. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Nap Time!!!

Tuesday, March 17, 2009

I got a copy of Judicial Council motions from Nathan Shaffer in the recall suit, and I'm impressed by the poor judgment they reflect.

First, the motions are filled with legal arguments from American court systems, few of which have any basis for why they might apply to the Judicial Council. Since the Judicial Council is going to be looking for excuses to give a victory to the plaintiff, pissing them off by asserting that he knows the law better than they do ("Hey, I'm a law student, you should totally defer to me") seems like a poor idea. Reading the JRPs might have helped, too, as he might not have gotten the motions for dismissal and default judgment exactly backwards. Very few of his motions, defined in the JRPs, actually refer to those definitions, as he seems to be applying the rules of an American court of law. Indeed, there is very little evidence that he got the memo that the ASUC Judicial Council is not a court of law, and the rules that his law school training prepared him for don't generally apply.

The first motion is a motion to sever Dina Omar from the suit, though he makes it without actually referring to the section of the JRPs that actually explains the reasons why severance can be granted. While this one may succeed, I can't imagine why it would be made. Just because she's severed from the suit doesn't mean Shaffer can't be held responsible for her actions if she was a proponent, and proving she wasn't a proponent can be done even if she's a defendant. There isn't much danger associated with being named a defendant in a suit, anyway. The only difference I can see is that if she is severed, then she can't refuse to be a witness by invoking her right against self-incrimination, which is beneficial to the plaintiff only.

The next motion is for a default judgment because the charge sheet fails to meet the requirements for accepting the case. This is defined very specifically as a motion to dismiss in the JRPs, so the title isn't a good start.

The first part of the motion argues that the factual allegations don't constitute a violation. As an example of the gratuitous use of irrelevant law, consider this passage:
The Plaintiff's charge sheet relies on a violation of Title IV, Article XII § 3.2 of the ASUC Bylaws. This provision states that it is a violation of the Bylaws to “intentionally” falsify information in the Voters' Guide for an ASUC Election. ASUC Bylaws, Title IV, Article XII § 3.2.

To establish liability for a violation of a rule, statute, or other code, there is often the requirement that a particular state of mind on the part of the violator be proven to exist. These mind states range from a low standard of strict liability, where the actor is liable regardless of their mindset, to purpose, where the actor's conscious object is a violation of the rule at issue. Intent is generally equated to purpose, or at the very least knowledge. Model Penal Code §§ 1.13(11)-(12), 2.02(2)(a) (available at http://tinyurl.com/d8cbl9). The knowledge standard requires the actor to know that the probable result of their actions is a violation of the rule.
That's a very long and involved argument, quoting authorities whose authority here is unclear, in order to say that "intentionally" means "intentionally." And, given that the ASUC By-Laws themselves have a definition of "intentional" (albeit a not-particularly-useful one), if I were a Judicial Council member, I would only read this as an attempt to impress or intimidate me. Since I doubt Shaffer has a lot of good will on the Judicial Council right now, I don't see this approach as being all that effective.

He then goes into length about how the charge sheet didn't prove intentionality. Fascinating, except I was under the impression that proving things is what hearings are for. Determining whether to accept the case typically takes the form of the Judicial Council considering what it would do, assuming every factual allegation is true. He has a sound argument for the hearing when it occurs, but at this point, making it is just tipping his hand.

The next parts of the motion for default judgment make more sense, arguing that Sinanian can't demand more censures than the By-Laws state, and that the suit was filed late. (Actually, they only make sense if read as a motion to dismiss. Read as a motion for default judgment, he's actually demanding a default judgment against the Judicial Council for accepting the case, whatever that means) The "late filing" argument demonstrates that Shaffer doesn't know the difference between the By-Laws and JRPs, which again isn't going to endear him to the Judicial Council.

He then makes motions to dismiss which don't resemble any motions to dismiss in the JRPs, but could be considered motions for default judgment. Apparently, since Sinanian didn't intervene in a previous suit about the specificity of the recall, he can't act now because of "the doctrine of claim preclusion," which has no basis in ASUC caselaw because the ASUC doesn't have caselaw. The argument here is that Moghtader should have shown the video in that suit, which makes even less sense than anything else in the motion set. The issue was that the petition, which doesn't mention the fight, isn't specific enough. Why would the video be relevant to that discussion? Apparently, it's because Sinanian said the accusations were too vague back then, and now they're too specific. But Moghtader actually argued in that hearing that the accusations were specific, they just didn't appear in the recall petition. The evidence he attempted to provide on this fact was suppressed as irrelevant.

There is a motion to suppress the video, which plays off Sinanian's own ignorance of what the term means when he asked for the video to be suppressed himself. The claim is the correct one that if the defense can't see the video, it can't be used as evidence. But it seems this would have to wait until after the deadline for providing evidence to the opposite party.

He also argues that the video doesn't prove the Voters Guide statement false (which makes no factual claims about the fight, under Shaffer's construction), and so it's irrelevant. The argument is plausible, but relies on facts that haven't been proven yet (that Omar wasn't acting in concert with Shaffer), and so it seems more appropriate for the hearing. In any case, I really doubt the Judicial Council would suppress the video as irrelevant after accepting the case which uses it as the entire basis.

If he succeeds in suppressing the video, he wants a summary judgment as there is no basis for the case. But again, this is bad judgment, because Sinanian can easily just use the Daily Cal description of the video once he knows the video will be suppressed. Having attempted to provide the video, he may be able to get around the hearsay objection. I don't necessarily think he should win that argument, but if the Judicial Council is looking for an excuse to give him a victory, he will.

posted by Beetle Aurora Drake 3/17/2009 07:36:00 PM #
Comments (10)
. . .

The JRPs define a Default Judgment as anything that violates the Rules of Procedure under Article III of the same rules. I agree that it's a problematic phrase, but I didn't write the JRP's, I just followed them as posted on asuc.org.
No, the JRPs say you can request a Default Judgment if the Rules of Procedure are violated. But here, the violation would come from the Judicial Council for accepting the case:

"If either party to a hearing fails to meet any of the requirements set forth in Article III of these rules of procedure, or fails to appear at the hearing, the Council may declare a Default Judgment against the delinquent party if a majority of the Council determines that the violation prevented the opposing party from receiving a fair hearing. In applying this rule, the Council shall first consider all other judicial remedies."

Since the delinquent party here is the Judicial Council, you are asking them to rule against themselves for preventing the opposing party (whoever that would be) from getting a fair hearing.

What you were looking for was a motion to dismiss:

"A motion to dismiss charges may be made if it can be shown that at least one of the conditions for accepting a case no longer qualifies."

Since you exactly argued that the conditions for accepting the case don't apply, a motion to dismiss is much closer.
The argument seems to go both ways -- the motion to dismiss standard applies if they're 'no longer' valid, but they've always been invalid. The reasoning under either motion, though is the same.

I'm sure the J-Council can run through it much the same, and just as a real court wouldn't get caught up in semantics, neither would the J-Council. I'm also sure they are more than capable of going through the reasoning in the brief despite it's reference to outside authorities.

I did miss the definitions section, but again, I don't really see that as being fatal to the reasoning in the brief.

I suppose one thing that I'm focusing on is that the JRP's seem to require a factual basis for allegations, which Sinanian hasn't provided. Without SOME basis for the charge, you'd think the J-Council would be hesitant to actually hold a hearing. Otherwise we'd be soon seeing Shaffer v. Beetle on the basis of something I plan on making up 10 minutes from now. All Sinanian says is that Dina and I colluded, but doesn't say what that has to do with with the Voters' Guide. Or how Dina is a proponent of the recall, which she surely can't be unless all the voters who voted 'Yes' or anyone who supported 'Yes' publicly would be considered a proponent. I hope I'm not accountable for all of those folks posting ridiculous things on the DC.
I don't doubt that the Judicial Council can figure things out. The problem you have is that the Judicial Council is likely in a position where they really want to overturn the election, and only their respect for the process will prevent it. That means your approach needs to treat both the process and the Judicial Council members with respect, or they won't hesitate to overturn the election.

If I were a Judicial Council member, my reading of your motions would tell me "this guy thinks he's so much better than us that he didn't even need to learn the JRPs, because he thinks his knowledge of law exempts him from learning how we function." Given that this case turns on the willingness of the Judicial Council to ignore the By-Laws to provide ill-defined judicial relief, which is necessarily a subjective call, being "correct" just isn't sufficient, because the definition of correct varies on philosophy (see my discussions with Mike Davis below).

You need to convince the Judicial Council that they need to accept the philosophy that the rules are far more important than their subjective views of justice. Not bothering to learn the rules yourself, being imprecise with your definitions, asserting your own authority: These are all out-of-step with the philosophy you want the Judicial Council to adopt, and if you don't adopt it, why would they?

There is nothing in the JRPs requiring a factual basis, only factual allegations. The factual accusations are close enough to plausible that the Judicial Council accepted them and decided to have a hearing to prove them. By all means, bring Shaffer vs. Beetle.

And please tell me you at least looked up the definition of "proponent" in the By-Laws.
I agree, that the decision turns on whether or not the J-Council is willing to ignore the ASUC's own by-laws. I figure either they will or they won't, but I wanted to make sure that folks know I at least think it's important. Compare my argument to Sinanian's that abiding by the by-laws is a 'tedium.' At least some consideration can be given that I had a couple of days to learn them. It's Sinanian's job to know and on some level enforce them. In asking for relief from the J-Council, I feel forced to assume that they think the rules the system should be followed, otherwise I have little reason to file anything at all.

Also, the basic fairness of the situation demands a recognition that the video evidence is such a late comer to the scene. Absent anything in the JRP's or by-laws dealing with this situation, I didn't think it inappropriate to bring up an equitable legal doctrine when the by-laws reference equitable remedies several times.

And yeah, I read the definitions of Primary Proponent and Proponent. The charge sheet simply doesn't provide a basis for designating Dina Omar as a proponent. It just mentions the definition and proceeds as if the point is made. The statements quoted that Dina made were publicly available and the Voters' Guide was certainly not written or contributed to by Dina. She simply wasn't a proponent and I shouldn't be held accountable for anything involving her just as I should be responsible for anyone else who I didn't give any authority to during the election.

Finally, if all of the evidence is presented, as it was by Sinanian with his charge sheet (except the limited-access-video) it seems like the J-Council can, like any other Judicial body, make a determination on motion whether or not the evidence is going to support a basis for argument or not.
"I wanted to make sure that folks know I at least think it's important."

That's pretty much a summary of why it was important to be precise and well-grounded in the ASUC's own rules when making the motions.

You can assume that the Judicial Council will rule mechanically in accordance with the rules, or you can assume they'll act like people who have their own ideas and philosophies. Why you think you can only do the first is a mystery to me.

Either you're being deeply disingenuous, or you haven't even read the charge sheet. The accusation is that the visible campaign sites indicate a collaboration between the operators and Omar. Perhaps it was just assumed that the proponents would be involved in the campaign sites. You can argue that it hasn't been proven, but there are clear factual allegations which form the basis of the case.

You don't have to argue this with me (I largely agree with your positions, aside from the nonsensical claim preclusion one), but given that the Judicial Council already accepted the case, if your calls for the Judicial Council to essentially unaccept the case aren't solid (as the arguments that the number of censures requested is too many or that the deadline was passed were), it's just going to piss them off. What I'm criticizing is not your arguments, but your strategic judgment.
why isn't the brief posted?
Because your mother never loved you.

Have you read the Gabriel petition from the 2006 Real World Litigation? Despite the fact that the whole thing was ridiculous, there are some pretty good arguments in the beginning that the ASUC is a state actor, which holds it to a bunch of Federal and California rules derived from both Constitutions. So the ASUC may be required to respect due process which includes things like notice of punishment and notice of rules, etc. At the very least, there are good grounds to take something like this (accepting the charge sheet against Shaffer and violating the JRP's in doing so) to real world court.
I did read that, but it doesn't matter. Shaffer would never take this to real court. I doubt he'll even appeal. Now that the prevailing narrative is that the accusations are false, the proponents aren't going to push things. For now, he's defending himself against an attack, but I really don't see him taking the initiative to fight for the recall.

In any case, the situation will be moot in a month and a half, so there probably isn't enough time to get anything accomplished, anyway.
Post a Comment

. . .