[JUSTICE] - Judiciary Reform - Public Consultation

[Viteu Marcianüs]

Ministry of Justice  

Office of the Attorney General  

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As many of you are aware, our Judiciary needs some attention.  The Ziu adopted 52RZ17 - the Judiciary Reformation Amendment,  in the Sixth and Final Clark of the 52nd Cosa.  His Majesty vetoed the measure.  This Office intended to reclark the measure to overcome the veto.  However, in light of the potential of a new Organic Law possibly being put before a public referendum, the Ministry of Justice, having consulted with the 53rd Government to the Kingdom of Talossa, thinks it best to hold off on reclarking the act.  It would be futile and a waste of valuable resources to adopt an amendment that would become a nullity almost immediately.  

This Office, however, remains committed to reform. To that end, 52RZ17 will be clarked in the Sixth Clark of the 53rd Cosa if an alternative is not put forth.  To accomplish this, the Ministry of Justice invites all Talossans to propose, comment, and discuss ways to fix our judiciary.  Your thoughts are valuable. We want to put together an amendment that is workable and can establish a judiciary to address Talossa's needs.  

There is no limitation to ideas. They need not be based on the current structure, Article XVI as written or proposed (in the amendment or draft Org Law). 

The period for commentary is open and will run to August 20, 2019 at 7:30 p.m. Talossan time.  At the end of that time, the Ministry will determine if a workable system has been proposed or 52RZ17 should be reclarked.  If the former, it will hopper an amendment based on the feedback.  

The Ministry of Justice looks forward to your participation. 




                                                                            Viteu Marcianüs
                                                                            Avocat-Xheneral
                                                                            Ministry of Justice
                                                                            The Kingdom of Talossa

[Gödafrïeu Válcadác’h]

And I strongly suggest our Monarch consult the Hopper or other places for things which he might find objectionable, as I find torpedo-ambush vetoes objectionable.

[Miestrâ Schivâ, UrN]

For me, the #1 most vital point for judicial reform is that justice delayed is justice denied. The UC as currently set up is a retirement home - the Justices have no incentive to keep up to date on Talossa and give "deliberate haste" to Cort cases. I am not 100% sure how we could change that without going back to the old system of having active politicians on the Cort.

Honestly, rather than go back to the old Magistrate's Cort system, I would suggest setting up the role of Justice of the Peace - a title which any Talossan could assume after passing an exam on Talossan law. When a case was presented, a Clerk of the Courts (being a Permanent Secretary within the Justice Department) would pick a JP to hear the case at random, although of course they would be recused if they were involved in the case in any way. CpI members would have to be JPs. If a JP hearing a case wasn't heard from for (two weeks/a month/whatever) another JP would be picked to take over.

Organic Law cases (or National/Provincial govt disputes) would be dealt with directly by the CpI, unless the CpI didn't take up the case within (two weeks/a month) in which case a JP would be assigned as usual. If the CpI stopped functioning in the middle of a case for (two weeks/a month) then it would be sent back down to a JP.

Thoughts?

[Ian Plätschisch]

That is a great idea.

[Viteu Marcianüs]

I'm nearly there but the Clerk can't be in Government. It must be completely independent. I'm fine with the Clerk being a nonpartisan civil service position.

So essentially, all Talossan lawyers are JPs. They can be called at any time to hear a matter. The UC is made up of JPs. I do like having a definite UC. I still think reduction to three is a start. I'm loath to limit UC justices to JP.

This system could work under the pending judiciary reform. The Ziu can set up inferior courts as described.

[Miestrâ Schivâ, UrN]

Right then. Here are two possible laws that would go along with this Judicial Reform amendment:. Both would be amendments to Lexhátx G. I've decided to leave alone the current Clerk of Courts provisions in existing law.

The Justices of the Peace Bill

1. Any citizen of Talossa who has satisfied the Ministry of Justice of their knowledge of Talossan law and jurisprudence, and of their good character, may be recommended to the King to be named as a Justice of the Peace.

2. The Clerk of Courts shall appoint, by random selection, a Justice of the Peace to serve as a Court of First Instance for any case arising under the law of Talossa, with the exception of those cases reserved to the Cort pü Inalt by the Organic Law.

3. If the selected JP shall have any real or apparent conflict of interest in deciding the case, they shall recuse themselves and another shall be selected by the Clerk of Courts.

4. All justices of the Cort pü Inalt shall fulfil at least the same qualifications as to legal knowledge and character as a Justice of the Peace.

5. Justices of the Peace may be removed from office by the King upon presentation of evidence by the Ministry of Justice that their good character or their legal knowledge is no longer satisfactory.

The Justice Delayed is Justice Denied Bill

1. If either party in a case before the Cort fails to respond to a direction from the Cort within fourteen (14) days, the Cort may enter summary judgement against that party.

2. If any Cort fails to respond to the assignment of a Case by the Clerk of Corts within fourteen (14) days, then the Clerk of Corts shall instead assign the case to a Justice of the Peace, or to a different Justice of the Peace, as provided above.

3. If any Cort fails to respond to motions or pleadings from either party within fourteen (14) days, then a mistrial shall be declared, and the Clerk of Corts shall re-assign the case to a Justice of the Peace, or to a different Justice of the Peace, as provided above.

[Viteu Marcianüs]

I like it!

[Seguxhameir d'Üc]

I think that this a great path forward for the Talossan legal system!

[King John]

Point 4 of the Justices of the Peace Bill raises a question. Certainly one would hope the Ministry of Justice approves of a candidate's character and legal knowledge, but suppose the AG thinks the guy is a scoundrel — should the Ziu not be permitted to approve his appointment anyway? And if the answer is "No", doesn't that contradict the OrgLaw XVI.4?

Point 5 is kind of vague. How much evidence, and who's to judge whether the evidence actually shows what the Ministry of Justice thinks it shows? I'm not sure how to fix this. Maybe allow JPs to be removed by law (or if it's urgent, by PD)?

The Justice Delayed Bill has problems too:

Point 1 would effectively require everyone to check the Cort boards frequently, lest he find himself on the losing end of a lawsuit he maybe didn't even know he was a party to. We need to think about the whole issue of how we notify people, and the fact that it's really OK for Talossans to take off for a while and not respond to Talossan "stuff".

And point 3 would reward someone who's in the process of losing a case, and penalize someone who's winning, if the JP were to go missing for a while. That is, a mistrial because of a missing JP is bound to have inequitable results.

— John R

[Viteu Marcianüs]

Point 4 - I'm not opposed with keeping the recommendation out of the Ministry of Justice.

Point 5 - Will adding a standard of evidence work? Say, preponderance of the evidence? You would actually be the judge here. But perhaps another office (maybe to the UC?).

Justice Delayed:

Point 1 - Change No. 1 to "default judgment" not "summary judgment." Each are legal terms of art that mean something specific. Summary judgment is granted by motion (generally) when "there is no issue of fact and judgment is entered as a matter of law." It's preclusive and a motion (generally) made after all evidence is done (for the lawyers; I'm basing this on NY not Federal).

Use "default judgment." A party can then seek to vacatur for up to one year. We should define grounds for vacatur.

Regarding notice - Because of privacy concerns, citizens do not need to share their private information, such as email and whatnot. How does a provision that the SOS may accept service on behalf all citizens and will email them the notice (because they have access to the information), and affirms that they emailed the complaint to the person on that date, with time to appeared measured from the date the SOS sent notice (that's generally how it's done in NY against a business or someone who is not domiciled in NY(i.e. not from NY) who gets into a car accident in NY and is sued--a California driver operating a vehicle in NY consent to NY's jurisdiction for suits arising out of operation of that vehicle, and for the NY SOS to accept service on their behalf; these are called "long-arm statutes" if you need a wikipedia search term). Let's extend time to appear to 60 days measured from date of service, and the parties can, of course, stipulate to extend when necessary. Default judgment can only be entered for a period of three months after default. 

[Miestrâ Schivâ, UrN]

Jul 26, 2019 12:04:11 GMT -6 King John said:

Point 1 would effectively require everyone to check the Cort boards frequently, lest he find himself on the losing end of a lawsuit he maybe didn't even know he was a party to. We need to think about the whole issue of how we notify people, and the fact that it's really OK for Talossans to take off for a while and not respond to Talossan "stuff".

I'll respond to these points in more detail later, but right here I would like to repost something that Ian Plätschisch said in another thread:

I don't have a problem with inactive citizens. I do have a problem with the notion that a citizen can both not be around and also expect to be consulted on all matters.

[Miestrâ Schivâ, UrN]

Jul 26, 2019 12:04:11 GMT -6 King John said:

Point 4 of the Justices of the Peace Bill raises a question. Certainly one would hope the Ministry of Justice approves of a candidate's character and legal knowledge, but suppose the AG thinks the guy is a scoundrel — should the Ziu not be permitted to approve his appointment anyway? And if the answer is "No", doesn't that contradict the OrgLaw XVI.4?

Interesting point. The question of whether a sitting Justice is a scoundrel should be left to the Organic impeachment process. No problem changing that.

Point 5 is kind of vague. How much evidence, and who's to judge whether the evidence actually shows what the Ministry of Justice thinks it shows? I'm not sure how to fix this. Maybe allow JPs to be removed by law (or if it's urgent, by PD)?

I thought that the bill was pretty clear that "who's to judge" would be the King in this particular situation. The problem with removal by law is that it might boil down to a political vendetta by a Ziu majority. So change to allow JPs to be removed by court order on preponderance of the evidence?

Point 1 would effectively require everyone to check the Cort boards frequently, lest he find himself on the losing end of a lawsuit he maybe didn't even know he was a party to. We need to think about the whole issue of how we notify people, and the fact that it's really OK for Talossans to take off for a while and not respond to Talossan "stuff".

I've dealt with part of this previously, that I think it's imperative that "the right to go inactive" of a citizen must NOT include "the right of an inactive citizen to thwart the activity of active citizens by their absence", or, in this case "the right to avoid justice/one's responsibilities by just avoiding Talossa". An inactive citizen must IMHO be deemed to have resigned any of their functions of the State which require activity; and by the same token, if you don't care about Talossa enough to be active, you logically won't be impacted by losing a Cort case.

I think the metaphor we should use would be "going inactive" = "fleeing the country". The question is, under what circumstances can someone in the Anglo-American legal tradition be tried "in absentia"?

And point 3 would reward someone who's in the process of losing a case, and penalize someone who's winning, if the JP were to go missing for a while. That is, a mistrial because of a missing JP is bound to have inequitable results.

Then it would be better to just have another JP take up the case?

[Miestrâ Schivâ, UrN]

Thanks for your comments, Viteu Marcianüs and King John. I've re-edited the draft law accordingly.

[Ián Tamorán S.H.]

There are situations when, like other people, a Justice has to withdraw temporarily, for reasons of personal health. For example, I myself, at this time, have to strongly limit my activities both within Talossa and elsewhere - not by my choice, but by medical necessity. We do have to be sure, though, that we define "temporary" with some care. Is a six week holiday surfing in the Bahamas temporary? Is a two week incarceration in hospital temporary? Similarly, we have to define exactly what we mean by "inactive", in this context, and make explicit the preconditions for trial and/or judgements in absentia.

[Viteu Marcianüs]

I don't think we need precise definitions. The rules should be flexible. Part of the reasons is that you should recognize that a temporary leave of up to a year, while maybe not so bad outside of Talossan, hugely impacts Talossa. You should resign accordingly. But six weeks may not be a big deal.

But take the current situation - we have four Justices, one (you) requires medical leave, and the other three are unavailable. We have two pending suits, and one which another Justice's comments would require her to recuse herself. Leaving only two justices, both of which are no where to be found. Now, non-Talossan issues come up, but we're left without a working judiciary at the moment. This is not the fault of the justice who needs medical leave, it's the fault of the other justices unavailing themselves to their position. Ultimately, it doesn't matter how specific or vague we make this, we need committed individuals to act as judges/justices.