The Ambiguity Resolution Act

[Viteu Marcianüs]

The Ambiguity Resolution Act

WHEREAS Article XVI, Section 1, of the Organic Law vests the Cort pü Inalt (“Uppermost Cort”), with the judicial power of Talossa.

WHEREAS the Organic Law implies the Uppermost Cort maintains original jurisdiction over all cases, and permits the Cosâ to establish inferior courts as necessary.

WHEREAS Section 9 of Article XVI of the Organic Law vests the power of judicial review upon the Uppermost Cort, and requires the Cort to resolve issues of ambiguity in the Organic Law and statutory laws, interpret the Organic Law and statutory laws, and resolve conflicts between the Organic Law and statutory laws.

WHEREAS no procedure exists for the Government to request the Uppermost Cort to resolve potential ambiguities or conflicts in and between the Organic Law and statutory law.

WHEREAS the Attorney General and other representatives of the State may require guidance from the Uppermost Cort when such circumstance presents itself.

WHEREAS this act does not expand or limit the jurisdiction of the Uppermost Cort, but merely establishes a procedure by which the Uppermost Cort may perform a function. 

THEREFORE, the Ziu, acting pursuant to Article X of the Organic Law hereby amends Section G of el Lexhatx to include:

11. The Secretary of State, Prime Minister, and Attorney General shall have standing to file a Petition for Resolution with the Uppermost Cort to resolve an ambiguity in the Organic Law or such inferior laws that were passed by the Ziu. or provincial governments.

11.1. The individual petitioning the Uppermost Cort under this subsection shall be known as an “Applicant” until such time as the Uppermost Cort agrees to hear the case, and then shall be known as a “Petitioner.”

11.2. The Petition for Resolution may include a proposed interpretation for the Uppermost Cort to adopt, but must state, with specificity, reasons why the Uppermost Cort should adopt the proposed interpretation.

11.2.1. A Petition for Resolution shall not be an appropriate remedy for potential conflicts between National and provincial law, and this statute should not be construed to impact the ability of a party with standing to file suit for perceived inOrgancity of provincial actions, or potential conflicts between national and provincial law. 

11.2.2. A Petition for Resolution shall only be made when there exists an actual case or controversy or bona fide ambiguity, and the Cort shall dismiss a Petition for Resolution for want of an actual question, when the petition seeks an order that is is entirely advisory in nature, and does not involve an actual case or controversy or ambiguity in the law. 

11.3. In the interest of justice and to ensure all arguments are properly presented to the Uppermost Cort, the Secretary of State, Prime Minister, or Attorney General shall have discretion to appoint an individual to offer an alternative viewpoint, regardless of whether they are listed as the Applicant/Petitioner; when the Petition for Resolution directly impacts the interpretation of law as it relates to a specific governmental ministry, the Minister impacted may, at their discretion, appoint an individual to offer an alternative viewpoint; when the Petition for Resolution directly impacts the interpretation of law that will impact the conduct of the Crown or its Royal Officers, the Crown may, at its discretion, appoint an individual to represent an alternative viewpoint; all potential parties described above may be referred to as "interested parties" elsewhere in this statute. 

11.3.1. Such individuals shall be known as a “Special Respondent.”

11.3.2. A Special Respondent may enter the case within ten days of a Petition for Resolution is filed, or, if that time has expired but no later than sixty days, may enter only with leave of the Uppermost Cort. 

11.3.2.1. If, after ten days of filing, but no later than sixty days after filing, no Special Respondent has been appointed, any individual may seek leave of the Cort to intervene as a Special Respondent. The Cort may only grant leave if the intervener can show good cause as to why they should be allowed to proceed.

11.3.2.2. Applicant/Petition may file an Amended Petition for Relief within ten days of the original filing, or, if that time has expired but no later than sixty days, may only file an Amended Petition with leave of the Uppermost Cort. 

11.3.2.3. The period to appoint a Special Respondent shall run from the day after the Petition is filed, or the day after the Amended Petition is filed, including holidays and weekends, whichever is later.

11.3.2.4. Only one Special Respondent may be named at any time, except as provided in 11.3.2.7, and deference shall be given to the first Special Respondent named, but the Cort may allow a Special Respondent subsequently named by another official to replace the named Special Respondent if it can be shown that the official has a bona fide connection to the case, their interest is greater than the party who named the original Special Respondent, and that Petitioner will not suffer undue prejudice by the change. 

11.3.2.5. The Cort shall deny a motion to replace a Special Respondent if the period described above has expired, unless the party can show a good faith reason why the limitation should be set aside, that the Petition will not be prejudiced, and that the interest of the official moving for replacement is substantially greater than the Special Respondent then appointed.  


11.3.2.6. A Special Respondent may consent to their replacement, and the Cort should freely grant leave for that replacement within sixty days of the filing of the original or amended petition, but may deny such a motion if Petitioner can show they would be unduly prejudiced, or if such an action was intended to circumvent the law. 


11.3.2.7. If an interested party that would otherwise have authority to appoint a Special Respondent under this statute makes a motion to appoint a co-Special Respondent no later than ten days after a Special Respondent has been named, the Cort may, at its discretion, grant leave for the co-Special Respondent to represent the interest of that party if that interest party can prove by a preponderance of the evidence that the alternative viewpoint significantly and materially differs from that of then-existing parties, and will not cause the Petitioner or then-existing Special Respondent to suffer undue prejudice; the Cort may, on its own, convert a motion to replace a named Special Respondent into a motion to appoint a co-Special Respondent, and all applicable procedures and standards described in this statute shall be applied, provided that doing so is in the best interest of justice.



11.3.2.8. A motion filed pursuant to 11.3.2.5 shall be addressed immediately and toll any time limitations set-forth in other sections of this statute, until such time as the Cort resolves the motion, at which point the time limitations shall continue to accrue and, if the Cort permits a co-Special Respondent, they shall be subject to the then-existing time limitations described elsewhere in this statute.



11.3.2.9. Petitioner and then-existing Special Respondent may, at their discretion, object the motion to appoint a co-Special Respondent, and shall file such objections no later than three days after the motion has been filed; the interested party seeking a co-Special Respondent shall have the right of filing a rebuttal within two days of objection; opposing parties may file a surrebuttal with leave of the Cort if the interested party's rebuttal raises new arguments not previously made by the original motion within one day of service of the rebuttal.

11.3.2.10. If an opposing party can show by by a preponderance of the evidence that a motion for a co-Special Respondent was made for the primary purpose of delaying litigation, the Cort must deny the motion to appoint a co-Special Respondent, 

11.3.3. A Special Respondent named in the original petition shall be titled “Defendant” until such time as the Uppermost Cort agrees to hear the case or controversy, at which time they shall be titled “Respondent.”


11.3.4. A Special Respondent is subject to all ethical practices and procedures as set forth by the judiciary, and may not simultaneously hold a position in the Chancery or as a sitting justice or judge in any national court of Talossa.

11.3.4.5 No later than ten days after the Uppermost Cort has agreed to hear the Petition for Resolution, any Talossan of voting age may file an amicus curiae brief.

11.3.4.5.1. The Uppermost Cort shall have broad discretion to limit the amount of amici curiae briefs as it deems necessary.

11.3.4.5.2. In proceedings consisting of a Special Respondent, the amicus curiae shall only address issues material to the proceedings that have not been raised by either party, and shall not seek to supplement arguments made by the parties.

11.3.4.5.2.1 Petitioner and Special Respondent may respond to the amicus curiae no later than three days after filing.

11.3.4.5.2.2 The amicus curiae shall not be entitled to file a rebuttal without good cause and leave of the cort.

11.3.4.5.3. In proceedings absent a Special Respondent, the amicus curiae shall only address topics material to the proceeding not previously may addressed but may also, if they so desire, include counter-arguments to the Petitioner.

11.3.4.5.3.1. The Petitioner may, if they choose, respond to that amicus curiae no later than three days after.

11.3.4.5.3.2. The amicus curiae shall not be entitled to file a rebuttal without good cause and leave of the cort.

11.4. A Petition for Resolution shall properly be titled: In the Matter of ________________ (abbreviated to In re: ________________).

11.4.1. Upon hearing the controversy in its entirety, the Uppermost Cort shall issue an order that shall have the binding effect of law equivalent to any other decision decided by the Uppermost Cort.

11.5. The Uppermost Cort may issue a preliminary injunction to prevent the Government or State from taking certain conduct if that conduct could potentially result in criminal charges against individuals performing their duties.

11.5.1. It shall be an affirmative defense for individual acting in their official capacity exercising the responsibilities of their office in accordance with a reasonable understanding of the Organic Law or an inferior law, even if that conduct is found to be contrary to the Organic Law or an inferior law, until such time as the Uppermost Cort agrees to hear the case, issues a preliminary injunction, and/or resolve the controversy.

11.5.1.1. No person shall be held to answer in a court of law or equity for their conduct prior to a preliminary injunction or final order.

(Blue = Initial modification/additions/removals; Green = second set of modification/additions/removals) 

[Ian Plätschisch]

I would prefer if anyone (or at least any MZ) could declare themselves a special respondent and argue their viewpoint if it is not already being argued by a special respondent appointed by the Seneschal, AG, or SoS. These three may all agree on an interpretation and fail to appoint a respondent to argue the other side, or there may be many different possible interpretations.

[Viteu Marcianüs]

Hmmm... That's a fair point. Although I'm loath to open it up to anyone. I'm open to others having the ability, and I wanted to ensure a fair and transparent hearing, but I don't want to grant just anyone standing.

Perhaps a middle ground would be for anyone to have the ability to file an amicua curiae brief within ten days of filing, regardless if a Special Respondent is has been named. In the event a Special Respondent is named, then the amici should limit themselves only to matters not specifically addressed by parties in suit (a la Rule 37 of SCOTUS).

Here's a draft: (btw,this numbering is really confusing me. Please doublecheck it)

11.3.4.5 No later than ten days after the Uppermost Cort has agreed to hear the Petition for Resolution, any Talossan of voting age may file an amicus curiae brief.

11.3.4.5.1. The Uppermost Cort shall have broad discretion to limit the amount of amici curiae briefs as it deems necessary.

11.3.4.5.2. In proceedings consisting of a Special Respondent, the amicus curiae shall only address issues material to the proceedings that have not been raised by either party, and shall not seek to supplement arguments made by the parties.

11.3.4.5.2.1 Petitioner and Special Respondent may respond to the amicus curiae no later than three days after filing.

11.3.4.5.2.2 The amicus curiae shall not be entitled to file a rebuttal without good cause and leave of the cort.

11.3.4.5.3. In proceedings absent a Special Respondent, the amicus curiae shall only address topics material to the proceeding not previously may addressed but may also, if they so desire, include counter-arguments to the Petitioner.

11.3.4.5.3.1. The Petitioner may, if they choose, respond to that amicus curiae no later than three days after.

11.3.4.5.3.2. The amicus curiae shall not be entitled to file a rebuttal without good cause and leave of the cort.

[Viteu Marcianüs]

*note* I'll add the draft addition to the original post if you find it agreeable.

[Sir C. M. Siervicül]

I'm wary of requesting advisory opinions from the courts, for the same reasons that US federal courts are restricted from issuing advisory opinions under the "cases or controversies" clause of the US Constitution. Australian courts do not issue advisory opinions for similar reasons, though I'm aware that practices differ in other common law systems.

[Viteu Marcianüs]

Jul 4, 2017 12:43:58 GMT -6 Sir C. M. Siervicül said:

I'm wary of requesting advisory opinions from the courts, for the same reasons that US federal courts are restricted from issuing advisory opinions under the "cases or controversies" clause of the US Constitution. Australian courts do not issue advisory opinions for similar reasons, though I'm aware that practices differ in other common law systems.

I don't disagree with you. But I think the nature of our parliamentary system allows for some variation. I view this as more of the UC acting a constitutional cort. 

I wanted to limit this to potential cases or controversies. Some, understandably so, questioned the ethics of me filing a suit against the Government. My intention was that this creates an avenue to abrogate any ethical concerns and permit the Cort to step in to resolve a controversy. I'd be open to more restrictive language if you'd like to offer some. (Really, I wanted this to be very narrow but may not have done that successfully.)

[Ian Plätschisch]

In 11.5.1.1 I think you are missing the word "prior"

[Viteu Marcianüs]

Good catch. Fixed it and slightly altered for 11.5.1. Thoughts on 11.3.4.5?

[Ian Plätschisch]

Comments on the amicus curaie section:

-Is the provision allowing the court to limit amici curaie meant to prevent the filing of many duplicative briefs?
-Does the bar on supplementing a respondent's argument disallow amici curaie from addressing arguments neglected by the respondent but which still support the respondent's viewpoint (i.e. must amici curaie argue for an entirely different viewpoint than the Respondent)?
-This may already have a legal definition, but I am not a lawyer, so what constitutes "good cause" for an amici curaie to file a rebuttal?

[Viteu Marcianüs]

Jul 5, 2017 10:56:54 GMT -6 Ian Plätschisch said:

Comments on the amicus curaie section:

-Is the provision allowing the court to limit amici curaie meant to prevent the filing of many duplicative briefs?
-Does the bar on supplementing a respondent's argument disallow amici curaie from addressing arguments neglected by the respondent but which still support the respondent's viewpoint (i.e. must amici curaie argue for an entirely different viewpoint than the Respondent)?
-This may already have a legal definition, but I am not a lawyer, so what constitutes "good cause" for an amici curaie to file a rebuttal?

(1) Yes. The Cort should not be overwhelmed because say... eight people want to say the same thing or think they can say it better than the other seven. 

(2) Supplementing is meant to prevent an amici curaie from arguing, in a different way, the same thing that has been argued. This is modeled after SCOTUS's Rule 37. www.law.cornell.edu/rules/supct/rule_37 (I should really just lift the wording) 

I wouldn't say it's arguing an entirely different viewpoint, per se, but bringing in an argument not previously argued by either side. 

(3) Great question about "good cause." That will be something for the Cort to interpret. I wanted to leave it open for the Cort to decide- they could set a standard or do a case-by-case analysis, etc. This is common language in the US system. 

[Glüc da Dhi]

I'm not really a legal expert so I'm not really sure what the implications of this will be.

My main concerm is that it might make us an even more legalistic if we're trying to fix everything via the legal route even if there isn't really a conflict.

I also agree with Ian that maybe more people should be allowed to be special respondents. I worry that this allows the government to challenge laws it doesnt like for organicity without there being anyone to defend them, as the government is not required to appoint someone to defend that point of view. And the proposed amicus curiae alternative doesnt seem to allow for a proper defense, because its much more limiting than for the petitioner. So maybe at least in case of a law being challenged allow someone to represent the ziu. Similarly in the case of provincial laws being challenged, the provincial government should definitely be allowded to appoint a special respondent as well. I also think it might be wise to allow the King to appoint a special respondent. I think the ag is supposed to represent the crown (not sure about that) but obviously the government and the kings interpretation of laws have significantly differed over the years.

On the other hand, why name the PM and the AG separately, instead of just saying government. I dont think the PM and the AG are supposed to have different interest as both represent the government. If there are different opinion, shouldnt the governments policy be defended by the AG, with opposite view maybe being represented by a special respondent?

I'm not really sure what the effects will be of the last two clauses (mostly because I dont fully understand them). "The Uppermost Cort may issue a preliminary injunction to prevent the Government or State from taking certain conduct if that conduct could potentially result in criminal charges against individuals performing their duties. "
When would this apply? I dont really think an honest attempt at interpreting the orglaw by some officer would normally result in criminal charges, but could it potentially? If it could I do still think the CpI should balance the chance of this happen to the practical need of the moment. Could this mean that whenever there a case about an ongoing process like an election or a clark the CpI will intervene to stop the process untill a decision has been made?

[Viteu Marcianüs]

Sorry for not responding sooner - only six days until the bar.

Re: making it too legalistic - I understand your concerns, and others have expressed. Incidentally, last night, while taking a break from bar prep, I found myself reading an article comparing common law and civil law systems, specifically how the decisions by the courts differ. Under the civil law positivist approach, only the legislature makes law; under the common law approach, courts only make law. Talossa is a common law country, but a lot of our citizens come from civil law jurisdictions, so I appreciate that it is foreign to look to the courts to interpret a statute. A further complication presents itself in the nature of our respective judicial systems - the US, UK, and many common law countries utilize the adversarial system, while civil law countries utilize the inquisitorial system. So I think some of the problems that come up here in Talossa fall into reconciling a diverse country where we are used to two very different legal and judiciary systems that can, at times, seem alien.

This statute intends to address one specific issue - if there is an ambiguity in the law or in interpretation of the organic law, provide the government a method to resolve that ambiguity that won't call into question the ethics of a member of government. The question of whether there is an actual case or controversy is one for the court to ultimately resolve, and i'm fine with restrictive language.

As to your other points - I don't think this would be an appropriate method for a provincial law, as the AG could, in theory, just sue the Province in our traditional adversarial system. That said, I am open to the idea of the Ziu being able to appoint someone, but I am loath to say anyone can jump in as a defendant. I am opposed to the King appointing a special respondent. That would be an expansion of his authority and we all know how I feel about that. I am also very much against allowing the King to have any say in legal interpretation (although you brought up an excellent issue - what would happen if the King acted in a way the government perceives as illegal, who represents the government and crown?).

As to why I named the PM, AG, and SOS separately - I figured it would be a form of checks and balance. If the AG files the petition and doesn't think it is necessary to call a SR, the PM or SOS can step in and say, "I think it is and this is the person." That's the only reason for it. I would be open to allowing a representative of another Ministry appoint a SR if the Petition concerns the conduct of that Ministry (including appointment of themselves).

Now to the last two clauses -
The Preliminary Injunction clause is a way for the Cort to prevent conduct that may or may not be illegal. It's not just inorganic acts, but also statutory acts. Take the issue with the EC, and whether the SOS is in the EC or not (although this may not be an issue anymore). "It shall be a criminal act, punishable as determined by law, for the contents of any such vote to be revealed by any member of the Commission to any other person." Org.VI.6. But El Lex (although this likely has changed since the referendum I believe), implied that the SOS was not in the EC. This is an ambiguity and in this suit, the Cort could say, "for now, let's keep the SOS out of the EC, because if we find that he is not in the EC, then the justices would commit a criminal act by revealing classified voting information (although, I concede, by virtue of being SOS, he likely has access to it). This is a remote example.

The Prior Conduct clause only seeks to protect an actor from criminal prosecution or civil liability if they did breach the organic law but their conduct was reasonable due to an ambiguity and prior to the cort telling them to stop. These two clauses are meant to ensure that people aren't held liable for conduct that they honestly and reasonably believe is proper.

[Viteu Marcianüs]

I think we've had a decent discussion with concerns, and I do hope that some people in the middle will support it. If there is specific language that you'd like to see added, modified, or removed, please let me know. Also, if you see any typos, please let me know.

I do plan to clark this for August.

[Viteu Marcianüs]

Alright, I made some edits to the original text. I intended to really narrow when this can be used and to clarify some of the procedural rules concerning time limitations and SRs. I expanded who can be named an SR. I tried to not set any hard-fast rules, but allow for certain actions to become harder as time progresses. Explanations for added sections below.

All changes are in blue.
§ 11 – I removed “provincial governments.” I believe a traditional suit of an AG or citizen with standing is the best form for a challenge.

§ 11.2.1. I added this to address the concern listed above. I think this language limits

§ 11.2.2. I think this narrows it to actual ambiguities or cases or controversies and not merely advisory opinions. Ultimately, this would serve the purpose to allow the government to essentially sue itself to resolve an ambiguity but prevents running to the corts simply because there is a mere disagreement.

§ 11.3 – I added the ability of a Minister directly impacted by a Petition to name a special responded, and for the Crown to name an SR only if it concerns a law that will impact the Crown. I think this is a fair limitation

§ 11.3.2.1. will permit any individual to intervene if they can show good cause. This is intentionally ambiguous so the Cort can determine what good cause to intervene is. They can choose to take a case-by-case approach or set forth legal standards.

§ 11.3.2.2. I realized there should be language about Amended Petitions but it should not be unlimited, and it should also be equitable, so that would reset any time limitations for the SR (see 11.3.2.3)

§ 11.3.2.4. This addresses if more than one SR is appointed. It’s essentially a “first-in-time” approach, but gives the Cort wiggle room when there’s a good reason for a change. (I had in mind that a Petition is filed by A-G, the PM appoints a SR, but it heavily impacts Immigration, and the Immigration Minister can offer a better person to represent their interest. Naturally, I imagine the PM would have consulted with the Imm. Min beforehand but just in case there is a disagreement). Also, I wanted to ensure replacements weren’t used as a tactic, so as time progresses, it becomes harder to do, and should not be allowed if shown that it is intended to circumvent the law (see 11.3.2.6).

[Ian Plätschisch]

I like all of the changes except 11.3.2.4. Shouldn't multiple SRs be allowed if they represent different viewpoints? If only one was allowed, other arguments may be neglected.