The DAAP case was initially dismissed for this reason, and there doesn't seem to be any grounds for a free speech challenge for Student Action, which is why they would never get the money like DAAP did.
B) As to the legal action being unnecessary, as demonstrated by the case being "thrown out"—this is simply untrue. The case was not "thrown out." Please refer to the Daily Cal article http://www.dailycal.org/sharticle.php?id=20895. The judge did not throw out the case. The judge sent the dispute back to the Judicial Council for the time being. If the Judicial Council had continued to uphold its disqualification decision, the case would definitely have proceeded in the court. Let me make this clear: if the Judical Council had kept their unruly decision of disqualifyng the four executives, the case was still open in the courts; the judge was waiting for the decision of the Judicial Council. The subsequent hearing had already been scheduled for some time in September, well after the start of the semester. While Dimitri is correct about the wording of the question being wrong, the judge did not "send" the dispute anywhere. The Judicial Council hearing was already scheduled, and the judge said "we're going to wait."
C) As to this case going to higher courts maybe having an effect— this did not "maybe" have an effect, it was the effect. This is not speculation. Moreover, all throughout the ordeal, the ASUC lawyer unceasingly told the Judicial Council NOT to disqualify because it was unconstitutional. The fact that the Judicial Council DID finally uphold democracy means that the the legal fees could have been settled in superior court at the time. However, the question of the legal fees was not decided in the courts, although they could have been, the case has since been closed. The question of fees now rests with the ASUC senate. While Dimitri asserts that the lawsuit had an effect, and that it isn't speculation, he doesn't present any reason to believe that. The fact that things happened in a particular chronological order does not establish cause and effect. Had the Judicial Council been planning to fairly treat the case and reverse the disqualification, the fact that Himelstein had been giving them advice wouldn't matter, and the case going to court wouldn't have mattered, so those things happening are not evidence of their impact. The legal fees need not have been settled after the Judicial Council reversed its decision, as the DAAP case was dismissed in much the same way.
D) As to the technicality that the executives were not part of the ASUC—they were. The Judicial Council had appointed them as temporary executives pending the decision, please refer to the Daily Cal article above. Not true at all. The Judicial Council let stand the appointment of Oren Gabriel as temporary president, but rejected the other three appointments. Yes, refer to the article:
Although the fate of the Student Action candidates remains in limbo, the council agreed this weekend to let Gabriel serve as acting president until election results are certified. The decision upholds part of an executive order issued by outgoing president Manny Buenrostro that placed the Student Action executive candidates into office until the senate can meet in the fall.
The council's ruling, however, puts only Gabriel into temporary office and limits his executive power to signing checks for the ASUC Auxiliary. The three other candidates will not be allowed to temporarily take office. The fact that a senator would tell a constituent to refer to an article that directly proves him wrong is somewhat disturbing, and raises serious questions about how accurately the senators are actually keeping track of this information.
These are the facts. Now let me tell you what I think:
Over the summer, the four elected executives were contending with a kangaroo court run amok. By agreeing to run for office in the ASUC, they agreed to deal with this "kangaroo court."
Everyone had followed the rules up until Andrew Ratto, with help from his Squelch! Party associates, first and foremost including Ben Narodick (the runner up for Executive Vice President) filed an appeal AFTER the results were in. This was an appeal to his original lawsuit. Andy filed this suit against the advice of Ben. It was not an appeal. And the original lawsuit was not "his," it was Attorney General Nathan Royer's. This lie has been repeated over and over. The Judicial Council overturned its decision in part because it was not an appeal. I suggest you ask your Judicial Council members about this, or just read the decision:
However, because the seven-day grace period, wherein appeals to elections violations cases can be filed, had already passed, ASUC v. SAES was a closed case at the time of Ratto v. Vakil. And, because Ratto v. Vakil was not such an appeal hearing, the Judicial Council was unable to issue a replacement punishment (the second punishment) for the ASUC v. SAES case (the "same offense") without committing double jeopardy. Moving on...
The allegation was that Suken Vakil had committed perjury (etc., please refer to the email by Senator Jane Park, attached below for more details). This is the one detail that made it possible to disqualify them; this is the one detail that the Judicial Council itself declared to be double jeopardy only after they were sued. However, it was not as simple as that. The kangaroo court had grossly disregarded its own rules. Of course the Judicial Council overturned it after they were sued. Oren+ didn't wait for the hearing. That doesn't meant that the suit caused that result. And it seems odd to say that the court disregarded its own rules after proceeding according to the rules with an appeal that found the result that Oren+ agree with.
They were not even a complete body; several of them had already gone away on vacation. Unfortunately, those who were left had unrestrained control over who was going to be elected; and they were on the verge of inaugurating the Squelch! candidates. This is a power put in the hands of the Judicial Council by the Senate in its bylaws. Much like the Senate has "unrestrained control over spending." And it's not like the Senate always had all of its members when it's doing work.
We as the student body should never be unwilling to pay any price for democracy. Unfortunately, if we do not take care of these kangaroo courts this term, the dignity of the ASUC may be further tainted than it already has been throughout this fiasco. There is a procedure for "taking care of these kangaroo courts." And giving money to Oren+ is not part of that procedure, nor does it held "take care" of them.
In response to your belief that the executives were breaking the by-laws, they had already received censures for chalking, but it was the Judicial Council that continued to break the rules (the ASUC lawyer Mark Himelstein would not even defend them in the actual lawsuit because he kept telling them they were wrong. This proves the Judicial Council was not simply thinking it was following the rules; they knew they were breaking the rules; they were trying to inaugurate the Squelch! party candidates). The Judicial Council is not a court of law. It cannot hold the ASUC to state and federal law because it isn't qualified to do so. It's job is to hold the ASUC to its own rules, and even if Himelstein was telling them that their actions were in violation of state/federal law, he is not qualified to tell them whether they are following ASUC law. If following the ASUC's rules puts the ASUC in conflict with state/federal law, then the fault lies with the Senate for creating those rules.
Further, the particular piece of advice Dimitri is talking about actually advised them not to grant the constitutional right of petition to a student in the ASUC. The petition was to stop the Student Action executives from being placed into office, and would not have put SQUELCH! into power. Denying that right in order to make Himelstein's case easier would be selling out the ASUC's democracy.
In addition, I hope that all students will learn the truth of the matter. I am certain that my support of this bill will promote the democracy of the ASUC.
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