Post by Gödafrïeu Válcadác’h on Jan 24, 2018 15:39:57 GMT -6
What an interesting thread filled with such minutiae of tedious (and necessary) Cort procedure...
First of all, I support the AG's recommendations and conclusions. I also express condolences, should they be applicable, to BenArd in whatever non-Talossa has thrown his way to keep him away from Cort activity for so long.
I also believe an objective reading of everything V has done will point to him acting within the parameters of Talossan law.
Outside the realm of this discussion, I do believe a proper discussion is in order as to how we approach de jure the de facto practice of how we as Talossans approach macronational law. After all, just because something may be legal in Talossa and not in, say, East Side Milwaukee, means it is a good idea to do said thing in East Side Milwaukee.
As I understand it, our colleague, the senator from Maricopa was asked to supervise the investigation, so I hope it is ok if I ask him some questions. Sir C. M. Siervicül In your view, did "the Attorney General act[ s ] within the parameters of Talossan law." ? Was the investigation conducted properly? Do you think the conclusions in the report are the logical result of the investigation?
Would the esteemed Senator be so kind as to clarify the following: is my colleague from Cézembre asking for Senator Siervicül’s legal opinion, or is he accusing, or suspecting, the Attorney-General of some form of misconduct? If so, the entire Senäts should be privy to the Senator’s suspicions.
Post by Magniloqueu Épiqeu da Lhiun on Jan 24, 2018 16:23:24 GMT -6
In that case, as the original sponsor of the bill upon which the current Attorney-General has acted, I can confirm that his actions are in keeping with the legal provisions found in the Lexhatx. But the Senator is welcome to hear Senator Siervicül’s opinion nevertheless.
Post by Sir C. M. Siervicül on Feb 9, 2018 16:50:36 GMT -6
I have serious reservations about the report submitted to the Ziu by the Attorney-General, and cannot concur with the recommendations made therein. My comments will focus on the “Analysis” section of the report.
Paragraph 32 of the report starts with the organic standard for issuing injunctions, but proceeds (in the remainder of the paragraph and in paragraph 33) to survey the law of various common-law jurisdictions regarding advisory opinions, which is something of a non sequitur. An injunction is not an advisory opinion. An advisory opinion is closer to a declaratory judgment, as it merely states what the law is rather than ordering anyone to do anything. Not only does the report fail to address the actual Anglo-American standard for injunctions, it fails to account for the existence of suo motu practice by courts in the common-law jurisdictions of South Asia, which can and does result in injunctions.
More importantly, the report entirely fails to consider whether there is any Talossan precedent on this point (which is important in part because our own jurisprudence has never clearly established the weight to be given to the decisions of any other common-law jurisdiction in Talossan cases). And as I mentioned previously in this thread, I believe relevant precedent exists. Talossan judges have issued preliminary or temporary injunctions on many occasions, and generally do not justify such orders in terms of common-law principles. To the best of my knowledge, there have also been past Talossan cases of 1) judges issuing injunctions on a suo motu basis (though not denominated as such) and 2) judges issuing injunctions against pending legislation. (I'm not sure whether there has ever been a case that fell into both categories, however.) While greater attention and fidelity to the organic standard for injunctions is sorely needed, a judge’s actions that are in accordance with past Talossan judicial practice (as shoddy as that may have been from time to time) strike me as a weak basis for impeachment. We need to clean up the state of the law before punishing judges for failure to abide by it.
Paragraph 34 of the report misrepresents a couple of provisions of Org. Law Article XVI:
First, XVI:6 is not a prohibition against issuing "any order until all evidence has been heard." It merely requires the judge to determine that the prosecution has provided enough evidence to establish a "reasonable chance of obtaining a conviction" before agreeing to hear the case. It's a threshold determination, comparable to a probable cause hearing in other jurisdictions. (Moreover, its applicability to civil proceedings is unclear—and to my knowledge has not been determined by the UC—considering that civil cases do not involve prosecutors or convictions.)
Second, XVI:8 does not prohibit "authoritative decisions without the fullest opportunity for all to be heard on the case" (nor does it "preclude the issuance of authoritative decisions without due process for all parties to be heard on the matter" as stated in paragraph 26). Section 8 merely states that all judges assigned to a case (not parties to the case) must have the opportunity to hear it unless a single judge is assigned to hear the case on his own, and must be read in the context of section 2. Per Org. L. XVI:2(b) and (c), it is the default for a single judge acting alone to serve as a trial judge, but the requirements of XVI:8 must be followed in order for a single judge to hear an appeal. The amendment that merged the magistracy and the UC was hardly a model of clarity (and we vainly expected that the UC would promulgate some kind of rules about assignment of cases to trial judges and selection of appeals panels), but that's how I understood it to work.
Paragraph 34 concludes by arguing that XVI:6 and XVI:8 together with XVI:13 should be read to find a Talossan equivalent of the “cases and controversies” requirement of the US Constitution lurking in the emanations and penumbras (penumbrae) of these sections. Paragraphs 35 and 36 continue to argue that Justice Ardpresteir’s injunction was inorganic because it was issued when there was neither a case or controversy nor a proper request for an advisory opinion. This argument is flawed because, as explained above, XVI:6 and XVI:8 do not mean what paragraph 34 (and paragraph 26) represent them to mean, and the injunction was not in violation of any clear Talossan precedent. Moreover, XVI:13 states that the UC is to be the final arbiter of the organicity of any injunction, so I view it as, at the very least, premature to base a judicial removal on the claimed inorganicity of an injunction when the UC has not so ruled. As for advisory opinions, I have been a vocal advocate of eschewing advisory opinions and adhering to something like the American “cases and controversies” requirement, at least as a matter of judicial economy, but the UC has never found such a mandatory requirement in the OrgLaw.
Paragraph 37 cites intemperate language used by Justice Ardpresteir “in response to Talossans exercising their Organic right to air their grievances publicly.” Of course, Justice Ardpresteir also has an Organic right to air his grievances publicly, so we should tread carefully in taking punitive action against him based on statements made outside of court. I do not think it categorically improper that justices should be held responsible for out-of-court statements, but I do think it important to first provide prior notice of clear standards of conduct. The Bar and the UC need to take the lead in this area. Imposing standards drawn in an ad-hoc and ex post facto manner from standards adopted by other jurisdictions (see, e.g., the citations at footnote 5 in the report) is not the right approach. For one thing, the small and voluntary nature of our community means that we allow our judges to do some things that a judge would never be permitted to do in these other jurisdictions (like serve in the lower house of the national legislature and other offices while sitting on the bench). The report also notes that the individuals targeted by Justice Ardpresteir’s words “can never expect a fair chance to bring a case to the Cort if such a case is assigned to Ben-Ard.” But the only individual directly targeted was a certain Epic da Lhiun, and the history between these two is such that I expect Ardpresteir would already have been obliged to recuse himself from any case to which da Lhiun is a party, and I see no reason to assume that he would not do so (as he has in the past recused himself from cases where he had a personal conflict).
Paragraph 38 accuses Justice Ardpresteir of “contempt for the judiciary of the Kingdom of Talossa, her citizens, her legal institutions, the Organic Law, and the authority bestowed upon him” for defaulting in the case initiated against him and two other justices by the A-G and for failing to respond to the A-G’s investigation. However, as noted, the case was initiated against three justices, and there is no mention of their failure to respond to it. And the orders issued by the other justices are, if anything, more clearly in violation of OrgLaw XVI:2(c) and XVI:8, for the reasons noted by Justice Cjantscheir in relation to Justice Tamoran’s order (although she then proceeded to essentially do the same thing he did). There is no mention of contempt shown by these other justices toward the Talossan judiciary etc. in failing to respond to the pending case.
Paragraph 39.a recommends removing Justice Ardpresteir from the bench under the inactivity clause of Org. Law XVI:1 based on his failure to respond to the action filed by the A-G challenging injunctions issued by various UC justices. However, his inactivity does not appear to be the true reason for this recommendation, because the report does not recommend removal of the other two justices who similarly failed to respond in the very same case (nor does the A-G recommend any removals of justices based on the many other, and more serious, instances of judicial inactivity apart from the ones cited in the bill targeted against Justice Ardpresteir). Rather, the recommendation appears to be using the inactivity clause as a pretext to accomplish a removal on other grounds without meeting the higher 2/3 vote standard of the normal removal clause. This strikes me as extremely dangerous.
Moreover, I agree with the Esteemed Mençei that the inactivity clause is not even applicable in this situation. Its intended purpose is to deal with judicial inactivity--where the absence or inattention of a judge prevents a judicial matter from moving forward. The inactivity of a litigant, by contrast, presents no such issue as long as the presiding judge is available, as it can be addressed via default judgments (a remedy of which the A-G has availed himself in this very case).
In summary, it is my view that the question of whether Justice Ardpresteir’s actions were organic should be determined through the judiciary system. The judiciary system itself provides a remedy for legal error in a decision made by a trial judge. As the report notes, the OrgLaw explicitly provides that the final arbiter of the organicity of an injunction is the UC. Dealing with a legally erroneous ruling by impeaching the judge would be, to say the least, unusual (even in the context of judicial impeachments).
This should be even more true in Talossa than in other nations, because, as noted previously, we are a very small and completely voluntary community, and rely (to speak frankly) on rank amateurs to perform most of our public functions. And in some areas, like judicial stuff (again being perfectly frank) we just don't do a very good job yet and have a lot of learning and maturing to do.
We should be welcoming of people who dare to step beyond their comfort zone in assuming public responsiblities, and charitable when errors are made. Indeed, while errors should be remedied when they are made, they should be viewed as opportunities for system and process improvements rather than for punishment and reprisal. This report is, in my view, just one example of a nation that is becoming excessively punitive and litigious. If we continue to send the signal that those amateur volunteers who stick their necks out will be held to macronational standards and punished if they fail to measure up, it should be no surprise if the chilling effect produced by such an approach further accelerates our descent into inactivity and apathy.
The senator from Vuode is checking in, although he can't seem to find the official Vuodean senatorial stapler. (He's pretty sure he left it in the desk when he last checked out.) The senator from Vuode joins the Chair in thanking S:reu Siervicül for his opinion. The Chair's advice on questions is taken.
It's good to be back.
Trotxâ Betiñéir, UrN Citizen of Vuode Talossa: A nation strong & free, with heraldry.
Post by Avocat-Xheneral on Feb 13, 2018 22:31:38 GMT -6
Let it be known that the Attorney-General, at their discretion pursuant to paragraph 29 of the aforementioned Report and Recommendation, willingly and knowingly submits themselves, for a period not to exceed 36 hours prior to the closing of the Third Clark of the 51st Cosâ, but for final questions to be answered prior to 12 hours of the aforestated date, to resolve any perceived ambiguities or to defend any alleged inaccuracies or to clarify any confusion that derives from the Report and Recommendation, with final inquiries to be submitted no later than eight hours from the last time stated herein. Let it further be known, and as a threshold issue to frame said inquiries, that the Attorney-General shall not submit any conclusions of Law, as was unequivocally stated in paragraph 29 of said Report, and to which, through intentional, reckless, or negligent misrepresentation, has been publicly portrayed elsewhere in this proceeding. The Attorney-General does not waive their discretion to decline to respond certain inquiries, but in the interest of fundamental fairness, and to the extent reasonable, shall acknowledge receipt of said inquiry, and that they decline to answer. Further, the Attorney-General appears only to respond to inquiries in regards to said Report, and to not exceed the subject-matter of said Report.
Finally, in the interest of economic use of time, the Attorney-General shall prefer inquiries to be submitted in group form, or wait a reasonable period of time for sufficient inquires to accumulate, to which to respond in kind, with his willing and knowing stipulation that it shall not be the intent to delay with the purpose evade a meaningful response that will arise from those inquires that necessarily require a response, to be measured against the above enumerated time in favor of the Senate, for those finally inquires that necessitate a response, to be put forth no less than 72 hours measured against the end of the Third Clark of the 51st Cosâ.
Post by Magniloqueu Épiqeu da Lhiun on Feb 15, 2018 6:42:37 GMT -6
Thank you, S:reu Avocat-Xheneral, for appearing so promptly upon the summons. You have raised elsewhere that a summons were not necessary, and that you would make yourself available freely. The Senate thanks you for the offer, but without a formal document issued (either a request to be heard from you to the Senate, or a summons from the Senate to you), you would be barred from speaking in this august House.
Esteemed Avocat-Xheneral, while I appreciate the sentiment of your reply, you are out of order. You have been asked to come here, to render account of your investigation into the Justices in your capacity as the Head of the Ministry of Justice, which is part of the Government that serves King and Country. May I remind you that the Government shall always be under the purview of the Cosă, and indirectly that of the Senate, as well?
Sir, you have come into this hearing setting out rules, and making demands, and refusing to avail yourself as a Public Servant to this Legislative Body of the Kingdom. I know not first-hand, S:reu Avocat-Xheneral, how things are done these days in Talossan Corts, but I believe it is those who exercise authority that also set the rules.
Therefore, without going into the details of whatever your rules were for this hearing, following rules shall be in place until the Senate establishes Standing Orders for Hearings and other procedures within:
1) You shall be asked questions from Senators in whatsoever frequency the Chair may wish to establish, or not to establish.
2) There shall be no time limit for the duration of this questioning, and the Senate shall continue its inquiries until it is satisfied that it has understood the events of the investigation into the Justices, as submitted in the Ministry of Justice's Report and Recommendation.
2) You have twenty-four hours to submit replies to inquiries by this House.
3) You may reply to multiple inquiries within one reply, provided that each inquiry be replied to in a separate paragraph, or otherwise be clearly marked as pertaining unto a specific inquiry.
4) You must reply to any inquiries in full.
5) If you decline to answer any, or all, questions, you must state your reasons for refusing to answer.
6) Your refusal to answer questions pertaining unto your activities as Attorney-General will be remonstrated to the Government and the Seneschal, on the grounds that, as a Public Servant, you must not have the right to refuse to answer questions that are essential to the scrutiny of Government by legislative bodies.
7) The Senate retains the right to amend these rules in any way it sees fit.
For the sake of brevity, and order during the questionings, Senators who do not agree with these interim rules are requested to raise the issue privately. The Chair shall then proceed to recess the questioning, and address the Senator’s objections.
Provided the Attorney-General accepts these conditions, I hereby invite the Senators to ask their questions whenever they wish to do so.
S:reu Attorney-General, I shall start with the first question: As we have seen above, the Senator Sir Siervicül has a lengthy record of issues with your Report and Recommendation. Now, I seem to remember that you appointed that very Senator to oversee the investigation into the Justices as a measure of transparency. Has the good Senator indeed carried out this role, and if yes, to what extent?
Post by Avocat-Xheneral on Feb 15, 2018 7:19:45 GMT -6
Thank you, Mr. Senator. However, I appear only at my discretion, as stated in paragraph 29 of the Report. Your summons lacked a citation to any formal authority, and without such, I fail to see where you derive such authority.
Let me be very frank, Mr. Senator, my parameters were fair and reasonable. I shall not submit myself to the whim of the Senate to be forced to put my life on hold to ensure every question is answered within 24 hours or to be subjected to an onslaught of questions from certain individuals who wish to turn this into some Kangaroo Court. You speak out of turn, Senator.
As such, unfortunately, I now decline to appear until such time as you establish the proper authority to force me to answer inquires, or until such time as we can come to a mutual understanding of parameters.
Post by Magniloqueu Épiqeu da Lhiun on Feb 15, 2018 7:53:17 GMT -6
The Attorney-General, having refused to submit himself to this Senate Hearing, is hereby formally recognised to be in contempt of the Senate, and forthwith excused with protest.
A Public Servant of the Kingdom has declined to appear before the Senate to render account of his actions in official capacity. The Senate shall now debate whether to issue a formal Sense of the Senate, and protest to the Government the refusal of one of their Cabinet Ministers to co-operate with a House of the Ziu.
I understand that this puts our colleague, and Seneschal Lüc da Schir in an awkward position, since he would essentially be reprimanding himself. I am open to other suggestions and alternative solutions by the esteemed Senators. The protest could, for example, be made to the Distain.