The Certified Question Act

[Viteu Marcianüs]

The Certified Question Act

Whereas, this Kingdom of Talossa exists primarily on the internet and during its citizens free time; 

Whereas, certain issues that may arise that would warrant judicial intervention are likely to evade judicial scrutiny because, although the Organicity of an item may be question, the nature of Talossa preempts the ability of an actual case or controversy from arising; 

Whereas, the Organic Law does not proscribe "advisory opinions" such as the Constitution of the United State does in the "case or controversy" clause or the Constitution of Australia; 

Whereas, there exists no Talossan statute with respect to "advisory opinions" and, although briefed before the Corts of this Kingdom previously, no binding authority has fully addressed the issue; 

Whereas, there are strong arguments against "advisory opinions" and equally strong arguments against "advisory opinions";

Whereas, Section 9 of Article XVI of our Organic Law charges the courts of the Kingdom of Talossa with resolving questions of Organic interpretation; 

Whereas, it is intent of this acts sponsor(s) to establish a reasonable middle-ground on the issue and prescribe when and if a Cort of Talossa may hear an "advisory opinion"; 

Whereas, it is not the intent of this acts sponsor(s) to limit or expand the broad authority of the Cort, but to resolve legislatively the issue of "advisory opinions"; 

Therefore, Title G of el Lexhatx is amended  to include the following: 

13. Organic Interpretations 

13.1 Definitions - The following definitions apply only to Section 13 of Title G of el Lexhatx and shall not be understood to extend to any other matters of Law. Where a definition contained herein contradicts another part of the law, the definition contained therein shall govern that section of Law, and the definition contained herein shall govern this section of Law.  Where there conflicts definitions that require harmony with this statute, except for matters concerning the Organic Law, the statute that was most recently adopted as Law shall govern. 

13.1.1. "Advisory Opinion" shall mean any opinion by a court that lacks a adjudicated predicate.
13.1.2. "Live Case or Controversy" shall mean those matters which have an adjudicated predicate. 

13.1.3.1 "Decision" shall mean any judicial determination, including interim and final relief. 
13.1.3.2  For the purposes of Section 13 of Title G of el Lexhatx, "decision" and "order" shall be interchangeable and not interpreted separately; 
13.1.4. "Dictum" (singular) or "Dicta" (plural)  is that (are those) part(s) of a judicial decision in a live case or controversy that is not essential to the holding but are related to the adjudicated matter.

13.1.5.1 "Government Official" shall only mean the Seneschál, as defined in Section 1 of Article XI of our Organic Law, or the Mençei, as defined in Section 8 of Article V of our Organic Law, or those appointed according to the law of the Kingdom of Talossa to act in their stead.
13.1.5.2 For the purpose Section 13 of Title G of el Lexhatx, no other cabinet member shall be considered a "Government Official"; this restriction shall not extend to any other part of law. 

13.1.6.1 "State Official" shall mean only the Secretary of State, as defined under Article IX of our Organic Law, and the King or Queen, as defined under Article II of our Organic Law. 
13.1.6.2 For the purpose of Section 13 of Title G of el Lexhatx, no other official, be they a member of the Chancery or Royal Household, shall be considered a "State Official"; this restriction shall not extent to any other part of law. 

13.2. Certified Questions 

13.2.1.1. The Corts of Talossa shall only issue decisions in matters that arise out of a live case or controversy, except where equity demands otherwise.

13.2.1.2. The Corts of Talossa shall refrain from issuing any decision that constitutes advisory opinion in matters that do not concern the Organic Law. 
13.2.1.3. The foregoing proscription does not contemplate dicta or dictum in a decision arising out of a live case or controversy--the same not having binding authority but part of a well-established and uncontroversial aspect of the Anglo-American Common Law. 

13.2.2.1. The foregoing proscription shall not apply to a "certified question" provided the matter arises as follows: 

13.2.2.1.1. The Ziu has adopted Legislation and the King (or Queen) has declined to assent because they believe it to be inOrganic. 
13.2.2.1.1.1 Under such a circumstance, with the approval of one Government Official and one State Official, the Attorney General may certify the question to the Uppermost Cort of Talossa for a determination as to whether the Ziu acted Organically or whether the act itself is Organic or both or any other matter related to the certified question; 
13.2.2.1.1.2 Prior to certifying the question to the Uppermost Cort, the Attorney General shall give notice to the King (or Queen) that they have received the request from the requisite officials and, as soon as practicable, provide the certified question to the King (or Queen) with five days notice prior to filing with the Uppermost Cort of Talossa to allow the King (or Queen) to withdraw their objection or obtain counsel (or proceed pro se). 
13.2.2.1.1.3 If the King (or Queen) shall decide to obtain counsel, the Attorney General shall appoint that individual "Special Counsel" for the sole-purpose of adjudicating this matter, and shall not withhold that appointment unless the Attorney General formally objects to the Cort that the individual should not be appointed on account of exceptional circumstances. 

13.2.1.2. The Ziu has adopted Legislation and the King (or Queen) has assented, and the Secretary of State declines to promulgate because he or she believes it to be inOrganic. 
13.2.1.2.1. Under such a circumstance, the matter may proceed according to the provisions outlined under title G, Section 13.2.2.1.1-3.  

13.3.1.3. The Ziu has adopted Legislation and received Royal Assent, but there is a strong concern that the Law may be inOrganic. 
13.2.1.3.1. Under such a circumstance, with the consent of two officials, either both Government or State or one of each, the Attorney General may certify the question to the Uppermost Cort of Talossa for a determination as to whether the law is Organic. 
13.2.1.3.2. The Attorney General must provide the public with five-days notice of a pre-filed certified question and appoint, if possible, someone as Special Counsel as an adversary in the proceeding.  

13.2.3. The foregoing "certified questions" may only concern recently enacted Legislation or laws; and the Cort shall not be bound by this section to accept certified questions. 
13.2.3.1. If the Uppermost Cort should agree to resolve a certified question, it shall be subject to all other points of the Organic Law, and its decision shall receive the same authoritative weight as one arising out of a live case or controversy. 
13.2.3.2. The Uppermost Cort shall maintain its discretion to set forth the manner of such a proceeding that is most equitable and just to all parties. 

[Viteu Marcianüs]

I want to be clear-this is a test the waters draft. I'm more curious if there is support for the general idea of this bill than the actual provisions contained therein.

I tried to make it narrow and explicit. I've been AG, in some form, for a while now and don't want to run to the Cort every time there is a question of law. In any event, I think the three situations I identified are fair and the requirements to appoint special counsel and provide notice are fair. I'm of the mind, if we are going to certify the question, the public should know everything (except, of course, legal strategy).

Also, it is not uncommon for Constitutional Courts to review recently enacted legislation at the Government's request in Civil Law countries (e.g. France). So I'm sure some of our Civil Law brethren are scratching their heads why we common law folk are arguing about this.

[Sir Alexandreu Davinescu]

I appreciate the direction you're going, but isn't the Organic question going to control here? If the Cort can do it, we should definitely make some rules for it, but if not, then this bill is inorganic.

For me, the important facts are that (a) the cort's duties are defined explicitly and concisely as trying people for doing or not doing stuff, and (b) the circumstances under which a law may be deemed inorganic are set forth, and (c) there is no other language that could reasonably be interpreted as making the corts available for such consultations. Are you open to a discussion here of the Organic merits, maybe breaking this convo off from the holiday issue (which is a separate matter, really).

[Viteu Marcianüs]

If the Cort were to find that it cannot issue advisory opinions, then the act would be moot. But we wouldn't know that until the Cort actually decides the issue. So we're stuck in a bit of a conundrum. As I said, i wanted to get a feel for how others would perceive an act such as this. The holiday issue is the latest iteration of the issue, but it's come up before. This Act is partially in response to that, but it's more of a general response to an issue that keeps arising. As far as I'm concerned, this is a separate from the holiday issue but the latter is illustrative. My intent isto debate the merits of this Act, including the Organic issue, with the holiday issue or ben-ard issue or other instances as appropriate reference/backdrops.

If we look to other common-law countries, namely Australia and the United States, we find explicit language regarding "live case or controversy" to prohibit an advisory opinion. We don't have that kind of language in the Organic Law. I also don't think we can infer it from other parts. The injunction language seemingly suggests some type of advisory opinion/certified question power. But again, we're stuck with the Cort's lack of direction on the issue.

This Act is a bit wordy and can likely be cut down. The Ziu could certainly pass this and the COrt could overturn it as inOrganic. Ultimately, we're debating in the shadow of the law. Perhaps it makes sense to conclude that, given the lack of direction, the Cort has some form of this authority, and we set rules on it. If it ends up being the case that the Cort can take these questions, great, we have rules. If it can't, then the act is moot. The only injury here is that we passed rules for something not needed; but we did so to play it safe. That injury is minimal (the injury being the time spent) when compared to the fact that we keep debating this very issue. My point - let's potentially waste the time now instead of continuously wasting it in the future. Or, if this is Organic, then it's done and we don't need to waste any more time debating the appropriate circumstances.

[Viteu Marcianüs]

I don't know if it's clear, but this is meant only for questions of organic interpretation, not for certified questions on how to interpret a statute per se.

[Miestrâ Schivâ, UrN]

May 23, 2019 10:03:26 GMT -6 Viteu Marcianüs said:

Also, it is not uncommon for Constitutional Courts to review recently enacted legislation at the Government's request in Civil Law countries (e.g. France).

I'm pretty sure Ireland is a common law country, so:

Article 26 of the Constitution provides that the President of Ireland may, after consultation with the Council of State, refer Bills of the type prescribed in that Article to the Supreme Court for a decision as to whether any such Bill or specified provision(s) thereof is repugnant to the Constitution.

[Viteu Marcianüs]

May 23, 2019 15:35:23 GMT -6 Miestrâ Schivâ, UrN said:

May 23, 2019 10:03:26 GMT -6 Viteu Marcianüs said:

Also, it is not uncommon for Constitutional Courts to review recently enacted legislation at the Government's request in Civil Law countries (e.g. France).

I'm pretty sure Ireland is a common law country, so:

Article 26 of the Constitution provides that the President of Ireland may, after consultation with the Council of State, refer Bills of the type prescribed in that Article to the Supreme Court for a decision as to whether any such Bill or specified provision(s) thereof is repugnant to the Constitution.

 Good point and further support that, more likely than not, common-law countries permit, with limitations, certified questions/advisory opinions. 

[Antaglha Xhenerös Somelieir]

After reading what has been stated on this thread, and the discussion in the Clark in Ziu on this matter (the latter is a thread im not entitled to post on so I'll be putting both of my thoughts here)
Personaly i think it is a bit closed minded that the King, out of hand, refused assent without trying to see if his doubts about whether the Law in question was organic or not held an legal wait. Especially as there was nothing to stop the king from recieving an injuction to stop the bill from proceeding any further, so that the Cort could then question the oraganic or potential lack of organic nature of the bill. As if the King had concerns then he should have, as Miestra has pointed out on the thread in the Ziu, either sought an injunction, or joined in the debate.

I think that there should be a provision in Organic Law that requires the Crown, in cases where the monarch thinks a bill that has passed is inorganic, to states this, and then delays assent whilst the issue is raised in Cort (with certain limits attatched) as then this provides a framework of organic law testing before a law is passed, as i do believe it should only be the Cort that decides the Organicy of a Law and not the Monarch or Ziu.

In regards for the question on whether the Cort has power to issue advisary rulings, instead of rushing to see where people might stand on a law that could force an answer to this, first to wait and see if the Cort can answer this question for itself, as this situation is the perfect opportunity to do so, and then make decisions based on the Corts findings. Which i think would be the smart thing to do.
Anyways these are just some of my thoughts on the matter.

[Sir Alexandreu Davinescu]

A practical point in response to that last: it would have been nice if the king had spoken up during the drafting process, but he definitely could not just get an injunction to stop the legislative process while discussion in any venue occurred about its organicity. And that makes sense... That would be a pretty huge power that could easily be abused, if the sovereign could stop a bill for months on end while it was going through the courts. There's a good reason we don't give the king that power. After the bill was passed, pretty much his only alternative was to veto it or allow it to pass it to law and then sue. again, speaking up earlier would have been better, but once it was passed and his endorsement was saw on it, he chose the less aggressive route.

[Viteu Marcianüs]

The problem here is that the advisory opinion issue has been raised before the Cort a few times already, and the Cort has not addressed the issue because, most recently, it said an order was coming that never came. This issue certainly came up in the Ben-Ard suo moto action, where we had then-Justice Ben-Ard issue a suo moto (sua sponte everywhere else but India) order, Chief Justice Tamorán rebuked, and Justice Cjantscheir then issued a third order. A petition was filed by myself, as A-G to nullifiy all prior orders and to resolve the issue of advisory opinion, and was partially briefed. Although the question there concerned sua sponte/suo moto orders, many of the points raised are similar to this issue. That was back in December 2017.

The problem here is the only way to test is to actually file the petition and, assuming the Cort does issue a ruling, hopefully resolves this lacuna.

Nevertheless, the limitations I offered in this bills are analogous to those I identified in other common-law countries.

[King John]

Instead of passing a Bill *about* advisory opinions, in order to test whether the Cort believes itself to have the power to issue such opinions, someone could just ASK the Cort for an advisory opinion, no? That would give them a chance to say Yea or Nay to the question of whether they can provide it.

Another question arises. 13.2.1.2. refers to a situation in which the Secretary of State declines to promulgate a Bill that has passed the Ziu and received the Royal consent. Wait, what? Where did that come from? Did I miss something?

— John R

[Viteu Marcianüs]

May 24, 2019 13:37:19 GMT -6 King John said:

Instead of passing a Bill *about* advisory opinions, in order to test whether the Cort believes itself to have the power to issue such opinions, someone could just ASK the Cort for an advisory opinion, no? That would give them a chance to say Yea or Nay to the question of whether they can provide it.

Another question arises. 13.2.1.2. refers to a situation in which the Secretary of State declines to promulgate a Bill that has passed the Ziu and received the Royal consent. Wait, what? Where did that come from? Did I miss something?

— John R

Partially agree to your first point. But as I mentioned, we've asked the Cort this question a few times and haven't gotten a definitive answer. Hopefully, we could get one now.  The intended litigation for the holiday issue is likely to be twofold:


(1) the meaning of holidays (responding to your post elsewhere)--obviously we take different positions on this, and I'm happy to let the Cort decide. I do not intend to frame this this as a "constitutional crisis" per se, but, in my estimation, a reasonable disagreement on whether you have the sole power to declare "holidays" per se or if that only means "national holidays" as opposed to "days of celebration", "public holiday", or "national holiday." I will include my point about the "democratically grants" clause.  I do not see this as a "John is abusing his power with respect to the veto" issue but an honest disagreement on Organic authority.  It's not personal in this instance. I hope to have the draft petition done by Sunday and will send it to you in advance as promised. I understand that you will be out-of-town for a few days. I had  figured I'd give you five days notice for fairness.  Considering, in my opinion, we are not dealing with a monumental constitutional crisis, I see no issue in holding off until May, June 3rd, at 7:30 p.m. EDT to file--and if you happen to get to it before then and let me know, filing it as an order petition requesting the Cort give you 14 days to join issue.  Again, my goal here is, if the Cort takes the matter, a full, fair,and impartial hearing.  If you would like to appoint an attorney before you leave that can accept "talossan" service on your behalf, you can message me privately who that individual is. 

(2) The petition will address, among other things, the advisory opinion issue.  Regarding this bill, I wanted to get a feel for how others might feel about setting parameters for "certified questions" so we don't set a precedent where everything the Government or State or Crown does results in immediate petitions for advisory opinions.  If the Cort doesn't agree it has this authority, then the bill would be moot. If it does and the Ziu can set parameters, then we'd have something in place. 

(3) Regarding 13.2.1.2 - I wanted to consider every plausible eventuality.  I cannot think of an instance where the SOS declined to promulgate a Bill.  I'm not saying it hasn't happened; but I didn't see the harm in adding it.  I do read the Org Law to mean that once a bill receives assent, it's Law. If we are all in agreement on that, I would remove that section. My goal was to be as fair as possible in drafting this (i.e. I'm not picking on you).  I'm not married to the exact language of what I proposed. I want this to be perceived as objective, even-handed, and a reasonable compromise. 

[Ian Plätschisch]

My time to read large blocks of legal text has been limited recently, so forgive me if any of this has been brought up before. However, I do not really think this bill is necessary for two reasons:
-The King can veto a bill for any reason he wants. Therefore, if he thinks a bill is inOrganic, he could just veto it for some other reason (or with no reason at all, or with just his personal opinion on the Organicity of the bill) instead of submit it to the Cort.
-Running to the Cort with every question we have would probably clog it up (which would not be hard to do given how inactive it is). There is no reason for the Cort to adjudicate a question unless its failure to do so would do someone harm; otherwise the Cort would have to render lots of opinions that in practice are never used.

[Viteu Marcianüs]

This bills seeks to prevent constantly running to the Cort. This does not impact the Kings veto at all. But if he states it's because he thinks it's Inorganic, than, with the referral of two others, including himself, the Cort could certify the question.

The issue of advisory opinions is unresolved. To the extent they're premissible, this limits them. Otherwise, if the Cort has such authority, at the moment, *anyone* can petition for an advisory opinion.

[Glüc da Dhi]

Not an MZ, so can't help with estimating how much Ziu support there might be, but since I'm commenting on bills anyway: I quite like the general direction of this bill. It is often quite difficult to know for sure in advance whether a bill is organic or not, especially since it often depends on interpretation and we dont know what interpretation the CpI will follow. In some cases asking the CpI seems like a sensible solution.