SA Denied In County Court
This afternoon, Oren Gabriel’s request for a temporary restraining order against the ASUC and the Judicial Council was denied by Alameda County Superior Court.
The ex parte hearing was held in an informal session out of courtroom with a representative of Judge Winifred Smith of Department 31, Mark Himelstein representing the ASUC, and two attorneys from BCLT representing Oren Gabriel.
Some interesting notes:
- Oren Gabriel has been splitting his time between Northern California and Southern California, spending most of his time home in the South as of late, and arriving back in the Bay Area late last night. This is particularly interesting because if Gabriel is spending most of his time outside of Berkeley, how would he have been able to fulfill the duties he requested to perform as part of Executive Order 8?
- The main attack of Gabriel’s counsel during the hearing was to ask for injunctions against the ASUC from ruling against Gabriel in the future as well as certifying results that did not count Gabriel as the winner - an interesting proposal that would have basically railroaded the Judicial Council into hearing the case and then either ruling to overturn Gabriel’s DQ or do nothing.
- Gabriel’s counsel also accused the Judicial Council of using a “line-item veto” in its decision on Executive Order 8, which was, while being rhetorically strong in vocabulary choice, an absolutely stupid analogy. Both real courts and the Judicial Council have the right to strike portions of legislative and executive orders that are illegal and allowing valid portions of those orders to stand. Gabriel and his main counsel (who went to Stanford by the way… figures…) also continued to argue that Voter Registration was an intregal part of his position, which is factually inaccurate on more levels than I can count.
- While the motion was denied, the judge’s representative did hint that Gabriel’s request may be more valid after a decision in Saturday’s appeal of Ratto v. Vakil. Amusingly, the judge also stated that plaintiff counsel had the burden of clarifying the rules and regulations of the ASUC, and future success would depend on their ability to do so to the presiding judicial officer. Apparently, the ASUC By-Laws are too complicated for judges, too.
- Briefs in their entirety are now available on the county website. The case number is RG06278203.
Does that mean the judge will be accepting the Judicial Council’s interpretation of the rules if he can’t make heads or tails of the bylaws?
Comment by Mike Davis — July 10, 2006 @ 4:14 pm
Seeing as how Himelstein seems unwilling to defend the Judicial Council, I wouldn’t count on it.
Comment by Beetle — July 10, 2006 @ 4:24 pm
Where is a big city lawyer when you need one…
Comment by jarod — July 10, 2006 @ 4:51 pm
Beetle, I know you get this, but the Judicial Council is not its own legal entity. Mark Himelstein is completely willing to represent the ASUC, and what the Judicial Council rules is representative of what the ASUC is ruling. The question is, is the ASUC breaking its own rules?
The individual members of the Judicial Council, on the other hand, will need to acquire their own council, but the fact is the costs of acquiring council will far outweigh what the individual members can afford, unless we want to start a legal defense fund. The only thing that could happen is that they will be ordered not to rule in a certain way, or ordered to rule in a certain way by writ of mandamus. I believe you may trust Mark Himelstein to defend the J-Council as a whole, with derivitive benefits to the members of the Judicial Council.
Comment by J Koo — July 10, 2006 @ 5:02 pm
Oh, and Mike (#1) is correct, it is up to the plaintiff (Oren) to clarify the by-laws to the Judge. It does not mean, however, the case would be over. If we don’t get a settlement, then the motion for writ of mandate will be heard September 29 in front of Judge Smith. We’ll simply be operating on shaky ground until the case is resolved.
Comment by J Koo — July 10, 2006 @ 5:04 pm
According to your blog, it seems that Himelstein’s “defense” of the Judicial Council consisted of saying “Hey, they messed up, but maybe they’ll fix it.” If the Judicial Council disagrees with his assessment, can we really expect him to defend the ASUC?
Comment by Beetle — July 10, 2006 @ 5:26 pm
According to your [Jeremy Koo’s] blog, it seems that Himelstein’s “defense” of the Judicial Council consisted of saying “Hey, they messed up, but maybe they’ll fix it.” If the Judicial Council disagrees with his assessment, can we really expect him to defend the ASUC?
I think Himelstein probably said he wasn’t defending the JC or its individual members to avoid running into any ethical entanglements. If he agreed to defend both, and later found out that the interests of the JC members conflicted with those of the ASUC (if he found out they were hiding something important, maybe–there are a lot of things that can go wrong in law) he might have to withdraw. And the ASUC is the body that’s paying him. None of this means that he isn’t going to defend the JC’s actions where that is in the association’s interest.
Also, you shouldn’t fault him for arguing that the JC might change things. Failure to exhaust internal remedies is a pretty well established doctrine that the judge will be able to understand without pushing through the hundreds of pages that Gabriel submitted. On a TRO which is decided on a very short timeframe I would not want to have to explain ASUC bylaws.
Comment by Boalt Student — July 10, 2006 @ 6:19 pm
That is a worrisome tact to take, but it got across the main point: that this lawsuit was very premature. What bothers me is that SA shows no signs of actually attending their appeal (which they could actually win if they put half as much effort into as they have into subverting the ASUC).
This might just be a one week delay until they can refile after their appeal is denied.
Comment by Simon — July 10, 2006 @ 6:20 pm
seriously, did anyone actually read the 130 pages?
My question is this: if after July 15 Himelstein thinks that the Judicial Council broke the rules, will he still defend their actions in this case?
Comment by for anyone — July 10, 2006 @ 6:31 pm
Of course Himelstein will attempt a defense if the ASUC, but if he feels the J-Council is in error, he’ll strongly suggest settling.
Something that just occured to me, if Himelstein is representing the ASUC, and Oren is the head of the ASUC (in an acting capacity, albeit), isn’t that a conflict of interest? Who would sign off on a settlement otherwise?
Comment by J Koo — July 10, 2006 @ 6:55 pm
seriously, did anyone actually read the 130 pages?
All but the first 17 pages of the petition are exhibits (mostly bylaws and such). I haven’t read Gabriel’s memorandum yet.
My question is this: if after July 15 Himelstein thinks that the Judicial Council broke the rules, will he still defend their actions in this case?
That will depend on where he thinks his loyalties are. I doubt that the feels any loyalty to Student Action or any obligation to take instructions from an “acting president” whose authority consists of signing paychecks. I think he’ll try to protect the separation of powers that the members of the association created in the constitution, which means he will try to protect the JC decision. The consitution, rules, and bylaws are created by students and mainly interpreted by them, so I doubt that he’d try to substitute his judgment for the JC’s.
If there were some kind of major internal scandal (if the disqualification were the result of bribery is an obvious but extreme one) then maybe things would change. But I think it would take something big.
Of course I haven’t talked to him. I’d be curious to know where he thinks he’s getting his orders from right now.
Comment by Boalt Student — July 10, 2006 @ 7:10 pm
Just becuase the plaintiff has the burden of proof to show the interpretation of the bylaws/constitution doesn’t mean that defendants can’t offer up their own interpretation. It would be the smart thing for them to do so.
For example, when a guy brings a lawsuit because another guy patented his invention and guy1 says he invented it, guy1 has the burden to show that he evidence that invented it. Guy2 does not have to affirmatively prove that guy2 invented it and has the right to patent it, he just has to show that guy1 can’t prove guy1 invtnted it. But it’s a good idea for guy2 to have affirmative evidence anyway.
Comment by N — July 10, 2006 @ 8:39 pm
One of the documents submitted by Gabriel’s side states that Gabriel was not even a party to Ratto vs. Vakil, and that because of this Gabriel shouldn’t have been disqualified as a result of that trial.
But wasn’t Gabriel disqualified on account of having fairly obviously lied during that trial?
Comment by ed — July 10, 2006 @ 10:33 pm
ed (re:#13), if Oren had lied during the trial, there would need to be separate contempt proceedings on Oren, or so the argument from his attorneys would go. Also, I’m not sure disqualification would be a remedy allowed as the case wouldn’t be considered under election by-laws but under regular judicial procedure. I don’t know what the remedy is then.
Comment by J Koo — July 10, 2006 @ 11:07 pm
Suken Vakil is the one who lied, but Vakil did so as a party signatory, meaning he was speaking for all of Student Action including Gabriel.
Comment by Jim Fung — July 10, 2006 @ 11:08 pm
oren is attractive, he seems well-off, and is smart and popular. i guess u cant have everything in life. just grow up and accept it already. ur no longer president!
Comment by Anonymous — July 10, 2006 @ 11:34 pm
wait, he was never president to begin with…..
Comment by Anonymous — July 11, 2006 @ 1:28 am
Who is the Ed from comment 13?
Comment by Ed Martinez — July 11, 2006 @ 8:21 am
Not me.
Comment by Eddy Crochetiere — July 11, 2006 @ 10:00 am
oren is smart? unlike his brother, then, apparently.
Comment by mano — July 11, 2006 @ 11:49 am
ed lam?
Comment by RepBast1984 — July 11, 2006 @ 12:49 pm
Mano:
Yeah, that’s why older gabriel is at Harvard law and was a finalist for the University medal… and you’re posting on calstuff
.
Obviously I’m biased, but I think the facts speak for themselves.
Comment by Anonymous — July 11, 2006 @ 4:12 pm
Isn’t it obvious why Mano hates the Gabriels, though they’re smarter and more accomplished than he could ever aspire to be?
http://www.discoverthenetwork.org/individualProfile.asp?indid=1610
Comment by Bhanu Singh — July 11, 2006 @ 4:21 pm
Nothing commands the respect of your fellow citizens more than being a lawyer.
Comment by Beetle — July 11, 2006 @ 4:25 pm
I’ll actually defend Mano on this one. Berkeley graduate school is probably more difficult than Harvard law school. Despite popualr culture, Harvard law school is easy and they have a pass/fail grading scale. No one at Harvard law school studies.
Comment by Anonymity — July 11, 2006 @ 4:37 pm
Anonymity–great thinking.
I like how you bring up the important point of DIFFICULTY OF ADMISSION to Harvard Law.
At most top schools, people coast.
Comment by Bhanu Singh — July 11, 2006 @ 4:38 pm
#25 is correct. The Harvard name may sound impressive to the average person, but getting a PhD in a science program at Berkeley is many orders of magnitude mor intellecutally challenging than any law school anywhere. And I’m sure that Jesse Gabriel wastes plenty of time on stuff that makes calstuff look important in comparison.
also they still have the picture of snehal.
Comment by chet (CEO) — July 11, 2006 @ 4:50 pm
i dont know jesses brother oren, other than the dick moves he is pulling with student action. i stand by my comments on jesse based on my personal interactions with the man, he never seemed very bright… you know, the kind of perfect bovine political stock that get groomed for public office…
Comment by mano — July 11, 2006 @ 4:53 pm
Well I know Oren, and I can tell you the guy’s smart and dedicated. And I’ll admit this lawsuit doesn’t seem like a move he’d pull, at least not at this point in the course of affairs.
Comment by jlmay — July 11, 2006 @ 5:13 pm
both those brothers are very intelligent guys. there’s no need for ad hominum attacks, people are acting so childish over this shit.
Comment by anon — July 11, 2006 @ 5:52 pm
See, either they’re idiots, or lying assholes using their super-genius to manipulate and intimidate the ASUC. We’re just being charitable by calling them idiots.
Comment by Beetle — July 11, 2006 @ 5:56 pm
i vote for lying a**holes.
Comment by chet (CEO) — July 11, 2006 @ 6:44 pm
And, how do the two of you (Beetle and Chet) characterize yourselves?
Comment by sideliner — July 11, 2006 @ 7:26 pm
Law schools ranked in the top 30-100 are actually the toughest law schools. The “top” law schools have made their school easy because they can.
Comment by Anonymity — July 11, 2006 @ 7:55 pm
Actually, Harvard has letter grades. It’s Yale that does the pass/fail scale.
Comment by Curious — July 11, 2006 @ 8:12 pm
And Boalt. Either way, Harvard has a really easy curve I heard.
Comment by Anonymous — July 11, 2006 @ 8:19 pm
Judicial Council: *enforces rules*
SA: “But that means we lose! I’m gonna tell Alameda on you!”
Alameda: *tells Judicial Council it can enforce the rules*
Anyone else miss the days when the administration traipsed all over our civil rights?
Comment by k_radSurFeRboi86 — July 11, 2006 @ 8:35 pm
Tougher schools to get into tend to be easier because their students have already demonstrated their abilities and are much more likely to pass the bar.
Lower ranked schools however have to be cut-throat in order to keep their rate of passage high enough.
Comment by I hate SA — July 11, 2006 @ 9:09 pm
Not with thigns like legacy admisisons and affirmative action.
Comment by Anonymous — July 11, 2006 @ 9:58 pm
I think the childish behavior demonstrates what this whole lawsuit, going back to Andy v. Ratto, is all about: frustrated, seething, anti-SA rage carried out on behalf of their Squelch buddies. SA never had a chance with these guys…
Comment by also anonymous — July 12, 2006 @ 7:30 am
Well, except for not blatantly lying. That was a pretty good chance.
Comment by Beetle — July 12, 2006 @ 10:05 am
If SA never had a chance the Judicial Council could have–would have–kicked them out then.
Comment by captain duh — July 12, 2006 @ 10:59 am
also anonymous–
do please note that none of the SQUELCH!ers are participating in what you call “childish behavior.” And if I had something to say, I’d say it, I don’t need to enlist my “buddies” to post on CalStuff…though I do have a damn intimidating poke. You can cry political ambitions all you want, the case speaks for itself.
Comment by Punch My Ballot — July 12, 2006 @ 11:46 am
im just curious: do the squelch/non-sa candidates actually think they will be in office next year? It just seems like everyone knows deep down that SA will be victorious eventually, but wants to raise a big fuss in the meantime…
Comment by another anonymous poster — July 12, 2006 @ 12:05 pm
I’d just like to see them live up to their campaign promises. I have yet to see any monkeys or intimidating poses on campus.
Comment by jlmay — July 12, 2006 @ 12:13 pm
I agree with another anon poster, the closer SA gets to reclaiming their executive positions, the more personal attacks and anti-SA comments come from the seven people that seem to have a problem with SA
Comment by hey dude — July 12, 2006 @ 12:41 pm
Why does anyone think SA is anywhere close to winning their uphill battle? They haven’t won a decision in any arena since May - two months ago.
Comment by Ben N. — July 12, 2006 @ 12:54 pm
Ben-
Wonder of wonders, miracles of miracles
Comment by RepBast1984 — July 12, 2006 @ 12:59 pm
If we’re counting by identified individuals, it looks like SA has no supporters whatsoever. I would think that those of you who have the courage to stand up for your principles and defend SA would want to let it be known who you are.
Comment by Beetle — July 12, 2006 @ 1:04 pm
I hate SA. That is all.
Comment by chet (CEO) — July 12, 2006 @ 1:07 pm
My bad. If SA never had a chance with the Judicial Council the Council could have–would have–thrown them out in the original hearing. The Council is bending over backwards to accomodate them and if SA is smart they’ll (Manny, Oren) stop antagonizing them.
Comment by captain duh — July 12, 2006 @ 1:31 pm
2 things:
1) How can you expect an equal amount of SA supporters to post on Calstuff, a blog operated by Ben. N and formerly Andy Ratto? I enjoy this blog and visit it frequently, but I KNOW it is completely biased. Imagine a blog operated by Oren and Vishal. It would seem natural that Oren and Vishal’s friends would visit it more frequently than all the Squelch fans. Don’t assume that because SA supporters aren’t posting here doesn’t mean they don’t have many. Just look at the votes.
2) Beetle, you ask others to reveal their identities and yet won’t reveal your own. C’mon, anonymous posting is why calstuff threads are so much fun! So cheer up sporkyroad!
Comment by another anonymous poster — July 12, 2006 @ 3:59 pm
Ah, yes, my double-super-secret identity. If you think it’s a secret you’re just not paying attention.
It’s not a matter of numbers, it’s the fact that, to a person, every SA supporter is afraid of identifying herself. One wouldn’t expect that from a group with any measure of righteousness or justice behind it.
Comment by Beetle — July 12, 2006 @ 4:23 pm
Beetle — let’s not get carried away here. Maybe, well, I just don’t feel like being a name here. I’d do the same if we were talking about Chipotle down on Telegraph. It’s not a lack of righteousness and justice in our basic cause of maintaining the officers that the students actually wanted. I think what you “expect” is…kind of silly.
I admit, it’s not as glamorous as a few friends fighting to bring down the Goliath of student government until it’s finally crippled after dozens of court cases, but we’re up to no evil, I promise.
Comment by also anonymous — July 12, 2006 @ 7:04 pm
Whatever you say, chief.
If you’re worried about the ASUC being crippled by dozens of court cases, you might want to direct your whining to… you know… the folks filing the lawsuits against the ASUC.
Comment by Beetle — July 12, 2006 @ 7:13 pm
I was actually just talking about crippling SA. I’m not THAT dramatic. Chief.
Comment by also anonymous — July 12, 2006 @ 7:25 pm
When is the JC hearing on Saturday?
Comment by Boalt Student — July 12, 2006 @ 7:56 pm
yep, if by “up to no evil” you mean “just being our usual bunch of lying, manipulative, royal assholes to everyone and expecting to get away with it”. nothing wrong with that.
Comment by mano — July 12, 2006 @ 8:05 pm
why doesnt SA have a blog to counteract this
Comment by awef4 — July 13, 2006 @ 3:20 am
They’d have to lie in print. duh.
Comment by captain duh — July 13, 2006 @ 5:39 am
Is SA mounting a serious appeal, or blowing this off?
Comment by Old Fogey — July 13, 2006 @ 11:54 am
They didn’t have any confidence in the internal processes of the ASUC. And then the Court told them they’d have to use them, so they’ve regained confidence. They’ve submitted a witness/evidence list, at least. Briefs are due later today.
Comment by Beetle — July 13, 2006 @ 12:10 pm
do you know how many j-council members will be present?
Comment by another anonymous poster — July 13, 2006 @ 12:28 pm
I heard 7
Comment by hey dude — July 13, 2006 @ 12:35 pm