Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Oct 30, 2018 17:19:11 GMT -6
Very good to see that some members of the RUMP Party who have real legal expertise and skills are giving constructive criticism to this proposal.
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Post by Viteu Marcianüs on Oct 30, 2018 21:03:18 GMT -6
While I don't agree with it all, I appreciate the thoughtful commentary given by Dame Litz Cjantscheir, UrN and Sir C. M. Siervicül. There are some comments (including typo fixes) that I'd like to incorporate. With that said, given that they on the eve before clarking, I'll withhold the amendment for December's clark. I'll respond and modify in the next day or so, to give time for feedback in the next few weeks before the December Clark. Off the cuff (on my phone) - (1) the goalposts should not move based on Ziu whims. My intention was that the Ziu could lessen restrictions as a body. But could also impose restrictions that may need to be set. However, as as acceptance of those are a condition to accept confirmation, it's unfair to impose them midterm on a Justice. (2) I like Litz' idea on staggered Justices. But I cant think of a way to set that without static terms and replacement serving the remainder of a term. I'm not at the mokent a fan of that. (3) The point about juries is taken. (4) The US constition does not go into the make up of inferior courts; statute does. Conversely, our current Org Law goes beyond the US Const while not as far as a statute, and changing it requires tweaking the Org Law. I think it's preferable to be able to fix district courts as needed. (5) In contrast to the above-referenced responses, I'll address one point of AD's nonsense.I think we can expand what the Ziu can do to impose.punishment *up to impeachment and removal.* Just as the US Constition does not permit imposing criminal liability when *the House impeaches and the Senate tried and removes,* neither could the Ziu. The Ziu would impose just as much due process as the Congess. I find this "Mr. Simpson, I'm confused" schtick to be more trolling on AD's part.
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Post by Sir Alexandreu Davinescu on Oct 30, 2018 21:34:39 GMT -6
I'll write more simply, if understanding is the problem.
1. Why are we calling the removal process a trial if it's not a trial, but just the same impeachment process? If it's a trial, then doesn't double jeopardy attach, etc.?
2. You want to create a court with three seats, but there are four justices. Nothing in the bill removes any justices, as far as I can see. What is the plan?
3. You want five judges total, with three on the CpI and two district judges. We don't have five people to be judges. What is the plan?
4. The Ziu regularly re-electing members of another branch of government seems like a problem in terms of balance of powers.
5. The Ziu setting rules for lower courts also seems like it's a problem in terms of balance of powers. A simple majority could impose a rule that gives them power to advance or slow cases, for example. It wouldn't require much ingenuity. That seems like a big problem.
6. Did you return the name of the CpI back to the current Talossan one?
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Oct 30, 2018 22:04:02 GMT -6
1. Why are we calling the removal process a trial if it's not a trial, but just the same impeachment process? If it's a trial, then doesn't double jeopardy attach, etc.? Under the US Constitution, the House impeaches, and impeachment is followed by trial in the Senate, and conviction results in removal from office. Jeopardy doesn't attach because the impeached officer is never in jeopardy of life or limb (which is taken to include imprisonment), only loss of office. We commonly refer to the entire process as "impeachment" but technically impeachment is only the first stage of the removal process and is analogous to indictment in a criminal trial. So I don't see a problem with use of the word "trial" per se, as long as it's clear that no punishment worse than removal from office can result. I'm open to a five year term for justices, because I think it's long enough to preserve a substantial degree of judicial independence and it may help with the problem of justices going inactive because the UC is a "dead end" job. I agree with your other comments though. In particular I think the current scheme of a single integrated court system that has a trial function and appellate function and allows the judiciary system to be completely functional with as few as three jurists is pretty ideal for our level of activity. IMO we just need to fix the areas of unclear wording that allowed the Cort to cast aside the intended scheme.
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Oct 30, 2018 22:09:14 GMT -6
(4) The US constition does not go into the make up of inferior courts; statute does. Yes, Congress determines how many courts there will be and how many judges on each, but the Constitution specifies the rules for the appointment, tenure, and removal of all Article III judges, because that is essential for judicial independence. Congress couldn't, for example, decide that the judges of an inferior court will be appointed at will by the Senate majority leader, or subject to regular votes of confidence in the House.
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Post by Sir Alexandreu Davinescu on Oct 31, 2018 4:57:56 GMT -6
1. Why are we calling the removal process a trial if it's not a trial, but just the same impeachment process? If it's a trial, then doesn't double jeopardy attach, etc.? Under the US Constitution, the House impeaches, and impeachment is followed by trial in the Senate, and conviction results in removal from office. Jeopardy doesn't attach because the impeached officer is never in jeopardy of life or limb (which is taken to include imprisonment), only loss of office. We commonly refer to the entire process as "impeachment" but technically impeachment is only the first stage of the removal process and is analogous to indictment in a criminal trial. So I don't see a problem with use of the word "trial" per se, as long as it's clear that no punishment worse than removal from office can result. I'm open to a five year term for justices, because I think it's long enough to preserve a substantial degree of judicial independence and it may help with the problem of justices going inactive because the UC is a "dead end" job. I agree with your other comments though. In particular I think the current scheme of a single integrated court system that has a trial function and appellate function and allows the judiciary system to be completely functional with as few as three jurists is pretty ideal for our level of activity. IMO we just need to fix the areas of unclear wording that allowed the Cort to cast aside the intended scheme. But I thought that justices could receive other punishments beyond just removal from office according to this bill? "All punishment, including removal." Something is going to have to change about at least one of those clauses, at the least.
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Post by Viteu Marcianüs on Oct 31, 2018 7:10:50 GMT -6
Under the US Constitution, the House impeaches, and impeachment is followed by trial in the Senate, and conviction results in removal from office. Jeopardy doesn't attach because the impeached officer is never in jeopardy of life or limb (which is taken to include imprisonment), only loss of office. We commonly refer to the entire process as "impeachment" but technically impeachment is only the first stage of the removal process and is analogous to indictment in a criminal trial. So I don't see a problem with use of the word "trial" per se, as long as it's clear that no punishment worse than removal from office can result. I'm open to a five year term for justices, because I think it's long enough to preserve a substantial degree of judicial independence and it may help with the problem of justices going inactive because the UC is a "dead end" job. I agree with your other comments though. In particular I think the current scheme of a single integrated court system that has a trial function and appellate function and allows the judiciary system to be completely functional with as few as three jurists is pretty ideal for our level of activity. IMO we just need to fix the areas of unclear wording that allowed the Cort to cast aside the intended scheme. But I thought that justices could receive other punishments beyond just removal from office according to this bill? "All punishment, including removal." Something is going to have to change about at least one of those clauses, at the least. The intent is to open the Ziu's ability to reprimand without removal, but not beyond removal. My thoughts were official reprimand, sanction, suspension, etc. I'm open to language that makes this clearer. I'm not saying the Ziu can impose criminal penalty.
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Post by Sir Alexandreu Davinescu on Oct 31, 2018 8:40:23 GMT -6
If we're married to the language calling it a trial, yes, I think we should probably sharply limit possible consequences. Otherwise we're depriving the people involved of Covenant guarantees. What are the possible outcomes... reprimand, suspension from duties, or removal?
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Post by Viteu Marcianüs on Nov 9, 2018 13:25:29 GMT -6
I will be posting the updates this weekend.
AD, I don't know any other way to explain this basic concept to you - when the US congress seeks to impeach and remove, let's say, oh I don't know, the President, the House passes articles of impeachment and then the Senate has a trial to remove. In this sense, the House is sitting as a Grand Jury, while the trial is held in the Senate. We label this entire process "impeachment." So there's impeachment and then there's impeachment. To put this another way, your exception to the use of the word "trial" is really a distinction without a difference.
Next, when the Congress acts under its constitutional authority, it does not need to concern itself with "due process." Congress can define "treason, bribery, or other high crimes and misdemeanors" any way it wants. It cannot say, "this is always treason that automatically warrants impeachment and removal." It impeaches and removes by convention, which it can choose not to follow at any time (e.g., Nixon and Trump). That's what you don't seem to get about not being able to break a rule that doesn't exist. All of what I just said is the current case in Talossa. I'm trying to meet you half-way by allowing other possible sanctions but you're bringing up this due process nonsense when it's not even applicable.
I think we can leave open possible reprimand as the maximum being removal. If you want to come up with language that says that such a reprimand cannot include criminal punishment, I would agree to that provided you also make it clear that criminal charges can be filed in a court separate from the Ziu's proceedings. That is, just because the Ziu decided that Justice Quick Reply should be sanctioned for her typos doesn't mean that, presuming such a statute existed against private Talossans, the Justice is automatically guilty of criminal charges. If you want to draft the language, propose it.
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Post by Sir Alexandreu Davinescu on Nov 9, 2018 17:55:15 GMT -6
I'm trying to finish off the layout of the paper so I don't have time to reply with as great a clarity as I'd like, but clearly one of us doesn't understand the issue here. Maybe it's me?
See, you say that calling it a trial is a distinction without a difference, and then you very kindly explain the American impeachment process to me. But because the Constitution of the United States and the Organic Law are different, my point is that it's not a distinction without a difference. If we call it a trial, then I don't possibly see how the Eleventh Covenant wouldn't attach, for example: "Where, in the course of a trial, a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by these Covenants, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
To me, it seems like a hard sell to say that a process called a trial and with possible consequences called a conviction and with a defined body sitting in judgment would not qualify for this protection. And you rightfully state that the specific method by which an impeachment is done in America is governed by the defined process, and the person being impeached has no recourse to the general guarantees afforded to people otherwise accused of a crime. But the Kingdom of Talossa has an Organic Law which sets the Covenants above other specifics at all times -- no bit of the OrgLaw that violates the Covenants is valid. So if this were a trial then it wouldn't matter if the OrgLaw otherwise said that certain Covenants didn't apply in that specific trial, since the Covenants in question would overrule such a provision. Or at least that is what I understand the intention to be, soon to be made explicit in the law by setting the Covenants apart.
In other words, you present a very compelling case, but it just seems to apply to a different country's laws. If I am mistaken, it would seem to imply that a special sort of trial can be set forward in the OrgLaw that denies due process rights in that instance (for example), and that it would be okay as long as it was okay under American law. Could you explain my error, please?
I guess I'm done with the problem with impeaching someone for laws that don't exist. When I say, "Hey, we probably shouldn't remove people from office for breaking laws that don't exist," you just keep forcefully asserting, "No such laws exist right now," and I am reduced to extremely polite nodding. Let's let it go.
I look forward to whatever fixes you want to make to the problematic punishment part, and I hope to hear more about the other problems that have been raised, all of which seem serious to me, but none of which seem insoluble. For your convenience so you don't have to look back through the thread, here they are (absent the first one, which we have been addressing in this recent exchange):
2. You want to create a court with three seats, but there are four justices. Nothing in the bill removes any justices, as far as I can see. What is the plan?
3. You want five judges total, with three on the CpI and two district judges. We don't have five people to be judges. What is the plan?
4. The Ziu regularly re-electing members of another branch of government seems like a problem in terms of balance of powers.
5. The Ziu setting rules for lower courts also seems like it's a problem in terms of balance of powers. A simple majority could impose a rule that gives them power to advance or slow cases, for example. It wouldn't require much ingenuity. That seems like a big problem.
6. Did you return the name of the CpI back to the current Talossan one?
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Post by Sir Alexandreu Davinescu on Nov 12, 2018 11:01:02 GMT -6
If the intention is to put this on the next Clark, I feel like we're going to have to move a little faster on these issues. There's zero co-sponsors, but maybe you could let someone else work on this stuff? It's not a matter of simply editing language, except in one case, or else I could do it. There needs to be an actual workable plan on some of this stuff before this goes on the Clark, or else the bill needs to fail for purely practical reasons (eg creating a system of five judges when we don't have that many in the country). And a lot of it is very basic -- like going from four justices to three means we need to remove one, but there's no provision for doing that -- so we should really get to talking about it.
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Post by Viteu Marcianüs on Dec 12, 2018 16:57:48 GMT -6
I've modified the text with respect to the feedback received. Not everything was included partially because I can't remember every comment.
I intend to keep in the Covenant provision. Theuse of "trial" has been removed because reasons and pedantic protests.
I still do not have an answer for staggering terms. I tend to think this would happen naturally.
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Dec 28, 2018 17:58:34 GMT -6
A query. Has there ever been a case, in the entire history of Talossa, when a Justice had served five years, but shouldn't have been continued in office? That is, has the "on good behaviour" clause ever caused a problem?
Are we trying to fix a problem that in fact doesn't exist?
— John R
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Post by Viteu Marcianüs on Dec 31, 2018 2:21:00 GMT -6
A query. Has there ever been a case, in the entire history of Talossa, when a Justice had served five years, but shouldn't have been continued in office? That is, has the "on good behaviour" clause ever caused a problem? Are we trying to fix a problem that in fact doesn't exist? — John R Your Grace, prior to my response to your most reasonable inquiry, could you please enumerate for your most loyal subjects an instance where the Sovereign, being equal to the Efficient, has ignored their elected responsibility? That is, can you truly explain why you must pose a hypothetical in your grand game to be unofficially political, while asking a political question? Your Grace, the Ziu answers not to you, but to the People. You may forget that we and you Governed, on their consent, but we, the most loyal opposition TO TALOSSA (not you) do not forget. Your Grace, your question breaches the role of a constitutional monarch. Either you replicate the British monarch or you deceive your subjects. Please choose one so your loyal subject can respond accordingly without the obvious tricks of your ordained party, the tRUMP. Your Grace, should anyone doubt your true committment to a Constitutional Monarchy, then I challenge you to a public debate, which we can accomplish on a weekend of your choosing, the transcript of which shall be published within a fortnight of the same, unless, of course, you are truly a coward that cannot withstand qualifying your right to rule? Your Grace, none shall speak for Talossa, until such time as you answer. Do you stand a coward?
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Post by Sir Alexandreu Davinescu on Dec 31, 2018 11:32:18 GMT -6
The answer is no, incidentally. And we have only impeached a justice once, which was accomplished without resort to the malfeasance clause (since it was done partially based on fabricated reasons).
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