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Post by Owen Edwards on Mar 18, 2009 11:02:28 GMT -6
WHEREAS, the process of having the facts in every court case determined by all three justices of the Cort pü Inalt has proven unduly cumbersome, and WHEREAS, the interests of justice would be served by having an avenue for appeal of trial court decisions, so that judicial decisions made in the course of trial can be re-examined and reversed if they later appear to be inappropriate, THEREFORE the Ziu hereby enacts that: 1. There shall be a Magistrate's Court (Cort dels Edilicieux) for the trial of all cases arising under the laws of the Kingdom of Talossa, both civil and criminal. 2. The Magistrate Court shall consist of the justices of the Uppermost Cort (who shall serve ex-officio as magistrates in addition to their role as justices of the Uppermost Cort, and up to four other magistrates who shall be chosen and removed as provided in Article XVI, Section 1 of the Organic Law, and replaced as provided in Article XVI, Section 4 of the Organic Law. 3. Except as otherwise provided by law, or rule or order of court, the judicial power of the Magistrate's Court with respect to any action, suit or proceeding may be exercised by a single magistrate, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other magistrates. 4. The business of the Magistrate's Court shall be divided among the magistrates as provided by the rules and orders of the court. The magistrates shall elect one of their number as Chief Magistrate, who shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. 5. Any final judgment of the Magistrate's Court (and such other magistrate's orders as are made appealable by the rules and orders of the Uppermost Court) may be appealed to the Uppermost Court. The time and procedures for bringing such appeals may be specified by the rules and orders of the Uppermost Court, but in the absence of such rules appeals of a Magistrate's Court judgment must be filed with the Uppermost Court within 15 days of the date the judgment is issued by the magistrate. FURTHER the Cosa hereby elects Owen Edwards and Sir Samuhel Tecladeir as magistrates of the Magistrate's Court.
Uréu q'estadra sa: Owen Edwards (MC-PP, Cézembre)
N.B.: Some important additional notes forthcoming.
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Post by Owen Edwards on Mar 18, 2009 11:08:45 GMT -6
BEFORE anyone sees this as a bonkers bid for power, it should be made clear the above was drafted with Justice Siervicul, as part of a number of Cort reform ideas and Organic Law improvements currently in the works. This is what Justice Siervicul - who I hope will be about to lend some public support to this - believes to be the most appropriate way to deal with a few issues, most importantly the cumbersome nature of requiring three Justices to sit on a case. (Three Justices who, incidentally, may hold no other important office in the land, thereby limiting their activity severely.)
This all especially holds true for a future where the Cort is markedly busier, where though the Cort pu Inalt will then require three dedicated Justices, they would be inundated on sitting jointly on numerous cases simultaneously; this allows for both a pyramidal process of dealing with trials and appeals, and delegation of powers.
Finally, pursuant to XVI.1, this vote shall be for the Cosa only.
P.S. Also, the two Magistrates recommended for election were selected by Justice Siervicul, not myself.
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Post by Deleted on Mar 18, 2009 12:44:02 GMT -6
Why not simply create a lower court at the provincial level? If each Province could have a magistrate that enables us to do a few things...
1) The magistrate can handle relatively minor affairs as they can here 2) Infractions of Provincial law may be handled through the Provincial magistrate.
It's the same basic concept, really...but I'm just thinking it would be beneficial to have a sort of "Uppermost Cort" for each Province rather than a lower Cort under the Kingdom.
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Post by Owen Edwards on Mar 18, 2009 12:47:14 GMT -6
What about national cases? How do they get assigned, to which magistrate? What about magistracy vacancies? What about provinces which do not fill their seat? Incidentally, Cresti's suggestion for 7 total Magistrates was that each province could, potentially, in the future, have a dedicated circuit Magistrate, ala circuit courts - but that this would not be binding whilst we do not have the personnel.
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Post by Owen Edwards on Mar 18, 2009 13:27:38 GMT -6
Thanks for the thoughtful reply. You raise some good questions; can't we relieve Justices of their responsibilities re: separating powers? isn't it likely that an inactive province would lack a constitution? what about magistrates having interests in cases?
There are a number of issues (to my mind) about your proposal, however. Let me try to explain.
I think it appropriate that the highest court of the land be subject to separation of powers, and that should certainly be the case long-term. Arguably now it isn't as much of an issue but we shouldn't remove the block as a short-term measure only to have to argue to reinstall it later. Furthermore, three of the Magistrates under this provision would be the Justices; and there would be a window for appeal to the Cort pu Inalt.
What about magistrates holding interests in cases before the Magistracy? Well, plainly the Chief Magistrate should not appoint them to the case; if they do, the Magistrate should recuse themself (it's not like Justices can't hold interests in cases; there are many ways they can be a party to the case, at least); and if the Magistrate does not, then there's a clear cut case for mistrial. Dual-office holding is sometimes necessary, anyhow, due to varying activity levels. You're an executive as Maestro, a military man as Captain, a bureaucrat as Dep SOS and a legislator as Maestro. If you were a Constable you'd have demi-judicial powers within your executive powers as representative of the King.
I think passing a case to the Cort pu Inalt because it involves plaintiffs from different provinces is very problematic; it falls back on relying on three Justices who can be fully involved in the case whilst not being active elsewhere in Talossa due to legal limits, it removes the right of appeal (where the strictly Cezembrian case, say, has the right of appeal to the Uppermost Cort), and it argues that intra-provincial or federal cases can not be judged competently by one elected legal expert, where the parties still have a right of appeal.
Penultimately, provinces electing or Cunstavals selecting magistrates is very close to inOrganic; I'd personally veer towards it being inOrganic, some may disagree. The Organic Law vests election of judges in the Cosa, who are the elected representatives of the people. I'm not sure it'd be acceptable for the Cosa to pass a Bill delegating these powers to provincial assemblies or referenda (though I think that could just about slip through), and certainly it would not be acceptable to devolve the power from the Cosa to royally-appointed Constables.
Finally, there's a question of finding three Justices and seven Magistrates who are all active and suitably qualified. Some provinces may not have a suitably experienced jurist in their population; can carpetbaggers be brought in? Doesn't that defeat the point? Doesn't that suggest a national Magistracy selecting magistrates as circuit judges would work just as well?
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Post by Owen Edwards on Mar 18, 2009 13:28:03 GMT -6
...very puzzled now
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Post by Deleted on Mar 18, 2009 13:34:05 GMT -6
Having taken some more time to review the Organic Law as it pertains to the appointment of justices of the Uppermost Cort and inferior Corts, I came up with a suggestions which I think ties in to both my earlier suggestion and what you have put forth...tell me what you think.
The Magistrate's Court consists of 7 magistrates (plus the uppermost cort justices), perhaps each Magistrate can serve in a federal capacity while simultaneously functioning in a provincial capacity. So, a Magistrate will be a justice in a Federal Court. However, each will decide legal matters on the provincial level as well.
Here is the method to my madness....
I am really trying to make provincial life more prominent. Other provinces are trying to establish Constitutions in fact. With constitution comes statutory law. With statutory law comes the need for a court to ensure that law is being enforced.
If we create an inferior but wholly federal court, then provinces have to take minor matters out of the provinces. This creates an environment which makes provincial growth difficult. It also puts the Magistrates (or Justices) at a disadvantage. Why? Well, as justices, they are required to navigate years worth of statutory law and organic law. Bringing provincial matters means they have to then become acquainted with provincial law and constitutions as well.
So, what exactly am I proposing? 7 Magistrates, each one has responsibility for a province. They will all handle federal matters exactly as you propose, but if a matter from Vuode comes up, the Magistrate permanently assigned to Vuode can handle it. Each magistrate can develop a certain level of expertise in their respective province's laws. The Federal government is helped and so is the provincial government.
With that being said, my major concern is who is eligible to be a magistrate? I have been asking (on a regular basis) since becoming a citizen 2 years ago if I could go through some kind of examination process in order to be admitted to the Royal Talossan Bar. This is an issue I think needs to be resolved before we establish more courts.
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Post by Owen Edwards on Mar 18, 2009 13:41:49 GMT -6
Two notes:
1) There would be maximum 7 magistrates, 3 Justices and 4 others. Certainly, as mentioned, I believe it would be the plan eventually to have each Magistrate assigned to a province; but I would leave that to the internal workings of the Magistracy.
2) re: qualifications, the Bar Exam is being worked on and is close to completion, as I understand it, and will then require approval by all three Justices. However, the only Organic qualification for any judge is that the Cosa approve of him or her. Certainly, Bar membership would in future be a good INDICATOR of suitability for Cort pu Inalt or Cort dels Eldilicieuxs membership.
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Post by Deleted on Mar 18, 2009 13:46:45 GMT -6
I can't leave that to an internal working of the Magistrates, for me provincial justice needs to be addressed, especially as Benito is passing provincial law. I cannot vote for this measure in its present form.
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Post by Owen Edwards on Mar 18, 2009 13:49:04 GMT -6
Cresti points out that provincial constitutions can provide for provincial justice, which makes your issue strictly internal.
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Xhorxh Asmour
Talossan since 02-21-2003
Wot? Me, worry?
Posts: 1,754
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Post by Xhorxh Asmour on Mar 18, 2009 14:03:02 GMT -6
The Magistrate's Court consists of 7 magistrates (plus the uppermost cort justices), perhaps each Magistrate can serve in a federal capacity while simultaneously functioning in a provincial capacity. So, a Magistrate will be a justice in a Federal Court. However, each will decide legal matters on the provincial level as well........ ......So, what exactly am I proposing? 7 Magistrates, each one has responsibility for a province. They will all handle federal matters exactly as you propose, but if a matter from Vuode comes up, the Magistrate permanently assigned to Vuode can handle it. Each magistrate can develop a certain level of expertise in their respective province's laws. The Federal government is helped and so is the provincial government. This I think will work just fine!
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Post by Deleted on Mar 18, 2009 14:03:24 GMT -6
Section 1: The judicial power of Talossa shall be vested in one Cort pü Înalt, in English the Uppermost Cort, and in such inferior courts as the Cosâ may from time to time establish.
This seems pretty clear to me that the power to create a court is not granted to the provincial government.
So, a Province can establish a court (which would have no federal recognition and no standing under the Organic Law) to interpret provincial law, however, it would have no enforcement power.
Let's take an example. The Province of X passes a law similar to my earlier proposed Title Protection Act. Steve, a citizen of Province X begins posting as "Baron Steve" and is asked very nicely over and over again to cease. In response, Steve begins adding more noble titles to his Witt Account just to annoy people. Fortunately, Province X has a court established under its provincial constitution. So, it can prevent Steve from being elected to Provincial Office but can offer no greater penalty.
An inferior court would still be able to impose many of the existing civil disabilities in the event of a conviction. However, there would be no legal basis for a provincial justice to do that.
In the case of a civil matter, if one member of province X sues another member of province X, and the second member fails to adhere to an order of the provincial court, who will hold that person accountable?
The issue is anything but strictly internal.
If, however, you wanted to make the matter completely separate from the Magistrate system, that's cool. But then we should include language that permits provinces to establish a provincial court which would be recognized as a court under federal law.
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Post by Dréu Gavárþic'h on Mar 18, 2009 14:13:55 GMT -6
Could magistrates be in the Ziu?
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Post by Owen Edwards on Mar 18, 2009 14:53:48 GMT -6
Certainly an amendment re: binding provincial justices may be in order; but again, a few issues with your reading of things.
Because the law provides for binding provincial constitutions, the law backs up decisions made by provincial courts on appropriate matters - where it a matter of provincial law, at least. As for the execution of the law, it depends what you want, as obviously a province cannot enact "federal" penalties; what forms of punishment should a province be able to wield? Once that's established, I'd suggest they were supported by national law; authority being vested in the provincial constitution.
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Post by Deleted on Mar 18, 2009 14:58:35 GMT -6
Well, I'd say if the High Cort can banish someone from the Kingdom a Provincial Court should be able to at least impose some kind of civil disability that would actually matter.
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