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.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.
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.
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.
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