Brad Holmes
Cunstaval to Maritiimi-Maxhestic
Atatürkey, and flying by the seat of my RUMP
Posts: 1,014
Talossan Since: 3-16-2006
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Post by Brad Holmes on Jan 26, 2012 21:39:46 GMT -6
... In addition, I will petition the Cort, through the Clerk of the Court, requesting the Cort to issue a timely injunction either declaring I should resume discharging the duties of membership representing myself as a Member of the Cosa for the Common Sense Party, or suspend these activities until such time as the Cort makes a ruling on S:reu Grischun's case. This petition for an injunction, designated as 12-01.a, is filed and placed before the UC Magistracy. -Clerk EDIT: Assignment.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Sept 5, 2012 17:38:16 GMT -6
As Chief Magistrate (as voted on by the present members of the Magistracy), I assign this case to Marti Prevuost.
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Post by Béneditsch Ardpresteir, O.SPM. on Sept 5, 2012 23:22:47 GMT -6
While assignment to one Magistrate is allowed, the Court itself suffers from the restrictions imposed by the OrgLAw - hence till such time it is rectified, the Magistracy should not propose to exercise its jurisdiction...
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Capt. Sir Mick Preston
Capitán of the Zouaves
Posts: 6,511
Talossan Since: 9-21-2006
Knight Since: 10-12-2010
Motto: Cuimhnichibh air na daoine bho'n d'thainig sibh
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Post by Capt. Sir Mick Preston on Sept 6, 2012 0:10:13 GMT -6
While assignment to one Magistrate is allowed, the Court itself suffers from the restrictions imposed by the OrgLAw - hence till such time it is rectified, the Magistracy should not propose to exercise its jurisdiction... If it is allowed, then why should it not be done? I disagree - The Magistracy should no only propose to exercise it's Jurisdiction, it should be required to do so.
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Post by Béneditsch Ardpresteir, O.SPM. on Sept 6, 2012 1:36:34 GMT -6
OrgLaw trumps House Law and Statutory Law. then how?
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Sept 6, 2012 7:07:35 GMT -6
Order in the court. This is not the proper thread for the Attorney General to raises his objection.
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Post by Iustì Carlüs Canun on Sept 6, 2012 15:05:07 GMT -6
I'd like to move that this be dismissed, since M:sr Earnest seems to be M.I.A.
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Post by Eðo Grischun on Sept 6, 2012 19:42:12 GMT -6
I also request a dismissal on the grounds that the CSP no longer exists and as a result no court could possibly make a ruling over whether the former MC could resume his duties or not with said party.
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Post by Martì Prevuost on Sept 7, 2012 0:18:18 GMT -6
Cort is in session - please take your seats.
Notice is hereby given to those attending this hearing that only those who are party to the case under consideration, as well as friends of the Cort filing formal amicus briefs, are permitted to address the cort.
The Cort takes judicial notice of the Litz Cjantscheir's petition to the Uppermost Cort for an injunction which, if approved, will preclude this Cort from considering the case before us. The aforementioned petition notwithstanding, this Cort will move forward with the matter at hand until such time as we are directed by competent authority to refrain from doing so.
Before moving to the question on the docket, the Cort provides the following to allay concern as to whether this Cort, as currently staffed, is able to Organically exercise its authority.
Points of Law
Organic Law of 1997 (last amended 14 October 2012), Article XVI, Sections 2, 5, 8 and 9 (emphasis added):
Section 2. The Cort pü Înalt (Uppermost Cort) shall consist of three Justices. The three members of the Uppermost Cort are co-equal for all purposes. However, the Justice which has served on the Cort for the longest overall period of time is designated ceremonially as "Senior Justice." Other, inferior courts, shall consist of as many judges as are established by law. All courts must have an odd number of judges.
Section 5. Where there is an exact precedent, a court shall rule according to law. Where there is no exact precedent, a court will make a rule to fit the case, either by reinterpreting an old rule (statutory or otherwise) or by applying what it considers principles of justice, consistent with the Covenants of Rights and Freedoms. The courts shall render their decisions with due regard to the original intent of any law being clarified, as defined by the law's author(s). In the event of a difference in interpretation as to the meaning of a law, the court shall render an official interpretation with full respect to the Covenants of Rights and Freedoms. If one of the judges wrote the law, he does not have to step down and designate a temporary replacement.
Section 8. No court shall issue any authoritative decision without the fullest opportunity for all its members to consider the case in question. However, a single Justice of the Uppermost Cort may hear a case on his own if this is acceptable to the other two members of the Cort. He shall be appointed to do so by unanimous vote of the entire three-person Cort, and shall render a decision on the case as if he were a majority of the whole Cort. His decision becomes that of the Cort itself and may not be appealed.
Section 9. In the event that a court discovers unclear or confusing language in the Organic Law or in any law, the court may as part of its written decision call upon the Ziu, or if relevant, the Provincial legislature to revise the law. Until such confusion is resolved, the court shall rule according to the most just and equitable understanding of the law, according to the plain meaning of the words, or if such words have acquired a technical meaning at law, according to the technical meaning.
StatLaw 39RZ18 - The Creation of a Magistracy Act amended by StatLaw 42RZ2 - The Creation of the Magistracy (Amending) Act
Precedent
Woolley v. Martüc (Cort pü Înalt, 2006) "ANNOUNCEMENTS
His Honour Ián A. von Metáiriâ, Senior Justice of the Cort pü Înalt, has recused himself from this case. In his stead, he nominated and the Cort accepted Mr. Samuhél Tecladéir to serve as an acting Justice for the duration of this case.
His Honour CM Siervicül, Puisne Justice of the Cort pü Înalt, is unavailable to participate in this case.
Because Senior Justice Metáiriâ has recused himself, as the most senior serving Justice on the Cort, I will therefore assume the responsibilities and prerogatives of the Senior Justice during the proceedings of this case.
Signed, Conta Danihél Lauriéir Acting Senior Justice of the Cort pü Înalt"
~~~
DISCUSSION
While a plain language reading of OrgLaw, XVI:2 clearly indicates all Corts are to have an odd number of judges and that the Uppermost Cort is specifically to have three judges, the OrgLaw provides the UC discretion to exercise authority with fewer than three judges. OrgLaw, XVI:8 - provides that a lone judge of the Uppermost Cort may, upon unanimous approval of the Cort, hear and decide a case "as if he were a majority of the whole Cort."
Under OrgLaw XVI:5, judges are mandated to follow precedent if an exactly analogous one exists. Absent an exact precedent, the Cort is required to apply "what it considers principles of justice". This requirement permits the Cort, and the Cort alone, to be the arbiter* of the principles of justice, consistent with the enumerated Covenants contained in Orglaw XIX.
OrgLaw XVI:9 allows the Cort to address unclear or confusing language in Org, Stat, or (by inference) Provincial Law in its rulings and decisions, and further enables the Cort to call upon the applicable legislative body to revise the law. Until such time as the unclear or confusing law is clarified by legislative action, the Cort is restricted to ruling based on the most just and equitable understanding of the law and according to the plain meaning of the wording unless they have acquired a technical meaning.
StatLaw 39RZ18 & 42RZ2 - the former proposed by current Chief Magistrate Edwards and the latter by then Seneschal Cjantscheir, both contain language leading to the current conundrum: "The Magistrate Court shall consist of not less than two and no more than three Magistrates." Additionally, in apparent negligence of the requirement of XVI:2 that all Corts have an odd number of judges, 39RZ18 explicitly elected an even number of judges to the newly created Magistrate Cort.
In Woolley v. Martüc (2006), the Uppermost Cort found itself in a similar situation as the Magistrate's Cort finds itself today. Senior Justice von Metáiriâ recused himself and, following the requirements of OrgLaw XVI:7, Samuhél Tecladéir was appointed temporary justice for the duration of the case in question. For some reason, Justice CM Siervicül was unavailable, leaving Count Danihél Lauriéir as the sole permanent member of the Cort. He thereby assumed the duties of "Acting Senior Justice". Thus Acting Senior Justice Lauriéir and Temporary Justice Siervicül, a panel of two, heard and decided the case before them.
~~
ANALYSIS
The basic question to be answered is this: Does a vacancy on the bench prohibit the judiciary from exercising its authority?
In answering this question, we must attempt to determine the intent of the framers of the 1997 OrgLaw as well as those who created the Magistrate's Cort with the passage of 39RZ18 (as amended).
While it is clear that OrgLaw XVI:2 intends for all Corts to have three judges, and that 39RZ18 intends for each of the Magistrates to hear cases independently rather than as a panel, it is not clear that absent the required odd number of judges, that the Magistracy abdicates its authority.
Of the generally accepted principles of Ango-English law is the principle that interpretation of what is authorized by a law requires looking to what is prohibited. While OrgLaw XVI:7 is clear that the recusal of an UC justice requires nomination and appointment of a temporary justice, it does not prohibit the exercise of authority in the absence of the availability of a justice. As evidenced in Woolley v. Martüc, the UC did appoint a temporary justice to replace the recused Senior Justice, but did not appoint a temporary justice to replace the unavailable justice and ultimately, decided the case with an even number of justices hearing matter.
FINDING
While this Cort is not the Cort of competent jurisdiction on this matter, nor has it been asked to do so, in order to assuage the concerns cited in the aforementioned petition, the Cort issues the following findings:
The Cort finds there is an Organic requirement for all Corts to have an odd number of judges.
The Cort finds precedent wherein Corts of the Realm have exercised judicial authority with an even number of judges.
The Cort finds no prohibition in Org or StatLaw on the exercise of judicial authority when a Cort is not staffed with a full complement of judges, regardless of whether the partial staffing results in an even or odd number of judges.
The Cort calls upon the Ziu to act in an upcoming Clark to elect the Organically mandated third judge to the Magistrate's Cort.
~~~
CASE 12-01.a Injunction is now before this Cort.
Are the plaintiff and defendant ready to proceed?
*Edit to correct typographical error.
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Post by Martì Prevuost on Sept 7, 2012 20:00:55 GMT -6
In observance of TFest and associated celebrations throughout the globe, this Cort stands in recess until Monday, September 10th, 2012.
MAG
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Post by Martì Prevuost on Sept 10, 2012 18:18:14 GMT -6
Recess having ended, Cort is again in session.
Petitioner Doug Earnest: The Cort is prepared to hear your plea.
You have 5 days and submit your request for injunction along with your reasoning and justification for such request.
M.A.G. Prevuost
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Post by Martì Prevuost on Sept 13, 2012 6:11:31 GMT -6
This Cort, under injunction imposed by the Uppermost Cort, will stand in recess pending election of a third Magistrate to the bench. The deadline previously imposed for petitioner to submit arguments for the pending case is suspended effective immediately. Upon election of the third Magistrate and, with notice to petitioner, the suspension of the deadline will be lifted providing petitioner with three remaining days to submit pleadings. Pleadings may be submitted during the recess. We are in recess. M.A.G. Prevuost Magistrate ~~ Decision of the Uppermost Cort which directed this recess: NOTICE OF DECISION Petitioner Dame Litz Cjantscheir has petitioned the Uppermost Cort for judicial relief and seeks an injunction against the Magistrate's Court from considering the matter before it, to which she is party, and prays that we dismiss her case with prejudice due to a violation of her right to a fair trial. The first two remedies sought in the petitioner’s complaint seek remedies which extend well beyond her case. Dame Cjantscheir lacks the requisite standing to demand action on future matters brought before the magistracy to which she may, or may not, be party. Dame Cjantscheir lacks standing to demand that the court vacate prior decisions of a lower court to which she may, nor may not, be party. The dismissal of a prior case on technical matters is to be handled through the appeals process, not through the petition for injunction arising from an unrelated case. Petitioner provides no legal basis for the remedy requested in section (3) and aims to circumvent the appeals process. The Uppermost Cort declines, as a matter of principle, to issue sweeping judgments to overturn prior decisions based on the petitioner's complaint. These cases, if they are to be appealed, must be appealed individually by one or both parties where the individual merits of the case can be evaluated. Furthermore, technical errors on the part of a lower court are not automatically grounds for appeal. The remedy requested in section (4) is based upon petitioner’s assumption that a court consisting of fewer than the organic requisite is incapable of functioning and any of their decisions void. Petitioner has offered no legal basis for her opinion. The petitioner fails to demonstrate, by application of the law, that the organic deficiency infringes upon her rights. The petition presented before us is filled with numerous technical errors and requests for remedies that are beyond the scope of the action sought by petitioner. The remedies sought by petitioner are thereby dismissed on technical grounds. Despite these errors, the Magistrate's Court is composed of fewer than three Magistrates, which conflicts with Organic Law. We accordingly enjoin the Magistrate's Court from hearing cases and direct it into recess on all matters presently under its consideration, until such time as the court is composed of three Magistrates, in accordance with Organic Law. The Uppermost Cort declines to rule as to whether this deficiency renders the entire Magistrate's court "inorganic" or the effect this inorganicity, should one exist, would have on this or any other case. This order shall serve only to temporarily halt proceedings before the Magistrate's Court until such time as a third Magistrate be appointed. This ruling shall not be interpreted or construed to serve as a judgment on any other matter brought by the petitioner. This injunction shall take effect immediately and shall be lifted automatically upon the appointment of a third magistrate. Signed into order, Senior Justice Sir Tamorán dal Navâ, UrN Puisne Justice T.M. Asmourescu
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Post by Martì Prevuost on Nov 29, 2012 9:49:50 GMT -6
Good Day.
Whereass the legislature has elected a third magistrate to the Bench, and;
Whereas with the Monarch's concurrence, the Magistrate's Cort will have the requisite number of judicial members to lift the self-limiting injunction currently in effect, now;
By this posting, this Cort gives notice that the case under consideration will resume shortly but only after notice to the parties by Private Message from the Cort.
M.A.G. Prevuost Magistrate
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Post by Martì Prevuost on Nov 29, 2012 10:12:11 GMT -6
The Cort takes judicial notice of its own lack of Regal awareness. The Crown, having concurred with 44RZ22 has by that action, elevated Béneditsch Ardpresteir to the Magistrate's Cort.
Extending a laurel wreath and hearty handshake to our Brother Magistrate Ben Ard, we welcome him to this not-quite-so-dignified-but-still-pretty-dang-dignified body.
M.A.G. Prevuost Magistrate
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Post by Béneditsch Ardpresteir, O.SPM. on Dec 14, 2012 13:42:14 GMT -6
Thank you Brother Magistrate Mag
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