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Post by Viteu Marcianüs on May 3, 2019 18:53:33 GMT -6
We could perhaps simplify the language a bit, like so: There are four essential elements of the crime of perjury. A statement, either oral or written, is perjury, if and only if 1. It is made in the course of a judicial proceeding, 2. The person making the statement is under oath (or equivalent affirmation) to testify truly, 3. The person making the statement does not believe it to be true, and 4. It is material (that is, relevant to the question under consideration by the court). Does anyone see any difficulty there, either logical or linguistic? — John R What does "does not believe" mean? I know that I'm belaboring the point, but it allows the Cort to read a mens rea into the statute that you may not intend. For instance, under the lowest burden (i.e., the easiest to prove), "does not believe" could mean that the person does not know it is false, but should have known it is was false. How would they know? Is there a duty for them to look into some background information to determine if it were true? Would it not create a situation analogous to English defamation, where a plaintiff only need allege, and a defendant has the burden of proof? What if the Cort read recklessly into the statute? At that point, it must determine if defendant decided to make the statement while disregarding a substantial and unjustified risk. How do we determine unjustified? It's similar to the above standard, but now the Cort must consider whether, we'll call it laziness, a defendant's laziness in not making a probing search, is grounds for perjury. What if the Cort read Knowingly into it? In this circumstance, defendant must be certain that what they are saying is false. I think this is closer to what you try to get at. That is, the person does not merely believe that what they say is false, but that they know for a fact that they are misleading the Cort. What if the Cort when beyond, what I perceive, you intend? That is, they require purposefully. Defendant must purposefully mislead the Cort (that is, there is no uncertainty that they lied). I'm not necessarily unopposed to this, but I wouldn't be opposed to knowingly. Finally, where is the appropriate level of crime? The Organic Law only permits expulsion for "extreme circumstances." Felonies are generally considered more extreme than misdemeanors. Are we comfortable with permitting expulsion if a defendant should have done some research, but was lazy, failed to, before making the statement? I'm not comfortable with that.
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Post by Viteu Marcianüs on Apr 23, 2019 18:34:01 GMT -6
I'd like for other to offer input on the bill and the foregoing discussion. John, in my estimation, presents a bill that I can support with some changes. We have engaged in a fair discussion on some issues I see, but right now it is only the two of us. I truly think that input from others could help us find compromised language that the entire Ziu could support. In fact, if the finished product, with compromised language, addresses the concerns (doesn't have to be my language) that I raised, I may be inclined to ask to be a sponsor.
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Post by Viteu Marcianüs on Apr 23, 2019 17:29:34 GMT -6
Can you provide a reference for that? Not that I am questioning the veracity, but I'm curious how it was determined to be perjury. I honestly am of the mind, and perhaps this was not the case back then, that if someone truly believes something to be accurate, but it turns out to be, that person did not commit perjury. I want to know whether the person's motive was to lie.
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Post by Viteu Marcianüs on Apr 23, 2019 15:35:05 GMT -6
S:reu Davinescu, I appreciate your thorough feedback. The typos you point out will be modified accordingly. Please allow me some time to respond to your voluminous commentary. I do want to address one comment, however. Specifically: 2. In all cases affecting the Kingdom of Talossa, the Uppermost Cort shall have original jurisdiction, and in all cases previously mentioned, the Uppermost Cort shall have appellate jurisdiction, both as to law and fact, when the Ziu has set forth inferior courts, with such exceptions and under such regulations for those matters concerning administrative law as the Ziu shall make, which may be limited to appellate jurisdiction as to matters of law.
3. The trial of all crimes, except in cases of impeachment, shall be by jury. This is very confusing. Does it have to be phrased so confusingly? I'm a native English speaker, professional English teacher, and lawyer, and it took me a bit to get it. It doesn't seem like a very difficult set of concepts, but maybe there is some technical reasoning that is beyond my ken. I mean, why can't we just say, "In all cases under Talossan law, the Cort pu Inalt shall have jurisdiction. The only exceptions shall be made by law if and when the Ziu creates an inferior cort, and in these cases the Cort pu Inalt shall have appellate jurisdiction." Then a reader only might need to google a couple of words to understand what's going on here. Sir, I would ask you to review Article III, Section 2, of the U.S. Constitution, and let me know if you, as a native English speaker, professional English teacher, and lawyer (do you mean only in Talossa or are you admitted to practice law in a US jurisdiction; you needn't divulge which jurisdiction), and let me know if the nearly identical language is confusing. That said, the UC should maintain original jurisdiction with cases that directly affect the Kingdom of Talossa, but really it should act as an appellate court when inferior courts exist. Also, I am loath to allow the Ziu to remove the UC's jurisdiction at whim. I do appreciate you taking the time to offer feedback and look forward to engaging in further discussion on this amendment.
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Post by Viteu Marcianüs on Apr 23, 2019 11:01:07 GMT -6
We have four justices at the moment, so one would need to retire. This could very well become a popularity contest that I'd like to avoid.
Also with all due respect to the Cort*, I do think we need some new Justices who can be a bit more responsive. A driving force behind this amendment is to provide a type of fresh start for the Cort. Our Justices are good, but, and understandably so, they could stand to follow the dates they set and issue decisions in a timely fashion (I know this is rich coming). Personally, although he and I do not always see eye-to-eye on legal issues or politics, I'd like to see Sir Cresti on the new Cort. As I sit here today, he would have my vote.
I am amiable to language that a current sitting justice is only subject to a "simple confirmation" to retain their seat on a new vote if put forward by the PM.
Also, as the amendment will maintain the five-year term, the two-cosa spread could serve the purpose of staggering those terms, as the term of the first will be measured from confirmation, not reformation (provided that it doesn't take the Ziu three years to nominate new justices).
*I never say "with all due respect to the court" in a brief or in court.
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Post by Viteu Marcianüs on Apr 23, 2019 10:50:22 GMT -6
I was hoping others would comment, but okay. I think it's important to use the generally accepted four types of mens rea. If for no other reason, there is substantial persuasive authority for what they mean. If we do not include an appropriate mens rea, we rely on the Corts to determine " only that mens rea which is necessary to separate 'wrongful from innocent conduct.'" I think use of "knowingly" is appropriate--a person is making an affirmative statement that something is true. Perjury is based on the purpose of lying. A person knows what they are saying is untrue and says it anyway. They are disregarding the facts. This is distinguishable from someone who asserts a fact as a belief. Even then, a qualifying "I believe this to be a fact" would not shield liability if the person knows that their fact is wrong. This is to say, I think the threshold issue for a perjury inquiry should be--Did the individual know that their assertion, as stated at that moment, was, as a matter fact, untrue, and assert it with disregard for the truth? "Knowingly" encapsulates this. If a person should have known a fact was not true, but they did not know it was not true, that should not impose criminal liability. If a person comes to learn that an assertion is, as a matter of fact, untrue, but they did not know it then, that is not perjury. Ultimately, what I'm getting at, is the basic concept of mens rea--the person must have a guilty state of mind. Knowingly asserting something as a fact with knowledge that the assertion is not fact or misleads from the truth speaks to the persons intent of trying to mislead the Cort.
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Post by Viteu Marcianüs on Apr 23, 2019 10:37:51 GMT -6
First, I edited my post above to "inappropriate." I think that was clear from context but a typo is a typo.
Second, my intention is to introduce the revised amendment and the original amendment concurrently. Work is a bit busy at the moment so I have not had time to draft the revised amendment to hopper. I imagine I will have it posted, the latest, in time for the second clark. I do not read a provision in the Organic Law that requires a vetoed amendment be clarked in the immediate subsequent clark.
In any event, your concern, which I think is fair, would also come to fruition if the entire UC decided to retire today. Under the proposed amendment, the PM still needs 2/3 of the Cosa and a majority of senators to confirm a nominee. So I don't think one PM wields an awesome amount of power. I trust the Cosa to prevent a party from court stacking.
Because I cannot change any part of the original amendment, the revised version will seek to address this. I am open to something along the following--to prevent court stacking, after ratification and promulgation, the PM that then holds the office, provided this is not during a general election, shall nominate one Justice to the Cort, and the Ziu will then confirm. In the following Cosa, the PM will nominate the remaining two, and the Ziu will then confirm. Only after all three Justices are nominated and confirmed can the amendment take effect. Any subsequent nomination to the current Cort, after promulgation and ratification, shall be deemed as a nomination to the reconstituted Cort, provided it occurs in the appropriate Cosa.
I think this will address the issue of continuity and cort stacking. It spreads nominations across two Cosas, which may result in the same PM but gives the people a say, and ensures that Talossa is not without a UC.
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Post by Viteu Marcianüs on Apr 19, 2019 17:11:50 GMT -6
As to (1), let me ponder this, and perhaps others might comment. I could see me dropping this issue if we did something wholly new in Talossa, include a short "bill jacket" that clearly states the Legislative intent if the issue ever arose.
As to 2, I'm on a train into the City. I think reading the first link would help explain the difference. Mens rea is important because it informs the person what the law actually is and what is needed for prosecution. I'm curious to see other's thoughts. I'll post why I think knowingly is appropiate when I'm in front of my computer tomorrow.
On another note, I appreciate your engagement and openness on this.
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Post by Viteu Marcianüs on Apr 19, 2019 14:54:29 GMT -6
To go in order- (1) I'm not entirely on board with that. Perhaps you would be inclined to include language to clarify that? (2) "Willfully" is not a clear term of intent. It is not the same as the four commons forms of mens rea, as recognized in section 2.02 of the Model Penal Code (US), to wit: purposely, knowingly, recklessly, or negligently. You can read a summary of the MPC's definitions of mens rea here. Nolo, a DIY legal publisher, explains that "usually adds nothing to the general mens rea requirement." You can read Nolo's summary here. Moreover, if you would like to read the actual MPC and some commentary, you can click here. The footnotes provide a thorough analysis of willful and what it can mean. According to this website, under Canadian law, willful has, at times been understood as "intentionally" or "recklessly." Notably, the Nolo summary explains "At times, however, the term "willfully" in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which "ignorance of the law" actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law's requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).)" You rely, I presume, on 18 U.S.C. § 1621. I quickly shepardized the statute with the search term "mens rea" and came up with United States v. Alvarez, 967 U.S. 709, 741 n. 2 (2012, dissent). I did not look at any Circuit or District Court decisions (I haven't the time). In any event, in Alvarez, the dissent (Thomas, joined by Scalia and Alito), implicitly acknowledges that "willful" is unclear and looks to other parts of the statute to find that it contains a "knowing" requirement. That is to say--I do not think we can fairly say that the "mens rea is certainly there" when there is persuasive authority that, if the Cort had to interpret the statute, it would have to figure out the mens rea. I am not acting contrarian for the sake of acting contrarian. I do not see why we would want to create ambiguity in a criminal statute. I would take "willfully" out and put in "knowingly" or would just amend it to "willfully and knowingly..." (3) El Lexhatx is replete with criminal statutes, labeling some as felonies and others as misdemeanors, each having classes. I am not of the mind that perjury should be solely a felony. I think some perjury, where you knowingly lie to the Cort to gain an advantage at notherr person's detriment, should be a felony. But I could also see an instance where taking an oath and lying out of fear, where another isn't going to suffer, should be punished but as a misdemeanor. I do not want to leave it open to the Cort to decide, and would much prefer more explicit language as to the type of perjury. Again, I'm not trying to be difficult; I actually do not disagree with codifying what perjury is. Given the foregoing, however, I cannot support this bill as is. As I said during the campaign, part of debate in good faith is acknowledging whether one's proposed changes are only to make it tolerable even if they plan to vote against it, or if proposed changes would garner support, as to inform the other party of whether the compromise will lead to support. I am saying that with the proposed changes, I would support this. I am also going to make it clear that I am open to other language (i.e., it does not have to be my particular changes; I'm open to a middle ground).
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Post by Viteu Marcianüs on Apr 19, 2019 13:41:11 GMT -6
I'm overlooking the background of John's reasoning here. I'm not opposed to this statute per se. Few things that would get my support- (1) exemption/exclusion of certain oaths. Certainly someone who takes the oath of citizenship but is a staunch proponent of a new organic law would be subject to criminal liability under this statute.
(2) the mens rea is lacking- "willingly and knowingly*. Someone should know that they're lying. An honest mistake of fact should not impose criminal liability.
(3) what type of crime is this (ie, we class crimes for punishment)
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Post by Viteu Marcianüs on Apr 16, 2019 20:47:58 GMT -6
Oy. Anything after that?
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Post by Viteu Marcianüs on Apr 16, 2019 18:13:38 GMT -6
42RZ22 does contain some interesting language, but I am inclined to agree with the Secretary of State in this matter. I haven't had occasion to do a statutory interpretation analysis (which is one of my favorite things to do) in ages, so you'll indulge me. I'm a bit rusty but generally we ask the following questions: (1) Can we discern the meaning of the statute from its plain text? (2) If we cannot, can we look to legislative intent to discern the meaning of a provision? In applying the above, we are mindful of certain canons: (i) is there is linguistic aspect in drawing inferences (i.e., is the use of a particular word a term of art, is there a reason for use of certain grammar, etc), to think of this another way, does the word have a specialized meaning or is it used in the ordinary meaning; (ii) provisions and words in a statute do not exist in a vacuum and we should strive to ensure that we do not negate one part in favor of another part (i.e., we construe the words and provisions to give effect as a whole); and (iii) where there is a clear overarching presumption favoring a specific substantive result, we require clear legislative intent to negate it (this one is actually a bit more discretionary). (As an aside, I have not done a proper statutory interpretation analysis in ages so I am a bit rusty; I may have missed a canon or didn't articulate one clearly. I do not have the time to jump look through old treatise at the moment. Also, pay mind that I practice in a specific jurisdiction so the foregoing may not be the case in other common-law jurisdictions (e.g., in Canada, California, or New Zealand).) With that framework, this is how I understood the statute: The first decretal states the following: Therefore there shall be a new Title J in el LexhatxThis is clear as day. The following decretals are similar-- so far so good. The last decretal begins " Furthermore, these changes to the law shall not go into effect until August 1st, 2015/XXXVI." Let's put this on hold for a second. The next sentence reads, " The time between the passage of this law and that date should be used by the Chancery and other agencies to plan, prepare, and set up Telecomuna." Let's also put this on hold for a second. The subsequent sentences enumerate conditions precedent (i.e., what must occur) before 47RZ22 goes into effect. To wit: - the Chancery must, from the point of passage but before August 1, 2015, hold a period of public consultation of no less the one month;
- after the public consultation, the Chancery must submit a plan to the Ziu; and
- the Ziu must approve or deny the plan, and if denied, repeat revise and resubmit.
I think criteria 2 and 3 are pretty clear on their meaning, but criterion 1 gives pause.
The first criterion contains this clause:"from the point of passage but before August 1st, 2015". Recall that this speaks to when the public consultation must occur. I read this as limiting the statutory window for when the public consultation can occur. If it did not happen then, it cannot happen ever. But then I consider the preceding sentence, "The time between the passage of this law and that date should be used by the Chancery and other agencies to plan, prepare, and set up Telecomuna." This suggests that the Ziu considered that it may take longer; this is what the Chancery should do between passage and August 1, 2015 and not what the Chancery must do. Nevertheless, shall and should are generally legal terms of art--shall compels and should is advisory.
Applying the precept that provisions are read to give effect to the statute as a whole, it does seem to me that there is ambiguity as to whether the public consultation could occur in any other period outside of the window between passage and August 1, 2015. Applying the precept, the use of shall is a clear mandate and, absent unambiguous Legislative intent to the contrary, it must be enforced as written. I do not have time to look through the debate that occurred on this statute and would leave that to others to offer. The problem, I think, with interpreting the provision to limit when the public consultation can occur is that it would imply that the Ziu intended for the Secretary of State to have absolute discretion with whether to even both implementing the statute. That is to say, "the Chancery should do this, we strongly advise for it, but if they don't, nothing can happen." I do not think that was the Legislative intent. I summarize the Ziu fully intended the Chancery to act according to its direction.
Notwithstanding, assuming that the public consultation period can occur now, the final sentence in the act, I think, is operative. It reads, "Telecomuna and the other legislative changes of this bill will not go into effect until after the Ziu has approved the plan." I think this text is pretty unequivocal. The act itself cannot actually go into effect until the conditions precedent are satisfied. If and until the plan is approved by the Ziu, then Title J is not the law of the land.
To summarize--I agree with Glüc that Title J is not in effect until the conditions precedent are satisfied; I think there is ambiguity elsewhere that gives a credible debate as to whether a condition precedent can, at this time, be satisfied. My conclusion is as follows: Title J is properly in el Lexhatx but is not effect. I do note that I am I curious to read the Ziu's intent, provided it is appropriately backed up with public comments made prior to the passage of the bill (i.e., I'm disinterested with recollection of what the sponsors might have thought and am more curious what was actually considered at that time).
But I also want to note a very important aspect to all of this--does it really matter? The Ziu has to approve the plan anyway; the plan can simply be written as a statute and approved as a bill, with appropriate language to replace Title J. While I generally agree with the Secretary of State's point, I think it's ultimately immaterial. The Ziu could pass a statute in the next Clark that extends that August 1, 2015 deadline and that would be sufficient. Or it could pass a statute that nullifies all of the conditions precedent. Or it could just pass a statute that establishes what Telecomuna intends to do.
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Post by Viteu Marcianüs on Apr 16, 2019 8:24:41 GMT -6
It is my full intention to rehopper this to overcome the King's veto.
I intend to co-hopper a revised version to address some of the issues that, it passed, would nullify this amendment. I still think the above amendment, with its faults, is better than what we have now.
I will say, I dont think removing whether a Senator can be a Justice is inappropriate. To me, there is no substantive distinction between an MC and Senator in this context. Other prohibitions, such as the SOS or monarch, should remain.
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Post by Viteu Marcianüs on Apr 15, 2019 17:29:05 GMT -6
I believe we have the requisite support of five Senators to confirm Lüc as Mençei.
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Post by Viteu Marcianüs on Apr 15, 2019 10:59:20 GMT -6
Forgive me for taking a cheap dig at you, but this is such an American thing to say In a constitutional monarchy that's exactly how it's meant to be. The Crown Estate (or an equivalent) owns the national infrastructure while the government exercises financial and executive control over it. That's true. But in the UK and many other constitutional monarchies, the crown has no possibility of facing legal repercussions for the same. Sadly, at this time Talossa and its vehicles of state lack sovereign immunity. This isn't entirely accurate with respects to the US.
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