Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Sept 9, 2015 2:15:23 GMT -6
Thank you your Honor.
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Sept 10, 2015 4:50:07 GMT -6
Your Honour,
It's been a very busy week for me, but I will answer the Cort's initial question on behalf of the respondent by tomorrow evening.
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Sept 11, 2015 19:07:28 GMT -6
In the brief from Sir Cresti, he raised a prior ruling in Erni v. Talossa in his tacit consent argument, which introduced into judicial precedent the concept of "The Talossan Tradition Test." In the same ruling, the justices also presented the concept of "the Plain Language Test." If we were to plainly read OrgLaw XV.1, there are three conditions to an amendment being added to OrgLaw: 1) approval by the Cosa and Senate (2/3rds); 2) a referendum of the people (a majority); and 3) proclamation by the King. If this Cort were to apply either the tradition test or the plain language test exclusively to this current issue, there seems to be a case to assume that the king's actions appear to be organic. However, if this Cort were to apply BOTH tests, while it may seem that the king's actions are still organic, it might throw into jeopardy any prior amendment not explicitly proclaimed. My question, therefore, is this: In light of the Erni ruling, which Erni test should this Cort apply? The Cort will hear first from the petitioner Lüc da Schir followed by the respondent Sir C. M. Siervicül. Your Honour, Article XVI, Section 9 of the Organic Law states that the Cort should interpret language in the Organic 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.” The Cort should consider both the plain language test and the tradition test to determine whether the language used in the Organic Law should be understood according to the everyday meaning of the words or was intended to have a specialised or technical meaning in Talossan legal practice. When words used in our laws have multiple possible meanings or senses (as is very commonly the case), looking to tradition can be invaluable in determining which of the various senses was intended in a given context. With respect to the validity of past amendments, the textual question is: what does it mean to “proclaim” an amendment? The Organic Law itself does not specify any particular form that a royal proclamation of an amendment must take. The question then becomes: in the absence of any particular required format for a proclamation, may a proclamation be made implicitly? Talossan tradition answers that question in the affirmative, by providing evidence that the law has never been understood to require an explicit proclamation. What tradition cannot do is override the text of the Organic Law to declare that no royal proclamation is required at all. Thus, the Cort should apply both tests to interpret the text of the Organic Law in light of Talossan tradition, allowing tradition to inform the meaning of the words used in the law to the extent that tradition reveals a long-standing and widespread common understanding of the meaning of those words. What the Cort should not do is try to derive a rule from tradition standing alone—as though Talossa, like the United Kingdom, had no written constitution. To rule otherwise is ultimately to deny that the Organic Law is, as it declares itself to be at Article XXI, Section 1, "the supreme law of the land." It is a trivial matter to interpret the text of the Organic Law in a manner that brings the text and tradition into harmony, consistent with long-established Anglo-American legal principles. The only reason to apply tradition in a way that reads royal discretion in proclaiming amendments out of the law entirely is if one simply disagrees with the Organic Law as written. But that would be a policy judgment inappropriate for a court of law. Obviously, the Cort’s job is to interpret and apply the law, not amend it. In any event, the question of the validity of the validity of past amendments not explicitly proclaimed by the King is really irrelevant to the question presented in this case. Whether the King's silence may be construed as an implicit proclamation or not, it does not logically follow that we may pretend that the King has proclaimed an amendment when he is not silent but instead explicitly objects to the amendment. Such a conclusion would have no basis in plain language or tradition (Talossan or otherwise).
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Sept 12, 2015 11:25:12 GMT -6
The Cort thanks both the complainant and the respondent for their responses to our initial Question. The Cort now draws its attention and the attention of Lüc da Schir Sir C. M. Siervicül to the Question posed by Justice Cjantscheir.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Sept 18, 2015 15:17:04 GMT -6
The Cort would inquire as to the intention of the complainant Lüc da Schir and when it can expect a response to the questions posed by Justice Cjantscheir.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Sept 19, 2015 5:29:01 GMT -6
The Cort would inquire as to the intention of the complainant Lüc da Schir and when it can expect a response to the questions posed by Justice Cjantscheir. Apologies your Honor, I somehow thought that it was the Respondent's turn to reply. I will gladly comply as soon as I get on my laptop.
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Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
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Post by Lüc da Schir on Sept 20, 2015 3:27:20 GMT -6
I have a few questions for the Petitioner and Respondent: 1) Article XV Section 1 states "An amendment to the Organic Law may be made by proclamation by the King...", how in your opinion (e.g. in what manner or way(s)) can the King organically make such a proclamation? 2) There is a Latin proverb which states "Qui tacet consentire videtur, ubi loqui debuit ac potuit (He who is silent, when he ought to have spoken and was able to, is taken to agree)". Would you agree with this in mind, that given the lack of action on behalf of the Government/Citizens seeking a publicly issued proclamation, the lack of legal challenges and acceptance without protest of amendments made in previous referendums, that a "Proclamation in Silence" was made by the King and this has been accepted as a proclamation under Art. XV Sec. 1? 3) Following on from 2, conversely, if the King is vocal about his objections, would you agree that this is his refusal to make a "Proclamation in Silence"? 4) For the Peitioner, Lüc da Schir, If the King proclaimed RZ28 in silence (as done heretofore) would the Petitioner of launched legal action seeking a public proclamation for RZ28 or accepted the King's silence/lack of objection as a Proclamation and taken no further action? I have a few more questions, but I would like to hear the responses to the above first. The King already usually gives Royal Assent to bills with a post on Wittenberg, I assume that a similar post would suffice; with due respect, I would be a bit skeptical to accept a "Proclamation in Silence" as a thing. Sure, we could assume such a situation as an a posteriori justification of what is likely to be mere ignorance of the law, but I would be equally skeptical if the "Proclamation in Silence" was intended all along. The point I hold against your third assumption, your Honor, is that there is no provision for such a refusal in the Organic Law. This wouldn't necessarily make it inOrganic, but it wouldn't make it morally acceptable either. If the King hadn't remained silent, I suppose that no one would have noticed that a Proclamation was required by law and the Amendments would have been all assumed as passed. To sum it up, Your Honor, my point stands. All previous instances when the King didn't proclaim the amendments were not "Proclamations in Silence", merely "non-Proclamations", and by well estabilished precedent, a proclamation is no longer a requirement for an amendment to be passed into law. Let me offer an apologise for my late response, your Honor; my last school year started last Monday and I wanted to make sure to begin it in a proper way - as such, I haven't paid much attention to Talossan affairs.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Sept 21, 2015 6:59:22 GMT -6
The Cort thanks the Distain for his reply and looks toward Sir C. M. Siervicül for a reply to the Cort.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Sept 29, 2015 6:57:04 GMT -6
The Cort thanks the Distain for his reply and looks toward Sir C. M. Siervicül for a reply to the Cort. It has now been 8 days since the Cort sought a reply to its Questions. The Cort will wait for two more days and then it will proceed.
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Sept 29, 2015 21:30:41 GMT -6
It has now been 8 days since the Cort sought a reply to its Questions. The Cort will wait for two more days and then it will proceed. Your Honour, I apologise for my tardiness in responding to the Cort's questions, but my non-Talossan job duties are tied to the U.S. federal fiscal year, the last day of which is tomorrow. I haven't had time to access Witt except on my cell phone in a week or so. I will do my best to respond to the questions by Thursday evening, but there is a chance that I won't have any time on my personal computer until Friday. I beg the Cort's indulgence in waiting for the Respondent's answers before proceeding.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Sept 30, 2015 5:31:49 GMT -6
The Cort thanks the respondent for his prompt reply and grants him the time he needs.
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Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
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Post by Sir C. M. Siervicül on Oct 3, 2015 17:44:44 GMT -6
May it please the Cort, below are Respondent's answers to Justice Cjantscheir's questions: 1) Article XV Section 1 states "An amendment to the Organic Law may be made by proclamation by the King...", how in your opinion (e.g. in what manner or way(s)) can the King organically make such a proclamation?A “proclamation” is defined as the “act of causing some state matters to be published or made generally known” or a “written or printed document in which are contained such matters, issued by proper authority.” Black’s Law Dictionary, 2d ed. (Bouvier provides essentially the same definition). Because the Organic Law specifies no required means for proclaiming an amendment to the Organic Law, such a proclamation may, at the King’s discretion, be made by any means reasonably calculated to ensure that the amendment be published or made known to the people as part of the Organic Law. For example, a proclamation of an amendment could take the form of Wittenberg post from the King, publicly declaring that the amendment is now part of the Organic Law (which His Majesty has done on occasion, as can be seen talossa.proboards.com/thread/3752/promulgation-amendment-organic-law and talossa.proboards.com/thread/1783/proclamation-amendment-organic-law). But the King could also, through generally-accepted practice, permit the fact that an amendment to the Organic Law has become effective “to be published or made generally known” through others, such as officers of his Royal Household, acting as his agents. The Secretary of State is one such officer, and publishes to the nation the Clark and referendum results that are the preconditions for the King’s proclamation. The Scribe of Abbavilla is another, and is statutorily mandated “to maintain and publish the Organic and statutory laws of the Kingdom.” Lexh. C.1.2. In effect, when the King does not choose to proclaim an amendment directly, the proclamation of an amendment as part of the Organic Law is carried out by the Scribe, with the consent and by the authority of the King as his agent. In the matter of official acts of public officers such as this, the maxims qui tacet consentire videtur and qui potest et debet vetare jubet (as discussed in Respondent’s motion to dismiss) operate in conjunction with the presumption of regularity, a common-law rule of evidence reflected in the maxim omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (all things are presumed to have been done regularly and with due formality until the contrary is proved). This is, in essence, a strong presumption in favour of the validity of public acts with respect to the formalities of their commission. Thus, the Scribe must be presumed to be acting within the scope of his authority, and with knowledge of the legal requirements for enacting an amendment, when publishing an amendment as part of the Organic Law, in the absence of direct evidence to the contrary. 2) There is a Latin proverb which states "Qui tacet consentire videtur, ubi loqui debuit ac potuit (He who is silent, when he ought to have spoken and was able to, is taken to agree)". Would you agree with this in mind, that given the lack of action on behalf of the Government/Citizens seeking a publicly issued proclamation, the lack of legal challenges and acceptance without protest of amendments made in previous referendums, that a "Proclamation in Silence" was made by the King and this has been accepted as a proclamation under Art. XV Sec. 1? For the reasons discussed above and in our motion to dismiss, the Respondent agrees with that proposition (or, expressed somewhat differently, the publication of the amendment as part of the Organic Law by the Scribe of Abbavilla, as the King’s agent and with his tacit consent, constitutes a sufficient proclamation). Respondent further notes that, although Petitioner states above that the King “usually gives Royal Assent to bills with a post on Wittenberg”, in point of fact this has not always been the case. At times in the past, it was common for royal assent to be given only implicitly—see talossa.proboards.com/thread/823/royal-notifications-december-clark-business for an example. Note that this example is from before Article X, Section 6 contained the language “If the King neither signs nor vetoes a Bill before the last day of the month in which it was passed by the Ziu, it shall be deemed to have been signed.” That language was added by 35RZ37, The No More Partial Veto Act, which modified existing practice only by adding a definite deadline for the King to sign or veto a bill before assent is presumed. Furthermore, Article XI, Section 5 has no comparable “deemed signed” language, but implied assent has long been the standard method of compliance with that section’s requirement for royal countersignature of Prime Dictates. As was argued in the case of Erni v. Talossa in a brief filed by then-SoS Woolley, then-AG (and later Justice) Castiglha, and then-Seneschal (and later Justice) von Buchholtz: [15] Article XI Section 5 of the Organic Laws says that Prime Dictates “take effect upon their countersignature by the King”. This seemingly strict requirement has always been held, as former Justice Moisan explained recently (in reference to the very PD introduced by the Prosecution in Exhibit F), to have been met if the King knew about the PD, and didn’t object: There are plenty of precedent for this (ironically I fought another PD in the past under the same argument and lost). A PD is consider valid as long as the King (or Regent) does not veto it. Ben was obviously aware of this PD and didn't veto it, that make it "signed" as far as the intend of the law goes. Petitioner’s contention that Respondent’s position is “a posteriori justification of what is likely to be mere ignorance of the law” is untenable, and Petitioner’s skepticism that implied consent “was intended all along” is unwarranted. As can be seen from the above quote, His Majesty has been well aware of the Talossan tradition of implied consent in royal acts from before the time he ascended to the throne. Moreover, he has openly and publicly discussed the possibility that King could refuse to proclaim an amendment to the Organic Law on multiple occasions prior to the referendum for 47RZ28 (see talossa.proboards.com/post/34843/thread, talossa.proboards.com/thread/7076/nogod-opposes-boss-jewish-carpenter, and talossa.proboards.com/post/123092/thread). 3) Following on from 2, conversely, if the King is vocal about his objections, would you agree that this is his refusal to make a "Proclamation in Silence"? Respondent agrees. A vocal public objection by the King to proclamation of an amendment destroys all of the presumptions discussed under #1 above. Note that Respondent’s answer to #1 above ended with the words “in the absence of direct evidence to the contrary.” The King’s public objection is direct, affirmative, and indisputable evidence that the King does not consent to proclamation of that particular amendment, and the Scribe’s publication of an amendment under such circumstances cannot be viewed as an act done as an agent of the King, acting by the King’s consent. Similarly, the normal practice of implied assent through silence for bills and Prime Dictates in the past was never understood as a forfeiture of the King’s power to veto bills or Prime Dictates when the King is not silent. Royal assent for such acts was universally understood to be required for their validity, it was merely just as universally understood that the King generally did assent to such acts and that his assent could be presumed unless he said otherwise. The situation is no different with the requirement for royal proclamation of organic amendments.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Oct 4, 2015 14:51:32 GMT -6
The Cort thanks the Respondent. Our next steps will be forthcoming shortly.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Oct 7, 2015 8:46:07 GMT -6
The Cort will stand in recess while it considers a ruling. We will announce our decision as soon as we've come to it.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Nov 10, 2015 20:45:49 GMT -6
The Cort notifies the parties that it has not fallen quiet and that a ruling is forthcoming.
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