Judiciary Amendment of 2020

[Viteu Marcianüs]

Confirmation is not a foregoing conclusion. But if it is, this may be the final bill I try to pass. I tried to fix many of the issues others had with the Judiciary Reform Amendment. 

This is a rough draft filled with typos. But I think it's a good starting place. To follow- a statute for inferior courts that would go into effect of this is adopted.

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 Judiciary Amendment of 2020

WHEREAS, in July 2019, the Ziu of the Kingdom of Talossa adopted the Still Into This Amendment in the third Clark (“53RZ18”) over the objections of the King;

WHEREAS the Chancery submitted 53RZ18 as Referendum 1 in the General Election for the 54th Cosa;

WHEREAS the people ratified 53RZ18, with the resultant promulgation by the King occurring by operation of law;

WHEREAS the foregoing is to or will supplant the 1997 Organic Law with 2017 Organic Law upon certification by the Ziu or the elapse of one year from the date of adoption, whichever is sooner;

WHEREAS 53RZ18 was a step towards cleaning up the Organic Law and did not seek to substantively modify the organs of the State;

WHEREAS the Ziu recognizes that the Judiciary of the Kingdom of Talossa must be adaptable and responsive to the dynamic needs of Talossa;

WHEREAS continuity in and of law is tantamount to an effective judiciary;

THEREFORE, the Ziu amends the 2017 Organic Law by deleting in whole Article VIII: The Courts as contained in 53RZ18 and adopted by the people, or, inasmuch as remains in effect, strikes in its entirety Article XVI: The Courts, as contained in the 1997 Organic Law;

BE IT FURTHRE KNOWN, upon amending or striking the foregoing, the Ziu adopts as Article VIII: the Courts the following provisions or, as necessary, Article XVI: The Courts, the following provision;

FURTHER, all justices appointed to the Uppermost Cort at the time that this amendment is adopted and implemented shall continue in that position in the newly constituted Uppermost Cort pursuant to the terms of their original confirmation provided they so desire to do so:

The Courts

Section 1. The Judiciary

The judicial power of the Kingdom of Talossa shall be vested in one Cort pü Inalt, in English the Uppermost Cort, and in such inferior courts as the Ziu may from time to time ordain and establish.

Section 2. Authority of the Judiciary

A. The judicial authority of the Cort pü Inalt shall extend to all matters, in law and equity, arising out of a case or controversy;



B. In all matters affecting ambassadors, public ministers, the State of the Kingdom of Talossa (including its organs), and a Province or other subdivision recognized by this Organic Law, the Cort pü Inalt shall have original jurisdiction. In all other cases, the Cort pü Inalt shall have appellate jurisdiction both as to law and fact over all inferior corts established by the Ziu. Nothing stated herein shall limit the authority of the Cort pü Inalt from remanding a matter to which the Cort pü Inalt has original jurisdiction to an inferior cort as it deems necessary.

Section 2. Composition of the Cort pü Inalt

A. The Cort pü Inalt shall consist of a permanent seat designated as Chief Justice, and two permanent seats designated as Puisne Justice.

B. The justices shall be ordered according to their seniority on the Cort pü Inalt, with the senior most justice occupying the seat of Chief Justice.

C. The Ziu may enlarge the number of seats designated Puisne  Justice to no more than eight, and may decrease the number of seats designated Puisne Justices to no less than two, provided that, in addition to the requirements for other legislation, two-thirds of the Cosa and a majority of the Senate support modification in two consecutive Cosas.

D. Neither a reigning King or his or her Consort, nor a Regent during his or her regency, nor the Secretary of State, nor the Seneschal, nor any other member of the Cabinet shall be a Justice of the Cort pü Inalt.

Section 3. Appointment to the Cort pü Inalt.

A. Any member of the Ziu may nominate a person to an open seat on the Cort pü Inalt. The nominee shall be approved by two-thirds support in the Cosa and majority support in the Senate. Upon such approval, the King shall appoint the nominee as a Justice of Cort pü Inalt.

B. If the King shall decline to appoint a nominee, then, upon approval by two-thirds support of the Cosa and majority support in the Senate, the nominee shall be considered appointed.

C. Every Justice of the Cort pü Inalt shall be subject to a re-appointment in intervals of five years, measured from when their initial appointment. These intervals may be increased two to no more than 10 years provided that any legislation retroactively applies to all sitting members of the Cort pü Inalt and is supported by two-thirds of the Cosa and a majority of the Senate in two consecutive Cosas.

D. Unless otherwise set by law, re-appointment shall be deemed automatic if no member of the Ziu has requested a re-appointment vote in the Cosa immediately preceding the expiration of the Justice’s term; and re-appointment shall only require a simple majority of each house in the Ziu. The Ziu may modify the foregoing provided the requirements of re-appointment never exceed that for appointment.

Section 4. Removal from the Cort pü Inalt.

A. A Justice shall remain on the Cort pü Inalt for the duration of their term, until they choose to retire, or, as prescribed by law, until such time as the Ziu shall remove him or her from their seat or until he or she can no longer perform their duties on account of incapacitation.

B. In the event that a sitting Justice of the Cort pü Inalt acts in a manner that offends the Ziu in their official and individual capacity, or is found guilty or has pleaded guilty to a crime in Talossa, a member of the Ziu may move for a Notice of Reprimand, which shall set forth an individual charge with the stated punishment contained therein, which shall not exceed removal from his or her seat as Justice.

C. To impose the sanction of removal, a Notice of Reprimand must receive, in addition to requirements of other legislation, two-thirds support in the Cosa and majority support in the Senate.

Section 5. Authority of the Cort pü Inalt.

A. Until such time as inferior corts are established, a Justice may sit as a nisi prius cort in all civil and criminal matters.

B. No decision or order issued by an inferior cort or nisi prius cort shall bind a coordinate cort.

C. The decisions or orders of the Cort pü Inalt shall bind all lower corts according to the principles of stare decisis provided that that the panel was composed of no less than three justices after necessary recusals. The Cort pü Inalt may, as it deems appropriate, issue decisions or orders that are non-binding provided that it explicitly states that intention in the decision or order.

D. A nisi prius cort or an inferior cort deviating from binding precedent must state so with clarity and refer the matter for appellate review.

E. Notwithstanding any contrary proscription, the King, the Secretary of State, or the Senechal may refer an issue to the Cort pü Inalt for an advisory opinion provided that any such panel reviewing the position is composed of no less than three Justices after any necessary recusals, there lacks a live case or controversy that would otherwise determine the issue, and there is a reasonably need for resolution of the question.

F. A matter arising under the Covenants of Rights and Freedoms is appealable as of right to the Cort pü Inalt. In all other instances, the Cort pü Inalt may not be compelled to exercise its appellate authority. However, when declining to do so, the Cort pü Inalt must issue an order declaring such, and no such declaration shall be deemed as the Cort pü Inalt adopting or setting as binding precedent the appealed from decision or order.

G. The Cort pü Inalt, and any other cort existing under this article, shall interpret all matters through the lens of the Covenants of Rights and Freedoms.

H. Any justice that is a named party in a matter shall recuse himself or herself from hearing any and all parts of the matter.

[Ian Plätschisch]

Content of the bill aside, I am loathe to use a type of formatting for this amendment that is found nowhere else in the Organic Law.

[Viteu Marcianüs]

I was trying to figure out formatting, honestly. I initially had XVI-a, etc. I'm open to using something similar to art. vii section 3, and changing the letters to numbers, although I think using the same type of character leads to confusion (e.g. el Lexh 1.1.1, 1.1.1.2, 1.2.1.3 as off the cuff maybe not actual laws but does happen elsewhere examples)

[E.S. Bornatfiglheu]

One of the major elements that sticks out to me in this is the limitations on office that a Justice may hold. Though they are barred from serving in govt, I notice they are not barred from serving in the Ziu. Does the Senator feel that a, so to speak, hat swap is sufficient to insulate the Justice from conflict of interest?

I understand completely that there is a need to keep active blood circulating in Talossa, lest the Cort become a place where careers go to die. Further, I understand that we need a shot in the arm in terms of overall personnel. But I fear that the danger does not outweigh the risks here. Might dual service in Cort and Civil Service be sufficient?

[Viteu Marcianüs]

Jan 8, 2020 9:13:36 GMT -6 E.S. Bornatfiglheu said:

One of the major elements that sticks out to me in this is the limitations on office that a Justice may hold. Though they are barred from serving in govt, I notice they are not barred from serving in the Ziu. Does the Senator feel that a, so to speak, hat swap is sufficient to insulate the Justice from conflict of interest?

I understand completely that there is a need to keep active blood circulating in Talossa, lest the Cort become a place where careers go to die. Further, I understand that we need a shot in the arm in terms of overall personnel. But I fear that the danger does not outweigh the risks here. Might dual service in Cort and Civil Service be sufficient?

Section 3 of Article XVI of the 1997 Organic Law presently states as follows, "Neither a reigning King nor his Consort, nor a Regent during his regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any Senator shall be a Justice of the Cort pü Inalt."

The 2017 Organic Law maintained this exact provision in Section 3 of Article VIII.  

Presently, a Justice is partially barred from serving in the Ziu.  The Justice may serve as an MC but not as a Senator.  They may serve as a member of the cabinet, but explicitly not as Seneschal and ostensibly not as Attorney General.  I fail to see how a Justice serving as an MC (permissible) materially differs from a Justice serving as a Senator (impermissible).   

Generally, I would prefer to restrict a Justice from any of these positions, but in realistic terms, considering Talossa's size, I think it would be acceptable for a Justice to be an MC or Senator.  Merely being in the Ziu does not mean one is necessarily privy to Government decision making or strategy.  The Cabinet, however, differs given its status as "the Government."  The potential for exposure to pre-litigation matters or legal strategy for a pending matters involving the Government significantly increases.  This may result in more recusals.  But, given the size of Talossa, I'm not necessarily married to this proscription and would have no issue taking out the provision barring Cabinet members, with the exception of the Seneschal or Attorney General, from sitting as a Justice. 

[Lüc da Schir]

Minor point: "Pusine" should be "Puisne". Also, I would generally agree with V that I would much rather have a Justice being able to serve as Senator than as MC, which is almost always a partisan position.

Also, I've seen (in this law and elsewhere, by multiple people) repeated references to the Chief Justice; we actually have a Senior Justice. Not that it's super important, but I like that it's different from our Big Neighbor's equivalent in both name and method of appointment (by seniority vs. by separate nomination).

[Viteu Marcianüs]

Fixed Puisne. And I actually had that on a note to make sure I got right.

I also observed "Senior Justice" but we've gotten so in the habit of Chief Justice for historical reasons. I have no preference, but agree that Senior signifies temporal rather than appointed with a special purpose. I have no reason to object to Senior Justice over Chief Justice.

[Viteu Marcianüs]

Changes made on hoppered thread in New Witt include Puisne and Senior Justice.

[Dr. Txec dal Nordselvă]

Speaking as both a sitting Justice and also as a member of the Cosa, it can get quite boring being a justice especially if that is ones only role. Further limiting their chances at other civic engagement does not encourage participation.

[Viteu Marcianüs]

Jan 13, 2020 7:34:26 GMT -6 Dr. Txec dal Nordselvă said:

Speaking as both a sitting Justice and also as a member of the Cosa, it can get quite boring being a justice especially if that is ones only role. Further limiting their chances at other civic engagement does not encourage participation.

That makes sense. 

Present language: Neither a reigning King nor his Consort, nor a Regent during his regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any Senator shall be a Justice of the Cort pü Inalt.

Updated proposed amendment: Neither a reigning King or his or her Consort, nor a Regent during his or her regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any other member of the Cabinet shall be a Justice of the Cort pü Inalt.

The initial thought was to bar the most patently political positions, which is, in my estimation, the Cabinet.  But the Cabinet is more transitory anyway.  

So it may just be removing the bar on Senators.  I don't see why other apolitical civil servants should be barred.  A Justice can be a Scribe with minimal concern for conflicts.