The Appeal for the Direct Judgment of Ratto v Vakil issued on the Seventh of June, 2006

Pursuant to Section 5.4.1 of the Judicial Rules of Procedure, we are filing this appeal on behalf of Mr. Vakil in the case of Ratto v. Vakil. See Judicial Rules of Procedure §§5.4.1-2 (appeals may be granted after “[d]emonstration that a reversible error with regard to a conclusion of law may exist” or “[d]emonstration that judgment was significantly influenced by a violation of due process, as set forth in these rules of procedure”).

In issuing the highly irregular decision in Ratto v. Vakil, the Judicial Council has violated its own rules of procedure and acted outside the scope of its power. We also contend that Mr. Ratto acted in bad faith in filing his initial charges as a matter of law; therefore, consideration of the charges was improper. Even if the foregoing is rejected, the Judicial Council’s decision in Ratto v. Vakil is inequitable.

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.

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

In its decision, the Judicial Council relied on the Daily Californian’s account of Mr. Vakil’s arguments during ASUC v. Student Action Executives, rather than a transcript. Based on the lack of a transcript, the record is insufficient to support a judgment of perjury. Moreover, the purpose of the recording requirement is to protect the rights of parties and their counsel, and absent this protection, the Judicial Council’s issuance of the default perjury judgment is invalid.

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. Mr. Vakil’s account of his argument is supported in the original Ratto v Vakil judgment. Furthermore, testimony offered by the witness Mr. Azadivar, called by Mr. Ratto, disputes portions of the Daily Cal report which was pointed out by defense at the trial to elucidate the inaccuracy of the article.

The opinion in Ratto v. Vakil states that the Dissenting Opinion in ASUC v. Student Action Execs was influenced by Mr. Vakil’s words. See Ratto (“Vakil’s…statements potentially influenced the judgment…by former Chair Robert D. Gregg and Associate Justice Aurora Masum-Javed where the ‘activeness’ of the chalk is questioned…”). This implies that Mr. Vakil was arguing regarding how long a chalking is an effective campaign tool after it is drawn, not how long it lasts on the ground.

Besides the Daily Californian account, which Mr. Ratto’s own witness Mr. Azadivar had shown to be inaccurate, there was no other evidence contradicting Mr. Vakil’s account of his argument.

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. Since no official record was kept of that trial – this is uncontested by the Judicial Council as an email from acting Chair Banerjee confirming a lack of official documentation was accepted as evidence in Ratto v Vakil – there is no way to determine for certain what actually transpired. We must remember that innocence is presumed; guilt must be proven.

Moreover, the lack of a transcript is the fault of the Judicial Council – and a transcript is an essential protection for parties and their counsel. Therefore, in basing its decision on its own negligence in failing to provide a basic procedural right, the Judicial Council has violated Mr. Vakil’s procedural due process rights.

Article 6.3.1 of the JRPs states that “[a] written, audio, or video recording will be made at all official hearings for the future use of all Justices”. No written, audio, or video recording was made, the May 9th hearing was official, and the use of such a record was essential to protecting the rights of the accused.

Council contended that they could not keep records because of budgetary constraints, though no attempt was made to procure monies for a recording device and neither plaintiff nor defendant was asked if they could provide such equipment. The parties would have gladly produced recording equipment if they knew that the Judicial Council would not be able to fulfill its duties. This can be demonstrated by the ease with which Mr. Ratto produced a recording device for his case against Mr. Vakil, even though he did not use it throughout the trial. Additionally, according to the ASUC website, www.asuc.org, Marianne Siu is listed as a clerk for logistical assistance of the council. The initial trial took place within the school year so it is apparent that Ms. Siu would have been available to take notes, free of charge, as it was her duty to assist the Council.

The JRPs do provide for the Chairperson to deviate from the JRPs (see §4.14.1); however, neither party was notified that the Judicial Council would not be following the JRPs. In such a case, it is generally assumed that the Council will be acting according to its own rules and procedures.

Since this error was the fault of the Judicial Council and defense is confident that such a record would exonerate Mr. Vakil, it would be a violation of his due process rights to issue a judgment based on a record that does not exist. Again, the Judicial Council must presume innocence, not guilt.

B. The Judicial Council Violated Mr. Vakil’s Right Not to Be Compelled to be a Witness Against Himself

The Judicial Council forced Mr. Vakil to be a witness against himself, despite the Constitution’s clear command forbidding this. In Ratto v. Vakil, the Judicial Council writes that it suppressed the affidavit from Mr. Vakil. However, at the time of pre-trial motions in Ratto v. Vakil, the defense submitted the following motion:
“Article XI Section 3: Rights of the Accused in the ASUC Constitution states that
‘No person shall be subject for the same offense to be twice put in jeopardy; nor shall be compelled in any case to be a witness against him or herself.’

I am citing this clause of the Constitution to suppress all testimony made in this trial by Suken Vakil as he has a Constitutional right to not be a witness against himself. Since Mr. Ratto is attempting to use his testimony against him as stated in the plaintiff’s brief, Mr. Vakil has every right to invoke this clause of the Constitution and as his representative I am doing so.”

When this motion was made, Acting Chair Banerjee rejected it and allowed the affidavit and all arguments related to it to be present during the trial. The full affidavit was handed to the Justices for them to read during the trial, and they heard all argument related to it during the trial. During the trial itself, Mr. Ratto quoted portions of Mr. Vakil’s affidavit. The majority of arguments of Mr. Ratto’s arguments were based on the affidavit submitted by Mr. Vakil. These statements were essential to Mr. Ratto’s case; otherwise he would not have relied on them so pervasively.

The rights of the accused exist prior to, during, and after a trial is heard and decision rendered. Prior to the case, the Council compelled Mr. Vakil to complete an affidavit against his wishes; during the case the Council compelled Mr. Vakil to be a witness against himself. Regardless of what happened after the hearing, Mr. Vakil’s rights, as outlined in the ASUC Constitution were clearly violated before and during the trial.

We cannot retroactively restore the rights of the accused after the damage has been done. Therefore, this decision should be overturned as it was issued in conjunction with acts violating the ASUC constitution and the rights of the accused.

C. Mr. Vakil’s Alleged Violation is Not One Imputable to the Four Executives

Mr. Ratto is seeking to disqualify from the election the four Student Action Executives by bringing a case against Mr. Vakil. He is attempting to penalize a group of individuals who are not party to a case.

Mr. Ratto maintains that Mr. Vakil was acting on behalf of the four Executives; therefore the four Executives committed perjury and should be penalized. He did not bring charges of perjury against the Executives; he brought them against Mr. Vakil. In this case the Executives are not a party, and thus can have no penalty charged to them in their absence.

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.

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.

At the very least, the charges sought (a default judgment and disqualification) do not match the remedies and the case should be thrown out.

D. The Remedy Provided By the Judicial Council Is Not the One Charged

Mr. Ratto sought remedies for violating a lawful order of the Judicial Council and obstruction of justice by interfering with the Attorney General. He did not bring charges of contempt of Council, nor did he seek the remedy of contempt of Council. None-the-less, the Judicial Council issued its decision on the ground of Contempt of Council and assumed a power to issue a default judgment in an earlier, final case, despite the fact that these issues were not even argued. Basing an opinion on a grounds raised neither by the litigants nor the Council at trial violates Mr. Vakil’s basic due process right to defend against the charges presented.

E. Mr. Vakil Was an Advocates, not a Witness

The Council bases its decision on the fact that Mr. Vakil provided misleading testimony as a witness and thus was in violation of the JRPs, despite the fact that Mr. Vakil was acting as an advocate.

JRP Section 4.12.1 states that “[a] witness is any individual other than a spokesperson who provides testimony before the Council in a hearing”. The language of this provision clearly draws a line between witness a and spokesperson and illustrates that they are not the same thing. Council asserts that Mr. Vakil had to act as a witness since he called no witnesses himself. If anything, this only further illustrates the fact that Mr. Vakil was not a witness, as he did not call himself. Furthermore, none of the official documents released by then Chair Bobby Gregg list Mr. Vakil as a witness and Mr. Vakil himself was never informed of his status as a witness during the trial. Council told Mr. Vakil he was a witness after they had accepted the Ratto v Vakil case, more than 22 days later.

By contrast, in the Ratto v Vakil case, spokesperson Manley called himself as a witness and announced to Council that he would now be “acting as a witness and not as a litigant” to illustrate the fact that he was aware that there was a difference. Council accepted this action and thus Mr. Manley was cross examined officially according to the JRPs as a witness.

Council contends that Mr. Vakil’s “witness testimony” swayed the Judicial Council’s decision in ASUC v. SA Exec Slate. The text cited from the decision to illustrate this alleged deception by Mr. Vakil is “Mr. Vakil argues that the act of applying chalk is campaigning, but once this action ceases, the fact that the chalk remains on the ground, for only a short period of time he claims, does not qualify as campaigning.”

Witnesses do not argue points; advocates argue points. Therefore, this citation is referring to an argument made by Mr. Vakil as a an advocate before the Council, yet the Council is attempting to show this as witness testimony when it is clear that he was acting as an advocate by arguing his case. Furthermore, advocates do not state facts on which to base a charge of perjury – they do not lie or tell the truth but merely make arguments that are either supported in the testimony or not.

At the very least, the Judicial Council cannot argue that Mr. Vakil lied as a witness and then offer as the only proof a statement made as an advocate.

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.

B. The Judicial Council Has No Power to Overrule Its Final and Unappealable Decision Via a Collateral Attack in a Later Case

In Ratto v. Vakil, the ASUC Judicial Council relied on its power to issue a default judgment after it finds a party in contempt of court. In doing so, the Judicial Council reversed its own previous decision in ASUC v. Student Action Executives. This is improper because the previous decision was already final as the original appeal in that case had been denied.

Under commonly accepted legal principles, a default judgment is only allowed during the course of a trial, not after it has been completed. In fact, the JRPs demand that a default judgment may be issued while hearing a case, not outside of it. See JRP 4.1 (“If either party 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 if a majority 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.”). Therefore, the basis for the Council’s judgment was outside its legal authority.

It is also worth noting the irregular and illegal procedural posture of Ratto v. Vakil. By reissuing censures in the chalking case a minority of the council is reversing a majority decision.

C. Disqualification As a Remedy Violates the Command that All Election Remedies Be Clearly Delineated in the ASUC By-Laws

As explained above, the Council cannot rely on its power to issue default judgments to uphold Ratto v. Vakil. In addition, the Judicial Council cannot rely on any independent power to create remedies for perjury.

The ASUC Bylaws command that elections penalties be clearly delineated in the ASUC Bylaws themselves. See Title IV, §13.10.6 (“Sanctions for any acts or violations by a candidate or his/her party, whether before, during, or after the Judicial Council hearing, which are not specifically addressed in the ASUC Bylaws shall not be imposed by the ASUC Judicial Council at any time.”). The sanctions provided for in the Judicial Rules of Procedure are not specifically addressed in the ASUC Bylaws. If we read violations of the procedural requirements of the Judicial Rules of Procedure as a violation of the ASUC Election Bylaws, this would produce a result contrary to Title IV, 13.10.6 by incorporating a 22-page document into the list of elections violations.

At trial, Ratto asserted that Mr. Vakil violated a lawful order of the Judicial Council because he believed Mr. Vakil mislead the Council. However, the JRPs are not a “lawful order” of the Judicial Council.

Article 2.2 of the JRPs outlines the difference between a lawful order and the JRPs. It states that “[t]the Council shall have the power to issue orders to ensure the proper execution of its responsibilities and authority derived from the ASUC Constitution and from the rules and regulations of the ASUC”

The JRPs further delineate the difference between the JRPs and lawful orders by consistently using the word “order” to refer to specific substantive decisions by the Council, not any of its rules of procedure. Under the Judicial Rules of Procedure, Section 3.7 refers to gag orders, 3.8 refers to preliminary injunctions, 3.9 refers to summonses, 3.13.1.1.2 refers to restraining orders, and 4.14.2 refers to compelling orders to maintain the stability of trials. The most relevant use of the word order is in 4.15.1.3., which declares that contempt of Council consists of “[d]efying an order of the Council, either issued by the Council en banc or by an individual Justice.” An order is thus a decision of the Council or its members; it is not a procedural rule of the Council.

The JRPs outline the guidelines Justices are to follow when issuing orders and are therefore not orders themselves. If the JRPs are not orders, than a violation of the JRPs would not constitute a violation of the ASUC by-laws, specifically Title IV, §13.3.1.

Finally, Title IV §13.10.6 militates toward the conclusion that the default judgment itself is invalid. It exists to highlight the fact that no candidate can be disqualified from an ASUC election unless she or he violates an ASUC By-law. A Direct Judgment on Nathan Royer’s case assumes that an election violation occurred in the first place. If an election violation never occurred than we must act as if there were never a trial for the election violations in the first place. The By-laws clearly state that you cannot be disqualified from an election unless you violate an election by-law. Censures are sanctions for election violations, a direct judgment issuing censures to disqualify a candidate is therefore also a sanction for election violations, and direct judgments cannot disqualify candidates unless election violations occurred.

D. The Judicial Council’s Role in Certifying Elections Is Entirely Perfunctory

The Judicial Council has exceeded the bounds of its legal authority by improperly using exercise of its power to certify the election results to extend its power to hear elections violations. The Judicial Council was able to hear Mr. Ratto’s case because it refused to certify the election results. However, the Judicial Council’s role in certifying election results is entirely perfunctory, and the Judicial Council has exceeded that role. Cf. Title IV, §18.1 (computer printouts must be certified by ASUC Judicial Council). 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.

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.

III. Mr. Ratto Acted in Bad Faith

Mr. Ratto acted in bad faith in filing the original charges.

It should be noted first that Mr. Ratto never attended the trial in question, ASUC v Student Action Executive Slate and therefore never actually heard Mr. Vakil say anything at all. This fact was admitted during closing arguments by Mr. Ratto. He alleges that Mr. Vakil intentionally gave a false answer to a question posed by the Judicial Council; again, Mr. Ratto never actually heard the question or the response.

Moreover, Mr. Ratto was not a member of the Association when he brought the case on the 31st of May, 2006. Mr. Ratto graduated prior to May 31st of 2006 and therefore is not eligible to bring charges against Mr. Vakil. See JRP 3.1.2 (“A request for judicial action or remedy may be brought to the Council by any member or employee of the Association.”). Mr. Ratto’s status as a non-student was acknowledged by Acting Chair Banerjee during pre-trial discussion.

The reason that all possible litigation regarding the potential disqualification of candidates is heard prior to the release of election results is to prevent malicious filings from those motivated by the results of the election. Mr. Ratto filed his charge after Student Action had won a significant victory. His intent was to cause harm, not do justice, which is further demonstrated by his instant messenger away message immediately preceding the perjury trial which asked anyone in Berkeley to come help him disqualify the SA executives.

Mr. Ratto claims that this case was filed in good faith because he filed it within seven days after the election count. That specific portion of the Judicial Rules of Procedure, Article 3.6.2.2.4.3, states, “Cases to invalidate an election are considered in good faith if they are filed within seven days following the release of the original decision.” The key phrase here is “cases to invalidate an election.”

According to Mr. Ratto’s charge sheet, the remedy he is seeking is:

“Remedy

We would be requesting 2 censures per violation, which would be in line with Title IV, Article 13.10.4, which states, “A violation of Section 13.3 shall result in a maximum of two to three censures.” Both of these counts would be worth potentially 2-3 censures for the entire party, but we would only seek penalties against those directly affected by the perjury, the SA Executives.”

Mr. Ratto is not requesting to invalidate the election results, which would occur if he tried to have the entire election thrown out; rather he is requesting that the council alter the results of the election by disqualifying the candidates who had already won an overwhelming majority of the popular vote, allowing those who lost to grab power. Since he is not seeking to invalidate the election results his case cannot be considered in good faith based on JRP Article 3.6.2.2.4.3.

Since Mr. Ratto is seeking a remedy based on what he alleges happened on May 9th at the hearing of ASUC v. Student Action Executive Slate, his good faith period falls more closely in line with Article 3.6.2.2.4.2 which states that “[a]ppeals for election violation cases are considered filed in good faith if they are filed within seven days following the release of the original decision.”

Appeal cases are a result of a previous decision with which a party has issue. Perjury cases are a result of a previous decision with which a party has issue. Therefore, the good faith period for a perjury case should be identical to an appeal case.

Mr. Ratto is seeking an election violation, not an invalidation, based on something that happened on May 9th, 2006. Fifteen days later, on May 24th, 2006, the election results were tabulated. On May 31st, 2006, six days after the election results and a full 22 days after the alleged infraction, Mr. Ratto filed his case.

Mr. Ratto took 22 days to complete this charge sheet. He had every ample opportunity to file this case before election results were tabulated. In fact, he had more time to file from the alleged infraction to the announcement of results than from the announcement of results to May 31st. There is absolutely no reason why this case could not have been filed in the 15 days from the alleged infraction until results were tabulated, except for a bad faith attempt to remove properly elected officials from office.

IV. The Decision Is Inequitable

Even if the foregoing is incorrect, issuing 18 censures to four non-litigants for the argument of their advocate, without even a written record to rely upon, violates the Equitable Remedy provision of the JRPs. See JRP 5.1.3 (requiring that “[t]he remedy arrived at is proportionate to the severity of the offense”).

Moreover, the default judgment may be issued only after all other remedies are considered and only where the violation prevented the opposing party from receiving a fair hearing. See JRP 4.1 (“If either party 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 if a majority 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.”).

There is no evidence the Judicial Council considered less harsh remedies. Moreover, the Judicial Council’s decision merely speculated that Mr. Vakil’s allegedly misleading argument prevented the ASUC from receiving a fair hearing in ASUC v. Student Action Executives rather than determining that it did so. See Ratto (“The fact that Vakil’s misleading statements potentially influenced the judgment of ASUC v. Student Action Executive Slate, as seen in the Dissenting Opinion by former Chair Robert D. Gregg and Associate Justice Aurora Masum-Javed where the ‘activeness’ of the chalk is questioned, shows that Vakil’s clients did benefit.”); (“If ‘intent’ was questionable during deliberations for the appropriate remedy of ASUC v. Student Action Executive Slate, it is possible that two censures would have been issued for the three established violations of Title IV Section 13.3.8. . . .”) (emphasis added). Under the JRPs, the Judicial Council must determine that Mr. Vakil’s violation prevented the ASUC from receiving a fair hearing; mere possibility or potential does not suffice.