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Post by Viteu Marcianüs on May 24, 2019 8:48:59 GMT -6
We're getting off topic - maybe this should go in a general Legal Reform thread - but what you call Roman prosecutions and we call private prosecutions are legal b uput extremely rare in New Zealand, and they've actually had good outcomes on occasions. I am not minded to abolish them in this country considering that the gap in legal knowledge between the State and a random citizen off the street is not that great. well, it's not a question of knowledge, more question of how easily abused the whole thing is. I'm one of like three people who pays attention to our law in detail, and I try to basically never mention this option to anyone since I'm worried about that. in fact, I'm so worried I'm not even going to explain further what I mean. Suffice to say that I'm going to bring back my bill about conflicts of interest and go after this stuff. Is there general agreement about our approach, then? Work to persuade, then override if that fails? I'm apprehensive that this is still good law considering the Org Law requires criminal prosecution from "the Crown." But I can see how the common law could okay it or the Crown could sign off on it. I'm open to legislation end it. That said, again, that is for criminal prosecution, something not relevant here. So this is a bit of a red herring. We've now had an extensive discussion on the holiday issue that. I don't know what else can be said to John to change his mind. The Ziu should override his veto. That would, of course, raise the issue of mootness in a potential suit. But that could be overlooked considering the likelihood of escaping judicial review (at least the issue of advisory opinions). I also am not aware of any conflicts that would prevent any of the four justices from hearing the matter. John will be provided with the petition beforehand. Perhaps that will persuade him. But if not, I'll go forward with filing it.
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Post by Viteu Marcianüs on May 23, 2019 20:12:42 GMT -6
In any event, from my limited understanding, private prosections are a criminal law thing. We're not talking criminal acts but a civil suit. Perhaps you can supply a link in Talossa to the contrary. I don't think private prosections speak to the issue of standing it a private citizens right to act in the role of A-G in a civil suit.
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Post by Viteu Marcianüs on May 23, 2019 20:00:22 GMT -6
This seems odd to me. Is this permitted by statute or convention? I must concede, we don't have this practice in NY, so it's a bit foreign to me.
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Post by Viteu Marcianüs on May 23, 2019 19:28:35 GMT -6
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.
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Post by Viteu Marcianüs on May 23, 2019 18:42:01 GMT -6
Caveat to your private citizen probably wouldn't have standing to sue under US precedent. Also, it could be a "political question" that the courts wouldn't touch under the same. Unless we adopted India's no holds bar to standing (like, it's kinda insane).
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Post by Viteu Marcianüs on May 23, 2019 15:46:55 GMT -6
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: Good point and further support that, more likely than not, common-law countries permit, with limitations, certified questions/advisory opinions.
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Post by Viteu Marcianüs on May 23, 2019 13:20:41 GMT -6
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.
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Post by Viteu Marcianüs on May 23, 2019 13:11:51 GMT -6
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.
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Post by Viteu Marcianüs on May 23, 2019 11:14:43 GMT -6
I made some edits to my response to John above. Proboards crashed last night while I was editing, so I tried my best to replicate my thoughts from 13 hours ago with those edits.
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Post by Viteu Marcianüs on May 23, 2019 10:07:16 GMT -6
Gah, you're right. I'd like to take a more UK approach. We don't have a schedule but a bill must be tabled for no less than, say, three weeks before a vote can be called. Voting can be up to one month. Really, we're horrible with timely responses on the provincial level, so giving us some flexibility to pass legislation as needed is preferable. Plus, we can argue on one bill while not holding up others that may have agreement.
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Post by Viteu Marcianüs on May 23, 2019 10:03:26 GMT -6
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.
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Post by Viteu Marcianüs on May 23, 2019 9:53:37 GMT -6
Eh, unfortunately the Cort doesn't issue advisory opinions (or isn't supposed to, anyway). I'm about 85% sure that the Cort has, in fact, issued advisory opinions, and I'm absolutely sure there's no rule against it. The biggest issue would be that the Cort tends to be so non-functional that timely advisory opinions are unlikely. It has to some extent. It's been highly controversial recently. There's no rule against or for it. Under Anglo-American tradition, it's either prohibited or heavily restricted, but generally more times out of not, it's the "permitted but heavily restricted" type. I agree that the Cort has a serious issue of not timely issuing decisions. Hence why I think we need to reform the judiciary.
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Post by Viteu Marcianüs on May 23, 2019 9:51:03 GMT -6
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.
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Post by Viteu Marcianüs on May 23, 2019 8:38:58 GMT -6
You and I don't disagree regarding cases or controversies. Although I've warmed up to certain types of certified questions, under certain conditions, being permissible.
I do intend to follow the Government's instruction to petition the Cort. I will, as I stated, provide John the unfiled petition in advance for him to review and potentially retain counsel. If that turns out to be you, I have no issue with appointing you Special Counsel to argue for John. But he may want another lawyer so that's up to him.
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Post by Viteu Marcianüs on May 23, 2019 6:48:08 GMT -6
The basis for a suit is whether 41RZ6 is inOrganic or not. The King thinks it is. Probably best to find out whether he's right if we are going to attempt to repropose RZ4 (spoiler: we are). Eh, unfortunately the Cort doesn't issue advisory opinions (or isn't supposed to, anyway). The Cort exists to "try persons for all offences under law, such as a person doing something he should not, or not doing something he should" (Org.XVI.10). In the course of doing that, the Cort may indeed "as part of its written decision" call out problems in the law or issue injunctions to stop inorganic laws from being enforced. "We have a question" shouldn't be the basis for a suit. I do not like this new approach that started with Luc's petition in 2015... the Cort should not be acting as a legislative body. The A-X exists for the Government's legal advice. Everything that goes to Cort should have a cause of action. If a "suit" that just asks for guidance is brought, I hope that the standing for the suit is vigorously challenged. Unfortunately, we have no case or controversy clause in our Organic Law. This issue came up during the Ben-Ard suo moto action and was never properly resolved. There is stronger tradition in common-law countries for certified questions (e.g. certified questions in the US from Federal to State Court; Florida; Arizona; Canada; United Kingdom, India), than a total ban (e.g. United States, Australia).
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