Thursday, January 15, 2009
Why I think Moghtader's suit should lose
Now, as for why I think Moghtader's suit should lose, the first thing to note is that the Judicial Council has to create a judicial philosophy out of scratch, as usual. They don't rely on precedent, either their own or those of real courts.
I think that the real court cases have a slightly distinct flavor than this recall does. For example, in this case (PDF), Curt Bernard and Daniel Rupiper successfully challenged a recall petition against them. But note that the law under which they were recalled listed certain causes for recall, and the recall petition basically repeated them. Thus, the recall added no real specificity to the law under which they were being recalled, instead merely asserting "Yeah, they're doing the stuff that gets them recalled." Many of the other cases that opinion cites have similar issues, which is that the recall petitions are merely restatements of the statute in question.
Moghtader's recall, on the other hand, is at least more specific than the statutory grounds for recall petitions. Under the Constitution, there are no restrictions on what a Senator can be recalled for. Thus, the petition is at least more specific than it could be. In particular, Senators can be recalled for reasons that have nothing to do with misbehavior. Suppose a recall petition was written as follows:
Senator X has a name that's both too short for our tastes and sounds like some comic book character, which degrades the legitimacy of the Senate. Therefore, we wish to recall Senator X. This is completely specific, and entirely consistent with the Constitution, but there's nothing for the Senator to defend herself against. But it can get even worse:
We, the undersigned, don't like Senator X, so we're trying to recall her. Again, entirely specific.
In order to point out how ambiguous the Constitutional requirements for recall are, we have randomly chosen Senator X to be recalled, even though we have nothing against her. In each of these cases, the charge is specific, even if ridiculous, because the charge doesn't have to be misconduct (or any kind of conduct) on the part of the Senator. Now, consider the actual petition:
We find Senator John Moghtader's presence in the ASUC Senate to be inimical to these principles, his behavior in and out of the Senate during the past several months to be inconsistent with and at times in direct breach of them. We believe that he has persistently acted in a way that silences those who espouse views different from his own and creates an atmosphere that undermines the physical safety of students. We therefore do not believe that he is an appropriate representative of the student body in the ASUC, and we call for his recall. The "specific reason" listed here isn't really anything Moghtader has done. It's the feelings of the petition signers, and because the Constitution has no restrictions on why someone can be recalled, this is perfectly valid.
Even moving away from sophistry, the listed reason for the recall is that folks find Moghtader scary. This is a specific reason. Moghtader can now say "I'm not scary!" to defend himself. The reality of other factors being used to marshal support doesn't change the basic charge of scariness. Even if Moghtader didn't commit a crime, that doesn't mean he can't be found scary.
Essentially, everyone signing that petition implicitly agreed that the petition expressed the "specific reason" for the recall, because that's what's included in the petition by definition. This may make the signers idiots, thinking they were signing a petition for some other reason, or cowards, afraid to say why they wanted Moghtader removed, or genuinely pussies, finding Moghtader scary, but I don't see the Judicial Council having anything to say about it.
This is, of course, built from scratch, and the Judicial Council may very well build an alternative interpretation from scratch. I certainly wouldn't shed any tears if the pathetic petition gets derailed, but I don't believe it's inconsistent with the Constitution. Perhaps well-defined grounds for removal should be considered for the future to rectify this problem, if it seems like a problem. I don't really have a problem with no-reason recalls, but until they no longer subvert proportional representation, I guess I have to hesitantly support restrictions on the recall process.
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