*Breaking: DAAP Threatens to Sue J-Council in Federal Court*

Lawyers representing the Defend Affirmative Action Party have notified the Judicial Council that it is their intent to file suit against the council and its individual members in Federal Court. The suit aims to seek “immediate injunctive relief…. to ensure that all the votes cast by students in the recent ASUC election at UC Berkeley are counted and to stop the Judicial Council’s threat to disqualify the Defend Affirmative Action Party.”

Update: There are two different parts to the case.
The First part focuses on the Judicial Council and its role in adjudicating election disputes. DAAP’s lawyers in their letter to the council cite free speech and free association precedents that they say allow students to “further” their free speech rights. DAAP lawyers also cite Storer v. Brown, which they say determines that people are entitled to run for office and vote for candidate of their choice unless the state has a compelling interest.

DAAP’s lawyers then go on to say that these principles were all applied in a recent case that was before the United States District Court for the Central District of California. According to DAAPS’s lawyers, in that case, Welker v. Cicerone, a student running for the position of Senator in the Associated Students of the University of California at Irvine was reinstated to his position after being disqualified by an “unconstitutional election rule.”

The Second Part of the letter focuses on DAAP’s disqualification case that is currently up for deliberation in the J-council. DAAP’s lawyers say that Paul Lafata, the plaintiff in the DAAP disqualification case, is asking the Judicial Council to break all of the fundamental rights described in the first part of DAAP’s letter (Free Speech, Free Association, The Right to Run for Office and Vote for a Candidate of Choice).

They further accuse the J-Council of displaying the “willingness and intention” to accede to Mr. Lafata’s requests.

The letter goes on to talk about why Lafata filed his case against DAAP, namely over the facial expressions Luke Massie was making towards Lafata’s witnesses in the CalSERVE SJP Case and how there are precedents that protect the right of making facial expressions during a judicial hearing.

The letter then goes on to attack the council’s use of a gag order by citing another precedent. At the end the letter says it is DAAP’s intention to seek a temporary restraining order to stop the J-Council’s actions against them and to seek injunctive relief to have all the votes counted.

Analysis:
The Big question here is: Is DAAP really serious about pursing this? I talked to a J-Council member and he/she said that it seemed to be an intimidation tactic but that the council was taking the matter seriously and conferring with ASUC lawyers.

I don’t think the council will back down on this one even if a suit is filed against them. Mike Davis, to whom the letter was addressed to as Chair of the J-Council, has been on the council for four years and has never displayed a penchant for backing down. Yvette's recent attacks on him in the Daily Cal probably didn't help her case.

Is DAAP’s case for real? They have not filed a case yet but could do so very soon. I am not a legal scholar so I can’t professionally attest to the credibility of their claims. But I do have a few observations:

1. DAAP’s lawyers talk a lot about free speech violations and they claim that punishing the entire party over Mr. Massie’s facial expressions is violating Mr. Massie’s free speech rights. The case they cite is from the Federal District Court in South Florida in which the judge struck down the Decorum Rule, which forbade court participants from using their facial expressions to express approval or disapproval. But the charge against Massie is centered on his alleged badgering and threatening of Mr. Lafata’s witnesses and not on whether or not he can make facial expressions expressing his disapproval with proceedings. DAAP will have to prove that Mr. Massie was not threatening anyone with his expressions. This will be difficult to establish as it will be a he said vs. he said argument. Also is the J-Council a real court?

2. Will the court be willing to intervene and force the Elections Council to count the votes? I think it will be very difficult to persuade the court to do this. Parties entered this election knowing full well what the rules were and what the procedures, etc… were for resolving disputes. Unless DAAP can prove that there is some serious constitutional harm being done by not counting the votes before the ASUC’s by-laws allow for the counting of votes the court wont intervene. What evidence can DAAP offer? All they have is the threat of disqualification which they say will disenfranchise voters. However there has been no disqualification yet so they are presuming the disenfranchisement of voters. If they are disqualified it strengthens their case more but they still have to convince a judge that the ASUC’s rules and by-laws regarding elections are unconstitutional and in need of remedy.

Developing…

DAAP's Letter to J-CouncilEmail This Post!