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ASUC Judicial Council nullifies health and wellness referendum

Jeremy Gordon — Thu, 16 May 2013 02:43:44 +0000

The ASUC Judicial Council nullified the student-approved health and wellness referendum Tuesday when justices decided that the referendum was put on the ballot in an unconstitutional manner.

The decision on Jackson v. Landgraf to overturn the health and wellness referendum was founded in the argument that ASUC President Connor Landgraf overstepped his presidential authority by using an executive order to get the referendum on the spring 2013 election ballot after the established filing date.

Associate Justice Scott Lara expressed concern that students only had 18 days to become properly informed about a referendum that would initially cost each student $40 per semester, a cost that would rise until reaching a maximum $287 per semester from 2042-46. The ASUC bylaws state that the president may only issue executive orders that are “necessary to maintain the functioning of the ASUC until the Senate can meet again.”

The justices believed that the circumstances surrounding the referendum did not require an immediate solution.

“Problems that only deal with the comfort of the student body, such as a larger area to work out or newer machines, cannot be an urgent problem that the Executive Order can be used to solve,” reads the decision.

Only five of the nine Judicial Council justices participated in the decision. Chief Justice Suneeta Israni was not involved. No member of the Judicial Council could be reached for comment on this story.

The constitutionality of another executive order that Landgraf issued to ensure students’ continued unlimited access to AC Transit bus passes — the Class Pass — was not challenged.

Attorney General Hinh Tran, who represented the ASUC in the case and defended the referendum’s constitutionality, took issue with the procedures of the case. He said that the decision was made in summary judgment — a tactic usually reserved for the necessity of expediency — which allows the justices to make a private decision without hearing oral argument. Additionally, Tran said that the decision was made public only one minute before the deadline for an appeal.

“(The Judicial Council’s opinion) does not address the arguments I made in the trial briefs,” Tran said.

Student Action Senator Mihir Deo, who played a major role in including language in the referendum that would serve the needs of disabled students, concurred that the executive order was unconstitutional but said that the council did not consider external factors that caused Landgraf to miss the filing deadline.

“I feel that this is one of those situations where you withhold something unconstitutional, but you’re also withholding democracy a little bit as well,” Deo said.

The health and wellness referendum has already been placed on the 2014 ballot, giving students close to a year to weigh the benefits of new facilities against the fee increases that would pay for them.

Contact Jeremy Gordon at jgordon@dailycal.org.

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Judicial Council finds Landgraf’s executive order unconstitutional

Matt Trejo — Wed, 15 May 2013 00:44:04 +0000

The ASUC Judicial Council found ASUC President Connor Landgraf’s use of an executive order in the recent ASUC elections unconstitutional on Tuesday, nullifying the health and wellness referendum, which would use student funds to build new fitness and wellness centers on campus.

Devonte Jackson, campus organizing director for the external affairs vice president’s office, filed the petition against Landgraf on May 1, claiming that Landgraf missed a constitutionally mandated deadline for issuing the executive order that placed the referendum on the ballot. The council ruled in Jackson’s favor, saying that Landgraf’s use of an executive order was “neither urgent nor necessary to the functioning of the ASUC,” according to the Judicial Council’s summary brief.

“We believe it goes against the spirit of the ASUC Constitution to allow the decision of one student place a fee referendum on the ballot when the Constitution and Bylaws have explicitly set out deadlines that were missed,” according to the brief.

According to the text of the ASUC Constitution, the president is vested with the authority “To direct by Executive Order the taking of actions which are urgent and necessary to maintain the functioning of the A. S.U.C. until the Senate can again meet.”

More updates to follow.

Jackson v Landgraf Official Judicial Council Summary Judgment (PDF)Jackson v Landgraf Official Judicial Council Summary Judgment (Text)

Contact Matt Trejo at mtrejo@dailycal.org.

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ASUC Judicial Council finds Mecklai not guilty of bylaw violations

Jacob Brown — Tue, 14 May 2013 22:50:18 +0000

The ASUC Judicial Council has found External Affairs Vice President-elect Safeena Mecklai not guilty of alleged bylaw violations due to a lack of sufficient evidence in an opinion released Tuesday.

CalSERVE Elections Coordinator Anais LaVoie filed five charges against Mecklai in April for distribution of campaign literature in residence halls, solicitation in the dining commons and explicit disobedience of residence hall staff directives.

LaVoie accused Mecklai of cheating, citing that the “margin of victory in her election can plausibly be enumerated as the number of votes gained through illegal campaigning.”

Four of the five petitions against Mecklai were dismissed by the council due to insufficient evidence and witness testimonies. The council then reviewed Mecklai in a hearing on May 2 for one charge of solicitation in the dining commons of a resident hall and evaluated an oral and written testimony from resident assistant Jasmine Verret.

According to the opinion, the written testimony from Verret cited Mecklai “not campaigning but definitely soliciting” multiple tables of students in Cafe 3.

However, while the written testimony suggested multiple incidents of solicitation, Verret’s oral testimony only referenced one specific incident, and the council therefore ruled that the witness’s collective testimony did not meet “the standard of clear and convincing evidence.”

The council chose to evaluate case evidence individually rather than holistically because four of the charges were dismissed before the hearing. Although the evidence presented appeared to “establish a pattern of intent,” the council ultimately ruled that the evidence against Mecklai was insufficient in charging her and found her not guilty on all five charges.

If the council had taken a holistic approach, the opinion states that there would have been “sufficient evidence and testimony to charge (Mecklai) with at least, but not limited to one censure.”

“While I’m disappointed that we lost the case by such a close ruling of 5 to 3, I’m confident that the act of pursuing elections violations this year will clean up elections in the future,” LaVoie said in an email.

Mecklai said she felt relieved by the results of the trial.

“I’m glad it’s over, and I’m trying to keep my head up,” Mecklai said. “I’ve always said that I’m not a partisan person, and I want to maintain that and not let this affect that going forward.”

LaVoie v Mecklai Official Judicial Council Direct Judgment (PDF)

LaVoie v Mecklai Official Judicial Council Direct Judgment (Text)

Contact Jacob Brown at jbrown@dailycal.org. Contact Jennie Yoon at jyoon@dailycal.org

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Judicial Council considers divestment bill’s constitutionality

Matt Trejo — Thu, 09 May 2013 04:53:57 +0000

The ASUC Judicial Council heard oral arguments Wednesday in a case regarding the controversial divestment bill, SB 160.

The council heard the case, Ickowitz-Freeman v. ASUC Senate & SB 160, at Anna Head Alumnae Hall Wednesday morning. Petitioners Noah Ickowitz, SQUELCH! party chair and a former Daily Cal columnist, and Joey Freeman, former external affairs vice president, allege that the bill’s passage was unconstitutional because it legislated investments, did not pass through the ASUC’s investment committee and did not obtain the two-thirds majority required to approve investment legislation.

CalSERVE Senator Nolan Pack argued for the defense, saying that SB 160 makes no changes to the budget and therefore does not fall under the investment committee’s purview. He also said that SB 160 leaves the ASUC’s revenue sources unaltered. If this is true, the bill’s passage would be constitutional.

On Friday, the Judicial Council approved a settlement agreement to the case that would remove language from the bill, making the passage constitutional. On Saturday, however, the Judicial Council backtracked on that decision, deciding instead that the settlement was invalid.

ASUC Attorney General Hinh Tran agrees with the petitioners that the bill’s passage was unconstitutional and decided not to represent the ASUC Senate in this particular case despite the attorney general’s traditional role of doing so.

“The settlement would have produced a constitutional SB 160,” Tran said. “I determined personally that there are parts of SB 160, as is, that are unconstitutional because the ASUC intended that anything finance-related would require a two-thirds vote in order for the ASUC to divest.”

SB 160 was originally passed on April 18 by a vote of 11 in favor and nine against after 10 hours of debate that continued through the night and into the following day.

Pack — in place of Tran — argued for the constitutionality of the bill’s passage.

However, despite the procedural nature of the case, both sides felt their personal beliefs on divestment were being brought into the debate, raising questions about whether individual values will influence the justices.

“A significant part of the defense’s arguments were personal attacks on the plaintiffs rather than arguments against legal claims that the plaintiffs were making,” Ickowitz said. “Personally, I felt that they harped on one of the violations I was asserting but briefly addressed the others.”

Pack said, however, that this is not about Israel or Palestine but about upholding the integrity of decisions made by the ASUC.

“I hope that the Judicial Council upholds the legislative decision of the senate to support SB 160 rather than affirming arguments that aim to use judicial council to achieve a legislative goal,” he said.

The Judicial Council declined to comment on this story.

Click here for a video of Ickowitz’s statement.

Contact Matt Trejo at mtrejo@dailycal.org.

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Gag order lifted on divestment settlement case

Shirin Ghaffary — Tue, 07 May 2013 23:38:19 +0000

The ASUC Judicial Council lifted its gag order on a case regarding the settlement of charges against controversial senate bill SB 160 on Tuesday.

SB 160 divests ASUC funds from companies affiliated with the Israeli military. The Judicial Council originally issued the gag order around 8 p.m. Saturday evening, demanding silence on the case from all parties involved. The gag order came after the ASUC rescinded its previous decision to approve a settlement of charges against SB 160 that removed any clauses that required the ASUC to divest its funds.

“While the judicial procedures allow for a gag order to be placed any time, I believe that their reason was not sufficient to overstep the First Amendment of the U.S. Constitution,” said Noah Ickowitz, a petitioner in the case, SQUELCH! party chair and a former Daily Cal columnist.

In an email obtained by The Daily Californian, Associate Justice Scott Lara thanked all parties involved for their patience during the gag order and stated that currently, “the confusion about trial procedure and the judicial process between the parties has largely been cleared up.”

Members of the ASUC Judicial Council could not be reached for comment as of 4:30 p.m.

On Friday, the Judicial Council voted in favor of a settlement between the petitioners and the bill’s author, Student Action Senator George Kadifa. The settlement would have removed clauses that petitioners had said were unconstitutional. Petitioners alleged that the bill had not been approved by the appropriate ASUC committees and was not passed by the necessary two-thirds vote. Two ASUC officials, who spoke on condition of anonymity because of the gag order, were sharply critical — even angered — at what they called the council’s freehanded use of the gag orders, which the officials said was an overreach of the council’s authority.

The original charges will now go to trial, and the Judicial Council will rule on their validity. The trial for Ickowitz-Freeman v. ASUC Senate & SB 160 is scheduled for Wednesday at 11 a.m. at a location to be determined.

UPDATE at 6:12 pm: The trial will be held at Anna Head Hall and is open to members of the public.

Staff writer Jeremy Gordon contributed to this report.

Contact Shirin Ghaffary at newsdesk@dailycal.org

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ASUC Judicial Council rescinds decision on divestment bill settlement

Jeremy Gordon — Mon, 06 May 2013 06:46:21 +0000

The ASUC Judicial Council backtracked on its previous decision to approve a settlement of charges against controversial divestment bill SB 160 on Saturday.

On Friday, the Judicial Council voted in favor of the settlement, which would have removed clauses that petitioners had said were unconstitutional. They alleged that the bill had not been approved by the appropriate ASUC committees and was not passed by the necessary two-thirds vote.

The settlement removed any clauses that required the ASUC to divest its funds from companies associated with the Israeli military. The Judicial Council’s latest decision means the parts of the bill that were removed will be restored.

The original charges will now go to trial, and the Judicial Council will rule on the validity of the charges. The trial is scheduled for Wednesday at 11 a.m. at a location to be determined.

In an email obtained by The Daily Californian, Judicial Council Chief Justice Suneeta Israni said the settlement was reversed because the negotiators did not have the authority to modify a previously passed bill. According to the email, the original decision to accept the settlement was based on the impression that 11 senators officially voted to pass the post-settlement version of the bill. In reality, that figure came only from a straw poll taken by ASUC Attorney General Hinh Tran, the chief negotiator in the settlement, to gauge support for reaching the settlement.

The Judicial Council issued a gag order around 8 p.m. Saturday, demanding silence on the case from all parties involved. Last Monday, the Council also issued a gag order on the case surrounding alleged election law violations by External Affairs Vice President-elect Safeena Mecklai. According to a high-ranking official within the ASUC, who spoke on condition of anonymity for fear of disciplinary action, gag orders have traditionally only been used to protect witnesses and defendants from possibly injurious information before a decision has been made.

However, the Judicial Council’s Rules of Procedure do not clarify or limit the circumstances under which the Council can issue such an order.

Two ASUC officials, who spoke on condition of anonymity because of the gag order, were sharply critical — even angered — at what they called the Council’s freehanded use of the gag orders, which the officials said was an overreach of the Council’s authority.

In an email sent to Israni before the gag order took effect, SQUELCH! party chair and former Daily Cal columnist Noah Ickowitz expressed his displeasure with the Judicial Council’s handling of the case as well as the decision to rescind the settlement.

“I need to express my deep sadness in both your procedure and transparency,” Ickowitz told Israni in the email. “The whirlwind of having so many verdicts in the span of 24 hours has taken a toll on me and I believe has tarnished my vision of a system I used to appreciate.”

Neither Israni nor Associate Justice Stephanie Chamberlain could be reached for comment for this story.

Like with the case surrounding the health and wellness referendum, the Judicial Council planned to decide the SB 160 case by summary judgement, in which the council can make a decision without the participation of involved parties and without hearing oral argument. According to the Rules of Procedure, the council may issue a summary judgement “in the extreme event the Council does not believe a hearing will provide any substance to the controversy brought to its attention.”

The council eventually reversed its intention to issue a summary judgement, reverting to the original plan to hold a trial.

Contact Jeremy Gordon at jgordon@dailycal.org.

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ASUC Senate bill aims to provide campus dance groups more practice spaces

Jennie Yoon — Mon, 06 May 2013 04:41:49 +0000

A bill proposed to the ASUC Senate aims to support the dance community on the UC Berkeley campus.

The bill, SB 213, is sponsored by Student Action Senator Rosemary Hua and Student Action Senator-elect Lauren Week and will help dance groups on campus find spaces to practice. Hua, a dancer herself, hopes the bill will raise awareness of the issue.

“Hopefully, with this bill we’re showing the school that there’s a huge need (for practice space),” Hua said. “Our community is suffering.”

According to Hua, there are more than 15 dance groups on campus, encompassing approximately 600 students. Primarily, these groups hold practice on Lower Sproul, in front of Haas Pavilion and in Hearst Gym.

However, scheduling time for the spaces in Hearst Gym is often complicated, said Week, and with Lower Sproul closing this year for construction, available dance spaces will be increasingly difficult to find.

“Currently, dance groups have been forced to dance in the parking structures underneath the RSF and Underhill Field, which is dirty and unsafe, especially at night when most of our groups practice,” said Week in an email. “This is why SB 213 is so crucial.”

Hua negotiated a $33,000 contract with Recreational Sports Director Michael Weinberger to open up Strawberry Canyon Recreational Area for dancers during the current school year.

Weinberger said that working with the ASUC has been a great experience and that Rec Sports would be willing to continue working with the dance community as long as the ASUC can continue to supply funding.

“We’re very much willing to continue (the contract),” Weinberger said. “We just need to cover staffing. That’s where the money is going.”

Despite the addition of Strawberry Canyon, some members of the dance community still expressed concern about finding sufficient practice spaces. Although Strawberry Canyon has been helpful in alleviating the problem of limited space, Berkeley Ballroom member Caitlyn Keith said it can be difficult and inconvenient for larger dance groups to find transportation to Strawberry Canyon, and space is still limited for all dance groups.

Hua said she hopes the bill and the agreement made with Rec Sports will foster a positive relationship between the campus and the dance community.

“I’m hoping that this bill will also show the Rec Center that we’re thankful for what’s happening,” Hua said.

SB 213 will be discussed in the senate’s external committee on Monday then voted on during Wednesday’s senate meeting.

Contact Jennie Yoon at jyoon@dailycal.org.

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Gag order lifted on Mecklai case for alleged bylaw violations

Jacob Brown — Sun, 05 May 2013 22:49:13 +0000

The ASUC Judicial Council has lifted the gag and restraining orders placed on the investigation of External Affairs Vice President-elect Safeena Mecklai for alleged bylaw violations.

The gag and restraining orders were lifted on Saturday. Previously, Mecklai, along with CalSERVE Elections Coordinator Anais LaVoie — who filed the charges — and all other witnesses named in the petition, could not publicly comment on the investigation or its proceedings. On Saturday, the Judicial Council voted to remove the restrictions.

According to the Judicial Council’s rules of procedure, “a Gag Order may be issued by any Justice at any time a Justice believes the situation merits such an order. Once a Gag Order has been issued, the parties involved with the matter may not discuss the matter publicly, or with individuals not directly involved in the matter.”

In April, LaVoie filed charges against Mecklai alleging she violated ASUC Constitution bylaws during the recent ASUC elections. The charges include explicit disobedience of residence hall staff directives, distribution of campaign literature in the residence halls, solicitation in the dining commons and solicitation in the residence halls, according to the hearing brief.

LaVoie asked that the Judicial Council assign Mecklai 15 campaign censures, which would disqualify her from holding office as ASUC external affairs vice president.

Contact Jacob Brown at jbrown@dailycal.org

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Judicial Council accepts petition filed against health and wellness referendum

Jason Liu — Sun, 05 May 2013 00:54:27 +0000

The ASUC Judicial Council has voted to accept a petition filed against ASUC President Connor Landgraf for his use of an executive order to place the health and wellness referendum on the ballot in the recent ASUC election.

The Judicial Council also announced it will not hold a hearing because of the timing and nature of this case but will instead issue a summary judgment.

“I’m not surprised that the Judicial Council accepted the petition, since they also accepted the original petition filed a couple of weeks ago,” said ASUC Attorney General Hinh Tran. “It’s unfortunate that the council will not allow both sides to vigorously debate, but I respect its decision.”

ASUC President Connor Landgraf is optimistic that the council will uphold his executive order despite the absence of a hearing.

“In the past, it seems like those who have accused me of violating the constitution have been poorly organized during these debates,” Landgraf said. “So it’s not a big deal that the council decided not to hold any hearings.”

Devonte Jackson, campus organizing director for the Office of the External Affairs Vice President, filed the petition against Landgraf on Wednesday, claiming that Landgraf missed a constitutionally mandated deadline for issuing the executive order that placed the referendum on the ballot.

People who have challenged Landgraf’s use of the executive order welcomed the decision.

“I thought that this was the best possible outcome, because I believe the council is interested in questioning the constitutional legitimacy of Landgraf’s executive order,” said Cooperative Movement Senator Jorge Pacheco, who filed a similar petition against Landgraf in the past. “Regardless of who wins the case, I’m happy that the council is respecting and embracing the judicial process.”

The possibility of a settlement remains open if both parties reach an agreement by Tuesday at 5 p.m.

Contact Shirin Ghaffary and Jason Liu at newsdesk@dailycal.org.

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Settlement of charges against divestment bill SB 160 to remove major clauses

Jeremy Gordon — Fri, 03 May 2013 05:35:12 +0000

Charges that questioned the constitutionality of controversial divestment bill SB 160 were settled Thursday morning when an agreement removing a significant portion of the bill was reached.

The settlement calls for the removal of clauses in SB 160 that dealt with ASUC investments and appropriations. It effectively thwarts the ASUC’s effort to divest its own funds from companies involved in Israel’s alleged “human rights abuses” against Palestinians, leaving a purely symbolic piece of legislation that requests similar divestment by the UC Regents.

The charges that brought about the settlement claimed that the bill was not approved by the proper committees and should have been passed by a two-thirds vote instead of a simple majority.

“I think SB 160 has lost a lot of weight through this settlement,” said Noah Ickowitz, SQUELCH! party chair and a former columnist for The Daily Californian. “The bill that passed is now a completely different bill once these clauses are stricken. It loses almost all its authority. I hope the public understands that this is no longer ASUC divestment.”

Chancellor Robert Birgeneau said in a public statement that the passage of SB 160 would in no way affect the investment policies of the university.

The settlement, which is pending approval by the Judicial Council, was reached between Attorney General Hinh Tran — representing the ASUC — and Ickowitz and former external affairs vice president Joey Freeman. Tran, who was tasked with defending the ASUC in the matter, conceded the legitimacy of the constitutionally grounded charges against SB 160 but added that in his opinion, the charges did not have enough merit to warrant nullifying the bill.

“It’s a sign on cooperation and compromise on a very difficult bill,” Tran said.

Student Action Senator George Kadifa, who authored the bill, disagreed that the settlement watered down the bill in any way, emphasizing that the purpose of the bill has been largely symbolic since its inception.

“The settlement changes very, very little about the bill,” Kadifa said. “A part of the reason (we were willing to compromise) was that the ASUC wasn’t invested in any of these companies. That wasn’t the main focus. All language calling for the UC Regents to divest is still in the bill.”

While the settlement represented a compromise between the parties involved, it was not necessarily a consensus of the affected communities.

Despite being on the opposite side of the divestment debate, Jewish Student Union President Daphna Torbati agreed that the settlement did not really change the essence of the original bill.

“Although this is definitely a change in the right direction, these changes are largely inconsequential, as the bill still contains the same sentiments that ignore much of the Israeli narrative,” she said.

Both Tran and Ickowitz said they believe that the settlement reflects an important ability to compromise on an issue that has been divisive. They echoed a sentiment similar to that of ASUC President Connor Landgraf when he announced that he would not veto the bill in an effort to expedite the campus’s healing process.

“Not going through a hearing definitely helps campus climate,” Ickowitz said. “We really don’t need a trial right now, and the settlement avoided a big public spectacle. I’m sure there are people in both communities left unsatisfied, but in this case, I’m sure it was the right decision.”

Contact Jeremy Gordon at jgordon@dailycal.org.

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