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Nap Time!!!

Saturday, January 31, 2009
Wayward dissent

There was a wayward dissent on the case allowing the Senate to meet while waiting for the recall. Joseph Guzmán points out something that didn't make much sense in the majority opinion, which is that there's no conflict between delaying the election and preventing the Senate from meeting:
The majority opinion argues that the procedures to deal with the situation we are faced with are not clearly outlined by the Constitution alone and that in such cases, the By-Laws are expressly allowed to "supplement" them pursuant to Article X, Section 1 of the ASUC Constitution. They then use this claim to justify voiding the "two Senate meeting" requirement outlined in the Constitution. Title IV, Article XVII, Section 17.4.6 of the By-Laws explains that "if the Judicial Council voids an election, the Senate shall provide for a new election to be held within four full semester weeks." The majority argues that the mention of a "new election" implies that any requirements of the "old election-" specifically the two Senate meeting requirement- are voided along with the actual election.

It is my opinion that the majority extends the use of the By-Laws well beyond their original intent. As I have shown above, there is no inherent contradiction between the four-week By-Law requirement and the two Senate meeting Constitutional requirement. Thus, I do not see why it is even necessary to mention the relationship between the By-Laws and the Constitution. They claim that this situation is not made clear by the Constitution, but I am forced to wonder exactly what is unclear. Again, both the two Senate meeting requirement and the four week requirement may be implemented without any conflict. In my opinion, this is not a case of confusion, but a rather clear case where the By-Laws supplement the Constitution by expanding and supplying more information on the Constitutional clause. I am persuaded to think that the majority opinion elevates the role of the By-Laws well beyond their Constitutional function to “supplement the Constitution.” The majority opinion seems to employ the By-Laws as a replacement to the Constitution.

posted by Beetle Aurora Drake 1/31/2009 06:14:00 PM #
Comments (0)
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Thursday, January 29, 2009
Fight! Fight! Fight!

The ASUC Senate had one of their usual funding fights. I will note that I was impressed by Senator Sakaue for making the very reasonable suggestion that, when filling blanks on monetary bills, 14 votes should be required to approve any value, since that's how many votes it takes to approve the bill itself. The Senate took the position that they could not suspend the rules on this issue, but suspended them anyway, somehow. In any case, I think the By-Law requiring filling the blank should be changed to reflect this change, and I've certainly suggested it before, too.

The discussion was about whether to fund people going to some conference somewhere on some topic. The budget for the event included registration fees for the conference and travel costs. Since the ASUC can't fund travel outside the Bay Area without a waiver (which hadn't been received), those in favor of a lower value argued that they could only pay for the registration fees. Those in favor of the higher value initially took the odd position that, since travel was so expensive, the Senate should allocate more money than was necessary for the fees, despite the fact that there was nothing in the budget to spend that money on. They eventually backed down to the position that more money should be made available in case more people wanted to go.

A side discussion arose in which those in favor of spending more asked about how the Senate planned to spend money to travel to their retreat, which would also be prohibited by the spending rules. The apparent position of the Senate, though, is that spending restrictions don't apply to the Senate Only fund, despite the fact that neither the By-Laws nor the Constitution indicate any such exception. The basis for this claim is that Jan Crowder of the ASUC Auxiliary said so. Anyone familiar with how the Auxiliary works knows that their statements are more grounded in their desire to see things work a certain way than in any deference to the rules the ASUC sets for itself. I also admit to being a bit disturbed that the Senate wants to spend money to essentially have a party for themselves at the same time they complain about how there isn't enough money to go around.

posted by Beetle Aurora Drake 1/29/2009 12:41:00 AM #
Comments (11)
. . .
Recall stuff

I have some amusing stories to tell from today's Senate meeting, but first, some recall stuff.

The recall has been scheduled for Feb. 23-24.

The Judicial Council allowed the Senate to meet even though the recall election hasn't been held yet. The Attorney General noted that he had talked to the Judicial Council about the case before they issued a summary judgment, which he took credit for. (In fact, his report was simply announcements about how awesome he was for winning the cases. Even the one he had taken the other side on) I'm left somewhat skeptical of how appropriate it is for the Judicial Council to hear arguments without hearings in which the other side can respond.

The Judicial Council took the view that the new election wasn't the old election, which meant that the rules associated with timing the old election no longer applied. I wasn't particularly convinced, but my opinion doesn't matter. They also indicated that their decision was partly motivated by their view that harming the ASUC as a whole was inappropriate, which made a great deal more sense.

posted by Beetle Aurora Drake 1/29/2009 12:36:00 AM #
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Wednesday, January 28, 2009
Um...

Senator Ude has proposed a bill for the ASUC to take credit for the election of Obama. Discuss.

Senator Moghtader has proposed to amend the By-Laws with a blank bill. I take the position that blank bills do not satisfy public notice requirements, even if later amended to have stuff in them. Moghtader's hardly the first to propose such a bill, though. I think Senator Nahabet proposed one last week.

Senator Hussein plans on allocating _______ dollars from Carry Forward to the currently-in-the-red Senate Contingency Fund. This hasn't stopped every group and their mother from requesting $1500 from it.

Senators Flores and Zuo want $12000 for the Academic Opportunity Fund. As everyone knows, when facing limited funds, the correct thing to do is SPEND SPEND SPEND!!! The claims that the ASUC could not conceivably pull $48000 out of its ass to run a recall election were bullshit, as I think everyone knew, but mystical forces in the ASUC believe that money is not actually fungible.

Senators Shah, Flores, Sakaue and Ude want to give EAVP Jirachaikitti $9500 for some lobbying conference and a USSA conference, continuing our tradition of bending over and taking it for ineffective wide-ranging student advocacy groups. Yes, this is more of that magical unallocatable but allocatable money.

posted by Beetle Aurora Drake 1/28/2009 12:40:00 PM #
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Monday, January 26, 2009
You thought we were done?

The expected charge sheet has materialized from the Palestinian half of the brawl, challenging the ability of the Senate to hold regular meetings before the recall election. It's filled with the "boo hoo we're victims if you believe in justice at all you'll side with us" whining we've come to expect from SJP, though that doesn't make the legal argument wrong.

It then goes into unsupported accusations that the reason folks are stalling the recall election is that they're opposed to the recall campaign. This need to lash out with accusations at anyone and everyone is why I have long since dismissed SJP as a legitimate contributor to any kind of discourse.

They try to write an exception into their request by allowing the Senate to hold meetings to set the election date. This is because, for some reason, they are claiming that the Judicial Council should not only prevent the Senate from holding regular meetings, but also prevent them from conducting official business. As far as I can tell, there's no basis for the second part of their request, aside from the argument that the Senate should not do very much until the recall election takes place. While there might be some validity to this argument in terms of policy, there's nothing in the Constitution which supports the claim.

They request an expedited hearing to take place before Wednesday, which makes sense, but they did not request a preliminary injunction, which surprised me.

posted by Beetle Aurora Drake 1/26/2009 11:08:00 PM #
Comments (3)
. . .
Erghle?

Interesting detail:
However, following the ruling which voided the election, Judicial Council Interim Chair Kiira Johal said the senate is free to meet as usual, although the election will not be held in the coming week.
It's Daily Cal paraphrasing, of course, so a certain amount of skepticism is warranted, but it's at least an answer to the question of whether the Senate can meet, though not an official one.

posted by Beetle Aurora Drake 1/26/2009 01:19:00 AM #
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Sunday, January 25, 2009
Victory for the Elections Council?

The Elections Council has successfully convinced the Judicial Council to find the Elections Council guilty of mismanagement of the election, in that they have violated the Constitution and By-Laws (specifically the publicity requirements), and such mismanagement may substantially affect the recall election. Thus, the recall election has been voided, and the Senate needs to provide for a new election to be held "within four full semester weeks, or as soon as it is feasible."

Of course, one can argue that the Senate can no longer legally hold regular meetings. They can hold special meetings, though. In fact, a special meeting, with a specific list of business to conduct and a fixed, predetermined adjournment time might be a welcome change from the regular meetings the Senate is used to. If they wanted to schedule a special meeting for the same time as the regular meeting, they would need to do so by 7 pm on Monday.

I expect them to simply proceed with regular meetings unless someone tries to stop them. You could also argue that the election was "held" and voided already, so the Senate can meet. And you could argue that the idea of prohibiting the Senate from meeting is nonsense in Constitutional context.

Update: By the way, it was a decision by three justices. I believe there are currently six justices, though I'm not certain. Is that a quorum?

Update: Yes, it is. Apparently, there are only four members of the Judicial Council right now.

posted by Beetle Aurora Drake 1/25/2009 05:25:00 PM #
Comments (1)
. . .
And one more attempt

Attorney General Michael Sinanian has had a charge sheet accepted, essentially charging that the Elections Council has grossly mismanaged the election and thus it must be voided. It's hard to argue that the By-Laws and Constitution haven't been followed in regards to putting on an election. He's asking that the election be voided and a new one be scheduled in one month.
Our Constitution would never seek to impose unreasonable terms upon any of its adhering members or Constituencies, and as such, it would be safe for the Judicial Council to conclude that allowing the Elections Council approximately one month's time to successfully plan the recall is within reason and Constitutional.
I'm not sure how legitimate that assumption is. The recall process itself is pretty unreasonable and out-of-step with the election process. Essentially, Sinanian is asking the Judicial Council to rule a part of the Constitution to be unconstitutional, because it's unreasonable.

By the way, the charge sheet isn't really finger-pointing. Sinanian, after all, is part of the Elections Council, and the Elections Council Chair has taken the same "it's impossible, give us a month" position in front of the Senate.

posted by Beetle Aurora Drake 1/25/2009 03:09:00 PM #
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Saturday, January 24, 2009
What happens next?

So now what's going to happen?

Case 1: The election takes place on Monday/Tuesday. It will likely be a train wreck, and will probably fail to meet the Constitutional public notice requirements (though maybe the Elections Council can get something into the paper on Monday). Whoever loses can make that case, at least, though the Elections Council could defend itself by taking the view that the news stories on the topic served as sufficient publicity.

Not that we'll know who loses for a while. Ballot counting starts the week after the election. They'll have to count the ballots by hand, probably, and, without either precincts or online networking, every ballot is essentially going to be provisional. I don't know what method the Elections Council plans to use to ensure that each person only casts one ballot, without compromising ballot secrecy.

After the challenges to the recall election procedure (and you know they'll happen), the result may or may not be thrown out. If thrown out, nobody really knows what happens. Is there a redo? Can the Senate meet while we wait for a redo?

Case 2a: The election does not take place on Monday/Tuesday, and the Elections Council convinces the Senate to refuse to meet until the recall election can take place. The Senate does nothing for a while, perhaps helping keep costs down, or perhaps preventing debate in order to keep costs down. A much more organized and valid recall election eventually will take place which may not be challenged. This requires unanimous consent on the part of the Senate, though.

Case 2b: The election does not take place on Monday/Tuesday, and at least one Senator proceeds to try to meet.

Perhaps the Senate will be forced to not meet by the Judicial Council.

Alternatively, perhaps some Senators will try to prevent the Senate from meeting by not showing up. I don't believe this will work, because a meeting need not have quorum to be called to order. If enough members refuse to show up, though, the Senate can be prevented from carrying out business. All those who don't show up will be absent. I don't think there's much to gain using this approach. After all, any member of the Senate can call the meeting to order, so all it takes is a single Senator for the meeting to take place, even if no business can get done.

In this case, what happens next? Can the recall still be rescheduled? Does it count if it comes late? Again, nobody really knows.

posted by Beetle Aurora Drake 1/24/2009 08:26:00 PM #
Comments (2)
. . .
Oh, right

Yaman made a point I forgot to mention here. The Constitutional requirements are:

1) The Senate has to set the election date the first meeting after the petition is accepted, and

2) The recall must be held within two Senate meetings after the date is set.

Strictly speaking, as long as the Senate sets an election date, and a recall takes place before the second Senate meeting after that, the Constitution is satisfied. If you wanted to get really pedantic, you could point out that the election actually taking place on the date the Senate sets is not a Constitutional requirement.

I mention that because if, as previously suggested, the election is physically impossible to pull off on Monday/Tuesday, the only Constitutional approach is to keep the Senate from meeting until the election takes place.

Now, I suggested this to a few Senators last Wednesday, who laughed the idea off as ridiculous, but they may not have a choice.

posted by Beetle Aurora Drake 1/24/2009 08:19:00 PM #
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. . .
Recall is "go"

The last of the relevant Judicial Council cases that I'm aware of have been resolved. The recall election is good to go, a full paper ballot election is approved, and it has to take place Monday and Tuesday. Whether it will actually happen, though, remains to be seen.

There still may be a Judicial Council case pending as to who takes the place of a resigning or recalled Senator, but that need not be resolved before the recall.

posted by Beetle Aurora Drake 1/24/2009 07:46:00 PM #
Comments (2)
. . .
Wheeha

So, the Judicial Council ruled in a 3-1 decision that the recall petition is sufficiently specific to go forward.

I will point out something odd from the majority opinion, though:
We believe that it is entirely within reason to assume that Senator Moghtader could provide empirical evidence against the charges brought against him. Indeed, he could have provided a fact sheet of times and events in which he did not undermine the physical safety of others. This is without a doubt, a "reasoned response to general charges."
What would that fact sheet look like?

4:00 am: Was asleep, not intimidating anyone...
5:00 am: Still asleep...

In fact, the Judicial Council ruled that a "specific statement of reasons" is different from a "statement of specific reasons." And so while the reasons weren't specific, the statement was. I might buy this line of reasoning, except they don't seem to explain why it is correct, or what it has to do with this case:
The petition in question fulfills the requirement to provide a "specific statement of reasons" because it does more than simply make a statement without reasons supporting it. For example, it does not simply state "We wish to recall Senator Moghtader," a statement that is completely void of reasons all together. [recall text] This does, in fact, constitute a statement of reasons.
While it does do more than just say "we wish to recall Moghtader," there's no explanation for why this makes the statement specific. Indeed, the word "specific" seems to disappear entirely from the analysis.

The dissent argues that "specific" is there in order to provide due process and equal protection.

posted by Beetle Aurora Drake 1/24/2009 01:21:00 PM #
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Friday, January 23, 2009
Even more breaking news

Nothing happening! Thanks for that update.
As of 12:30 p.m. today, the ASUC Judicial Council has still not reached a verdict on the trial of ASUC Senator John Moghtader.
I'd say "the trial of ASUC Senator John Moghtader" is one of the most misleading ways to describe what last night was about.

Update: The article has since been changed, though there's no notice of the correction.

posted by Beetle Aurora Drake 1/23/2009 02:53:00 PM #
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. . .
Judicial Council report

The Judicial Council hearing was delayed for two hours because neither side had briefs.

Now that the tone is set, the hearing itself went more or less smoothly. Some highlights:

The defense argument was probably best characterized by John Moghtader, which is that the "signatures justify the reason." Essentially, the Solicitor General argued that by virtue of the fact that the recall petition gathered the necessary signatures, it is specific enough. Since "specific" is a relative term, the Judicial Council has no authority to exercise oversight over what's approved by the student body.

This is largely my view, as well. Because the Constitution does not specify any limits on why a Senator can be recalled, I don't think "specific" can be meant as a legal term binding on the ASUC, but rather should be read as an informational term for the student body, who, when deciding whether or not to sign/vote for the petition, understand that what is written in the petition is the specific reason, and they should not sign/vote for it if they don't agree with the reason given (even if they want to recall him for something else). In practice, this doesn't matter at all, but I don't think the Judicial Council can assert authority to judge whether the reason is specific enough because students tend to be unwilling to avoid trying to manipulate the systems in the Constitution. In any case, how would you prove something like that?

John essentially argued that "specific" was the limit on why a Senator can be recalled. While he pointed out ridiculous examples of recall petitions (such as Senator X should be recalled because his eyes are kind of ugly), he seemed to think they were clearly invalid. I disagree, and can see nothing in the Constitution which suggests that a bullshit reason cannot be used for a recall. The check on whether or not the reason is bullshit comes from the students doing the signing/voting, not from the Judicial Council.

He argued that "specific reason" couldn't be "any reason" because the framers chose to put "specific in the Constitution." But while I agree that it shouldn't be treated as meaningless, there are other meanings, such as the informative one I note above. (The Solicitor General did not make this argument for the defense, though)

John tried to get a piece of evidence admitted. I didn't see it, but it was apparently an e-mail telling folks to sign the petition for more specific reasons (that weren't in the petition). I don't believe any other details were shared out loud, but one Judicial Council member thought that he was trying to admit it for the purpose of "character assassination." Think about what must have been in that e-mail such that simply sharing it was character assassination. (It was eventually suppressed as irrelevant, probably correctly) It reminds me of when Sonya Banerjee asked Dmitri Garcia about whether he knew anything about the Judicial Council or the charges he signed his name to calling for her removal from office, and was accused of character assassination because of how utterly ignorant Garcia's answers were.

Anyway, there may be a decision tonight.

posted by Beetle Aurora Drake 1/23/2009 12:49:00 AM #
Comments (4)
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Thursday, January 22, 2009
Tonight, on ASUCTV

The hearing for John Moghtader's case on petition specificity is tonight at 8pm in the Senate Chambers. I'll probably be there, and there's a good chance I'll be drunk off my ass (it's the best way to watch Judicial Council cases). While I'm not absolutely sure, I believe I'm going to be the only person who has actually been in a Judicial Council hearing, Judicial Council included.

Hopefully, the Judicial Council can pull a quick turnaround. There are at least three other charge sheets pending, all written by me, and one from the Elections Council Chair asking, essentially, for last-minute instructions from the Judicial Council so she has legal cover when making up rules (as she's forced to do, since the By-Laws don't talk about recalls at all).

posted by Beetle Aurora Drake 1/22/2009 01:29:00 PM #
Comments (0)
. . .
In other heavenly news

While not related to the recall, I heard some amusing stuff at the Senate meeting today I want to share.

The owner of Healthy Heavenly Foods, that place in the Bears Lair food court, came to beg the Senate to push for a lease. (The Store Operations Board has put the lease out to bid) Stuff about family, and really moving stuff.

Then Nad Permaul got up and essentially called bullshit. Among the complaints, apparently, after her kitchen was shut down because it wasn't up to code, she snuck her food into the oven of the Bear's Lair, whose manager arrived to find her food in their oven. He wasn't amused.

That's a story I couldn't let pass while my blog was operational. And now, back to your recall coverage.

posted by Beetle Aurora Drake 1/22/2009 01:46:00 AM #
Comments (1)
. . .
Breaking?

Nad Permaul went to the Senate meeting today to declare that it was physically impossible to have an election by this Monday. The Elections Council Chair took a similar line, because of the time it would take to test the computer program. I will now proceed to toot my own horn by noting that the Elections Council Chair will, in fact, be attempting to get the election accomplished by this Monday, after my brilliant suggestion to abandon online voting and go to an all-paper ballot. And if you're in Education Abroad... it sucks to be you. Don't worry. The Judicial Council ruled a few years ago that, since you could fly on a plane and come to campus to vote, you aren't disenfranchised. Yeah.

Some challenges, though:

First, EAP folks are screwed, as noted above.

Second, I believe blind folks are screwed, too, though maybe something can be done about it.

Third, the ASUC abandoned using the League of Women Voters as its neutral third party, since the campus IT guys essentially filled that role with online voting. Now that we're going back to paper ballots, that means there is no neutral third party.

There are probably numerous others. Feel free to list them.

posted by Beetle Aurora Drake 1/22/2009 12:46:00 AM #
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Tuesday, January 20, 2009
About that petition

I just noticed that the petition was posted (PDF) at the ASUC website. Some amusing notes:

1) The petition does not list the names of the signers. Seriously. The only person they told was the Attorney General.

2) The petition did not "fulfill[] the standards of authentification for signatures specified in Title IV of the ASUC By-Laws" as required by the Judicial Council opinion allowing online signatures. Specifically, the name of the individual was pre-written after the signer's CalNet ID was authenticated, which is specifically prohibited by the section referenced in the Judicial Council opinion.

3) The petition required signers to give their e-mail address.

The latter two points I confirmed while the petition was still online, but the first point absolutely blows me away. "We, the undersigned, don't want you to know who we are, but we really did sign!"

I think I'll make an effort to have the names on the petition posted, too.

posted by Beetle Aurora Drake 1/20/2009 12:26:00 AM #
Comments (13)
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Saturday, January 17, 2009
Hearing time set

From Kiira Johal, acting chair of the Judicial Council:
The hearing for the case Moghtader v. ASUC Senate will be held at 8:00 pm on Thursday, January 22nd. All will be notified of the location once one has been secured.

posted by Beetle Aurora Drake 1/17/2009 11:28:00 PM #
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Thursday, January 15, 2009
Details

The Daily Cal is confirming that Moghtader's suit was accepted:
Moghtader said the Judicial Council has agreed to hear the case and is expected to issue a ruling in the coming days.
How many days, is there a hearing, where is that hearing, etc. might be questions I would have liked an answer to, but meh. If anyone knows the answers to those questions, let me know.

(Update: Apparently there will be a hearing, though it hasn't been scheduled yet.)

Points awarded for this:
But Nathan Shaffer, one of the initiators of the petition, said that it was valid and that the election should take place.

"My position is that the petition wasn't vague," he said. "I think it should be ruled valid and the recall election should go through."
That's about as contentless as reporting gets. Why not just write "after reading Moghtader's accusation that the petition was vague, Shaffer said 'nuh uh!'"

Anyway, if there is a hearing or folks are writing briefs, as always, I'm available to help anyone on any side.

posted by Beetle Aurora Drake 1/15/2009 11:05:00 PM #
Comments (0)
. . .
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.

posted by Beetle Aurora Drake 1/15/2009 03:04:00 PM #
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. . .
Actually breaking

Senator John Moghtader has filed a Judicial Council suit against the Senate, arguing that the recall petition was insufficiently specific to meet the Constitutional requirements. Presumably, a victory will prevent the recall election. Attorney General Mike Sinanian says that it was accepted by the Judicial Council, and that he agrees with it, so won't be defending the ASUC Senate. Defending the Senate in Judicial Council suits is consitutionally his job, but the Senate has written By-Laws assigning that job to the Solicitor General, so I assume SG Andrew Hollihan has the job of defending the Senate from the suit.

(As a sidenote, I used to be on an e-mail list for announcing acceptance of charge sheets and the like, but didn't hear anything about this except through other channels. It's entirely possible with the change in Judicial Council chair, there's a new list. I'll see if I can get on it. This assumes, of course, that the charge sheet was actually accepted, rather than just received, and Sinanian has spoken imprecisely before.)

The charge sheet itself begins with a bunch of whining about how the recall is politically motivated, and is an attempt to silence him, and is a smear campaign, and is being investigated by the ADL etc. etc. None of that strikes me as particularly relevant, but maybe the Judicial Council will see things differently.

The actual legal argument is that the petition does not state specific reasons for the removal. He cites an opinion from a South Dakota Attorney General that is on point, but since the Judicial Council isn't even bound by its own precedents, I'm not sure how relevant that opinion is. I'm a bit surprised at that choice, by the way. There are actual judicial cases that have addressed the issue of specificity in recall petitions, so citing an Attorney General's opinion seems a bit underwhelming. (e.g. (PDF))

I'm in substantial agreement that the recall petition was deliberately vague (and those who supported it admitted they kept it vague because of legal concerns), and this vagueness indicates that the recall isn't really about things in the petition, but is rather an expression of a pre-existing desire to get rid of Moghtader. Though the petition asserts that Moghtader's presence in the Senate is inimical to some principles and that his behavior silences and endangers folks, it doesn't actually say anything about what he's done that makes those assertions true. Meanwhile, the actual accusations are occurring through other channels, which means that many voters aren't going to actually see what folks are talking about.

It is nearly impossible for Moghtader to defend himself against an abstract accusation without factual specificity. There's little more he can say than "nuh uh!" The recall election is really just going to be a normal election, where both sides try to marshal voters into supporting them independent of whatever he's supposedly being recalled for, and since the ASUC uses proportional representation, as an independent he may well be fucked. (I don't think Moghtader makes this argument very well in his charge sheet, though)

So as a policy matter I agree, and am perfectly willing to call those who put the recall petition together deceptive, unjust, and even cowardly. I don't agree that this is specifically about his views, but rather the way he presents them, which encourages those who disagree to dislike him and hence take this action, but like I said before, that stuff doesn't strike me as particularly relevant. At the same time, I'm deeply suspicious of the Judicial Council stepping in on this matter, and, given the nature of how the Judicial Council functions, don't believe that they would be correct in ruling in favor of Moghtader, and I'll explain why in the next post.

posted by Beetle Aurora Drake 1/15/2009 02:21:00 PM #
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Thursday, January 08, 2009
***BREAKING***

I have nothing of importance to say.

As far as I know, nothing of significance has happened over winter break regarding the recall so far. Tommy Owens, the ASUC Senator from the BCR party, is making some posts on the recall and the John Moghtader's relationship with the ASUC Senate more generally at the Patriot Blog. He claims to have some hysterical e-mails to enjoy soon, which I'm looking forward to.

(I do admit feeling a bit weird about plugging the Patriot Blog now that I'm in charge of it, but hopefully my readers will forgive me for it. If not, it's a good thing I don't even like my readers)

I didn't get any interest in seeing the succession rules clarified from their current all-way tie at 0 status, so I'm not making an effort at the moment, though in a fit of boredom I may write another charge sheet soon. Assuming Brad Froehle will decline the position as he's said, next in line is either Marcus Caimi (Student Action), Yuna Shin (Student Action), Andy Kelley (CalSERVE), or Jessica Felber (SQUELCH!). Those are in decreasing order of plausibility, and though I think Felber getting the seat is the most consistent with ensuring legitimate representation, it's the least consistent with the Constitution's succession rule.

If nothing is done, I assume Caimi will get the spot, based on inertia. I haven't heard anything about the other potentials wanting to make a claim to the seat, and if they do, they probably want to wait until after the recall succeeds (if it happens), so they can sue and get a hearing where they can rattle off eloquent sound bytes about justice and freedom and pirates that the Judicial Council won't care about at all. This would likely paralyze the Senate again. Part of why I want to get an advisory opinion out of the Judicial Council before then is to get an independent baseline before the theatrics start.

posted by Beetle Aurora Drake 1/08/2009 10:13:00 PM #
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