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Post by Sir Alexandreu Davinescu on Jan 23, 2019 16:58:53 GMT -6
So the Justice's decision to hear the motion doesn't decide the merits, but instead a ban is simply put in place? There's no ban. Instead, this just ensures that the person with the conflict of interest isn't making the decision and/or sitting unopposed in the courtroom. Appointing someone that the A-X trusts to make this decision but who doesn't have the same conflict seems like a really reasonable way to handle it, as opposed to simply banning it or permitting it. Again, if I were handing out contracts for road work or something, the same rules would apply. The person normally who makes decisions on something is compelled to recuse themselves or appoint someone independent. I'd have included recusal as an option, but that actually seems more limiting (since there is no requirement to have any other A-X staff, and most don't). 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?
I don't know, would it? Do you think that there would be a clear appearance of a conflict of interest if V made decisions about this on his own in such an instance? At first blush, it doesn't seem like it would. Being an MZ serving in the same party seems like a clear and obvious conflict of interest, but merely having similar governmental philosophy does not. Again, just to emphasize: this has nothing to do with state of mind. It's impossible to know what's in someone's heart. If anyone can write a law to that effect, I'd be impressed. Who is responsible for the "independently appointed counsel" who does the vigorous contesting? The A-X appoints them. It's right there in the bill. 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? Maybe an example will make it clear. Think about it for a second. Imagine that you're a teacher and a student accuses you of impropriety. There's a hearing with you, the school council/principal, and the student (and/or their representative). The council decides in your favor and the case is dismissed. Now imagine that you hear about how they held a second meeting the next day, reviewed the same case again, and decided that you were actually guilty. Would you be satisfied if they said, "Well, we had the transcript of everything you said yesterday, so what more could you offer but a restatement?" Of course not! You'd be outraged. You would have every right to answer any new arguments put forward, new details they suggested, or new witnesses they presented. And even if they just used the same arguments, restated in the same way, a one-sided tribunal is just plain unfair. If only one side gets argued, they tend to win rather more often than they should! The analogy isn't perfect, of course. But the essential principle is the same: all legitimate sides to an argument should be represented and have the fullest chance to work together to approach justice. This is the core principle I want to put into law.
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Post by E.S. Bornatfiglheu on Jan 23, 2019 19:57:19 GMT -6
If the one-sided tribunal was standing alone on the issue, one would imagine the only person appearing would indeed win more often than not. But that's not the case here. There was settled and established case law, and the interrogation taking place was to the faults in said case. Your example in this case is far more akin to a direct appeal, and really doesn't work on any level.
A better example might be trying to shift a big damn rock. The rock has all the advantages in terms of inertia.
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Post by Sir Alexandreu Davinescu on Jan 23, 2019 20:25:59 GMT -6
I'm not sure what your argument means, if I can be completely honest. You keep up bringing up the specifics of your case, but as I keep telling you: this is a general rule and not about your case. You may be 100% correct that in your case there was no need for opposing counsel, since it was so simple and established. I don't think that's true, but it doesn't matter even a little bit.
This law is meant to establish a general rule, not an ESB rule. All legitimate sides to an argument should be represented and have the fullest chance to work together to approach justice. People should not be making decisions about prosecuting, exonerating, etc. someone when they have an apparent conflict of interest! Are you really saying you disagree with that?
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Post by E.S. Bornatfiglheu on Jan 23, 2019 20:39:21 GMT -6
What I am saying is that this is far too rooted in knowing intentionality. How is such a thing decided?
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Post by Sir Alexandreu Davinescu on Jan 23, 2019 21:10:14 GMT -6
No, intentions have nothing to do with it. Look through the bill and you will not see one mention of intentions. The provision you seem to be focused on says, "no conflicts of interest between them and their work, either in fact or in appearance." And that's it.
Are you trying to decide whether or not you have enough evidence to bring charges against your spouse? That's a conflict of interest. You shouldn't be making that decision.
Are you thinking about prosecuting someone you're currently suing over money they owe you? That's a conflict of interest. You shouldn't be making that decision.
Are you pondering abandoning criminal charges brought against your immediate boss? That's a conflict of interest. You shouldn't be making that decision.
It's so weird that this is a point of contention.
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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 Jan 24, 2019 15:58:52 GMT -6
Just checking in to note that this bill has improved somewhat from its first incarnation, but I certainly won't vote for it unless the title is changed.
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Post by Sir Alexandreu Davinescu on Jan 24, 2019 18:38:29 GMT -6
What is your objection?
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Post by Sir Alexandreu Davinescu on Jan 24, 2019 20:02:33 GMT -6
You know what? Doesn't matter. Renamed it.
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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 Jan 24, 2019 23:05:42 GMT -6
The only possible response to this is hutsch-tú. Seriously, you could get support from us, but you just have to be a fora da ciúl, don't you?
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Post by Sir Alexandreu Davinescu on Jan 25, 2019 7:56:28 GMT -6
The only possible response to this is hutsch-tú. Seriously, you could get support from us, but you just have to be a fora da ciúl, don't you? View AttachmentNot sure what your problem is, or why you're suddenly attacking me? I renamed it a second time to the most anodyne name I could conceive. If you have a specific name in mind, please just tell me. I do not care about the name of the bill. Are you just scrabbling for some excuse not to support it?
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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 Jan 25, 2019 17:09:16 GMT -6
POP QUIZ for all those watching: could you see what AD was doing with those bill titles, or not?
[] ÜC, it was obvious trolling, he insults our intelligence and shows bad faith by claiming not to understand [] NON, why are you being mean to him
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Post by Sir Alexandreu Davinescu on Jan 26, 2019 19:22:45 GMT -6
Is it that I'm talking about ex parte communications between a lawyer and a judge? This is a general prohibition on it that is not aimed at you, it's aimed at ending the practice throughout.
Is it that I called the practice of the one-sided tribunal "reactionary?" I have amended the title four times, and will change it again, since it is ludicrously unimportant.
Seriously, just tell me the name you want me to give the bill, and I will give it that name.
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Ián Tamorán S.H.
Chief Justice of the Uppermost Court
Proud Philosopher of Talossa
Posts: 1,401
Talossan Since: 9-27-2010
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Post by Ián Tamorán S.H. on Jan 27, 2019 4:02:27 GMT -6
This posting is a series of thoughts upon this proposed legislation, and it is a purely private posting and not one of judicial weight, notwithstanding my current status within the Corts of Talossa. The Ex Parte Corruption Act WHEREAS the adversarial nature of court proceedings are one of the most important keys to their fairness, and
WHEREAS every legal system in the world prohibits ex parte communication under normal circumstances, since it provides one party an opportunity to lay out arguments or complaints before a justice, without the opportunity for the other parties to answer, a circumstance that provides an advantage to the corrupt and which directly contravenes the Fourth Covenant's guarantee of equal protection under the law, andSo far, excellent, but... WHEREAS it is bad to incentivize large-scale misbehavior by allowing one-sided tribunals to revisit old cases and have them abrogated, and The above clause seems to be pointing back to some previous action(s) of the Corts. Most readers of this thread will know what actions are being referred to – but not all readers. Moreover, although the clauses following the THEREFORE are the body of the law, it has already been stated elsewhere that in determining within the Corts how to interpret ambiguous or doubtful meanings of legislation, that the WHEREAS clauses, as well as the recorded Hopper discussions, may be brought into consideration. This particular preamble may (not “will”) be taken to limit this Law to only that specific type of case. WHEREAS this should already be apparent and not need to be enshrined in statutory law, but clearly it is not, and OK – and an acceptable comment upon the existing legislation. Note “acceptable”, not “correct”. I am not saying that it is or is not correct, but that this statement is one of opinion, not fact. WHEREAS there shouldn't be any confusion about it, since we can't allow any more tribunals that are just political reactions,
Hmmm. This is very definitely a partially concealed reference to previous events, again without clear specification of what events they were. Removal of the words “any more” would restore neutrality. 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:
OK so far, but.... 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
We need to be careful about the word “reasonably” here. Yes, this clause is fine – but there should be clear definition, within Talossan Law, as to how to determine what is reasonable. This determination may, perhaps, be made by reference to some specific law of some other nation (though I, personally, would discourage that), or by a simple definition elsewhere (not in this bill, but some other). 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.
OK so far, but... 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 independently appointed counsel, who shall be responsible for vigorously contesting this review.
This clause seems to be a specific restriction of the applicability of this proposed Law. It mentions “independently appointed counsel” without specification of who can or should do that appointing. If the action is one being taken by the Ministry of Justice itself, then the MoJ is not independent, and cannot appoint that counsel; if the MoJ, in this example, were in that position it would have to, either through its own actions, or by request to the Corts, or by request to the Ziu or the Senats, have an appointment suggested. Note “suggested”, not “made”. If such a request were made public, there might be ten people who stand up and offer their services – then who is to chose between them? Again, it cannot be the Corts that decide who is to be party to an initial plea to the Corts for an action which calls previous actions of the Corts into question, for that would be self interest. And it cannot be the Monarch, for it may be the actions of that very Monarch that are being examined. No – either this Law, or some other (and, again, I would suggest some other) should – nay, must – clearly specify the order of priority of such choice, such that it is always clear (if such a thing be possible!) who is to make that choice. Furthermore, there is just one sort of action being forbidden by this clause. Is there no other sort of case that this Law is intended to cover? If so (and I suspect it is) then the wording of this clause needs to be revisited, or (perhaps easiest) deleted from this proposed legislation. Importantly – and I repeat here what I have said elsewhere, and shall continue to say – the Law of Talossa is the law of Talossa and not of some other place. Examples drawn from the laws of the U.S.A. or the U.K. or India or France, etc., are just examples, and do not in any way make up a part of Talossan Law. The single explicit exception to that, is in the legislation covering part of the very case being alluded to (the only part of the Talossan Law which makes explicit reference to the laws of other nations). Talossan Law is Talossan, and the laws of other nations are not, in any way, part of Talossan Law with just two exceptions: (1) those explicit references within Talossan Law to the laws of those other nations, and (2) the Universal Declaration of Human Rights. And finally: the MoJ and the Corts are the bodies within Talossa whose very job is the administration of Justice. The MoJ appeals both to the Laws as they appear to be at the time, and to the public interest (though cases may be raised by anyone), and the Corts in the determination of the applicability of those Laws. Note that those who sit on the bench are Justices, not judges. Justice, not vindictiveness, is our aim. Justice, not narrow, unfair, imposition of the Law as interpreted by some in dispute with others. Justice and freedom, not restriction. And remember, Justice includes both mercy (the putting aside of narrow limitations) and also the imposition of greater (not lesser) penalties where, in Justice, that seems to be appropriate.
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Post by Sir Alexandreu Davinescu on Jan 27, 2019 12:14:29 GMT -6
The above clause seems to be pointing back to some previous action(s) of the Corts. Most readers of this thread will know what actions are being referred to – but not all readers. Moreover, although the clauses following the THEREFORE are the body of the law, it has already been stated elsewhere that in determining within the Corts how to interpret ambiguous or doubtful meanings of legislation, that the WHEREAS clauses, as well as the recorded Hopper discussions, may be brought into consideration. This particular preamble may (not “will”) be taken to limit this Law to only that specific type of case. Well, the first recourse is to the letter of the law, and it is a blanket provision with only very specific qualifications. It is true that there is some hypothetical potential that the circumstances of this law might influence its future interpretation, but I would trust that any justices doing such a deep dive would be able to read this thread and recognize that it refers to the recent tribunal that curtailed the sentence of ESB. It is hard for me to imagine a circumstance where a justice got so far as to read the Whereases found here in this thread, and yet declined to read the rest of the thread and thereby preserved their ignorance. If it makes you more comfortable, however, then in both of the instances you identify, I am happy to add further clarification. Thank you for the input! 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 [/div][/quote]We need to be careful about the word “reasonably” here. Yes, this clause is fine – but there should be clear definition, within Talossan Law, as to how to determine what is reasonable. This determination may, perhaps, be made by reference to some specific law of some other nation (though I, personally, would discourage that), or by a simple definition elsewhere (not in this bill, but some other).[/quote] I followed typical practice in the law, I think. Just as "reasonable doubt" is not defined, since it is inescapably subjective, I have not defined it here. A justice would determine upon prosecution whether or not a reasonable person given the same set of facts would reach this conclusion, or not. If there is a definition of reasonable that finds the sweet spot between vagueness and specificity, I am open to adding it, but such is beyond my powers. This clause seems to be a specific restriction of the applicability of this proposed Law. It mentions “independently appointed counsel” without specification of who can or should do that appointing. If the action is one being taken by the Ministry of Justice itself, then the MoJ is not independent, and cannot appoint that counsel; if the MoJ, in this example, were in that position it would have to, either through its own actions, or by request to the Corts, or by request to the Ziu or the Senats, have an appointment suggested. Note “suggested”, not “made”. If such a request were made public, there might be ten people who stand up and offer their services – then who is to chose between them? Again, it cannot be the Corts that decide who is to be party to an initial plea to the Corts for an action which calls previous actions of the Corts into question, for that would be self interest. And it cannot be the Monarch, for it may be the actions of that very Monarch that are being examined. No – either this Law, or some other (and, again, I would suggest some other) should – nay, must – clearly specify the order of priority of such choice, such that it is always clear (if such a thing be possible!) who is to make that choice. Fair enough. I'll specify that the A-X must make this choice. That is how it is done in many places -- notably in the United States, the Special Counsel Robert Mueller has been in the news quite a lot -- and I cannot think of a workable alternative within the confines of our system. I think this would work fine, and at a minimum would be vastly superior to the status quo. Furthermore, there is just one sort of action being forbidden by this clause. Is there no other sort of case that this Law is intended to cover? If so (and I suspect it is) then the wording of this clause needs to be revisited, or (perhaps easiest) deleted from this proposed legislation. I have no other incidents in which a special counsel seems necessary, but I do see that I should allow the proposed conflict of interest generally to prompt one. Thank you!
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Post by Sir Alexandreu Davinescu on Jan 27, 2019 12:17:52 GMT -6
I have amended the act, wholesale replacing the Whereases and altering the independent counsel provisions, in response to your suggestions. Thank you!
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