An Act to Remove Béneditsch Ardpresteir

[Viteu Marcianüs]

WHEREAS, in the first instance, on November 3, 2017, Béneditsch Ardpresteir, as a Pusine Justice of the Uppermost Cort of Talossa, issued a suo moto injunction; 

WHEREAS, soon thereafter, other justices intervened to nullify the previous injunction; 

WHEREAS, on November 6, 2017, the Attorney General requested leave to intervene and be heard on the matter; 

WHEREAS, as of January 5, 2018, sixty ("60") days has elapsed from when the Attorney General requested leave to be heard on the matter, and throughout that duration, the Béneditsch Ardpresteir failed to appear or act;

WHEREAS, the case remains an open case in which Béneditsch Ardpresteir is a judge and a participant; 

WHEREAS, in the second instance, on December 27, 2017, the Ministry of Justice, having concluded the investigation into the conduct and actions of Béneditsch Ardpresteir, issued a report and recommendation to the Ziu pursuant to Lex.D.2.5.1;

WHEREAS, said report identified an civil action commenced on November 7, 2017 by the Ministry of Justice against Béneditsch Ardpresteir, in his official capacity as a Justice of the Uppermost Cort of the Kingdom of Talossa and based on the aforementioned suo moto order issued in performing his official duties as a justce, which sought relief that would require Béneditsch Ardpresteir to engage in certain official conduct as a Justice of the Uppermost Cort;

WHEREAS, on November 14, 2017, the Uppermost Cort of the Kingdom of Talossa instructed all parties to answer within a set period of time;

WHEREAS, that time having expired, and Béneditsch Ardpresteir having failed to appear before the Cort, on December 16, 2017, the Cort entered default judgment in favor of the Attorney General;

WHEREAS, Béneditsch Ardpresteir currently sits as a justice of the Uppermost Cort; and

WHEREAS, upon the passage of January 13, 2018, said justice failed to appear in an open case in which he was a participant, as instructed by the Cort, within sixty (“60”) days, measured from November 14, 2017.

THEREFORE, pursuant to the Organic Law of the Kingdom of Talossa art. XVI § 1, the Ziu is empowered to remove a justice who fails to appear in an open case in which they are a participant involved by a simple majority vote of each house;

BE IT RESOLVED, that sixty (“60”) days having expired from when the Attorney General sought leave to intervene in the action described in the first instance without Béneditsch Ardpresteir appearing or acting in an open case in which he is  a judge and is a participant; and that sixty ("60") days having expired from commencement of the aforementioned action in the second instance,  the Ziu hereby removes Béneditsch Ardpresteir for failure to appear and for failure to act in cases in which he was a participant and/or a judge/justice, in violation of the Organic Law.



Uréu q'estadra så:
Viteu Marcianüs, Attorney General (FreeDem-MC)
__________
For immediate debate and to be submitted to the Feburary Clark as written. 

[Miestrâ Schivâ, UrN]

From the Shoutbox:

Hearing about medical examination, Sreu: Ardpresteir is not really well. I may have to leave active participation in the Kingdom for the next few days, months or more till he recovers. I know you'll all remember him in your prayers. Thanks. BenArd.

If the elder Ardpresteir is really ill - and this isn't just an excuse for BenArd to run for it - I express my heartiest condolences.

[Gödafrïeu Válcadác’h]

As do I.

[Magniloqueu Épiqeu da Lhiun]

It astounds me that the Attorney-General, having been admitted to the RTB and other macronational bars, should read Org:XVI.1 in a manner that contains such a blatant disregard for the Article’s internal provisions, and spirit.

Org.XVI:1 states

The judicial power of Talossa shall be vested in one Cort pü Inalt, in English the Uppermost Cort, and in such inferior courts as the Cosâ may from time to time establish. The judges of the Cort pü Inalt and any inferior courts shall be elected in accordance with Article XVI, Section 4, and shall hold their offices for life (or until resignation), and may be removed by either a two-thirds vote in the Cosâ with approval by the King and the Senäts or due to inactivity as defined by failure to act, rule, or appear in an open case the justice is assigned to or participating in for more than 60 days, as certified by the Ziu in a majority vote. (47RZ39)

While this act states clearly, as you say, that failure to participate, or appear in an open case, for more than 60 days, results in the removal of a judge, it also states clearly that the failure must occur in a judge whereunto a case was assigned or wherein a judge was participating. S:reu Béneditsch Ardpresteir was, in the case you cite, not a judge, and therefore, this act is not applicable in that particular case unto him. The cited act explicitly pertains unto judges, and unto negligence within their duties as judges.

This act is therefore inorganic as it stands.

[Viteu Marcianüs]

Jan 24, 2018 16:21:48 GMT -6 Magniloqueu Épiqeu da Lhiun said:

It astounds me that the Attorney-General, having been admitted to the RTB and other macronational bars, should read Org:XVI.1 in a manner that contains such a blatant disregard for the Article’s internal provisions, and spirit.

Org.XVI:1 states

The judicial power of Talossa shall be vested in one Cort pü Inalt, in English the Uppermost Cort, and in such inferior courts as the Cosâ may from time to time establish. The judges of the Cort pü Inalt and any inferior courts shall be elected in accordance with Article XVI, Section 4, and shall hold their offices for life (or until resignation), and may be removed by either a two-thirds vote in the Cosâ with approval by the King and the Senäts or due to inactivity as defined by failure to act, rule, or appear in an open case the justice is assigned to or participating in for more than 60 days, as certified by the Ziu in a majority vote. (47RZ39)

While this act states clearly, as you say, that failure to participate, or appear in an open case, for more than 60 days, results in the removal of a judge, it also states clearly that the failure must occur in a judge whereunto a case was assigned or wherein a judge was participating. S:reu Béneditsch Ardpresteir was, in the case you cite, not a judge, and therefore, this act is not applicable in that particular case unto him. The cited act explicitly pertains unto judges, and unto negligence within their duties as judges.

This act is therefore inorganic as it stands.

Well now that we′re making it personal.

It astounds me that you think you put forth a cogent argument. The operative language is ″as defined by failure to act, rule or appear in an open case the justice is assigned to or participating in … as certified by the Ziu in a majority vote″.

Please explain how a judge who is not assigned to a case can participate in one? Read the rest of the Article XVI, under § 2, any justice may service as a trial judge and an appeal shall be a quorum of three justices. But let′s be fair, right now, our judges volunteer. In that sense, they are assigning themselves. This also goes for an appeal, which requires three judges. Notably, in §8, a single justice may hear a case on appeal with consent of two justices, and that is a special exception where he a single judge can assign him or herself to a case with consent (implied or actual) of other justices to speak for the Uppermost Cort. Thus, the use of ″assigned″ contemplates a judge presiding over a case they were appointed, appointed themselves, or if they are part of the panel on appeal. Thus, we are left with the ″participating″ word, which, taken the rest of the article clearly means a case in which he is a party even if he is not a judge. A justice/judge presiding over a case was, by plain meaning, at some point assigned, whether that was through a clerk or receiving consent from the parties. To put it another way, if, as you suggest, the organic law contemplates only cases where the judge was acting as a judge or justice, then then that renders the ″participating″ language null, which clearly goes against the spirit of the Organic Law.

Thus, the language of the Organic Law does not contemplate that removal only occur if the judge presided over a case, as they can only do that if assigned. It contemplates their failure to appear as a participant in a case, which Ben-Ard was as a named-respondent in his official capacity to answer for his conduct as a judge.

Oh, and let us not ignore the final clause, "as certified by the Ziu." That clearly leaves whether 60 days for failing to appear in a case where a judge is a party named in his official capacity as a judge constitutes failing to appear as a participant to the Ziu. This is one of those few areas where, as the Ziu must certify, their certification will determine the meaning of "participate." The Ziu has exclusive province to determine the proper meaning of "participate", which requires only a simple majority vote if the other criteria are met. 

THIS ACT, AS IT STANDS, IS ORGANIC. 

[Magniloqueu Épiqeu da Lhiun]

Jan 24, 2018 17:04:28 GMT -6 Viteu Marcianüs said:

Jan 24, 2018 16:21:48 GMT -6 Magniloqueu Épiqeu da Lhiun said:

It astounds me that the Attorney-General, having been admitted to the RTB and other macronational bars, should read Org:XVI.1 in a manner that contains such a blatant disregard for the Article’s internal provisions, and spirit.

Org.XVI:1 states While this act states clearly, as you say, that failure to participate, or appear in an open case, for more than 60 days, results in the removal of a judge, it also states clearly that the failure must occur in a judge whereunto a case was assigned or wherein a judge was participating. S:reu Béneditsch Ardpresteir was, in the case you cite, not a judge, and therefore, this act is not applicable in that particular case unto him. The cited act explicitly pertains unto judges, and unto negligence within their duties as judges.

This act is therefore inorganic as it stands.

Well now that we′re making it personal.

It astounds me that you think you put forth a cogent argument. The operative language is ″as defined by failure to act, rule or appear in an open case the justice is assigned to or participating in … as certified by the Ziu in a majority vote″.

Please explain how a judge who is not assigned to a case can participate in one? Read the rest of the Article XVI, under § 2, any justice may service as a trial judge and an appeal shall be a quorum of three justices. But let′s be fair, right now, our judges volunteer. In that sense, they are assigning themselves. This also goes for an appeal, which requires three judges. Notably, in §8, a single justice may hear a case on appeal with consent of two justices, and that is a special exception where he a single judge can assign him or herself to a case with consent (implied or actual) of other justices to speak for the Uppermost Cort. Thus, the use of ″assigned″ contemplates a judge presiding over a case they were appointed, appointed themselves, or if they are part of the panel on appeal. Thus, we are left with the ″participating″ word, which, taken the rest of the article clearly means a case in which he is a party even if he is not a judge. A justice/judge presiding over a case was, by plain meaning, at some point assigned, whether that was through a clerk or receiving consent from the parties. To put it another way, if, as you suggest, the organic law contemplates only cases where the judge was acting as a judge or justice, then then that renders the ″participating″ language null, which clearly goes against the spirit of the Organic Law.

Thus, the language of the Organic Law does not contemplate that removal only occur if the judge presided over a case, as they can only do that if assigned. It contemplates their failure to appear as a participant in a case, which Ben-Ard was as a named-respondent in his official capacity to answer for his conduct as a judge.

Oh, and let us not ignore the final clause, "as certified by the Ziu." That clearly leaves whether 60 days for failing to appear in a case where a judge is a party named in his official capacity as a judge constitutes failing to appear as a participant. This is one of those few areas where, as the Ziu must certify, their certification will determine the meaning of "participate." 

THIS ACT, AS IT STANDS, IS ORGANIC. 

The case your act is alluding unto cites Béneditsch Ardpresteir as a defendant. That is how a judge can participate in a case without being assigned to it; namely not as a judge at all. You are taking Org.XVI:1, which is clearly tailored for judges acting in their capacity as judges, and using it for a judge summoned to court in his capacity as a citizen; not performing the duties of a judge in that courtroom. There is a crucial difference, and if you cannot see that, then I question your judgement.

[Miestrâ Schivâ, UrN]

Jan 24, 2018 17:34:08 GMT -6 Magniloqueu Épiqeu da Lhiun said:

The case your act is alluding unto

Are you aware than no-one has actually used "unto" in English since about 1830? It makes you sound painfully pretentious.

cites Béneditsch Ardpresteir as a defendant. That is how a judge can participate in a case without being assigned to it; namely not as a judge at all. You are taking Org.XVI:1, which is clearly tailored for judges acting in their capacity as judges, and using it for a judge summoned to court in his capacity as a citizen; not performing the duties of a judge in that courtroom. There is a crucial difference

Seriously, I trust the Government's legal professional here.

[Viteu Marcianüs]

You actually do not answer the question - how can a judge, in their official capacity, participate in a case they are not assigned to? Under your interpretation, the clause should read "due to inactivity as defined by failure to act, rule, or appear in an open case the justice is assigned to or participating in for more than 60 days, as certified by the Ziu in a majority vote."  Further, let's really get into this, how is the "failure to act" different than the "failure to appear" in your understanding? In our "virtual" Cort system, under your definition, failure to act is the same thing as failure to appear.  However, if we follow the plain meaning of the text, then "failure to act" would apply to a case in which a judge is assigned, and "failure to appear" applies to an instance where a judge fails to appear in a case in which they are participating but are not a judge. I am willing to say, as explained infra, that there may be an exception in a private cause of action.

To your other point, the case in question can be at talossa.proboards.com/thread/12500/talossa-ben-ard-et-al?page=1&scrollTo=155850. It unequivocally names Ben-Ard as a respondent "in [his] official capacity as JUSTICE[] of the UPPERMOST CORT for the KINGDOM OF TALOSSA" not as a citizen.

An individual can be sued in their official capacity and in their individual capacity. For example, in the U.S. if I'm driving down the road and I'm rear-ended, and the person happens to be a judge, I can sue them in their individual capacity but not in their official capacity as a judge. Now, let's say I'm a defendant and, in chambers, while say in their black robe, they sexually harass me by offering me a lesser sentence if I performed sexual favors, I can sue them in their official capacity.  

Now, turning to the issue of the case. The petition was not brought against private citizens in their individual capacity. It was brought against a judge in his official capacity based on his conduct as a judge. The caption unequivocally states "in [his] official capacity as a Justice of the Uppermost Cort of Talossa".  The entire underlying causes of action concerned conduct derived from official duties as a justice.  The first cause of action sought injunctive relief precluding further suo moto/sua sponte orders on the subject-matter of the original suo moto order; the second cause of action sought a writ of mandamus for Ben-Ard to rescind his prior order (ergo, requiring to him to act as in his capacity as a judge); the third cause of action, although focused on Organic interpretation, also sought admonishment based on the actions of Ben-Ard for "abusing his position as a Justice" and for "exceeding his Organic authority." it should not go unnoticed that the petition requests that all respondents recuse themselves (thus they could not actually be a judge in the case) because they were being sused in their official capacity based on official conduct. To belabor this point, the petition demanded that the Cort require Ben-Ard to, in his official capacity, rescind the original suo moto order. Now, if the suit was entirely based on his actions a private citizen, say I sued him for defamation, then you may have an argument in that he was sued in his personal capacity and this is not contemplated by the cited provision (which is another debate). But where, as here, the judge is sued in their official capacity, and the petition unequivocally states as such, and is entirely predicated on official conduct as a judge, and, in some ways, functioned as sought of appeal after the AG sought to be heard when the three respondents were issuing their orders, then it is ludicrous to say that he was not a participant within the meaning of Org Law XVI.1. Quite easily put - Ben-Ard engaged in official conduct as a judge; he was named as a respondent solely based on that conduct in his official capacity for abusing his position. He was a participant in the case and failed to appear after being order to do so. The petition sought relief that would require Ben-Ard to perform an official duty. Given the circumstances of this case, and being as you cannot provide an instance where a judge can participate in a case when he or she was not assigned to it within the meaning of Org.L.XVI.1, I find your interpretation to be contrary to the Organic Law. 

Now, all of that aside, Ben-Ard issued his suo moto action on Nov 3, 2017, meaning he was a judge in the case (even though he manufactured it), and on Nov. 6, 2017, the AG sought leave to be heard on the matter, which was never addressed (see talossa.proboards.com/thread/12483/moto-action-respect-51st-cosa?page=1&scrollTo=155719). 

If it will help you sleep at night, I can list that as the "judicial proceeding" for which he "failed to act" for over 60 days where he was a "judge". Would you find that compromise amiable? 

[Viteu Marcianüs]

Based on a discussion with Magniloqueu Épiqeu da Lhiun , I've amended the the bill to include an instance he believes is contemplated by the Organic Law. The amended language is italicized.