SA Files Appeal To Ratto v. Vakil
SA has finally filed their long awaited appeal. It was sent out at 1230 AM Wednesday Morning, and has yet to be accepted by the Judicial Council. The full text can be found here.
Both Beetle and Jeremy Koo have already posted commentary on the lawsuit. I chose to sleep last night, but now with everyone on bated breath, let’s look at the appeal itself.
The appeal fills ten pages and lists twelve different points of appeal. Of those twelve, the following seven were decided upon already at the trial or in the decision, and given the lack of new argumentation, are unlikely to be overturned:
IA) The Judicial Council’s Violation of Its Own Rules of Procedure Violated Mr. Vakil’s Due Process Rights - decision: While recording should be kept by the Judicial Council, they are not funded by the Senate, and since the JRPs are designed to keep order for the JCouncil but are not binding for the rights of the defendant, we will overlook this matter as it affects all parties equally.
IB) The Judicial Council Violated Mr. Vakil’s Right Not to Be Compelled to be a Witness Against Himself - decision: The Judicial Council removed Mr. Vakil’s testimony before the case was decided. What more can you ask for? No harm = no foul.
IC) Mr. Vakil’s Alleged Violation is Not One Imputable to the Four Executives - decision: he was put in charge of the defense by the defendants, everyone is responsible for each other’s actions. If a lawyer lies on behalf of a client in federal court, then both are charged with charges of conspiracy to unlawfully conceal a crime.
IE) Mr. Vakil Was an Advocate, not a Witness - decision: he was asked to give testimony, he was both advocate and witness, he was expected to be truthful, he was not.
IIB) The Judicial Council Has No Power to Overrule Its Final and Unappealable Decision Via a Collateral Attack in a Later Case - decision: no JCouncil ruling is “final and unappealable”. And I would hardly call the obstruction by Suken a “collateral attack”.
IIC) Disqualification As a Remedy Violates the Command that All Election Remedies Be Clearly Delineated in the ASUC By-Laws - decision: the by-laws dictate that the Judicial Council has the authority to rule its own proceedings, and the JRPs dictate that the penalty for this crime is a default judgment. This particular section reflects an obvious confusion on the part of SA.
III) Mr. Ratto Acted in Bad Faith - decision: bad faith is defined in the By-Laws and JRPs, and Mr. Ratto’s charge did not fall into that definition.
Why would they list all of these charges that have already been discussed? Simple - SA already anticipates a defeat in the Judicial Council and is planning to use this failed appeal in federal court. More on that later. Now. let’s examine the other five points:
ID) The Remedy Provided By the Judicial Council Is Not the One Charged - analysis: Well, technically, you can’t charge a remedy. That’s problem number one. Andy didn’t charge a remedy, he charged a candidate with violating the rules. The Judicial Council had basically free license to determine a remedy. That being said, it’s important to point out that the Judicial Council can, according to the JRPs, issue a contempt of court charge at any time. Even if this argument had merit, which it doesn’t, the JRPs take care of it.
IIA) Due to Their Delay In Certifying the Election After the Start of the Executives’ Terms, the Executives Are Already Properly In Office - analysis: SA claims here that since their candidates have already started working in the office despite being confirmed, that they cannot be removed from office. Primarily, it is important to note that they misquote the part of the constitution that discusses this - Beetle has more details on this. Additionally, the Judicial Council has the authority to remove elected officials from office for a multitude of reasons, including absences and registration status. This is definitely one of the weaker arguments in the appeal.
IID) The Judicial Council’s Role in Certifying Elections Is Entirely Perfunctory - analysis: SA claims that the Judicial Council does not have the authority to insert legal qualifications to certify election results. They basically are implying that no disqualified candidate is truly disqualified because the Judicial Council cannot enforce that decision. Beetle says it best: “If the Judicial Council shouldn’t have had this power, they wouldn’t have been given it. But if you want to play the dictionary game, keep in mind that the “results” aren’t clear until all cases have been resolved, so they can’t “attest” to anything until they finish with the cases. Here they’re doing exactly what they’re supposed to be doing.”
IIE) The Judicial Council Did Not Have Quorum to Hear Ratto v. Vakil - analysis: this takes simple math. There are nine spots for Judicial Council members. Two members publicly resigned before the charge sheet for Ratto v. Vakil was filed. Hence, there are seven members of the council. Quorum of the council is 50%, which would be rounded up to four. There were four members present at the hearing. Therefore, quorum was achieved. Even if three other members of the Council were present, and they all voted against Ratto, then the decision still would have stood 4-3.
IV) The Decision Is Inequitable - analysis: This shows more contradictions in the SA defense - at times, they feel the Judicial Council was too creative in this decision - in this one, they say the Judicial Council did not try to find new and creative ways to settle the case “equitably”. But, the JRPs clearly state that a default judgment must be rendered. There was no alternative for the JCouncil. What were they supposed to do, make it four or five censures “just because”?
Honestly, I was expecting better from SA than an 11th hour JCouncil appeal full of holes. But, the truth of the matter is that SA is already planning on taking this to federal court, students be damned. The choice quote:
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.
First off, the ASUC is not a state actor. It is a private non-profit union of students, funded with the private resources of its members. Saying that the union belongs to the university is paramount to saying that the United Auto Workers union belongs to Ford. It is a logical fallacy. Even attempting to assert this claim completely endangers whatever autonomy the ASUC still retains. But, this claim will be key to the future Student Action lawsuit against the ASUC, potentially waiting to be filed at this time.
Regarding the quorum issue, they claim that I did not properly resign from the Judicial Council because I did not send the letter to the Council en banc. This is factually incorrect, as I attached the Judicial Council en banc through Blind Carbon Copy, and I just sent an e-mail with evidence of this to the concerned parties.
Comment by bobby gregg — June 21, 2006 @ 10:00 am
SA-The New DAAP
The SA senators-elect better wake up and see what their leadership is doing. They dug themselves in a hole with Suken, now their pulling out the backhoe. If this gets to trial in federal court, and I can’t see a reason why the jcouncil should back down, SA will hit rock bottom and pull out a drill.
A scortched earth strategy never helped anyone, even if SA candidates get their way they won’t accomplish anything next year. The best thing SA can do is swallow the pill, work with the Squelch execs, take credit for everything and win next year.
Comment by captain duh — June 21, 2006 @ 10:16 am
So Student Action would be comfortable with completely destroying the concept of ASUC autonomy just to stay in power. Along with their embracing the University’s interference on behalf of the Yes side in the RSF fee election, this is just another indication of just how little Student Action is really about student action.
Comment by Jim Fung — June 21, 2006 @ 10:58 am
Bobby, I think you’re misreading the brief. I don’t they the claimed that you didn’t send an e-mail to the Council. According to Black’s, the meaning of “en banc” is with “all judges present and participating” — this seems to refer to being PHYSICALLY present and participating, not reading e-mails from separate locations.
Comment by aef — June 21, 2006 @ 11:15 am
legal question: in the real world, if a person is tried for murder and is declared not guilty, and then is later convicted of perjury for statements made during that trial, is he then re-tried in the original case? or can the judge just strike the false testimony in the murder case and then issue a new ruling?
Comment by Anonymous — June 21, 2006 @ 12:05 pm
Oh, right, Ben, you can’t leave out the OJ quote.
Comment by Beetle — June 21, 2006 @ 12:19 pm
“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.”
Taken from C. Mr. Vakil’s Alleged Violation is Not One Imputable to the Four Executives
Comment by Ed — June 21, 2006 @ 12:32 pm
If a person is acquitted of murder, then later charged and found guilty of perjury; s/he cannot be retried for murder. The Constitution bans double jeopardy (being tried twice for the same offense).
Comment by anonymous — June 21, 2006 @ 12:33 pm
As I understand it, according to the laws and procedures that dictate the legal system of the governmental entity “the United States” and/or the state of California (i.e. State Court, Superior Court, etc.) neither of those would occur. Stretch the ever-amusing SA OJ comparison a little further and I’m pretty sure that Mr. Simpson, who testified during his own trial, can run around screaming “I did it, I killed Nicole” and the only thing he could be tried for is perjury, the murder acquittal still stands due to the US’s double jeopardy structure. He’d also get slapped with one hell of a civil suit, I would imagine. Someone with a better understanding of the law feel free to correct me.
The difference to note here is that 1) the execs were found guilty in their first trial and 2) the rules that govern the Judicial Council as an entity of the Associated Students of the University of California are the Judicial Rules of Procedure and the by-laws of the ASUC, not whatever conventions apply in the U.S. court system. The comparison becomes silly at the point that one recognizes that putting chalk on the ground isn’t a violation of any U.S. or state law, but that it does have special significance for the association. Additionally, recognize that the rules that govern this significance are agreed upon before one enters into an election by every candidate, who has the information readily available to them. If you’re gonna play the game, you have to follow the rules–what’s the use in applying Monopoly rules to the Game of Life?
Also note that, if you wish to exclude the ASUC from the real world, I have no real problem with that, but i would resist an urge to believe that the legal system that you’re used to as a U.S. citizen is somehow indicative of the legal systems throughout the world. There are many different standards, we, as citizens of the U.S., agree to abide by this one. Candidates agree to abide by the standards of the Judicial Council.
Comment by - - - — June 21, 2006 @ 12:36 pm
Ok, there’s something that confuses me. Not sure if it was mentioned before here and I completely missed it.
How can four justices issue a default judgment in a case that’s already been decided by the full council? Don’t they need an equal or greater number of justices to overturn the earlier decision (that is, five or more)?
Comment by t — June 21, 2006 @ 1:00 pm
Short answer, no they dont.
Longer answer: I don’t believe they were “overturning” the ealier decision, at least not in a strict sense. What they did do was convict Suken of a crime, and the punishment for that crime was a default judgment for the previous case.
Comment by Andy R. — June 21, 2006 @ 1:12 pm
The default judgment takes the place of the original decision. I think a case can be made that it therefore is overturning it.
Comment by Beetle — June 21, 2006 @ 1:37 pm
#4, “present and participating” can equally apply to an active e-mail listserv or AIM chatroom — I’m sure this situation wasn’t applicable at the time that definition was written, but I don’t think it needs to be specifically stated anyway. In the end, the Chairperson has discretion on Judicial Council procedures, and this was the procedure that has always been used in past resignations. Nobody was confused by my e-mailing the entire Council rather than meeting them in person (which would have been impossible at the end of finals when people had gone home). SA wants to interpret this action as illegitimate when they have no authority to make such a claim — the Constitution states that the Judicial Council has autonomy over its operations and procedures.
Comment by bobby gregg — June 21, 2006 @ 3:54 pm
Well, technically they’re raising the issue for the Judicial Council to interpret when they are considering the appeal. I think. But yeah, the buckshot approach is always interesting to watch, because you can see how creative folks can get, and sometimes they try a bit too hard to get creative.
Comment by Beetle — June 21, 2006 @ 4:54 pm
When you say “Paramount to” I think you mean “tantamount to”
Comment by Not John — June 21, 2006 @ 7:58 pm
I know a lot of bad shit they used to do because i campaigned for SA. But I’m biased as hell against those douchebags so I’m not the most balanced source.
Comment by Anonymous — June 21, 2006 @ 11:06 pm
It wouldn’t be hard at all for an attorney to argue that the ASUC is a state actor.
And if people are worried about a federal action undermining the autonomy of the ASUC, well, blame is more properly assigned to the J-Council for vacating the results of an election via a default judgment (an extremely disfavored legal remedy) based on a perjury “conviction” when 3 of the 4 candidates didn’t even offer testimony. You can’t have vicarious liability for perjury in the “real world.” If your agent offers perjured testimony, that doesn’t mean that YOU have offered perjured testimony.
Also, in the “real world,” if your advocate is dishonest, you typically sanction the advocate, not the party. Sanctioning the party is also very disfavored.
Comment by War — June 22, 2006 @ 10:37 am
War: Which flack are you?
Comment by Donald — June 22, 2006 @ 10:43 am
A very old flack, unfortunately. One who, in fact, doesn’t particularly care too much about what’s going on since my SA days were from a real long time ago (think founding generation).
But, as I kinda do this legal stuff for a living, I felt a need to correct some misimpressions going around.
Comment by War — June 22, 2006 @ 12:17 pm
In the real world, advocates can be fined, thrown in jail, have licenses suspended, etc. This isn’t the real world. There is no right to an advocate. Most people are to defend themselves.
Comment by Beetle — June 22, 2006 @ 12:52 pm
THE ASUC ISNT REAL GOVERNMENT! IT’S PLAY GOVERNMENT! THE JCOUNCIL IS PLAY COURT! None of this shit is binding.
Now that we’ve gotten that out of the way, the SA execs can and should be disqualified.
Comment by Anonymous — June 22, 2006 @ 1:20 pm
Damn anarchist.
Comment by bobby gregg — June 22, 2006 @ 1:59 pm
Bobby, I’m not an anarchist. I’m noting that the ASUC has no enforcement powers whatsoever.
Comment by Anonymous — June 22, 2006 @ 2:10 pm
Not so…we have an army
Comment by Punch My Ballot — June 22, 2006 @ 2:24 pm
I kid, I kid.
I also disagree with you.
Comment by bobby gregg — June 22, 2006 @ 2:25 pm
haha, draft the freshmen.
Comment by bobby gregg — June 22, 2006 @ 2:27 pm
note: I didn’t [necessarily] say it, Bobby did.
Comment by Punch My Ballot — June 22, 2006 @ 2:38 pm
Now which part do you disagree with? For example, does the ASUC turn over our $55 or does the University? Looks like all your power is derived from the university. If it weren;t for the University, the ASUC would be penniless.
Comment by Anonymous — June 22, 2006 @ 3:57 pm
“The members of the United Auto Workers do not pay their dues directly to the union - General Motors deducts membership fees out of workers’ paychecks and gives them directly to the union. Without General Motors’ support, the UAW would be penniless.”
I’m not saying the ASUC is the UAW - I’m just saying your argument is reliant on a giant logical fallacy. Just because two groups have an arrangement does not necessarily make them reliant on each other. For decades, students paid their money to the ASUC without any aid from the university.
This is even ignoring the fact that a good portion of ASUC revenues come from sources other than student fees.
Comment by Ben N. — June 22, 2006 @ 4:07 pm
28: your comment is pretty shortsighted. the university basically has almost total power over the ASUC now, and even in the avenues where the ASUC might stand up to the university, the representatives make it clear they’d rather go down on administrators than stand up to them.
however, the “power” of the ASUC derives from the university administration’s desire to bring control of student enterprises under its umbrella, and so if you want to take a historical, informed perspective, “without the University [administration]” the ASUC would still control the football program and a whole host of other amazingly profitable endeavors, and thus would not be penniless, and instead, could easily be 100-1000 times more penniful than it is.
Comment by mano — June 22, 2006 @ 4:15 pm
Well, without the university, there wouldn’t be students, so I guess there wouldn’t be an ASUC. I don’t think that is a legal justification for declaring the two to be the same organization.
Comment by Beetle — June 22, 2006 @ 4:18 pm
The ASUC doesn’t have to be considered the same organization as the University. The court only needs to find it sufficiently affiliated such that it is considered a state actor and is therefore subject to constitutional restrictions — like due process.
And for what it’s worth, a few years ago when SA did sue the ASUC over elections-related DQs, at least one university attorney told me that he agreed with my view that a court would find the ASUC to be an extension of the University.
Comment by War — June 22, 2006 @ 6:36 pm
War: are you Randy?
Comment by Old Fogey — June 23, 2006 @ 8:28 am
The double-jeopardy point is not negated merely because SA was found guilty the first time.
Imagine OJ were convicted not of murder, but for manslaughter because the prosecutors could prove the killing but not the “malice aforethought”. He gets a good 3-4 years, gets out in 1997 for good behavior. He goes on Larry King and says “I lied, I’ve been planning this murder for months. Here are my secret diaries in which I documented everything, and which that asshole Fuhrman didn’t find.”
Even though OJ was found guilty, the state cannot re-bring murder charges against him based on this new evidence, for double jeopardy reasons.
Andy also misunderstands the term “collateral attack”. A “collateral attack” doesn’t refer to the actions of the defendant in the perjury case. Simplistically, a “collateral attack” occurs when you try, after the fact, and in a separate case, to void the outcome of a previous case that has already been decided. In this case, this is what happened: the J-Council, in the subsequent perjury case, “collaterally attacked” the outcome of the chalking case. The chalking case was litigated to a “final judgment”. A “final judgment” doesn’t mean that it can never be changed, but it does mean that the only way in which the J-Council can change it is on appeal.
Moreover, J-Council’s approach — voiding the outcome of an already-decided case — is setting a dangerous course for its own judicial autonomy and independence. Yes, in the short term, disqualifying an entire SA slate may seem like a show of force that can make the Council respected. But think about the long term. If the Council can, based on developments in subsequent cases, simply go back and change the outcome of its previous cases, this can open the floodgates of new litigation where litigants would introduce new evidence which would purportedly negate the outcome of prior cases. What is to prevent me from introducing evidence in 2006, for example, that would have voided the reinstatement of Student Action on appeal in 2001? If I can now introduce incontrovertible evidence that SA perjured itself on appeal and should have been disqualified, and the Council agrees, would that have the effect of voiding every action of the three SA executives in 2001-02? If I can introduce new evidence that would have supported Bryant Yang in 2003, and the J-Council agrees, would that void the actions taken by Dave Madan? The point is, the J-Council should respect the finality of its own judgments. To do otherwise would (a) open the floodgates of litigation with potentially catastrophic effects, (b) expose the Council to charges of partisanship if the Council were to start going back and revising its own opinions in accordance with the political persuasion du jour, and (c) destroy any sense of predictability in ASUC government. To the extent the J-Council deems its own judgments flawed, there is an appeal process expressly provided for in the rules. But opening up its decisions to subsequent collateral attack will be disastrous both for the ASUC and for the Council itself.
Comment by Old Fogey — June 23, 2006 @ 8:51 am
#34, whether or not the Council is actually vacating its previous decision, they only said this applies in “directly related contempt of Council rulings.”
There are very few circumstances in which this applies — in particular, for violating the rules for truthfulness.
Comment by bobby gregg — June 23, 2006 @ 9:56 am
#35,
I disagree with your assessment that “there are very few circumstances in which this applies”. Every J-Council trial, as far as I know, has witnesses and/or spokespersons. Every time one of them speaks, there is a potential for perjury, which may affect the outcome. Even more importantly, every time there is a contested hearing (which all of the hearings generally are; otherwise the case would never get that far to begin with) there is an incentive for the losing litigant to accuse the winner of lying and then try to overturn the result. In real life, these situations are handled through the declaration of a mistrial, but that must occur in the ORIGINAL case. If the loser can convince the court that he is right, a new trial is ordered; if not, the judgment becomes final and the loser can appeal. Once the judgment in the original case is final, this is it. Otherwise, you are opening the kind of Pandora’s box that, trust me, the Council will not want in the long run.
Comment by Old Fogey — June 23, 2006 @ 10:55 am
I think they are saying that it is appropriate to issue contempt of Council rulings and issue sanctions after a judgment has already been made. I don’t know what kind of pandora’s box you think it’ll open, since perjury still needs to be proven. Perhaps frivolous charge sheets will be filed that risk wasting the Judicial Council’s time? Meh.
You are trying too hard to apply the U.S. legal system to a student court which is bound by different rules of procedure.
Comment by bobby gregg — June 23, 2006 @ 11:31 am
Bobby, actually I think Old Fogey is trying to point out some of the likely consequences of the decision the J Council has just issued. You, and the rest of us here would do well to pay attention and address his concerns.
Comment by anonymous — June 23, 2006 @ 11:58 am
sigh…
Comment by bobby gregg — June 23, 2006 @ 12:55 pm
Where does Student action get the money to hire lawyers and sue in real court?
SA should at least announce how much they are going to spend to buy back they exec positions. It would also be good to know who would be kind enough to put up the dough to… you know…serve the students (HAHA).
Comment by typical anonymous SA defender style — June 23, 2006 @ 1:24 pm
[Our spam thing deleted this comment, so I’m reposting it. The original commetner didn’t leave a name. To let people know, racial slurs and profanity tend to trigger the spam filter, so avoiding those word will get your comments up quicker.-andy]
because the asuc is so incestuous (both within parties and across parties), and there are relatively few people involved, and there are people like us who are willing to speculate on the relationships of those individuals, the asuc will never amount to more than college students who have an interest in improving their resumes fucking eachother.
Comment by Andy R. — June 23, 2006 @ 1:34 pm
#33 — looks like the jig is up!
#40 — I have no idea what this year’s SA crowd is doing lawyer-wise, but the last time this happened, the SA alumni base volunteered their services. There are probably a dozen practicing lawyers that were SA people back in my time, and I don’t even know anyone after 2002.
Comment by War — June 23, 2006 @ 2:01 pm
One cannot, in general, prove perjury in the middle of a hearing. Time needs to be taken to gather new evidence to prove the dude was full of it.
I wish folks would stop using examples from criminal law, because if you desperately must compare the Judicial Council with something in government court, civil law is much more appropriate.
Comment by Beetle — June 23, 2006 @ 2:42 pm
lol SA alumni base, like Bret Manley?
Comment by Anonymous — June 23, 2006 @ 3:57 pm
I also think people need to realize that the Judicial Council is not a court in the same sense that criminal or civil courts are. It is an internal body used to determine, within the government structure of the ASUC, whether the ASUC government has been following the rules it has set down, and issue orders to make sure that it happens. This is why it is not bound by precedent, and why it can change previous rulings as it needs to based on new information, because its job is essentially maintenance, and thus it has that flexibility.
Comment by Beetle — June 23, 2006 @ 4:17 pm
Old foegy makes a very legitimate pragmatic argument. If folks think they can hold something back and then bring it up in appeal, it can cause all kinds of headaches for the Council and the ASUC. I thought this might be the case so I wrote the appeals system to explicitly require the introduction of evidence that could not have been introduced at the original trial. But there’s really no way to prove that something wasn’t available if you really try for it. This is essentially what got SA off on 2001. The said they didn’t know Andy Katz didn’t tell them the truth about their illegal campaign flyer, which knocked their punishment down to one censure. The minority decision said this could have been introduced at the original trial and should have been and as such should be excluded from evidence in the appeal and the original decision stand. In those decision we refused to release who ruled which way and I won’t say now where I was or who switched.
That said I think this Council gets all the procedures right with the case at hand. I’d have declared Suken in contempt on the spot for obviously pissing down my leg (ala Luke Massie in the DAAP situation) and I might have strenuously lobbied my fellow members to issue the default judgment then and there. This Council chose to let it go and then when they were called on it by Andy, smacked suken around, as they should. That they rhetroactively declared a default judgment may cause them problems in the future, but it was procedurally sound in this instance.
They also have a strong case in external litigation. DAAP had a legitimate argument when they sued us (me) the last time around, I readily admit that. We also had very strong grounds to proceed with our defense (I found decisions in other circuits and districts saying we were right), but it was still something of a toss up given the nature of state action and unsettled law and the nature of the judge we drew. This case is not a toss up. Whatever family friend SA got to intimidate the Council will not be able to make them change their mind with flashy reasoning and bombastic rhetoric.
Comment by Mike Davis — June 23, 2006 @ 4:40 pm
I have some questions for the SA supporters:
1) What do you guys think should have been done to Suken for perjuring himself? He was an alumnus at the time… So can he just lie with impunity?
2) Secondly, what should be the course of action when someone lies during a trial? It isn’t possible to know at the time whether or not he was lying. Do the justices just call a mistrial, hold the perjury trial, and then go back to the original trial later? I think there is plenty of stuff that we might not like about the current system, I just can’t think of a better alternative.
Comment by Andy R. — June 23, 2006 @ 5:59 pm
excuse me for interrupting all of this serious discussion, but no one has mentioned this yet and I feel it has to be said…
whoever wins this one…hottest ASUC President ever!
Comment by anonymous — June 23, 2006 @ 7:05 pm
with service providers like bret manley, haha…. bret and chet, the feeding tube wonder twins. if mobilizing the alumni “base” means getting bret, SA would be better off mobilizing their stuffed animal base for support.
Comment by mano — June 23, 2006 @ 8:43 pm
Yeah but Clee was the hottest EVP and look how THAT turned out >.
Comment by Anonymous — June 24, 2006 @ 7:12 am