An Act to Remove Béneditsch Ardpresteir from the UC

[Sir C. M. Siervicül]

Aug 17, 2018 3:40:43 GMT -6 Viteu Marcianüs said:

Free speech, Alex, only means the government can't prosecute you. It doesn't shield one from adverse action with respect to one's position.

This isn't true in the US, and doesn't seem to me to be right for Talossa either. A public employer can't necessarily engage in retaliatory firing of a public employee for the employee's protected speech, particularly speech made outside of and unrelated to the workplace. SCOTUS affirmed this unanimously in the case of Lane v Franks, 573 US ___ (2014) a few years back.

Do you think there should be any limit to the state's ability to remove public officials from office based on controversial or offensive statements not made in connection with the exercise of the duties of their office?

[Viteu Marcianüs]

Aug 28, 2018 10:29:17 GMT -6 Sir C. M. Siervicül said:

Aug 17, 2018 3:40:43 GMT -6 Viteu Marcianüs said:

Free speech, Alex, only means the government can't prosecute you. It doesn't shield one from adverse action with respect to one's position.

This isn't true in the US, and doesn't seem to me to be right for Talossa either. A public employer can't necessarily engage in retaliatory firing of a public employee for the employee's protected speech, particularly speech made outside of and unrelated to the workplace. SCOTUS affirmed this unanimously in the case of Lane v Franks, 573 US ___ (2014) a few years back.

Do you think there should be any limit to the state's ability to remove public officials from office based on controversial or offensive statements not made in connection with the exercise of the duties of their office?

You're conflating issues and citing inapposite authority. 

First, Lane v Franks concerned subpoenaed testimony regarding issues related to the employee's job responsibilities as the Director of Community Intensive Training Youth at the Central Alabama Community College (see Lane v Franks, 134 S Cts 2369, 2378-2379 [2014]).  In Lane, the Court held that the 11th Circuit went too far in applying Garcetti v Ceballos, which concerned statements made by a district attorney that criticized his employer for failing to promote him (see Garcetti v Ceballos, 547 US 410, 413-419 [2006]).  Garcetti, while recognizing limitation, held that "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations of his or her freedom" (id. at 418).  

But, what do both Lane and Garcetti speak to? Simple - public EMPLOYEES; or rather, those public servants that make up the civil service, not those individuals who are appointed to fulfill constitutional roles where the constitution, or here, the Organic Law, provides the mechanism by which they can be removed.   To put another way, there is no employer to terminate Ben-Ard for his speech; like a sitting Justice of the Supreme Court of the United States, a sitting Justice of the Uppermost Cort can only face removal when the Ziu exercises its Organic authority to do so.  Further, what constitutes those reasons for removal falls within the competence of the Ziu. Your authority speaks to whether we would hold the Scribe of Abbaville responsible, not a UC Justice.  And I dare say that any self-respecting civil servant would have resigned by this point.  But not Ben-Ard, because the ONLY way to remove him is through the removal process enumerated in the Organic Law.  

Second, you completely ignore the Code of Conduct for United States Judges.  Canon 1 reads, "An independent and honorable judiciary is indispensable to justice in our society.  A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."   Ben-Ard consistently insults individuals, has made homophobic statements, and stepped outside of his role to ensure the integrity and independence of the judiciary. 

Canon 2 (A) reads "A judge should respect and comply with the law and should act at all times in a matter that promotes public confidence in the integrity and impartiality of the judiciary"; Canon 2(b) reads "A judge should neither lend the prestige of the judicial office to advance the private interests of the judge"; and Canon 2(c) reads "A judge should not hold membership in any organization that practices invidious discrimination".   Ben-Ard clearly does not respect and comply with the laws of Talossa, as evinced by his suo moto action and does not instill public confidence and impartiality by his perpetual need to insult Talossa's citizenry; he uses his office to advance his own private interest; and, frankly, he overtly discriminates. 


Canon 3 (C) reads, in part, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party" (Canon 3 (C) (1) ).  I, and many Talossans, can never go before Ben-Ard because his very actions unequivocally raise reasonable questions of his ability to be impartial. 

Let's jump to Canon 5, "A judge should not engage in any other political activity" (Canon 5 (C)).  

Sir Cresti, my point about free speech remains true.  It means the government cannot prosecute you; it doesn't shield you from adverse action with respect to one's position.  That position need not be a public employee.  Your argument is premised on the notion that a sitting Justice of the Uppermost Cort is equivalent to an public employee acting in the same scope as they would if they were a private employee, the main difference the employer for the former being the Government.  This is not the case here - Ben-Ard is not an assistant district attorney subject to reprimand by a superior, or a director at a public college subject to reprimand by a superior; he has no superior except that of the Organic Law, and is shielded from all other threats to his position with ONE exception - an express act by the Ziu to remove him for his behavior.  

So, as I started with, you're conflating issues and relying upon inapposite authority.  But you will not change the issue - do you think that a sitting member of the Uppermost Cort can make homophobic comments and abuse his power as same while enjoying immunity simply because he is a sitting justice of the UC? If you vote against this act, remember, you're voting to tell me that my sexuality and my marriage is properly the brunt of a joke, equally undeserving of the same level of respect that we demand of our judiciary to protect its integrity, and, therefore, you countenance homophobia and sexism on the UC. 

[Sir Alexandreu Davinescu]

Aug 28, 2018 19:54:30 GMT -6 Viteu Marcianüs said:

Aug 28, 2018 10:29:17 GMT -6 Sir C. M. Siervicül said:

This isn't true in the US, and doesn't seem to me to be right for Talossa either. A public employer can't necessarily engage in retaliatory firing of a public employee for the employee's protected speech, particularly speech made outside of and unrelated to the workplace. SCOTUS affirmed this unanimously in the case of Lane v Franks, 573 US ___ (2014) a few years back.

Do you think there should be any limit to the state's ability to remove public officials from office based on controversial or offensive statements not made in connection with the exercise of the duties of their office?

You're conflating issues and citing inapposite authority. 

First, Lane v Franks concerned subpoenaed testimony regarding issues related to the employee's job responsibilities as the Director of Community Intensive Training Youth at the Central Alabama Community College (see Lane v Franks, 134 S Cts 2369, 2378-2379 [2014]).  In Lane, the Court held that the 11th Circuit went too far in applying Garcetti v Ceballos, which concerned statements made by a district attorney that criticized his employer for failing to promote him (see Garcetti v Ceballos, 547 US 410, 413-419 [2006]).  Garcetti, while recognizing limitation, held that "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations of his or her freedom" (id. at 418).  

But, what do both Lane and Garcetti speak to? Simple - public EMPLOYEES; or rather, those public servants that make up the civil service, not those individuals who are appointed to fulfill constitutional roles where the constitution, or here, the Organic Law, provides the mechanism by which they can be removed.   To put another way, there is no employer to terminate Ben-Ard for his speech; like a sitting Justice of the Supreme Court of the United States, a sitting Justice of the Uppermost Cort can only face removal when the Ziu exercises its Organic authority to do so.  Further, what constitutes those reasons for removal falls within the competence of the Ziu. Your authority speaks to whether we would hold the Scribe of Abbaville responsible, not a UC Justice.  And I dare say that any self-respecting civil servant would have resigned by this point.  But not Ben-Ard, because the ONLY way to remove him is through the removal process enumerated in the Organic Law.  

Second, you completely ignore the Code of Conduct for United States Judges.  Canon 1 reads, "An independent and honorable judiciary is indispensable to justice in our society.  A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."   Ben-Ard consistently insults individuals, has made homophobic statements, and stepped outside of his role to ensure the integrity and independence of the judiciary. 

Canon 2 (A) reads "A judge should respect and comply with the law and should act at all times in a matter that promotes public confidence in the integrity and impartiality of the judiciary"; Canon 2(b) reads "A judge should neither lend the prestige of the judicial office to advance the private interests of the judge"; and Canon 2(c) reads "A judge should not hold membership in any organization that practices invidious discrimination".   Ben-Ard clearly does not respect and comply with the laws of Talossa, as evinced by his suo moto action and does not instill public confidence and impartiality by his perpetual need to insult Talossa's citizenry; he uses his office to advance his own private interest; and, frankly, he overtly discriminates. 


Canon 3 (C) reads, in part, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party" (Canon 3 (C) (1) ).  I, and many Talossans, can never go before Ben-Ard because his very actions unequivocally raise reasonable questions of his ability to be impartial. 

Let's jump to Canon 5, "A judge should not engage in any other political activity" (Canon 5 (C)).  

Sir Cresti, my point about free speech remains true.  It means the government cannot prosecute you; it doesn't shield you from adverse action with respect to one's position.  That position need not be a public employee.  Your argument is premised on the notion that a sitting Justice of the Uppermost Cort is equivalent to an public employee acting in the same scope as they would if they were a private employee, the main difference the employer for the former being the Government.  This is not the case here - Ben-Ard is not an assistant district attorney subject to reprimand by a superior, or a director at a public college subject to reprimand by a superior; he has no superior except that of the Organic Law, and is shielded from all other threats to his position with ONE exception - an express act by the Ziu to remove him for his behavior.  

So, as I started with, you're conflating issues and relying upon inapposite authority.  But you will not change the issue - do you think that a sitting member of the Uppermost Cort can make homophobic comments and abuse his power as same while enjoying immunity simply because he is a sitting justice of the UC? If you vote against this act, remember, you're voting to tell me that my sexuality and my marriage is properly the brunt of a joke, equally undeserving of the same level of respect that we demand of our judiciary to protect its integrity, and, therefore, you countenance homophobia and sexism on the UC. 

It's been a while since I passed the bar, but it seems to me that voting for this bill implies support for the removal of a justice along all of the lines in the long list of causes in the bill, not just one of them. This bill proposes the following causes for removal of a justice:

• Refuses to appear in Cort when a named party
• Cannot preside over many proceedings because of personal conflicts
• An allegedly homophobic comment
• Abuse of power

I guess we can take these in turn.

So the first cause alleges that BenArd refuses to appear. It cites this case: talossa.proboards.com/thread/9657/appeal-case-02a-dal-benard But I just reread the thread, and don't see what the guy did wrong here. He didn't "refuse to appear," since he wasn't called on to appear. His lawyer (me!) did so, on his behalf. What about this is cause for removal from the bench?

The other case cited is here: talossa.proboards.com/thread/12500/talossa-ben-ard-et-al?page=1&scrollTo=155850 But as far as I can see, he declined to appear in court and a default judgment was granted. He wasn't called upon as an officer of the court to testify or anything... he just decided not to contest the case. Maybe not awesome, but allowing a default judgment doesn't seem like cause for impeachment.

This charge seems exceedingly flimsy. Are there other examples on hand?

Also, about the allegedly homophobic comment, didn't he post a long explanation that he never meant the comment as it has been interpreted? It was not easy to understand his explanation in full because he writes in a different dialect of English than myself, but that also lends credence to the notion of some miscommunication right from the beginning.

[Sir Alexandreu Davinescu]

Aug 12, 2018 17:44:03 GMT -6 Viteu Marcianüs said:

WHEREAS Ben-Ard has previously abused his authority as a Puisne Justice in an attempt to breach the separation of powers and compel the Ziu, which resulted in unnecessary prolonged litigation and an investigation from the Ministry of Justice (see Suo Moto action in respect of RZ3 of the 51st Cosa);

Returning to this thread, I also went and looked up this case. talossa.proboards.com/thread/12483/moto-action-respect-51st-cosa?page=1&scrollTo=155719

I also had to look up suo moto, since I'd never heard of it. A suo moto case is brought by a court itself, rather than any other party. It's a legal phenomenon not accepted in most courts, but it is quite common in India (where BenArd practices) and Pakistan. In India, it's actually enshrined in the Constitution (Article 32), which says in part, "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." It's considered quite important, described by former Indian chief justice BP Gajendradkar as the "cornerstone of the democratic edifice raised by the Constitution."

Suo moto cases are not permitted in British or American courts, as far as I know, so they have no place in Talossan law (which looks to established Anglo-American principles of law as a guide, under the OrgLaw). It looks like BenArd was mistaken in his injunctions for that reason, and an empaneled court would certainly have told him that before he made the error. Justice Tamorán was right in principle when he negated the original injunctions. But Justice Litz was also right in that Justice Tamorán also broke procedure and the law when he tried to overrule another justice in his own person.

So I guess what I'm pointing out is this: (a) this seems like an innocent error of law stemming from a very real and sharp discrepancy in background and probably doesn't rise to an impeachable offense of "abusing authority" if it's just this instance, and (b) it seems hard not to conclude that if BenArd's error was impeachable, we could also justly impeach Justice Tamorán for his error. Now, maybe I missed other suo moto cases or there was some hidden malice in this case, but this just doesn't quite seem right.

We've generally tried to be forgiving and welcoming to everyone, regardless of their cultural background. But despite the Talossans all around the world, our entire legal system (every other practicing lawyer or judge!) is either British or American... with one exception. You're trying to impeach that one exception, and it looks a little ugly that part of the reason is that he lives in India and so is more familiar with Indian law.

[Miestrâ Schivâ, UrN]

The sotto voce insinuation of racism, good sir, is beneath you, and is either deliberate trolling or foolishness.

In any case, your cavills and questions and "what ifs" seem to shimmy around the central point, which I would like to put to you bluntly: do you think BenArd warrants impeachment?

If not, everything you've commented on this bill is chaff and can be ignored.
If so, please let us know what kind of an impeachment bill you would be happy to vote for.

[Sir Alexandreu Davinescu]

I don't think it's racism, exactly, so much as ignoring Anglo-American privilege. The complex system relies on a huge host of learned traditions, customs, and finer points that vary from country to country. Talossa is supposed to be accessible to everyone as much as possible, so we should make leeway for mistakes that stem from differences in legal culture. Legal cultures can be

like an elaborate dance that some people just can't learn, and yet it earns you social capital and bragging rights over simple bumpkins, barbarians, and second-language English speakers who prefer not to - as Spider Dijon from The Mighty Boosh would have put it - 'run around the house in a little car.' It is a weapon used by the traditionally powerful against the traditionally excluded.

Remember what we're talking about here as "abusing authority": a judge made a mistake -- seemingly for pretty good reasons of culture! -- by issuing suo moto injunctions. He was corrected by other justices, and did not persist, and that was the end of it. Let's just make allowances for these things, rather than making "grew up in India and learned to practice law there" into an impeachable offense.

I'm not sure about your other point. Are you saying that any points or objections I might have about the bill should be ignored unless I pledge to vote for it first?

Look, this bill as proposed is a bad one. This is a bill proposing to impeach a justice of the highest court in our country, so it is a big deal. It should be treated as a big deal, from first to last. If the bill has major flaws, no one should be ignoring them! Fix them!

Don't just think about this one moment and this one set of people. Remember that these decisions matter. If we here today decide that justices may be impeached and removed from office for "accidentally issuing a type of motion not customarily used in Anglo-American courts," that will have consequences. Our court system will be a little less open to people who speak English as a second language, for one. If we decide that vague and unsubstantiated complaints about not showing up are an impeachable offense, then that will have consequences (probably it will make courts more partisan, since every justice will probably be "guilty" of this).

These consequences might not matter to you, but they will matter to the future.

[Sir Alexandreu Davinescu]

Aug 30, 2018 21:46:22 GMT -6 Miestrâ Schivâ, UrN said:

In any case, your cavills and questions and "what ifs" seem to shimmy around the central point, which I would like to put to you bluntly: do you think BenArd warrants impeachment?

Oh, as to this, I don't know. Honestly, the list of charges seemed very impressive and scary when I first read the bill. I knew vaguely that some people were unhappy with BenArd. But as I took the time to look into these charges... well, the whole thing is beginning to stink. It honestly looks to me like V got very upset about a comment a lot of folks thought was homophobic (a comment BenArd has lengthily if confusingly explained as not intended to be homophobic) and wanted to impeach him over that. Everything else seems to fall apart when I look at it, which makes me nervous.

It's very possible V has a bunch of other examples to justify these charges, and just hasn't had a chance to give them, yet. It's only been a couple of days, after all.

[Viteu Marcianüs]

So basically, your entire shtick about supporting the bill was nonsense as now yoi seek to straighspain to the silly queerfolk why we should accept homophobic comments.

[Sir Alexandreu Davinescu]

Well, no. I'm saying that the Avocat-Xheneral of the Kingdom of Talossa should have really good reasons for proposing to remove a justice from the Cort pu Inalt. And since some of these reasons don't seem very good, I'd like it if you could please explain them more and provide more evidence.

This does not seem like an unreasonable request.

These are the charges:
*Refuses to appear in Cort when a named party
*Cannot preside over many proceedings because of personal conflicts
*An allegedly homophobic comment
*Abuse of power

I have already explained at length my concerns about the allegation about refusing to appear in Cort and abuse of power. If these are warranted, could you explain them, please? If not, could we not impeach a justice over them, please?

As to the homophobic comment, it would be good if you could also address BenArd's explanation. He posted a big long thing about why he didn't intend for it to be perceived as homophobic. The meat of it seems to be this:

My reason for making the statement was only that whilst V is free to enjoy his life, so is the King. You can't pressurise anyone and bind down anyone for Talossan work and leave his family sojourns.

And yeah, am controversial in nature... So probably wrote the extra last sentence, which could have been avoided. Then again I actually wanted to pin it on personal choice. There's nothing homophobic about it. "

I think the word "wife" is what bothered people. I came to know and be enlightened that in the US, some people take offense to calling a man in a gay marriage a "wife" because it implies that if you're gay you're not a "real man," or that at least one of the parties in a gay marriage must be taking the role of a woman.

That could have been the case, but I never intended to say in that manner. Had I spoken to V's partner I might have said the same thing.

Probably "I know you are a good spouse, but kindly save the King from the grouse" might have been more apt.

That sort of makes sense? Maybe?

[Sir Alexandreu Davinescu]

So the bill was Hoppered as-is, it looks like. That's unfortunate, since that means it can't be edited or fixed to make it more solid. I take my objections to the Ziu, instead.

[Miestrâ Schivâ, UrN]

Aug 30, 2018 22:44:37 GMT -6 Sir Alexandreu Davinescu said:

[ It honestly looks to me like V got very upset about a comment a lot of folks thought was homophobic (a comment BenArd has lengthily if confusingly explained as not intended to be homophobic)

Intention is irrelevant. It seems that privileged folks can get away with a lot of miéida da toro by arguing that they didn't intend to verbally kick people in the teeth.

[Sir Alexandreu Davinescu]

I'm not sure it's irrelevant, although it's certainly not the most important thing. But shouldn't we make allowances for differences in culture, thoughtless mistakes, and other such things? And remember, we're not just talking about whether or not this comment was homophobic or partially homophobic, we're talking about whether or not it is meritorious of removing a Justice from the highest court.

I think probably more dialogue on this should happen, perhaps on a new version of this bill that doesn't have the misconceived window dressing adorning the real complaint.

[Ián Tamorán S.H.]

Aug 30, 2018 20:29:21 GMT -6 Sir Alexandreu Davinescu said:

...
I also had to look up suo moto, since I'd never heard of it. A suo moto case is brought by a court itself, rather than any other party. It's a legal phenomenon not accepted in most courts, but it is quite common in India (where BenArd practices) and Pakistan. In India, it's actually enshrined in the Constitution (Article 32), which says in part, "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." It's considered quite important, described by former Indian chief justice BP Gajendradkar as the "cornerstone of the democratic edifice raised by the Constitution."

Suo moto cases are not permitted in British or American courts, as far as I know, so they have no place in Talossan law (which looks to established Anglo-American principles of law as a guide, under the OrgLaw)....

There is discussion, within the American courts, as to whether suo moto is, in fact, permitted in those courts: it has not yet happened, but there are possible conditions (which have not yet arisen) under which it might: see Quora Discussion

Its place in Talossan Law, however, is a different matter. Talossa uses the established Anglo-American principles of law as a guide, not as a limit. If there is neither discussion within the Talossan Laws of the applicability of suo moto within Talossan Corts, nor any reasonable deduction from those Laws about its possible applicability in Talossa, then despite the (possible) lack of use of those powers in certain legal systems external to that of Talossa, it is as yet legally undecided whether suo moto can be used in Talossa.

[Sir Alexandreu Davinescu]

Thank you, S:reu Chief Justice.

We should definitely not be impeaching over this, then!

[Miestrâ Schivâ, UrN]

Sept 3, 2018 11:06:40 GMT -6 Sir Alexandreu Davinescu said:

Thank you, S:reu Chief Justice.

We should definitely not be impeaching over this, then!

Regardless of whether suo moto injunctions are proper in themselves, I hope everyone would see that the actual injunction we're talking about here was wildly inappropriate. I.e. BenArd was attempting to enjoin himself from voting a certain way in his capacity as MC. I can't see how that accords with any principle of law anywhere. It's the kind of thing KR1 used to do (eg "quashing" the UC's decision to let Ián Anglatzara reimmigrate).