Friday, June 30, 2006
Despite my bestest hopes, I've been forced to submit another god damned charge sheet. For Christ's sake, Manny. "It is vital that the offices be filled. Therefore, I must fill them with someone. In my objective opinion, the best people are... those in MY PARTY!!!"
So yeah, now I'm involved again. I was getting sick of the "Manny consults with his lawyers, issues an executive order, gets it overturned by the Judicial Council, repeat" process that looked like it was going to begin, so in addition to requesting that EO 8 be voided, I also requested Judicial Council-forced negotiations between Student Action and Squelch+Igor. To be perfectly honest, I don't really think the Judicial Council has the Constitutional authority to do something like that, but maybe the Judicial Council will figure something out. If the real issue is just to have a placeholder who won't do anything serious, the parties should definitely be able to come up with some kind of compromise.
. . .
Executive Order #8 was issued by Manny, with Oren's approval. There's a bunch of whereases, but the order is:
So ordered: The following appointments be made immediately; Oren Gabriel as acting President, Vishal Gupta as acting Executive Vice President, Joyce Liou as acting Academic Affairs Vice President, and Jason Chu as acting External Affairs Vice President to carry on the daily business of the ASUC only, and for no other purpose, until the elections results are certified in the proper manner.
Be it further ordered: That Executive Orders #7, #1, and #2 are hereby rescinded and declared null and void and of no legal consequence.
I'm not sure this really solves the problem. He's still appointing his party members, who, according to standing Judicial Council rulings, will not be the victors, and they'll still have the opportunity to entrench themselves. We'll see how willing they are to stick to "carrying on the daily business." Still, at least it's a step in the right direction, and looks less like a child throwing a temper tantrum.
. . .
Thursday, June 29, 2006
Not that it'll really matter, but Ben Narodick has submitted his briefs for the executive order cases. The deadline is 11:45pm today, but I don't actually expect Student Action to submit anything.
From the brief against Manny's EO:
Additionally, President Buenrostro has asserted in Executive Order #7 that "...any further action on this matter not be undertaken until after the ASUC Senate returns to campus in the Fall of 2006 and the Judicial Council is properly reconstituted to its full nine members." To be frank, President Buenrostro does not have the ability to dictate how many members must be on the Judicial Council, nor does he have the ability to dictate if or when the Judicial Council can hear a case. The ASUC Constitution, as well as the Judicial Rules of Procedures listed below which have been approved by the ASUC Senate, give the Judicial Council full discretion to be an independent non-political arbitrator of all actions of the Association. As such, President Buenrostro's assertion to ultimate authority is as faulty as Louis XIV's assertion to the divine right of kings.
Ben cites, in a footnote, the Wikipedia page on the topic.
. . .
Oh, and don't forget
Because we've been rather busy with... uh... other things, locals aren't really paying attention to a Berkeley story that is actually garnering national media attention, as well as the derision of the blogosphere (though the Patriot blog has talked about it). The City Council has put a measure on the ballot asking if voters favor impeachment of the president. Yeah, Bush. Yeah, Berkeley. Apparently, the Berkeley City Council is following the ASUC pattern from a few years back where "referenda" actually meant "opinion surveys." Except these opinion surveys cost us about $10,000 each, according to city manager Phil Kamlarz.
"It seems to me that our society has almost forgotten that we have a constitution," said Couincilmember Laurie Capitelli.
And good thing, too, because our constitution says that impeachment is a United States House of Representatives thing, not a local city council thing.
By the way, if you read that Reuters story, you can see:
A number of local governments across the United States have pressed resolutions urging impeachment, but the Berkeley city council's goal is to be the first to put the issue directly to voters, Mayor Tom Bates said in an interview.
The Daily Cal says:
Several municipalities across the country - including Berkeley - have passed resolutions calling for Bush's impeachment. But the council's vote makes Berkeley the first city to put the issue on the ballot.
Yeah, way to be creative.
. . .
Well, there's my answer
I picked up the Daily Cal. They didn't go ballsy or lame, they went just plain false.
The headline is "Executive Order Reinstates Candidates." Now, if you mean "reinstates them as not-disqualified candidates," this would be quasi-accurate, but the first paragraph is:
With election results in limbo, ASUC politics took a dramatic turn this week when outgoing President Manny Buenrostro issued an executive order Tuesday reinstating four disqualified Student Action executive candidates into office.
They were "reinstated into office," apparently. They never were in office in the first place, but they were reinstated there.
Blah blah some stuff about Ben's suits...
Narodick, Buenrostro and Gabriel have 48 hours to file briefs stating the grounds for their arguments.
Well, they had 48 hours Tuesday night. Right now, they have 15.
But Buenrostro said the senate is not in session over the summer and executive action is necessary to ensure the council abides by the constitution.
Uh... I'm pretty sure ensuring constitution compliance is a judicial role.
Ben Narodick is quoted as saying "The stakes are so great because the stakes are so small." I'm pretty sure that's a rewording of a Henry Kissinger saying.
. . .
Wednesday, June 28, 2006
What kind of cajones do you have
So, how will the Daily Cal headline this? Will they have the balls to say what really took place? "President Issues Executive Order Decreeing Victory for his Party."
Yeah, right. I'm expecting something lame like "Executive Order Adds to Election Controversy."
. . .
By the by
Don't expect any SA representatives to file briefs or show up for hearings in front of the Judicial Council for the rest of the summer.
Suken Vakil Vishal Gupta said that Student Action no longer considers the hearings legitimate because of the EO from Manny, and since they're going to lose so badly anyway, their only recourse is to try to undermine the legitimacy of the Judicial Council by ignoring it. And they may very well succeed.
Contest! Come up with your own slogans or one-liners for SA. The first comes from some commenter:
"Ever the paternalistic Student Action philosophy: fuck the means, everyone's better off if we're in charge."
"Streamlining the democratic process: DONE!"
. . .
Tuesday, June 27, 2006
New New New
The Judicial Council has accepted both of Ben's suits. Ben sought a summary judgment on an expedited schedule, so both parties have 48 hours to submit briefs, and after review, the Judicial Council will determine whether a hearing is necessary.
The Judicial Council has also issued preliminary injunctions staying the orders. In the Buenrostro injunction, the Judicial Council writes:
Moreover, because the ASUC Constitution states that the Judicial Council is "vested with the judicial authority of the Association" and frames its own "rules of procedure for the exercise of its responsibilities," the concerned Executive Order cannot overrule the Constitution in order to prevent the Council from exercising its judicial responsibilities.
The decision is responding to the EO's claims that the Judicial Council cannot deal with the issue until the fall semester starts, but I think it's clear what else it means, and it's pretty grim for SA. Then again, no one really thought these EOs would stand up in the Judicial Council, the real issue is whether the Judicial Council's rulings will be effective.
Also, for those of you into justice-counting, there were six, and the decision to accept and issue the injunctions was unanimous.
. . .
So, I found Executive Order #5. It orders:
that the current ASUC executive officers shall maintain their office until the release of the 2006 elections results, in order to maintain the proper running of the association."
Now, the term "release" is used in the by-laws to describe the public announcement of election results right after the count, and before certification. So, even by his old Executive Order, unless EO6 says something different...
1) The declaration after the first count was the "release," in which case Manny isn't President anymore, or...
2) The first count wasn't final.
The EO contradicts the second, since it declares the first count final, but that means he wasn't president to do so. It's essentially a self-contradicting Executive Order.
Note, though, that I don't know what EO6 was.
. . .
The EO-fest has some serious implications for autonomy. Recall that in the 2004 election, DAAP made similar overtures, though perhaps on different grounds. You can read Mike Davis's account. The punchline, though:
But the court's ruling wasn't what worried other ASUC officials. It was how the judge arrived at her decision and how long it took. If the federal judge conclusively declared the ASUC to be a state entity, deriving its authority from the Regents, it would give the University a greater ability to meddle in ASUC internal affairs, virtually eliminating any autonomy the organization has left. The ASUC would pay almost anything to keep a judge from finally putting the organization under the administration's thumb. It was assessed that going on with the court case would cost more money than it would take to just buy off the RWL. The senate finally threw up its collective hands in disgust, and appropriated $15,000 of student funds to settle the case and maintain its independence.
Senator Felarca was well aware that it would. Her group was playing an extortion game from the start: hold the ASUC's independence hostage and it will pay whatever ransom. The effort was an incredibly shrewd move designed to line the pockets of BAMN's allies and keep the group in operation for years to come.
Student Action approved this. Student Action, at the time, felt that the dangers to autonomy were worth more than the pain of having to pay off what amounted to a shakedown suit.
But now it's Student Action bringing the suit. Will it show the same concern for autonomy? Ha! Now it affects them. Now it's important that they get office.
So here's how this could play out:
I. Student Action respects the decisions of the Judicial Council:
Either Student Action wins or loses in the Judicial Council, and the decision stands. Autonomy is saved.
II. Student Action loses but ignores the will of the Judicial Council and tries to serve anyway.
Here, Student Action and SQUELCH! have to duke it out for the recognition of the ASUC Auxilliary/University. The University can recognize one side or the other, killing ASUC autonomy in spirit, though it would still function because the University doesn't really want control, they just want to avoid bad publicity (which they can do by being hands-off) and to avoid legal liability (which is why they would step in). Note, however, that whichever way the University leans, the other side could proceed with legal action. I find it unlikely that SQUELCH! would do so, but I think Student Action might be relying on that (and the University's understanding of that), so I'm not really willing to say they shouldn't, since they would be representing my interests of having my money spent by folks following the rules.
Another possibility is that the University just kills the ASUC. This probably won't happen, because it's bad PR, but it does help take care of a lot of legal liability. In any case, the subsequent restructuring would be devastating to autonomy in both spirit and practice, since the University won't let the new government have free reign.
If either proceeds with the suit, this could trigger the scenario described by Mike, with the courts themselves essentially nullifying the autonomy of the ASUC. This is not all that different from the University killing the ASUC, as the end result, University control to protect against liability, is the same.
What's the punchline? If Student Action takes this all the way, or at least beyond the confines of the ASUC itself, lawsuit or no, the ASUC loses its autonomy, unless SQUELCH! and others decide to throw up their hands and just let Student Action have it, in which case the ASUC is not only autonomous, but autocratic.
. . .
Oren Gabriel, the disqualified Student Action presidential candidate that Student Action outgoing president Manuel Buenrostro has tried to declare victor by Executive Order, has issued two executive orders, appointing an Attorney General (Alan Lightfeld) and Finance Officer (Chai Desai) until the Senate reconvenes in the fall.
Ben Narodick has filed suits against these executive orders on the grounds that Oren isn't president yet, and against Manny's EO declaring election results, seeking summary judgments and/or preliminary injunctions, with formal hearings if necessary.
Of note, though, is in Alan Lightfield's appointment, the first "Whereas" is:
The Attorney General of the ASUC is responsible for ensuring that all rules, regulations, and procedures passed by the Senate and/or stated in this Constitution are implemented and followed;
Well, you know... except the ones about the Judicial Council certifying election results, or executive offices being subject to vote, or Judicial Council holding judicial authority, or...
Even better, though, would've been if he had said "The blatant violation of the Constitution and By-laws by the outgoing president demonstrates that an Attorney General is needed immediately."
. . .
Got a comment about a major issue on campus, like presidents determining elections via executive order (as a hypothetical, of course)? Afraid that if you talk to the Daily Cal your comments will get cut off, decontextualized, and otherwise idiotified, all the while being completely unavailable to the people you want to be heard by because the Daily Cal website is down?
If so, Beetle Beat can publish your statements in a quasi-public forum with no editing!!! It's like your very own letters to the editor page, but it's on all the time, and you don't have to wait for days before hearing people complain about you!
(Summer schedule means that Beetle Beat is somewhat lacking in content, you see.)
. . .
This is absolutely comical. Manny Buenrostro, outgoing ASUC President, and member of Student Action, has issued an Executive Order that installs the SA slate into executive office. Note the following:
1. Manny's term has expired, according to his own EO. He has no authority to issue EOs anymore. The regular summer semester has begun, which means the new term has begun, even though there are no executives filling the positions yet. (Update: I'm told that Manny has extended his presidency by Executive Order already. Of course, finding documentation of this fact would be difficult.)
2. Manny's EO specifically installs the SA slate, and says that nothing can be done until the Senate meets to overturn his EO. Note that, using his logic, he could install anyone he wanted, including elections losers, and nothing could be done.
3. The same logic could, hypothetically, declare that the Senate can no longer ever meet, and would be valid, because the Senate wouldn't meet to overturn it.
4. The decision in the case I won throwing out his other EO specifically mentioned that because he was trying to sidestep Judicial authority, the EO was invalid. The same is true in this case.
Suken Vakil Vishal Gupta is now threatening to sue individual justices.
Suken Vakil Vishal Gupta has attempted to withdraw his appeal. I dunno how it will work, since the case has already been accepted, but this might mean that, even if the EO is overturned, the appeal will still lose.
. . .
Friday, June 23, 2006
More on standing up for yourself
Reruns, but we still need to point out the stupidity:
Berkeley High School English teacher Ingrid Martinez believes employees with Latino surnames were targeted, pointing out that two white teachers she knows attended protests, but were not disciplined.
"This is a strong negative message they're sending about what happens when you stand up for yourself," she said. "And this is Berkeley? I'm shocked... I would love a public apology and acknowledgement that this was not the right way to go about it."
The topic is a threat of a pay cut for those who skipped class without a valid reason in order to join up with immigration protests. The message that sent is that when you stand up for yourself, you suffer the consequences of that, and you accept those consequences because the principle for which you stand is worth it. The message Martinez thinks Berkeley should send is that when you stand up for yourself, everyone immediately yields and you are no longer responsible for your actions. If you want your stances to be meaningful, I would think the former lends a great deal more moral weight to what you do than the latter.
. . .
Ooh, that's reasonable
Some preacher dude at some graduation thing said some anti-gay stuff. What is the title?
Homophobic Speech Sours Community Graduation Event
Now, I'm no expert on gay opinions, but asserting that the speech is "homophobic" implies a certain psychological aversion by the preacher dude, Rev. Manuel Scott Jr. What he said was that gayness is wrong, which, as I hope people know, is a fairly common opinion. To equate "anti-gay commentary" with "homophobic speech" is silly, and about the level of editorializing you expect in The Daily Planet's news section.
School board Director Nancy Riddle, who attended the ceremony as she has each year for four years, was appalled.
"I know some people have those religious beliefs, but it was still shocking to hear," she said.
Oh, there's plenty of shocking stuff to hear if you stop to listen. Try listening to some of your political activists. In fact, let's make it a contest. Find a shocking thing from a political activist or, better yet, a high school student that was publically said but received no such condemnation from Riddle.
"I do think these graduations are great, but I think there is no place for homophobic comments," [Gay Councildude Darryl Moore] said. "We in Berkeley appreciate the diversity of our community. I think the speaker could have been just as forceful without making these extremely negative comments."
Uh... how? Another contest. Find a way to forcefully say that gayness is wrong without making any such extremely negative comments.
BHS African-American Studies Department Chair the Rev. Robert McKnight, who is responsible for the event, stands behind the speaker.
"We do not censor anyone," he said. "We defend free speech for everyone. If it's right wing, if it's left wing or in the middle, it’s free speech."
Yes, a man with balls! Actually, this is the man who had the balls to say that reorganizing the African American Studies Department into the general social studies department was "the manifestation of white supremacy at its zenith." Actually, that's also pretty shocking, considering we live in a country where black slavery was once considered the proper social order of the world, so maybe that's the standard for the first contest.
On Wednesday, Board Vice President Joaquin Rivera, who is gay, said BUSD should clarify its role relative to these ceremonies.
"I know they may be community events..." he said, "but anytime there's that kind of hate speech, it's completely unacceptable."
An impressively low standard for "hate speech," and, for that matter, for what should be "unacceptable" in a theoretically-free country. Here's yet another challenge: Come up with some real hate speech, rather than merely telling folks "don't be gay." "We must cleanse the world of the sin of homosexuality" is a good start.
My personal opinion is that if this is the level you want to fight anti-gay attitudes on, there will be no victory in the fight. This is thought police. There is no way around it. When you step beyond rights and into opinion exposure, you make a huge number of enemies. This is what turns a great many people away from the gay rights movement. There are a large number of people out there who simply dislike gays, but still feel they should have equal rights. Actions like this put them on the anti-gay side, rather than the pro-gay rights side, where they belong. True tolerance is dealing with people you don't like in a civilized society.
. . .
But I wanted to
There's an interesting discussion raging here on appeal ground II.B. mentioned here as one of the more valid arguments raised in the Student Action appeal. The concern is whether the Judicial Council can replace a decision that they had made, even though the appeal period had passed.
The argument in the appeal rambles about "commonly accepted legal principles" and such, when no requirement to adhere to them exists in the rules the ASUC follows. Also there's some stuff about how a default decision can only be issued during a hearing, which isn't at all what the quoted JRP says, and even some bitching about the number of justices. Whatever. It's an SA brief, and is therefore, by definition, stupid.
The underlying issue, however, is valid. There are concerns about what might happen in the future, and so forth. One thing it highlights is whether it was wise for the Judicial Council to refuse to rule on Andy Ratto's other charges. Had he won, and two more censures issued to the candidates for refusing to follow a lawful Judicial Council order, even if this appeal succeeds on these grounds, the candidates are still disqualified. As it stands now, if the appeal succeeds on these grounds, we might be headed for another hearing, which'll postpone results for yet another month or so, probably into the school year.
I was pretty convinced of the validity of this claim, until I realized I was misremembering the ASUC Constitution, which says:
All decisions of the Judicial Council shall be final unless reversed by subsequent council action.
I had thought it was "unless reversed on appeal," but without that, I don't think this claim has enough validity to stand up in the ASUC.
. . .
Wednesday, June 21, 2006
It's time for me to start playing around with my link list again. J Koo has rebegun posting, so I slapped him on again. Any other suggestions of blogs to add or remove are welcome.
. . .
Update: Ben has posted it at Calstuff.
SA has submitted their appeal for their case. It clocks in at ten pages, and is filled with... well... stuff. Some of it is reasonable. Some of it is laughable. I should note that Ben's earlier attempt to appeal another decision was rejected because it didn't raise arguments that could've been raised at the original trial. Hopefully the same standard is used, because a lot of the appeal comes straight from the defense brief. Now, I'll just go down the list. Be sure to read the whole thing, even if you have to do it in several sittings, because there are some awesome gems in here, including an OJ reference.
We start with the title:
The Appeal for the Direct Judgment of Ratto v Vakil issued on the Seventh of June, 2006
Ouch. That's not a good start. The decision was issued the 14th (er... Fourteenth).
Next comes the threat:
We urge the Judicial Council to consider this appeal carefully. Violations of the Constitution, By-Laws, and JRPs are not only cause for internal concern. The ASUC is a state actor, and violations of its procedures that guarantee individual rights are actionable under the state and federal Constitutions.
Uh oh! Dun dun DUUUUUN!!!
And now on to the grounds. The titles of these sections are direct quotes from the decision.
I. The Judicial Council Violated Its Rules of Procedure and Mr. Vakil's Due Process Rights
A. The Judicial Council's Violation of Its Own Rules of Procedure Violated Mr. Vakil's Due Process Rights
Well, no brevity points. This point argues that, because no recording was kept, as required by the JRPs, the due process rights of Suken Vakil have been violated. I think this is their strongest argument. The rest of this section is not so strong.
They go on to say that the folks who witnessed Vakil lying out of his ass (including the Judicial Council) were wrong, and in the process, lie out of their ass. Again.
Mr. Vakil argued that chalk is effective campaigning for one day; in issuing its decision, the Judicial Council relied on a Daily Californian article by Katlyn Carter that quoted him as saying chalk lasts for one day.
This is a lie. The word "lasts" was Vakil's. In any case, testimony refuted both potential meanings.
In the weight of overwhelming evidence in favor of the Mr. Vakil's position, an official count of what transpired originally on May 9th is necessary.
Right. Chalk is effective campaigning for one day. How overwhelming is the evidence for that? Apparently, common sense and experience don't count as evidence.
Anyway, I think this is the most likely grounds for appeal to be accepted, because no record is no record.
B. The Judicial Council Violated Mr. Vakil's Right Not to Be Compelled to be a Witness Against Himself
The argument here is that while Vakil's testimony was sort of suppressed, it wasn't really suppressed. I guess. Apparently, it came up at the trial. Still, since it wasn't used in the decision, no damage was actually done, so I dunno what their point is.
C. Mr. Vakil's Alleged Violation is Not One Imputable to the Four Executives
Andy Ratto filed the case against Suken Vakil directly. Vakil was found in contempt, and a default judgment was filed against the executives in the previous case, where they were the defendants. I think the Judicial Council is on solid ground here, because this hearing was to find Vakil in contempt for his behavior. The impact on the executives was incidental, and they had the opportunity in their original trial to put a guy who isn't a liar in the appropriate position.
In Ratto v. Vakil, Mr. Vakil is representing himself against the personal of perjury. He is not acting on behalf of the Executives. None-the-less, the Judicial Council has held the Executives liable for an offense they did not help commit, violating their due process rights.
Haha! You help commit an offense if you appoint a spokesperson who commits that offense, so I don't think so.
****BEGIN OJ REFERENCE****
Consider the absurdity of the Judicial Council's position. Let us say that Johnny Cochran had misrepresented a fact as O.J.'s attorney in his murder trial. You would not be able to sue Johnny Cochran at a later date and send O.J. to jail for murder.
****END OJ REFERENCE****
The appeal sheet doesn't specify which "O.J." is being referred to, so I think we need to discount this. But the real argument is that this isn't big people court. The ASUC doesn't follow the same rules as the government. Still, I think this goes into the "maybe" pile.
D. The Remedy Provided By the Judicial Council Is Not the One Charged
The claim is that Andy was asking for election charges, rather than contempt charges. I'm inclined to agree with the complaint here.
Mr. Ratto sought remedies for violating a lawful order of the Judicial Council and obstruction of justice by interfering with the Attorney General.
I actually suggested that, on these grounds, Andy should file the case directly against the executives. However, the contempt charges would have to be filed against Vakil. It's not clear to me, though, that the Judicial Council is limited to declaring contempt only when it is charged. In fact, this normally isn't the case, nor do individuals get the opportunity to defend themselves through a new hearing. I see no fundamental legal problem with declaring Vakil in contempt of court for previous hearings because of things that come out in a new hearing. I should note, though, that if you follow this argument, Andy was not charging anyone with anything, and in the course of SA's defense against "nothing," they were found in contempt. Anyway, while I agree with the complaint, I don't think it raises a real legal problem.
E. Mr. Vakil Was an Advocates, not a Witness
I'm above making fun of subject-verb agreement. This is much along the same lines as my previous concerns on the topic of spokesperson/witness distinction. Read the comments from Bobby and Mike if you want the opposing view.
II. The Judicial Council Had No Power to Disqualify the Four Executive Candidates
A. Due to Their Delay In Certifying the Election After the Start of the Executives' Terms, the Executives Are Already Properly In Office
The newly elected Executives are already properly in office. Article II, §1.A of the ASUC Constitution specifies that executives assume their duties "beginning the first day of the regular Summer Semester," which began on May 22nd. According to Art. VII, §1.A. of the Constitution, any by-law that conflicts with a provision of the Constitution is void. Thus, any by-law provision that prevents the winners of the election from taking office at the start of their terms, as required by the Constitution, is void. This would include the certification requirement in Title IV., §16.1.4 when it is used to delay assumption of office in violation of Article II, §1.A of the Constitution.
This is interesting, because apparently, even though no winners have been declared, they are required to take office. To say that the SA folks are the "winners" is, of course, absolutely false, because it has not been determined, as only the Senate can declare election results. This does raise a constitutional conundrum, though, because the Constitution has no provision requiring that the election be resolved by this time. Luckily for us, though, the SA folks are kind of pulling stuff out of their ass, without context. The full clause is:
They shall be elected during the Spring semester, and their term of office shall be for one year, beginning the first day of the regular Summer Semester.
So the term has begun. That doesn't require that someone be seated in the post. In fact, the Constitution recognizes vacancies as possible. Technically, right now, there are no Executives, since the terms of the old ones have ended. Further, it is conceivable that, because the offices are vacant right now, the Senate can fill the posts themselves using the process for vacancies.
Anyway, this is all speculation. The point is, there's no requirement that the election be resolved by now, so SA is pulling even more shit out of their ass.
B. The Judicial Council Has No Power to Overrule Its Final and Unappealable Decision Via a Collateral Attack in a Later Case
While SA is getting a bit adjective-heavy on this title, I think it says it all, and I also think they have a valid argument here. It's not clear that the Judicial Council has the authority to change an old judgment like this.
C. Disqualification As a Remedy Violates the Command that All Election Remedies Be Clearly Delineated in the ASUC By-Laws
First, ask your SA buddies to clearly delineate the ASUC by-laws, then we'll talk. Once again, SA is using its incompetence as a defense. But they don't really have one here, because the argument is that this isn't a specific violation in the by-laws, when in fact it is, because the censures are being issued for the illegal chalking, not the contempt.
They then repeat their stuff from their brief on how they didn't really violate a lawful order from the Judicial Council, which is fascinating, but since the Judicial Council quite explicitly declined to address that charge, they're really talking about nothing relevant.
D. The Judicial Council's Role in Certifying Elections Is Entirely Perfunctory
Basically, the argument is that the Judicial Council doesn't have the legal authority to postpone certification of the results.
According to the Oxford English Dictionary, certification means "the action of certifying or guaranteeing the truth of anything; attestation." Certification simply involves attesting that the returns of the results are properly reported, not inserting additional legal requirements. Here, the Council has attempted to use its certification responsibility to allow it to continue hear elections cases after the properly elected representatives have assumed office. However, any attempt by the Judicial Council to go beyond the scope of its certification powers (by using it to extend the time to hear suits) is void.
Here's a tip: If the Judicial Council shouldn't have had this power, they wouldn't have been given it. But if you want to play the dictionary game, keep in mind that the "results" aren't clear until all cases have been resolved, so they can't "attest" to anything until they finish with the cases. Here they're doing exactly what they're supposed to be doing.
I should add that sometimes "perfunctory" stuff needs to be treated with care. The whole issue with wording the RSF ballot question occurred because the Senate voted to approve the previous week's minutes without actually looking at them.
E. The Judicial Council Did Not Have Quorum to Hear Ratto v. Vakil
The Judicial Council's met officially in Ratto v. Vakil without having the proper number of members present. According to §6.1 of the JRPs, quorum shall consist the majority of the eligible Justices. According to §6.9 of the JRPs, for a resignation to be effective, verifiable documentation of the resignation must be submitted to the Chair or the Council sitting en banc. There are nine Justices on the Judicial Council: only four participated in Ratto v. Vakil. Two have allegedly resigned, but at least one has not submitted verifiable documentation to the chair (since he is the Chair and the Chair cannot resign to himself while Chair). Moreover, the Council at no time was sitting en banc to accept the resignations. Thus, even allowing for the Chair's resignation, one Judicial Council member has resigned, leaving eight Justices, making a meeting of four of them improper.
I dunno the details of how en banc everyone was. Maybe Bobby can shed some light here, since he's still, apparently, the Chair, and can't resign himself. Ever. Let me say that I received this documentation, so I'd have to assume that the Chair, whoever it was, and all justices did, too.
III. Mr. Ratto Acted in Bad Faith
This is pretty much a reprint from the brief. If they didn't accept it at the hearing, I don't see how they can accept it now. One new detail is that Andy has graduated, and thus was not a student and coudn't bring the case. The Constitution is notoriously vague on where the boundaries between "student" and "non-student" are drawn, and cases have been brought up two years in a row without any effort from the Senate to resolve the issue. Seeing as how he was allowed to participate in the election, though, and he is, conceivably, still a candidate and could be charged with violations, he still has rights as a student, and would be able to speak for himself if charged, even though this is reserved for members of the ASUC. So I think this is also pretty bunk.
IV. The Decision Is Inequitable
Basically, there was too much speculation in the decision as to the impact on the first hearing, and so it wasn't determined that it prevented the plaintiff from receiving a fair hearing. I'm not sure this is correct. It was speculated that Vakil's lies affected deliberations, and therefore, because they could have, the hearing was unfair, in much the same way that witnesses can refuse to incriminate themselves, even without proving that they would, only that they could, if they answered.
So that's it. Uh... I dunno. Maybe. We'll see. The "no record" claim, the "witness/spokesperson" claim, and the "old decision was final" claim are the three claims I see as most valid.
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Tuesday, June 20, 2006
Considering how horrified The Chron was that people were killing themselves on the Golden Gate Bridge, and how they felt that huge expense was justified to stop these people from making a personal choice with their lives, this editorial, supporting doctor-assisted suicide, seems a bit out of place.
Apparently, a person should not have the right to decide what to do with her own life. However, some person certified by the government to do some stuff that doesn't have anything to do with the patient's life should be able to approve such choices.
The thought of anyone, let alone a physician, helping another end their life seems both outrageous and unethical to many. That view is rooted in religious and professional beliefs that we respect.
But these opponents cannot, and should not, speak for individual patients who are facing impending death.
What do those patients know? They don't have the right to end their life, according to The Chron, at least not by jumping off a bridge. What gives them this right now? They're going to die anyway? They no longer serve a purpose for society? Their usefulness has been spent? Is a person's control over her own life only valid when the government can't use it anymore? First dibs for the government, and all that?
Patients who were experiencing depression or other psychological disorders, or were taking medications that would affect their judgment, would not be eligible.
So, the people who are suffering the most aren't eligible. That's great. Genius, I say.
"We live in a society where we are free to make so many choices about how we live," said [Assemblydude Lloyd Levine]. "But at end of life, we don't have right to decide. It's about choice and respecting that choice."
Now, Levine is a supporter. Let's see if we can fill in the subjects, because I think I see something extremely disturbing here:
"We live in a society where we are free to make so many choices about how we live," said [Assemblydude Lloyd Levine]. "But at end of life, we don't have right to decide. It's about choice [for the dying dude] and [us government dudes] respecting that choice."
Okay, that last sentence seems about right. That's what a supporter of assisted suicide would say. But let's step back a sentence.
"We live in a society where we are free to make so many choices about how we live," said [Assemblydude Lloyd Levine]. "But at end of [the dying dude's] life, [government dudes] don't have right to decide. It's about choice [for the dying dude] and [government dudes] respecting that choice."
Okay, still good. But now we have a problem. The "we" that has choices but doesn't have this particular choice is "government dudes." Now, check out the first sentence. We have three "we"s. The last "we" belongs to the dying dudes, I guess, or Americans in general. The first "we" probably also belongs to Americans in general. But the middle "we," referring to those free to make choices, has to refer to government dudes if the next sentence, which begins with "but," is to make sense in context. That is, we're left with:
"[Americans] live in a society where [government dudes] are free to make so many choices about how [dying dudes] live," said [Assemblydude Lloyd Levine]. "But at end of [the dying dude's] life, [government dudes] don't have right to decide. It's about choice [for the dying dude] and [government dudes] respecting that choice."
It seems as if Levine is saying that the government has the right to decide our lives. I considered alternative pronoun-replacement strategies, but the "but" in the second sentence doesn't leave any way around this.
I don't believe he misspoke, because if these pronouns are done differently, the quote doesn't really make sense. I harp on this because often, by seeing how folks structure their sentences, you can see their dictatorial tendencies showing.
My challenge is for people to properly assign subjects/pronouns such that Levine isn't claiming authoritarian power, and such that he still is making a coherent point in these sentences.
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Monday, June 19, 2006
Dan Purnell has a column today bitching about people who believe in freedom. This time it's the NRA. His problem is that the comment "Guns don't kill people, people kill people" is unrelated to the issue that comes up when people talk about gun control, which is that they merely want restrictions and control, not an outright ban.
This argument would be a little easier to swallow if, in our experience, we saw it to be true. People who demand gun control are not merely looking for restrictions. Often, they are looking for bans. You can glance over at San Francisco, where an obviously unconstitutional measure banning guns for residents was thrown out. It really is the case that these people consider guns themselves to be evil. "If only we could get rid of the guns..." people think.
Here's a somewhat out-of-date piece on how wrong folks like Purnell are when they say bans are not the goal, and that the NRA is fighting a ghost that isn't there.
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There's also an article in The Daily Cal titled "Mixed Response to Executive Seat Winners' Disqualification," which, strangely enough, declares losers to be "winners."
"I think that Student Action didn't do anything that was worse than in the past," said CalSERVE party chair Arman Rezaee. "It was definitely a very harsh and possibly too harsh (a) consequence."
Note the following:
1. The Daily Cal has added a parenthetical "(a)" in order to make Rezaee's statement grammatically incorrect, or at least awkward.
2. The fact that this is done every year is given as a defense for them. Dude! That's why we need these rulings! So they stop!
3. CalSERVE realizes its on the hook as well for its equally blatant disregard for the rules.
Many ASUC officials said the Student Action campaign violations at issue in the May 9 suit, for which they initially received three censures each, were typical of most election cycles, in part because of the length and fogginess of ASUC bylaws.
"Waaa! We want power, but reading is too hard for us!"
Lauren and Ben are quoted as approving. Of course, Lauren and Ben are the ones immediately to benefit, so in the spirit of fairness, the Daily Cal might have sought others who supported the ruling and asked their opinion. It's not like they're hard to find. Bobby Gregg approved of the structure and legality of the result, though that doesn't really count.
"I think most of us who have been involved in the Judicial Council have become used to the situation," said SQUELCH! candidate Lauren Karasek, runner-up and now president. "The bylaws were less likely to be enforced because people were too afraid of the eventual consequences."
1. Lauren is the "runner-up," but strangely, also the "president." This despite the fact that she has the most votes of all not-disqualified candidates and the fact that the election results haven't been approved to declare anyone "president."
2. What Lauren is quoted as saying doesn't really make much sense in this context. I'll blame Daily Cal editing, as usual. I think the "people" referred to here are Judicial Council members in the past, though that's not as obvious as it perhaps should be.
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Hey, that's mean
The Daily Cal has things to say about the SADQ. I'll start with the editorial.
The summary is "Yeah, they lied their asses off. Yeah, they deserved to be punished. But this was too harsh!" Skim to the bottom for my big political philosophy whining.
Too bad [the Judicial Council] drew a blank on the spirit of the law - to take appropriate action to ensure a fair campaign.
Too bad the Daily Cal drew a blank on the role of the Judicial Council. There's more to the Judicial Council than elections violations. It's also in charge of making sure that officials follow the rules when elections are not going on. More on this later.
Responding to "one-day chalk" with party disqualification? A little excessive, to say the least.
How about responding to straight lying to the body in charge of making sure rules are followed?
The Judicial Council serves as an arbiter of election disputes. If a candidate or party egregiously violates campaign laws, the council should hold the party accountable to uphold a fair election.
But in this case the council seemed more concerned with the party's disrespect of the council than the party's campaign violations.
That is what this case was about. The campaign violations had already been dealt with.
Now, for those at the Daily Cal and others, please keep in mind that "disrespecting the Judicial Council" is "disrespecting the apparatus by which our government officials are bound to the rules." What the candidates were disqualified for was no less than spitting in the face of the rules, declaring "We can do whatever we want, and no Constitution or By-laws can stop us." If you're interested in the dictatorship approach to government, this is fine, but the democratic-minded among us don't like this approach. We want our officials to be hobbled by rules, so they don't abuse their power.
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Friday, June 16, 2006
Now that's impressive
On campus, Principal Jim Slemp says incidents have gone down by 200 percent in the last two-and-a-half years.
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Thursday, June 15, 2006
As many of you know, a chain restaurant (DUN DUN DUUUUUN!!!) is coming to Telegraph to replace Greg's Pizza. According to the Daily Cal article:
Popular fast-food chain Chipotle Mexican Grill is slated to open a location on Telegraph Avenue this vall, filling the vacant space left by Greg's Pizza between Channing Way and Durant Avenue.
Not only does Chipotle have the power to disrupt business on Telegraph, it can warp space and time to make Greg's old location between Channing and Durant, rather than between Durant and Bancroft.
Speaking of disrupting space and time, as usual, people concerned about "local-owned businesses" are coming out to bitch about the presence of reliable food. Quoted in the article is "Graduate student Robert Broesler."
It's bad for real taquerias which are cheaper and have better food.
It turns out, though, that La Burrita manager Jose Ramirez and Cafe Durant owner Hector Orozco aren't worried at all, and welcome it. But what would they know? "Graduate student Robert Broesler" understands.
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The Daily Cal has reported that their website was hacked by some dude looking for credit card fraud equipment or something. I dun really understand it, and I don't feel like reading it in too much detail.
A study on crazy people who injure themselves to "deal with stress" tries to dispel the myths of white chicks dominating:
The study also addressed a misconception that females are more prone to self-injury than males.
[Tang Center social worker Robin Walley] said contrary to popular perception that all self-injurers are white teenage girls, no single demographic defines self-injurers.
Let's see. Saying they're "more prone" is a misconception, because "not all" fit that description. That's fine statistics. Note the lack of actual numbers to see whether they really are more prone. After all, the important thing is to convince everyone that everyone does it, or something.
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Wednesday, June 14, 2006
Jeremy Koo has concluded the following results:
President - (SQUELCH!) Lauren Karasek
Executive Vice President - (SQUELCH!) Ben Narodick
External Vice President - (Independent) Igor Tregub
Academic Affairs Vice President - (SQUELCH!) John O'Connor
Apparently, John is planning to resign. Igor is planning on staying on, I'm sure. I don't know about Ben and Lauren.
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Nitty, Gritty, and other ttys
I'll just run straight down the decision. If you want a copy, go here.
It's unanimous with the four Judicial Council members at the hearing: Sonya Banerjee, Amaris White, Stephanie Lam, Carmel Levitan.
Suken Vakil's affidavit was eventually suppressed so that he wouldn't testify against himself (a constitutional right). This has the consequence of limiting the ability to claim perjury in this case, as was possible.
The shakiest part of the decision, I think, was the ruling that Vakil, in answering questions from the Judicial Council, was acting as a witness. The reasonable argument made in the decision was that, because he was answering questions about facts, rather than presenting arguments or asking questions, he was acting as a witness rather than a spokesperson, and therefore was subject to being guilty of perjury which is specific to witnesses. This was important because charges that he was misleading the Judicial Council as a spokesperson were dismissed, and would have had to be dealt with at a later time had the Judicial Council not ruled this way. While I think the argument presented in the decision made sense, I'm a pretty strict proceduralist, and the language is noted in the decision: "Article 4 Section 12.1 of the Judicial Rules of Procedure explicitly defines a 'witness' as 'any individual other than a spokesperson who provides testimony before the Council in a hearing.'" Under the ruling of the Judicial Council interpreted this to mean that individuals act in either the capacity of "spokesperson" or "witness," and are considered differently depending on which capacity they are acting in. However, individuals can flow between these two capacities in the course of a Judicial Council hearing.
The concern I have with this reasoning is that it apparently leaves one side of the case without a spokesperson when the Judicial Council starts questioning spokespeople as witnesses. Note that these people can raise objections as "spokespeople" in the process of being questioned as "witnesses." There are other concerns as well, which arise through the rest of the decision, and I'll highlight them as they come up.
The decision mentions "the fact that after the Judicial Council asked Vakil questions on matters of fact, the opposing counsel, Attorney General Nathan Royer, was allowed to ask him follow-up questions to his responses, thereby effectively engaging in cross examination of a witness" as part of this reasoning. I was at this hearing, and I don't recall this being the case. Now, it's possible that my memory is mistaken, but this is something that I think I would've remembered. Royer was allowed to respond through further questions from the Judicial Council, but I don't recall him being allowed to directly cross-examine Vakil. Note that this would be vital in a determination that Vakil was acting as a witness.
The next few pages discuss the pretty damning evidence that Vakil was full of shit when he was making his comments. I don't think there was any doubt about this, so I'll just note that it was present, and overwhelming. The decision explicitly recognized them as witness testimony, rather than part of Vakil's argument.
One thing notable is that hairspray was used, but no receipts were filed for it. If anyone wanted more censures, perhaps for Senate candidates... (not condoned)
My biggest issue is with the conclusion drawn from this:
When Vakil offered witness testimony to the Council that he knew to be misleading, or guiding towards a false impression of reality, he was knowingly providing untruthful testimony. Hence, Mr. Vakil should be found guilty of "perjury" and held in contempt of Council for the ASUC v. Student Action Executive Slate hearing.
Note that he is being found guilty of perjury as a "witness." This led to the finding of contempt. This, in turn, led to the default judgement:
Individuals found in contempt may be asked to leave the proceedings, may be forcibly removed from proceedings, may be disallowed from appearing again before the Council, and a default judgment issued against the party the participant sought to benefit.
This is from the JRPs, under "behavior of litigants." Clearly, if one of the "spokespeople" for a party is held in contempt, that side could be on the losing end of the default judgement. Here, however, it was his behavior as a "witness" that led to this result. As a witness in a case where he wasn't the defendent, he had no right to refuse to answer questions that would incriminate him, and in any case, he need not have been answering in a manner that "sought to benefit" the defense. On the other hand, "individuals" are held in contempt, not "roles," so the remedy may have been appropriate. Still, with the earlier part of the decision, the term "individuals" was read to mean "individuals at a particular time in a particular role," which is why someone who was a spokesperson could also be a witness at some other time in some other role, despite the definition including the word "individual." Of course, contempt is connected with individual behavior, while testimony is not, which could explain the differences.
The next part of the ruling has to do with the responsibility of the defendants for Vakil's behavior, which seems pretty straightforward, except for the self-incrimination thing I mentioned above.
The decision also notes that the defense crew was evasive and uncooperative, often, helping each other when they had not "requested legal counsel."
The events of both hearings point to an organized effort on the part of Student Action to conceal the truth and obstruct the judicial process, which directly threatens the democratic institution of the Associated Students of the University of California.
I think this is a claim above and beyond what could be reasonably proved, and I think the Judicial Council overstepped itself in claiming this. Had such behavior indeed been such an effort, and had the Judicial Council felt that way, it should have thrown the offenders out of the court for contempt, not incorporated it into a decision, as there appears to be no real legal rationale for the incorporation. The point of this incorporation was that the actions were severe enough to warrant the default judgement that Andy Ratto sought. I also disagree that the default judgement is "mandated in the JRPs," as the passage I quoted earlier is filled with the word "may." I think the Judicial Council has far more of flexibility in determining how to respond to contempt than the decision suggests, though the decision does explain why the violation was severe enough, anyway.
The other campaign violations Andy raised were deemed irrelevant, and no ruling was made on them. If, on appeal, this is overturned, those charges can, I believe, be reintroduced.
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Hey, welcome back
The Daily Cal website is still down, but progress has been made, I think.
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Okay, I've finished reading the new decision. Here are the impacts:
1) The old decision is rendered invalid, and replaced by the default judgement in this decision. Therefore, all my bitching about the old decision no longer matters.
2) The judgement gives 18 censures to each Student Action executive candidate, 3 for each of the 6 violations Attorney General Nathan Royer brought up.
3) The Student Action candidates are disqualified, and a new election count has been ordered, to take into account the transferrable votes. If you voted for a Student Action candidate, your vote will be passed on to the next person on your list.
Unfortunately, the ballot tabulator I have doesn't allow dropping "winning" candidates (I don't think), so I don't know who will be the winner of the races. Writing my own is more of a pain than I'm willing to suffer right now, though I don't think it would be all that hard if you have the patience for it. Alternatively, if the tabulator program does have that feature (it's Tommaso Sciortino's, I think) and I just don't know how to use it, let me know.
Update: Jeremy Koo explains how to do this with the tabulator here. See here for the results.
I'll get into a critique of the decision itself later.
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The Student Action executive slate has picked up 15 more censures each in the decision that was finally released for Ratto v. Vakil, disqualifying it from the election. Appeals will take place, possibly in "real" court. If they do, of course, Student Action will win, because, with control of the ASUC Senate, they can essentially settle with themselves.
I haven't read the entire (9-page) decision yet.
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Tuesday, June 13, 2006
Hey, I'm back
My awesomely exciting vacation is over. The Daily Cal has not yet recovered, but I want to mention one of its editorials. The editorial notes that both Attorney General Nathan Royer and Elections Council Chair Jessica Wren bent the rules in order to push the GA referendum through. But then it says:
We don't condone the reactive litigation strategy that ASUC stakeholders seem to rely on when unsatisfied with election outcomes.
Oh? So what's the Daily Cal's suggestion? Fix it for next time. That is, rely on the Student Action-dominated Senate to restrict its own power. That's much more acceptable than asking the Judicial Council to make sure rules are followed.
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Tuesday, June 06, 2006
Narodick v. EC has been re-re-scheduled for Thursday, 6:30, Senate Chambers. With luck, we'll have six or seven more re-schedulings, and even I'll be able to attend.
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Monday, June 05, 2006
And another one
Ben's case against the EC on the GA thingie has been rescheduled for Friday at 6:30. All cases are being held in the Senate Chambers. Be there, or be somewhere more interesting.
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New hearing time
For those of you looking forward to watching Ratto v. Vakil, the case has been rescheduled for 6:30 p.m. on Wednesday. Vakil's representative will be Bret Manley, who I didn't know was still around. I believe he's a former SA chair, though I don't know for sure. (Update: Nevermind that. Andy has more)
I wish I could make fun of the news, but I'm not in Berkeley, and the Daily Cal website is doing that "1st in web excellence" thing again. Also, since I'm on vacation, I probably won't be doing much analysis, but here are my predictions for the cases:
Ratto v. Vakil: One censure for each candidate for Vakil's behavior in front of the council. The leniency is because his comments were so idiotic that everyone dismissed them, and thus they had no impact on the decision. It will also conveniently let all major party executive candidates avoid disqualification, though whether this had an impact on the ruling is left up to speculation for a year.
Narodick v. Elections Council: Election Council wins, GA Referendum goes into effect. The constitution is clear on the matter.
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Saturday, June 03, 2006
More hearing news
The Ratto v. Vakil hearing has been set for Wed. June 7, in the Senate Chambers at 10am, and Narodick v. Elections Council will be at 1pm. For those of you involved in the cases, or who have the information, please forward any documents and such to me if you can. In particular, I'm still looking for Ben's charge sheet.
If any of you can be there and want to be the Berkeley Blogland correspondent, please let me know, so I can forward whatever I receive to you as well.
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Thursday, June 01, 2006
Charges for Andy's case against Suken Vakil, as well as a Ben Narodick case against the elections council (which, I believe, charges that the GA referendum didn't pass because it only got 30% of the vote, though I haven't seen the charge sheet), have been accepted by the Judicial Council for hearings tentatively scheduled for June 7th. Vakil will by out of the country by then, so he'll be finding a replacement, I assume. The Judicial Council will hold off on certifying the relevant elections results until the cases are resolved.
I'm on vacation, so I won't be able to cover the hearings, though I will cover any briefs and decisions I receive to the best of my ability. If someone wants to be the on-site correspondent, but doesn't have any forum to deliver a report, let me know and I'll be willing to post your report here. If you do have a forum, let me know so I can point people in its direction.
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