. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A supplement to Beetle Beat, because long documents are a pain to read indented.

Thursday, January 15, 2009
Moghtader Charge Sheet

Request for an Expedited Hearing:

The ASUC Senate has already set an impending date for a recall election. I request that the Judicial Council consider this issue even before considering further practical issues regarding the recall election, as an election will not be impending if the Council rules that the petition does not meet constitutional requirements, as I argue below.

Request for Direct Judgment and Restraining Order against ASUC Senate:

On December 3, 2008, Nathan Schaffer presented the ASUC with a petition to recall Senator John Moghtader. At its meeting December 10, 2008, the ASUC Senate accepted the petition and set January 26-27 as the dates for a recall election. As I will explain in more detail below, this petition was constitutionally invalid because it did not contain a "specific statement of the reasons for the proposed removal." I am now asking the Judicial Council to rule the petition void and enjoin the ASUC from holding an election based on it.

The Petition

The petition text is as follows:
"We, the undersigned students of the University of California at Berkeley, affirm the Campus Principles of Community. In particular, we enumerate our unwavering belief in the following:

• We affirm the dignity of all individuals and strive to uphold a just community in which discrimination and hate are not tolerated.

• We are committed to ensuring freedom of expression and dialogue that elicits the full spectrum of views held by our varied communities.

• We respect the differences as well as the commonalities that bring us together and call for civility and respect in our personal interactions.

"We find Senator John Moghtader's presence in the ASUC Senate to be inimical to these principles, his behavior in and out of the Senate during the past several months to be inconsistent with and at times in direct breach of them. We believe that he has persistently acted in a way that silences those who espouse views different from his own and creates an atmosphere that undermines the physical safety of students. We therefore do not believe that he is an appropriate representative of the student body in the ASUC, and we call for his recall."

Motives for the recall petition

The petition and recall effort is nothing more than a politically and ideologically motivated attack against me, Senator John Moghtader. I am the outspoken president and co-founder of Tikvah: Students for Israel, the largest and most active pro-Israel student organization at UC Berkeley. As reported in the Daily Cal, the idea for the petition and recall originated from Yaman Salahi, a leader in Cal’s chapter of Students for Justice in Palestine. Nathan Shaffer, the law student now leading the recall effort, is a member of Students for Justice in Palestine from the University of Pittsburgh. They are trying to eliminate my voice- and the students I speak for- from the student government. This petition seeks to punish me for nothing more than my beliefs and intimidate other pro-Israel students who share those beliefs.

Those behind this petition have accused me of various things through emails to student groups, blogs, message boards, Facebook, and more. None of them are true. They are seeking to gain support for this baseless campaign by spreading outrageous falsehoods and smearing my name.

Those seeking to eliminate my voice from the Senate make specific- although outrageous and false- claims about me behind the scenes and on the Internet, but the petition itself is deliberately vague to help foster and sustain the sense that I have done inappropriate things. The petition is not specific or explicit because there is nothing to be specific or explicit about.

I have not-and will not be- charged with anything, nor was I ever cited. I have never violated the Code of Student Conduct, nor have I shirked on any of my responsibilities as a Senator. All I have done is fulfilled my duties as a Senator and served the pro-Israel community as president of Tikvah: Students for Israel.

Because of the malicious lies being spread about me and the ideological motivations for this effort, the Anti-Defamation League is investigating the petition and recall effort for anti-Semitism.

If the vote were to go forward, the ASUC would be wasting thousands and thousands of dollars and setting a very dangerous precedent. It would be a disgrace to the ASUC and a blatant affront to justice. Outrageous sums of students’ money would be spent on a recall election for an elected official who is the victim of an ideological attack in its most grotesque form- trying to squash a point of view by eliminating those who represent it.

Fortunately for the student body, the recall petition must be voided because the reasons for removal are not specific.

The Requirement of Specificity

The ASUC constitution contains a requirement that a recall petition include a "specific statement of the reasons for the proposed removal." What does "specific" mean? State recall election law can offer some guidance. It suggests that "naked assertions" are not enough, facts must be supplied.

Because recall elections are expensive, disruptive, a potential means for harassing properly elected officials, and generally unnecessary, the vast majority of states (32 out of 50) do not allow recall elections under any circumstances. Of the 18 states that permit recall elections, 7 seek to limit such elections by requiring that recall petitions contain a "specific" statement of reasons, just like the ASUC requires.

South Dakota is one such state. Its law, which has been tested several times, requires that the "petition shall contain a specific statement of the grounds on which removal is sought."
In the most relevant case for our purposes, the Attorney General of South Dakota released an official opinion regarding the specificity of a petition to recall the mayor of New Underwood, South Dakota.

The petition stated the following as grounds for removal:
"Since his election to the post of Mayor in May, 1982, 'Lynn' Oliff has exhibited personality characteristics inconsistent with the office of Mayor in that Mr. Oliff has on a continuing basis harassed and intimidated residents of New Underwood contrary to the best interests of these residents and of the community."
The petition thus offers two separate reasons. The first is that the mayor has personality characteristics unbefitting of his post, and secondly, that he has harassed and intimidated residents of New Underwood.

The Attorney General of South Dakota ruled the reasons given were not sufficiently specific, writing
"[T]he grounds relied upon in the New Underwood petition are general, not specific. It claims the mayor possesses negative 'personality characteristics' without identifying what they are. Further, the petition alleges the mayor has harassed and intimidated the residents of the city but does not describe how or when that was accomplished. Such naked assertions simply do not satisfy the statutory requirement."

Lack of Specificity in the Recall Petition

The petition text appears to put forward three reasons for recalling Senator Moghtader. As in the New Underwood petition, all of these reasons are "naked assertions" without specific facts.

The first is that the petitioners "find John Moghtader's presence in the ASUC Senate is inimical to [the principles enumerated above], his behavior in and out of the Senate during the past several months to be inconsistent with and at times in direct breach of them." This, of course, is not a specific reason. The text does not describe any particular behavior that is inconsistent with or in breach of any of the principles they set out. In fact, it claims that the Senator’s mere existence ("presence") in the Senate is somehow a violation.

The second is that the petitioners "believe" Moghtader has "persistently acted in a way that silences" opponents. Again, the text does not include even one specific case in which Senator Moghtader acted in a way to silence opponents, let alone a series of specific examples that would constitute "persistently" acting that way.

The third reason is that petitioners "believe" Moghtader has persistently acted in a way that "creates an atmosphere that undermines physical safety of students." Again, this is not a specific reason. The text doesn’t say when or how Senator Moghtader created such an atmosphere, for instance, because no such specifics actually exist. The text, like the New Underwood petition, is devoid of any specifics whatsoever.

In short, both the New Underwood and this petition cite vague personality shortcomings and of the targeted elected official without identifying precisely what they are. The mayor of Underwood supposedly has personality traits unbecoming of a mayor, but the petition text doesn’t say what they are. Moghtader’s mere presence, according to the authors of the petition, has supposedly violated a set of general principles, but the text doesn’t point out how.

And both petitions make unspecified claims about the behavior of the elected official. For the mayor of Underwood it’s his harassment and intimidation of residents. For Moghtader it’s his behavior that violates a set of principles, actions that silence opponents and actions that create an atmosphere that undermines safety.

Regarding the petition against the mayor of Underwood, the Attorney General of South Dakota ruled that to meet the specificity requirement, these allegations must include a description of "how or when" such behavior was accomplished. Because the petition against Moghtader does not include a description of how or when he engaged in any of the behavior it accuses him of, The Judicial Council ought to reach the same result.


The recall petition’s use of vague innuendos rather than specific facts about my behavior suggests that the recall campaign against me is simply crude political harassment designed to punish me for my pro-Israel views, rather than anything to do with my performance in office. Enforcing the "specific reasons" requirement will force the recall petitioners to either (a) replace these innuendos with factual assertions that I can seek to counter or (b) give up their effort, which is currently imposing large and unfair costs on the student community.

There is a reason that the language in the Constitution says "specific reasons" as opposed to, for example, just "reasons." That distinction is not unintentional. It is a check on the otherwise unregulated recall process that could- in the absence of such a clause- serve as a vehicle for political or ideological attacks exactly like the one currently facing the ASUC.

Shaffer will not be able to produce convincing specific reasons for a recall, because there are none. I have not shirked any of my responsibilities, nor have I been in any legal trouble whatsoever. Requiring the recall petitioner to cite specific reasons for removal could thus make the difference between having a recall election and not, which is a crucial point for the judicial council to consider.

Especially given the politically charged nature of the ASUC, and the Berkeley campus in general, it is essential to protect students against ideological attacks like this one. Why exactly should Senator Moghtader be recalled? What specifically has he done? How and when has he acted in a way that merits removal? These questions must be clearly and specifically answered in the petition text. Otherwise, 1,000 signatures from students who want an elected official removed, for no reasons other than political, ideological, or personal disagreements, will lead to a massive waste of students’ time and money and a huge embarrassment for the entire student government and judicial system. Fortunately, the judicial council has the power to guard against this.

posted by Beetle Aurora Drake 2:56 PM #

. . .

. . .