Petition for Declarative Relief - Application of 47RZ28

[Lüc da Schir]

PETITION FOR DECLARATIVE RELIEF
re. the APPLICATION OF AMENDMENT 47RZ28
by Senator L. da Schir O.Be, Seneschal, Attorney-General pro tempore


May it please the Cort:

1. The Organic Law of the Kingdom, Article XV, "Amendments to the Organic Law", Section 1, reads as follows:

An amendment to the Organic Law may be made by proclamation by the King where so authorized by:

• A vote of two-thirds in both chambers of the Ziu, and
  
• Approval of the majority of voters participating in a referendum on the question of the amendment no later than during the next scheduled general election following the approval of the Ziu.
  
• 
  Proposed changes to this Organic Law that affect the representation of a province in the Senäts, or of the territory or equal sovereignty of a province, shall only be passed with the approval of a majority of participating voters in that province.

2. Bill 47RZ28, "THE ORGANIC LAW AMENDMENT (Provincial Government) BILL #1 OF 2015", was passed by the Ziu with the required two thirds majority in both Houses, and given Royal Assent.

3. The aforementioned bill was submitted to the population as a referendum and was approved by a majority of voters.

4. His Majesty King John I explicitly refused to proclaim the amendment, proclaiming instead all the other amendments that have been approved in the most recent General Elections.

LEGAL ARGUMENT: PRECEDENT

5. Whilst the Organic Law seems to require an explicit proclamation for every amendment in order for them to have force of law, this particular clause has never been enforced as in fact every successful amendment has been applied with no proclamation issued.

6. If we assume that no explicit proclamation is required for an amendment to take effect, then 47RZ28 should be enforced. In fact, King John did not veto the amendment, he merely refused to issue an explicit proclamation for it. Which brings my argument to point seven.

7. If none of the past amendments have been proclaimed by the King before they took effect, and if 47RZ28 is not enforceable because it has not been proclaimed, then all the other non-proclamated amendments have in fact been enforced illegally and inOrganically.

8. The argument then seems to be if the King's proclamation of an amendment is necessary or merely symbolic in order for an amendment to take effect. Looking at past cases where amendments have been enforced without an explicit proclamation, I would argue that under well-affirmed precedent 47RZ28 should be enforced regardless of the King's refusal to issue an explicit proclamation for it.

REMEDIES REQUESTED

Therefore, we ask the Cort to declare that the Amendment 47RZ28, "THE ORGANIC LAW AMENDMENT (Provincial Government) BILL #1 OF 2015", having satisfied both criteria to take effect, is fully enforceable and the Organic Law is accordingly amended where prescribed by the aforementioned bill.

[Owen Edwards]

The Cort receives the injunction request. Given the case is R v R, and a dispute between branches of government, I will take the acting Attorney-General as the representative of His Majesty's Government. The executive branch (i.e. the Monarch, not his appointed government) may appoint a representative or appear themselves. Given His Majesty's current active status, the Cort sets a deadline of 2359 BST on Friday for the defence to indicate its intentions as to representation.

[King John]

If it please the Cort, the Crown (not exactly "the defence") will be represented by S:reu Cresti Siervicül.

— John R

[Owen Edwards]

The Cort recognizes Sir Cresti as representing the party most plainly enjoined against; I trust the language now satisfies the Crown, that it may desist from glib remarks. The Cort is not beyond holding the Crown in contempt.

The Cort has decided to hear the petition as a three person bench. The membership is being finalised. I will update the Cort on Monday or Tuesday (unless matters are confirmed beforehand).

[Sir C. M. Siervicül]

Jun 6, 2015 1:30:39 GMT -6 Owen Edwards said:

The Cort recognizes Sir Cresti as representing the party most plainly enjoined against; I trust the language now satisfies the Crown, that it may desist from glib remarks. The Cort is not beyond holding the Crown in contempt.

The Cort has decided to hear the petition as a three person bench. The membership is being finalised. I will update the Cort on Monday or Tuesday (unless matters are confirmed beforehand).

Your Honour,

I have a couple of questions before we get too far down the road here.

First, hasn't everyone forgotten about Lexhatx G.5 (assignment of cases by the Clerk of Court)? This may be a mere formality, but it seems curious that there has not even been any acknowledgment of the process of assigning cases through the Clerk, or an explanation of why the government has bypassed it here, given that not too long ago the government took the position that it was unable to move forward with any court cases until the then-inactive Clerk was removed and replaced.

Second, why has the Cort decided to hear the petition as a three-person bench? Assuming that 47RZ39 is effective, OrgLaw XVI:2 provides for cases to be tried by a single justice serving as trial judge, with appeals heard by a quorum of three justices, and the trial judge serving on the appellate panel only if no other justice is available to fill a quorum.

[Dr. Txec dal Nordselvă]

The Cort has decided with full consensus of all five justices that in cases where the interpretation of Organic Law is in question, a three member panel of justices should sit. In civil/criminal cases, a single justice will be assigned and any appeals will be heard by a three member panel.

Accordingly, the Cort has assigned Puisne Justices Cjantscheir, Edwards, and dal Nordselvă, with Justice Edwards as the Chair of the panel. The Cort will address the questions posed to it by Counsel at its earliest opportunity.

[Owen Edwards]

To answer your other question as to the Clerk of Courts - injunctions and petitions have traditionally been received without the intermediary of the Clerk of Corts, as you will know. The Cort takes this case to be no different.

[Owen Edwards]

Let's get this moving. The Bench calls for any motions and amicus curiae filings (as we take no other party to be enjoined but the Royal Household), with a fortnight's deadline from today - so 2359BST on the 17th July 2015.

EDIT: Typo.

[Sir C. M. Siervicül]

Your Honour,

Jun 11, 2015 4:30:08 GMT -6 Owen Edwards said:

To answer your other question as to the Clerk of Courts - injunctions and petitions have traditionally been received without the intermediary of the Clerk of Corts, as you will know. The Cort takes this case to be no different.

Respectfully, I would submit that petitions for injunctive or declaratory relief traditionally have been filed through the Clerk. The exceptions have generally been requests for temporary or preliminary injunctions, issued on an emergency (and often ex parte) basis in contemplation of a permanent resolution through a normal case filed with the Clerk. Ex parte requests for temporary injunctions (to the extent they constitute good precedent for anything) would seem to constitute bad precedent for this petition, which is a primary rather than derivative action and requests permanent declaratory relief. I don't know that it makes much difference here--at this point I think it would be a waste of time to move that the petition be dismissed based merely on the non-involvement of the Clerk--but it would be unfortunate to see our practices and procedures in this area become even more muddled than they already are.

Jul 2, 2015 18:03:21 GMT -6 Owen Edwards said:

Let's get this moving. The Bench calls for any motions and amicus curiae filings (as we take no other party to be enjoined by the Royal Household), with a fortnight's deadline from today - so 2359BST on the 17th July 2015.

Acknowledged. Fair warning, though: I am traveling out of state with limited internet access through late on 10 July, and expect to have a lot of catching up to do in the office during the following week. So if the respondent has a motion to make, I may have to request an extension of the above deadline.

[Owen Edwards]

As to your first point, it strikes/reminds me that creating (either by statute or by internal administrative fiat) an order book would be very helpful as part of the clarificatory process.

So noted as to the potential need for an extension.

[Sir C. M. Siervicül]

Your Honour,

Since I last posted in this thread, I've had little time for Talossa except on a smartphone, which I've found unsatisfactory for motion drafting. I respectfully request an extension of the motion deadline to 22 July 2015.

[Dr. Txec dal Nordselvă]

The Cort notes that the deadline for motions has expired. When can this Cort expect to receive motions?

[Magniloqueu Épiqeu da Lhiun]

I humbly offer my apologies to the Justices Owen Edwards, Dr. Txec dal Nordselvă, as I explain that I must have misread Justice Edward's order from the 3rd of July, 2015, which indeed seems to also call for filings of amici curiae.

Requesting this Cort's leave, I wish to file such a brief amici curiae (note that here, "amici" is the genitive singular of "amicus") in support of the petitioners.

[Dr. Txec dal Nordselvă]

The Cort takes the request under advisement and in the meantime invites the brief to be filed without specifically allowing or disallowing an extension of the deadline at this time.

[Dr. Txec dal Nordselvă]

This Cort extends for a period of seven days (until August 5, 2015 at 8:00 AM Pacific Time) the deadline to file any briefs or motions from respondents or amicus briefs. This is the final extension of time. After seven days, the Cort will no longer entertain delays or extensions and will rule as necessary should the case arise.

Order entered on July 29, 2015 at 7:44 am Pacific Time.

Signed by Justices Cjantscheir and Nordselvă.