The Ex Parte Corruption Act

[Sir Alexandreu Davinescu]

The Ex Parte Corruption Act

WHEREAS all legitimate sides to an argument should be represented and have the fullest chance to work together to approach justice,

THEREFORE the following provision shall be added to Title G of el Lexhatx:

12.1. A member of the bar shall not initiate ex parte communications, or other communications made to a judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:
12.1.1. When circumstances require it, ex parte communication for scheduling, administrative, expert testimony, or emergency purposes, which does not address substantive matters, is permitted, provided:
12.1.1.1. the member of the bar reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and
12.1.1.2. the member of the bar makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.
12.2. If a member of the bar inadvertently initiates or receives an unauthorized ex parte communication bearing upon the substance of a matter, the member of the bar shall make provision promptly to notify all the parties of the substance of the communication and provide the parties with an opportunity to respond.
12.3. A member of the bar shall make reasonable efforts, including providing appropriate supervision, to ensure that these provisions against ex parte communications are not violated by others subject to the member of the bar's direction or control.

FURTHERMORE, a new provision shall be added to Title D of el Lexhatx:

2.5.1.5. The Ministry of Justice shall vigilantly supervise its officers and appointees to ensure that they do not engage in ex parte communication, in keeping with the provisions of Lex.G.12.
2.5.1.6. The Ministry of Justice shall vigilantly supervise its officers and appointees to ensure that there are no conflicts of interest between them and their work, either in fact or in appearance. In such an instance as a conflict of interest exists and no alternative officer of the Ministry is capable of making the decision in the stead of the conflicted officer, then an independent counsel, appointed by the Avocat-Xheneral, shall be responsible for making such decisions or engaging in such actions as present a conflict.
2.5.1.7. The Ministry of Justice shall not engage in post-hoc review of prior convictions before a magistrate unless the interests of justice are represented in the form of an independent counsel, appointed by the Avocat-Xheneral, who shall be responsible for vigorously contesting this review.

Uréu q'estadra så:
Alexandreu Davinescu

[Sir Alexandreu Davinescu]

Most of this text was simply adapted from the American Bar Association.

[Miestrâ Schivâ, UrN]

Okay, as far as I can see, 95% or so of this bill deals with ex parte communications, an issue I have no real problem with. Split this up and put the last paragraph in a different bill and I'm inclined to vote for the rest of it.

As to the last section, this seems very vague: "unless the interests of justice are represented in the form of an independently appointed counsel." Is this direct quoted from ABA material or did you write this yourself?

[Viteu Marcianüs]

Separation of powers alert!!!!!!

It's lovely that you relied on the ABA here, but you should note that the ABA only issues guidance. You may want to look at the Code of Conduct for Federal US Judges. 

Also, it remains unsettled law whether the US Congress can actually impose those ethics on the US Supreme Court.  They can do so for all other US Judges because Congress creates those Courts, whether they're article III courts or Article I or IV tribunals.  The Supreme Court derives its authority from the US Constitution, NOT from statute.  All other US federal courts (e.g., Federal Circuit Courts, Federal District Courts), derive authority from statute.  Hence, and this is unsettled, there is a strong argument that the US Constitution does not authorize one branch of government to impose ethics on another branch of government for those offices that exist according to the Constitution.  This same premise applies to the executive branch.  Federal Departments exist by statute, so Congress can impose limitations and ethics.  It cannot, however, impose ethics on the President and Vice President.  Hence why we have impeachment and removal.  The current wording of the Organic Law, with respect to the judiciary, follows the US premise that, I strongly argue, the Ziu has no authority to set ethics or rules on sitting Justices.  Hence, as I've explained ad nauseum elsewhere, you cannot actually set rules.  Impeachment and removal sets a convention.  

Ironically, when John asked what need there was for Judiciary reform, you said none.  But now you introduce a bill for something that really isn't a problem.  So is there a problem? I would also note that the Judiciary Reformation Amendment would grant the Ziu some authority to set ethics and rules on the UC, which I think is fairly measured to maintain a separation of powers.  In principal, I agree with this.  But it is, as the moment, a blatant overstep on the separation of powers.  John expressed concern that the Cort was becoming politicized.  This is exactly what you are doing.  Not to mention some ex parte communication is okay, provided it is disclosed to all parties.  

I would also note, because you just love defamation by innuendo, I never engaged in ex parte communication with the UC about the ESB case.  In fact, everything was published publicly.  Just because there was no adversary in a case does not make it ex parte.  Please stop pretending like you know what you're talking about here.  And if you actually love Talossa, stop lying. 

Finally, 2.5.1.7, as worded, does not actually do what you think it does.  

[Sir Alexandreu Davinescu]

Jan 9, 2019 15:22:30 GMT -6 Miestrâ Schivâ, UrN said:

Okay, as far as I can see, 95% or so of this bill deals with ex parte communications, an issue I have no real problem with. Split this up and put the last paragraph in a different bill and I'm inclined to vote for the rest of it.

As to the last section, this seems very vague: "unless the interests of justice are represented in the form of an independently appointed counsel." Is this direct quoted from ABA material or did you write this yourself?

What is vague? In the case of review of past convictions as done with ESB, the A-X should appoint an independent counsel to make decisions and run the case. It does occur to me that there should be some check on this... after all, this bill as written would have allowed V to appoint you to the case! lol

I'll fiddle with the wording. Glad to hear you support the prior bit.

[Sir Alexandreu Davinescu]

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

Separation of powers alert!!!!!!

It's lovely that you relied on the ABA here, but you should note that the ABA only issues guidance. You may want to look at the Code of Conduct for Federal US Judges. 

Also, it remains unsettled law whether the US Congress can actually impose those ethics on the US Supreme Court.  They can do so for all other US Judges because Congress creates those Courts, whether they're article III courts or Article I or IV tribunals.  The Supreme Court derives its authority from the US Constitution, NOT from statute.  All other US federal courts (e.g., Federal Circuit Courts, Federal District Courts), derive authority from statute.  Hence, and this is unsettled, there is a strong argument that the US Constitution does not authorize one branch of government to impose ethics on another branch of government for those offices that exist according to the Constitution.  This same premise applies to the executive branch.  Federal Departments exist by statute, so Congress can impose limitations and ethics.  It cannot, however, impose ethics on the President and Vice President.  Hence why we have impeachment and removal.  The current wording of the Organic Law, with respect to the judiciary, follows the US premise that, I strongly argue, the Ziu has no authority to set ethics or rules on sitting Justices. 

If you're stating that the Ziu may not make rules regarding the behavior of judges, then -- my goodness, we have quite a problem! A whole bunch of Title G has to be thrown out, since it tells judges what to do all over the place. Stuff like "3.11. Corts shall grant petitioned waivers unless the designated proxy has been convicted of a felony, has presented themselves unlawfully to be an attorney, lawyer, barrister, solicitor or councillor/counselor of law, has falsely claimed Bar membership or other official standing within the Talossan Bar or has received monetary compensation or other financial consideration in exchange for his/her representational duties or when a suitable member of the bar is available for representation in the matter, unencumbered by conflicts of interest or personal disputes."

This is an interesting point, though, and I'd be eager to hear on which side you come down. At first glance, it seems like a dozen different provisions would have to fall. This would be a new principle in Talossan jurisprudence! Exciting!

I can rewrite this to work any way this comes out, of course What's your thought?

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

Hence, as I've explained ad nauseum elsewhere, you cannot actually set rules.  Impeachment and removal sets a convention.  

Wow, super-weird. Someone told me a story one time about a justice that was removed in part explicitly for breaking court rules. I think it was actually in the bill and it was pretty recent. Maybe that was just a fabrication? Interesting.

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

So is there a problem?

Yeah, pretty recently a member of the FDT who was in government convened a one-sided hearing to have the sentence of a fellow FDT MC changed, without any opposing counsel to represent the interests of justice. Man, you didn't know about that or the impeachment? Now I feel bad about not restarting the paper. The public needs to know!

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

Not to mention some ex parte communication is okay, provided it is disclosed to all parties.

I will go back in time and alter the bill to reflect this exception from the moment I first post it. Aaaaand done!

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

I would also note, because you just love defamation by innuendo, I never engaged in ex parte communication with the UC about the ESB case.

This is unintentionally amazing. You are a treasure and I wish I had a tiny gilded version of you to put in my breast pocket and to which I could whisper sweet nothings.

But seriously, I wasn't implying you had engaged in that particular form of misconduct.

[Sir Alexandreu Davinescu]

Jan 9, 2019 22:29:21 GMT -6 Sir Alexandreu Davinescu said:

You are a treasure and I wish I had a tiny gilded version of you to put in my breast pocket and to which I could whisper sweet nothings.

Side note: commissioning this from a reputable goldsmith immediately.

[Viteu Marcianüs]

You really can't read English can you, Alex?

Please DO post where a US Supreme Court Justice, not any other federal or state US court judge/justice, was removed for breakkng rules set out by Congress.

Also, your temper tantrum over ESB is tiring. You still think you're entitled to special treatment. All of Talossa must go on hold until Alex has the time to come in and make sure he approves it.

[Sir Alexandreu Davinescu]

Jan 9, 2019 22:29:21 GMT -6 Sir Alexandreu Davinescu said:

Jan 9, 2019 16:21:10 GMT -6 Viteu Marcianüs said:

Hence, as I've explained ad nauseum elsewhere, you cannot actually set rules.  Impeachment and removal sets a convention.  

Wow, super-weird. Someone told me a story one time about a justice that was removed in part explicitly for breaking court rules. I think it was actually in the bill and it was pretty recent. Maybe that was just a fabrication? Interesting.

Jan 10, 2019 4:39:14 GMT -6 Viteu Marcianüs said:

Please DO post where a US Supreme Court Justice, not any other federal or state US court judge/justice, was removed for breakkng rules set out by Congress.

This is amazing.

So yeah, sure thing!

This is amazing.

Okay, so it happened very recently and so it's still fresh in my mind.

This is amazing.

I can actually give you the exact quote, it's on hand and very easy to find.

This is amazing.

Ah yes, here we go, it's this "V" person in someplace called the Kingdom of Talossa; he sponsored and helped pass a bill to remove a justice from their high court for -- in part -- "outright refusal to comply with the rules of the Cort, whether that requires answering a complaint or adhering to deadlines."

And then their legislature went and passed it, even though no such rules exist or were ever identified by the sponsor! Just, poof, up and removed him for rules that don't exist!

I love you, man. Amazing stuff.

[Miestrâ Schivâ, UrN]

Jan 9, 2019 22:10:01 GMT -6 Sir Alexandreu Davinescu said:

Miestrâ Schivâ, UrN said:

As to the last section, this seems very vague: "unless the interests of justice are represented in the form of an independently appointed counsel." Is this direct quoted from ABA material or did you write this yourself?

What is vague? In the case of review of past convictions as done with ESB, the A-X should appoint an independent counsel to make decisions and run the case. It does occur to me that there should be some check on this... after all, this bill as written would have allowed V to appoint you to the case! lol

But your whole shtick was about how horrible it was that there wasn't opposing counsel in the case for review. So is the Independent Counsel "making decisions and running the case", or "a Devil's Advocate just arguing against what the A-Xh wants, representing no-one in particular"? I don't see how it can be both.

Glad to hear you support the prior bit.

Well, I'm guided by the opinion of an actual legal expert, V, in that regard, and if he says it stinks I won't vote for it. Also, I'm interested in how a bill which was supposed to be "no judicial review without opposing counsel" became 95% about ex parte communications.

[Sir Alexandreu Davinescu]

Jan 10, 2019 12:07:25 GMT -6 Miestrâ Schivâ, UrN said:

Jan 9, 2019 22:10:01 GMT -6 Sir Alexandreu Davinescu said:

What is vague? In the case of review of past convictions as done with ESB, the A-X should appoint an independent counsel to make decisions and run the case. It does occur to me that there should be some check on this... after all, this bill as written would have allowed V to appoint you to the case! lol

But your whole shtick was about how horrible it was that there wasn't opposing counsel in the case for review. So is the Independent Counsel "making decisions and running the case", or "a Devil's Advocate just arguing against what the A-Xh wants, representing no-one in particular"? I don't see how it can be both.

No, you are right, like I said -- that bit does need some work. Going to need to redraft it.

Jan 10, 2019 12:07:25 GMT -6 Miestrâ Schivâ, UrN said:

Glad to hear you support the prior bit.

Well, I'm guided by the opinion of an actual legal expert, V, in that regard, and if he says it stinks I won't vote for it. Also, I'm interested in how a bill which was supposed to be "no judicial review without opposing counsel" became 95% about ex parte communications.

lol he will give it a fair hearing on its merits don't worry

[Sir Alexandreu Davinescu]

Also changed the first part to just make it one of the several rules governing the practice of law, bypassing separation of powers concerns.

[E.S. Bornatfiglheu]

I don't understand the claim that the proceedings regarding the vacation of my conviction were completely one-sided. The sitting Justice left pretty extensive time for comment and the filing of responses. I was watching. I recall that Gluc stood up and had a say. Then, when the King made it known his confusion about speaking out, the time for such was extended. Being, as it were, in the hot seat once again, I can speak to the fact that it did not feel one-sided.

The reasoning in your bill states that "WHEREAS this should already be apparent and not need to be enshrined in statutory law, but clearly it is not, and..." but you can't point to an example of ex parte communication.

You state that the hearing was politically motivated. But how can you know V's mind? Or mine? Yes, I am an FDT member. Yes, I am an FDT MC by the grace of Talossan voters and the partial vacation of my sentence. But if seeking out remedy for me was politically motivated, it seems to have been a terrible idea. Me being an MC doesn't bring the FDT a substantive advantage. Given the structure of parliament, they could easily have simply apportioned seats differently.

If anything, this has been something of a lodestone around their necks. After all, we are here debating this as opposed to substantive change and attempts to revivify Talossa.

[Sir Alexandreu Davinescu]

Yes, there was time for comment during the proceedings, but that is different from someone appointed to actually represent the victims and the pursuit of justice. For example, His Majesty spoke up only because he was incidentally accused of wrongdoing during the proceedings, not because he was playing the role of prosecutor. It might not have felt one-sided, but it was: V was pushing to have the sentence curtailed in front of a judge, and no one was assigned the contrary position. That is a very potent position to be in. Notice how the comments restricted themselves entirely to a few aspects of the case, as opposed to addressing the legal arguments at the heart of the case? No one had the job of looking at V's arguments and opposing them with arguments of their own, even if people outside of the proceedings were offered opportunity to comment.

You are 100% right that I cannot know V's mind or whether or not it was to the advantage of the FDT to give you a seat. But regardless, you were given a seat by the FDT and V is a member of the FDT and he convened a hearing alone before a judge where he argued unopposed for your sentence to be curtailed. Those are the plain facts. Even if you are sure that there was nothing corrupt at work here, that doesn't mean that next time there won't be. This law is a reaction to what happened: there appeared to be a conflict of interest.

This bill will not change your situation at all. It cannot, since that would be Inorganic. It is designed for future situations that are quite easy to imagine. Imagine a RUMP government comes into power and solidifies their control, only later for it to be discovered that Sir Cresti created forty fake people and had them vote RUMP. He gets convicted, but a few months later a RUMP A-G calls a hearing and argues that his sentence should be curtailed -- or heck, even overturned. For that matter, the RUMP A-G could argue that he's owed compensation. And no one argues against him unless we get lucky enough to have a litigious intercessor.

This aspect of the bill is very simple and seems clear to me: officials who would appear to benefit from a decision should not be making that decision. An independent person should make the decision. If I get to hand out government contracts, I shouldn't be allowed to award them to Davinescu Inc! If my brother is being prosecuted, I shouldn't be allowed to decide to drop the case! And if my close ally was convicted of serious crimes, I shouldn't get to convene a tribunal, free of opposition, to have it curtailed.

[E.S. Bornatfiglheu]

So the Justice's decision to hear the motion doesn't decide the merits, but instead a ban is simply put in place?

It matters little, to be honest, that this does not affect my situation.  I'm afraid this bill puts too much of a test on discerning the intent of the action.  Would it have changed things if I had been a NPW member instead?  Even despite my well-known Republican leanings? 

So much of this bill goes to presumed intent, even the very name of it "Reactionary Tribunals." 

Who is responsible for the "independently appointed counsel" who does the vigorous contesting?

And if the case is that of a conviction vacation... isn't there already a counterargument?  After all, the conviction stands as public record and the precedent and law.  If there is a required "advocatus diaboli," what more could they really offer, aside from a restatement of the facts of the original case?  And if there IS more, why not introduce it during the first case?

Essentially, such "reactionary tribunals" cannot be divorced from the original case... including the applied law and established facts.  So I'm really not sure this is needed.