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.

The post ASUC Judicial Council nullifies health and wellness referendum appeared first on The Daily Californian.

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.

The post Judicial Council considers divestment bill’s constitutionality appeared first on The Daily Californian.

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.

The post ASUC Judicial Council rescinds decision on divestment bill settlement appeared first on The Daily Californian.

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.

The post Settlement of charges against divestment bill SB 160 to remove major clauses appeared first on The Daily Californian.

This is only the latest petition filed against Landgraf alleging constitutional bylaw violations arising from his use of the executive order. Two other charges were filed previously, the most recent of which was rejected by the ASUC Judicial Council before it could go to trial.

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

Landgraf issued the executive order that placed the health and wellness referendum on the ASUC election ballot in late March. He utilized the executive order after the referendum, which institutes a student fee to build new recreational facilities, was submitted too late for the ASUC Senate to vote to place it on the ballot by the filing deadline.

Landgraf said that he doesn’t expect Jackson’s charges to stand because individuals need to file lawsuits within seven days of an election.

“It’s frustrating because it’s been 42 days since I issued the executive order, so I don’t understand why it’s being filed,” Landgraf said.

Similar charges were filed last week by Cooperative Movement Senator Jorge Pacheco alleging that Landgraf “overstepped his authority” and “damaged the integrity and process of the Spring 2013 ASUC elections” by filing the executive order.

The Judicial Council ultimately voted to reject Pacheco’s petition, claiming that “the petitioners had delayed and/or interfered with the judicial process.”

Jackson’s petition argues that the Judicial Council should uphold the ASUC’s democratic process by overturning Landgraf’s executive order.

There are some, however, who claim that Jackson’s lawsuit bears a striking resemblance to Pacheco’s.

“I don’t think there’s any merit to (Jackson’s) lawsuit since it basically rehashes many of the same arguments that Pacheco used,” said ASUC Attorney General Hinh Tran.

Conner Nannini, the campaign manager for the health and wellness referendum, said he suspects that Pacheco may have been involved in the creation of Jackson’s lawsuit.

“It seems like the text from Jackson’s legal brief is 90 percent the same as the text used in Pacheco’s arguments,” Nannini said. “It won’t surprise me if Pacheco is using Jackson as a proxy for making the same arguments.”

Pacheco firmly rejected this assertion, claiming that it is natural that Jackson’s lawsuit would resemble his.

“My legal brief was widely distributed, so it’s not surprising that this new lawsuit is really similar to mine,” Pacheco said.

For Pacheco, however, it is not about winning or losing.

“I hope (Jackson’s) lawsuit is successful, but even if it isn’t, at least we raised awareness about the judicial process and the systematic abuse of the constitution,” Pacheco said. “The fact that so many charges have been filed means this is not an isolated incident but a recurring problem.”

According to Tran, the Judicial Council will decide in one to two days if Jackson’s lawsuit merits a trial.

Contact Jason Liu at jliu@dailycal.org

The post Health and wellness referendum may face further charges appeared first on The Daily Californian.

Former external affairs vice president Joey Freeman and former SQUELCH! senator Noah Ickowitz, a former columnist for The Daily Californian, have jointly filed charges alleging that the ASUC Senate violated the ASUC Constitution in its passage of SB 160.

Ickowitz and Freeman filed the petition early Friday afternoon, and it is currently pending review. The charges, if accepted, would lead to a trial addressing the alleged violations of SB 160.

“I strongly believe the ASUC should follow the correct procedures in passing these bills,” Ickowitz said. “Because SB 160 has such an intense conversation around it, to not follow the procedures does a disservice to the campus.”

The root of the charges lies with the language of the bill, which Ickowitz said “presupposes that the bill has the authority to restrict spending and funding without having gone through appropriate channels.”

The charges begin with the fact that the bill was not passed with a two-thirds senate majority, which the ASUC Constitution states is required for deliberations regarding ASUC financial appropriations or revenue reductions.

They also argue that the bill “restricted” the ASUC’s investment practices, a responsibility that lies with the Investment Committee and requires consent from the Constitutional and Procedural Review Committee. The bill, with its “commanding” language, oversteps these bodies and “overextends the powers of the ASUC Senate without due process,” Ickowitz said.

In the charges, Ickowitz and Freeman suggest that SB 160 be sent back to the senate for a two-thirds vote to either follow or suspend the bylaws requiring review by these committees.

Before filing, Ickowitz and Freeman notified Student Action Senator George Kadifa and independent Senator Sadia Saifuddin, author and sponsor of SB 160, respectively, of their intent to petition the bill.

“I’m disappointed that the students who brought the charges didn’t bring these up earlier,” Kadifa said. “I’m a little curious, now that the bill has passed, why they’re bringing this up now. If the petition is accepted, we would rewrite the bill to ensure there are no violations.”

The petition has joined other suits that the ASUC Judicial Council must review in the coming weeks, including charges against Safeena Mecklai, a Student Action senator and external affairs vice president-elect.

ASUC Attorney General Hinh Tran said Ickowitz and Freeman raised some “interesting points,” noting that both of them have a “strong understanding of ASUC policies.” Tran said that should the petition be accepted and litigation begin, a trial would hopefully be scheduled before the end of the semester — if not, it might be held during the summer session.

Ickowitz said he felt that there was a “high likelihood the charges will be accepted,” emphasizing that the arguments were made on legal rather than ideological grounds. However, he did note that ideology was part of the impetus for filing.

Ickowitz pointed to the charges filed by Cooperative Movement Senator Jorge Pacheco and Student Action Senator Mihir Deo against ASUC President Connor Landgraf’s executive order to place the health and wellness referendum on the ballot as an example of people filing “that which is relevant to them.”

Notably, the senators did not charge the Class Pass referendum, even though it allegedly violated the same bylaws as the health and wellness referendum.

“When people sue over legislation, it’s not at all out of the ordinary that legislation is relevant to them,” Ickowitz said. “It’s also coupled with relevance to me and my community.”

View the petition evidence below:

Contact Sophie Ho at sho@dailycal.org.

Correction(s):
A previous version of this article incorrectly identified the petition as a charge sheet.

The post Charges allege senate violated constitution in passing divestment bill appeared first on The Daily Californian.

After an initial settlement, charges against ASUC President Connor Landgraf’s executive order that put the health and wellness referendum on the spring 2013 ballot have been refiled.

Cooperative Movement Senator Jorge Pacheco opted to reopen the case against Landgraf around noon Thursday and said he filed the new charges around 6:30 p.m. The new charges request that the ASUC Judicial Council overturn Landgraf’s executive order, an action that would effectively annul the referendum.

The health and wellness referendum seeks to use student funds to build new fitness and wellness centers on campus.

The student body passed the health and wellness referendum by a slim margin in a vote of 6836-6139.

In his legal briefs, Pacheco argues that Landgraf “overstepped his authority” and “damaged the integrity and process of the Spring 2013 ASUC Elections,” and he asks the Judicial Council to “restore the balance of power of the ASUC infringed by (Landgraf’s executive order).”

The new charges come shortly after Landgraf received a letter from Pacheco offering to settle the case if Landgraf agreed not to veto the controversial divestment bill SB 160, which passed in the senate 11-9.

The original charges against Landgraf, which were filed by Student Action Senator Mihir Deo jointly with Pacheco, were dropped when the Judicial Council threw out a proposed settlement between the two parties. This original settlement included concessions that the new center have two trained physical therapists and two disabled students on its advisory board. The agreement borne from those settlement negotiations will still be part of the referendum.

Deo said that he and Pacheco had very different reasons for filing the original charges against Landgraf’s executive order. While Deo sought to secure additional concessions for the new fitness centers favored by the disabled community, Pacheco was concerned about the constitutionality of the way the referendum was put on the ballot. The memorandum of understanding does not address issues of constitutionality but did meet Deo’s demands.

ASUC Attorney General Hinh Tran says that he is confident Landgraf would prevail in court should the case go to trial.

Contact Jeremy Gordon at jgordon@dailycal.org.

The post Senator refiles charges regarding health and wellness referendum appeared first on The Daily Californian.

Landgraf said he received the letter, written by Cooperative Movement Senator Jorge Pacheco, around 4 p.m. Tuesday. In the letter, Pacheco stated that he would settle the suit against Landgraf’s executive order to put the health and wellness referendum on the spring 2013 ballot if Landgraf opted not to veto SB 160. A settlement was ultimately reached on the suit against Landgraf’s executive order around 5:30 p.m. that day.

Landgraf said that he had already made the decision not to veto SB 160 at the time Pacheco slipped the handwritten letter into his office. Landgraf communicated in a text message to Pacheco that he was “disappointed and shocked” by the letter and immediately sent it to ASUC Attorney General Hinh Tran to make it clear that Landgraf’s decision regarding SB 160 was not influenced by Pacheco’s offer.

“By not vetoing, I will settle,” the letter reads. “You should make this decision on your own conscience, but this is something I will do if you stand behind your senators and demonstrate everything that would appease any and all of my concerns.”

Pacheco and Student Action Senator Mihir Deo are the original filers of the suit against Landgraf. Deo, however, said he was not aware of the letter and was taken aback when he heard about it.

“When I saw (the letter), I thought I was personally taken for a fool,” Deo said. “The fact that he used something important to all students to leverage a political opinion of his was very disappointing and unacceptable.”

The settlement followed previous indication that Pacheco was ready to take the suit to trial.

Tran said in an email that “while President Landgraf and I did attempt to negotiate a settlement that would address Senator Pacheco’s concerns, he indicated to us that he would only be satisfied by an annulment of the referendum.”

Pacheco said he did not seek to exert political capital to influence Landgraf’s decision.

According to Pacheco, the letter to Landgraf was simply an effort to explain his thoughts on SB 160, and he was not trying to influence the president’s decision on whether to veto the bill.

“I’m not trying to say that settling wouldn’t happen if he vetoed,” Pacheco said. “I just wanted to engage a conversation of executive authority, and that’s basically it. Connor wouldn’t let that affect his decision.”

Tran said that his office is still looking into the legality of such a letter and that it may violate a bylaw. He was not aware of a precedent for this sort of situation.

Read the full text of the letter below:

Contact Jeremy Gordon at jgordon@dailycal.org.

The post ASUC senator sends letter offering Landgraf deal for no veto appeared first on The Daily Californian.

The results of the referendum were initially held after ASUC Senators Mihir Deo and Jorge “Cheko” Pacheco filed a petition alleging that ASUC President Connor Landgraf unconstitutionally placed the measure on the ballot.

“Now that the Health and Wellness Referendum has been tabulated, and the results released, I hope the Senators will respect the will of the students of our university, and withdraw their petition to overturn this voter-approved referendum,” said ASUC Attorney General Hinh Tran in an email.

While the results have been released, the Judicial Council will rule on the constitutionality of the referendum at a trial this Thursday.

Deo said he has been considering a variety of options, including the possibility of a settlement. Though the details of a settlement remain unclear, Deo said that ideally, an agreement would include more accommodations for disabled students in the proposed center.

“I’m making sure that no stone is unturned,” he said.

The measure initially sparked controversy after Landgraf issued an executive order to put the measure on the ballot instead of submitting the language to the senate. Landgraf said he employed the executive order because of delays on the part of the UC Office of the President.

If the health and wellness referendum is deemed constitutional, as it currently stands, the measure will finance the construction of the Wellness Center as well as a new Memorial Stadium Fitness Center. It would also eliminate the RecSports membership fee of $10 per semester.

A new fee would begin in fall 2013 at an initial level of $40 per semester and would increase at regular intervals over the next 10 years.

Curan Mehra is the executive news editor. Contact him at cmehra@dailycal.org.

Correction(s):
A previous version of this story indicated that the Judicial Council will consider the constitutionality of the Health and Wellness referendum. In fact, the Judicial Council will consider the constitutionality of the executive order that placed the measure on the ballot.

The post Injunction against Health and Wellness referendum lifted appeared first on The Daily Californian.

ASUC President Connor Landgraf placed the referendum — which, if passed, would finance a new Wellness Center along with a new Memorial Stadium Fitness Center — on the ballot via executive order. The charge, filed by senators who allege that Landgraf’s executive order was not constitutional, aims to place a preliminary injunction on the referendum.

The injunction would suspend the release of the referendum results until the ASUC Judicial Council resolves the matter and would seek to nullify Landgraf’s executive order that placed the referendum on the ballot, Pacheco said. Because results of the election are contingent on the outcome of the hearing, the petition also calls for an expedited hearing.

Landgraf, however, contends that the executive order was necessary for the referendum to let students “have a voice in the democratic process.” Landgraf utilized the executive order after the referendums were submitted too late for the ASUC Senate to vote to place them on the ballot by the filing deadline.

The charge states that placing the referendum through executive order on the ballot was not “necessary to maintain the functioning of the ASUC until the Senate can again meet,” a requirement for executive orders set in the ASUC Constitution.

Deo said he did not file charges against the Class Pass referendum — which was similarly placed on the ballot by executive order — because he said he believes that referendum was “necessary for students, whereas creating a new gym is not something of urgent need.”

ASUC Attorney General Hinh Tran, who will be representing Landgraf in the hearing, said he disagreed with Deo in the interpretation of the executive order’s constitutionality.

“I think the constitution defines it broadly in order for the executive order to be used in a variety of unpredictable situations,” Tran said. “It is, to a degree, intentionally vague.”

Additionally, UC Berkeley senior and campaign manager for the referendum Conner Nannini expressed concerned about how the charges may affect student needs by not updating recreational facilities.

“(The RSF’s) facilities don’t serve disabled students, and there are only two machines that someone in a wheelchair can use,” Nannini said. “A consulting firm did an audit of the RSF and found that it only meets 33 to 50 percent of student demand. Facilities and group exercise classes are overcrowded and often oversubscribed.”

Nannini opposed the charge, contending that nullifying the referendum would be unfair because “it eliminates choice from Berkeley’s student population.”

Deo, on the other hand, added that regardless of the charge’s result, he hoped the senate would look into a revision of the constitution for the next senate term to ensure that such incidents do not occur again.

Contact Yvonne Ng at ygn@dailycal.org.

Clarification(s):
A previous version of this article may have implied that it was the ASUC Senate’s fault that the Class Pass and the Health and Wellness referendums were not voted on in time for the filing deadline. In fact, the referendums were submitted too late for the senate to meet the filing deadline.

The post ASUC senators file charges against Landgraf’s executive order appeared first on The Daily Californian.