PETITION FOR INJUNCTIVE RELIEF re: OrgLaw amendment

[Dr. Txec dal Nordselvă]

The Cort is also interested as a cloud of bias now hangs over it. Sir Alexandreu, please provide your evidence to this Cort.

[Sir Alexandreu Davinescu]

Your Honour, clearly having already offered the motion, I am not opposed to... well, offering it. I would be very much in favour of being permitted to make the formal motion, and could begin on a brief -- with accompanying direct evidence -- immediately.

EDIT: Your Honour, how long do I have to prepare the motion to request recusal? I'd request at least two days, since I need to assemble precedent and arguments and this matter only came to light this very morning.

[Miestrâ Schivâ, UrN]

Your Honour, the above contribution from Sir Alexandreu once again indicates that this is a simple delaying tactic, preventing the Cort from reaching the central question of the petition. I reiterate my request that the evidence be provided within the current business day or that Sir Alexandreu be found in contempt of Cort.

A formal "motion" is not required. All that is required is that the direct evidence be copy-pasted or attached to this forum, right now, if not sooner.

[Sir Alexandreu Davinescu]

Your Honour, two days is an extremely quick timeline to prepare a motion, and I believe demonstrates my commitment to keeping these proceedings moving.

EDIT: It is, after all, Saturday night -- the end of the next business day would be in two days. I would agree to that request!

[Miestrâ Schivâ, UrN]

Your Honour, the above statement is, in the case of the current petition, simple balderdash. Sir Alexandreu claims to have the direct evidence, to hand, right now. Foreshadowing evidence and refusing to produce it has the net effect of suspending the entire case - as well as potentially being defamatory of both myself and Justice Nordselva, not to mention raising questions of espionage which cannot be resolved unless and until said evidence is provided. To require "two days to put it in a motion" is transparently an attempt to "keep up the suspense" for two days, therefore hanging a cloud of bias and shenanigans over both Petitioner's legal team and the Cort itself - a case which the Cort has specifically said it wants to get over with quickly. Possibly this will help generate headlines for Sir Alexandreu's newspaper, but that is not a proper motive.

It does not need to be framed as a motion, especially since Sir Alexandreu is not a party to this case. It can simply be presented. Not to do so is pure and simple legal sabotage. If the evidence is not presented in Cort "this Saturday night" US time, I request that Sir Alexandreu be charged with contempt of Cort.

[Sir Alexandreu Davinescu]

Your Honour, I object to opposing counsel actively arguing with me over a motion that I have filed before this Cort. It is wholly inappropriate. If opposing counsel wishes to register an objection to the motion on some concrete grounds, that is fine, but to simply provide commentary and argue with every statement that I make is not suitable cortroom decorum. I especially object to the frequent insults and aspersions on my character included in that commentary. It is not appropriate for counsel to mock me, offer decisions on motions, or say that I am only attempting to "generate headlines."

[Miestrâ Schivâ, UrN]

Your Honour, you know that Sir Alexandreu has not "filed a motion before this Cort" because he is not a party to this Case. I am arguing with respect to my own motion. Note that I have amended "this current business day" to "this Saturday night, Sir Alexandreu's time zone", for clarity.

[Dr. Txec dal Nordselvă]

Order in the Cort.

The matter, n its entreaty, has been referred by me to the whole Cort. I cannot rule on any motion that disparages my own person. Sir Alexandreu has already alleged improprieties, without evidence, but further action on my part would indeed be biased.

[Dame Litz Cjantscheir, UrN]

Order!

This Cort welcomes and believes its a duty of any citizen who has any information of any alleged wrongdoings by any member of the bench, to make that information known and it can be adjudged accordingly. Therefore, I welcome Sir Alexandreu Davinescu for coming forward with this information and its veracity will be a matter for this Cort to decide. It goes without saying that any impropriety by any Justice, especially on cases sub judice, calls into question the entire justice system and fairness of decisions made by this Cort. Thus, any allegation made against a Justice of this Cort should be dealt with in a fair and swift manner in order to ensure all cases held and decisions rendered by this Cort are done so in an unbiased/impartial manner.

Given, this Cort is unable to proceed with allegations hanging over one of the Justices presiding over this case, it is prudent this Cort deals with such allegations as soon as possible.

Therefore, Sir Alexandreu Davinescu has until Midday (12:00pm) Talossan Time on the 9th February 2016 to present under the penalty of perjury, all and any such evidence he has to this Cort regarding the allegations he has made against S:reu Justice dal Nordselvă. The Cort will then give S:reu Justice dal Nordselvă the opportunity to respond to said allegations before announcing further direction. If after investigation, such allegations are substantiated, then this Cort will act nostra sponte, if such allegations are proven false then we will proceed with the existing bench.

Until such a time Sir Alexandreu Davinescu has presented his evidence as outlined above, this Cort stands in recess and no further comment/arguments on matters at hand will entertained.

[Sir Alexandreu Davinescu]

Your Honour, my evidence includes the English-language name of several Talossans. For many reasons, it is generally considered polite to avoid publicizing someone's English-language name, especially when they have chosen to use a Talossan one while conducting Talossan affairs. In the interest of protecting this separation, my brief uses Talossan names in its transcription of the evidence. While I am willing to post the brief publicly, would it be permissible for me to send the direct evidence supporting the brief only to the justices, Sir Cresti, and the Avocat-Xheneral, in order to protect the privacy of Justice dal Nordselva and Avocat-Xheneral Schivâ?

I know that transparency is important, but the evidence is transcribed directly into my brief, altering only the names used; this is not "hidden" or "secret" evidence.

[Dame Litz Cjantscheir, UrN]

Feb 6, 2016 18:31:23 GMT -6 Sir Alexandreu Davinescu said:

Your Honour, my evidence includes the English-language name of several Talossans. For many reasons, it is generally considered polite to avoid publicizing someone's English-language name, especially when they have chosen to use a Talossan one while conducting Talossan affairs. In the interest of protecting this separation, my brief uses Talossan names in its transcription of the evidence. While I am willing to post the brief publicly, would it be permissible for me to send the direct evidence supporting the brief only to the justices, Sir Cresti, and the Avocat-Xheneral, in order to protect the privacy of Justice dal Nordselva and Avocat-Xheneral Schivâ?

I know that transparency is important, but the evidence is transcribed directly into my brief, altering only the names used; this is not "hidden" or "secret" evidence.

Given the Cort hasn't seen as of yet the above mentioned evidence nor is aware of its contents, I am at this time going to side with caution and grant your request. This ruling shall not prevent the said evidence from being publicly published by this Cort if it see fit to do so upon receipt or if all parties concerned agree to its publication.

Copies of the original and unaltered direct evidence should be furnished to this Cort, Counsel for the Petitioner and the Respondent and to S:reu Justice dal Nordselva directly.

[Sir Alexandreu Davinescu]

Thank you, your Honour. To set everyone's mind at ease as to time, I can say that I believe I will be able to do that as early as tomorrow night.

[Sir Alexandreu Davinescu]

Honourable Justices, please find below my motion to request recusal. Accompanying evidence is transcribed below, but in original form (with English-language names) has been emailed to all parties.

Motionrerecusal.pdf (174.79 KB)

Motion to Request Recusal

1. This brief will argue that Justice Txec dal Nordselva should be required to recuse himself from consideration of any and all motions and decisions offered by Sir Alexandreu Davinescu on behalf of current and former Members of the Ziu in the matter of the December 29 petition of Avocat-Xheneral Dama Miestrâ Schivâ, UrN.

2. This brief will present two grounds for this request: (a) an actual instance of impropriety by Justice dal Nordselva, in which he advised a potential party to litigation not to take part in the suit, and (b) suspect comments by Avocat-Xheneral Schivâ and Justice dal Nordselva that indicate that there has been further impropriety in the form of ex parte discussions which were not reported or acted upon.

Legal principles and established law regarding recusal

3. It is an accepted principle of Anglo-American law and Talossan principles of justice that a direct and personal conflict of interest is grounds for recusal by a sitting justice, even if it involves behaviors that are otherwise acceptable. For example, it is considered entirely acceptable for a justice to hold a paid position with an employer, but it is expected for that justice to recuse themselves in any proceedings involving that employer.

4. 28 U.S. Code § 455 provides, for example, that

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
...
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

5. While there is no explicit requirement in Talossan law along these same lines, in several places in the necessity of litigants receiving a fair hearing from an impartial justice is implied. The Tenth Covenant states that

Anyone whose rights and freedoms, as guaranteed by these Covenants, have been infringed or denied may appeal to a court of competent jurisdiction to obtain such redress of grievances as the court considers appropriate and just in the circumstances

This provision implies that the court must be capable of considering the matter fairly and impartially. The Eleventh Covenant further emphasizes this principle as it rules out “fruit of the poison tree” from consideration:

Where, in the course of a trial, a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by these Covenants, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Instance of Impropriety

6. While preparing research to demonstrate standing, Davinescu wrote multiple current and former Members of the Ziu, asking them if they would be interested in joining the lawsuit. One of these members was Iason Taiwos, a party member of the Free Democrats of Talossa.

7. Taiwos posted this request on the social networking site Facebook in a Free Democrat group, asking for an explanation and advice, writing, “AD sent me this. Don’t know what this is all about… I suck as a Talossan…”

8. Justice dal Nordselva replied to Taiwos, saying, “Don’t fall for it.”

9. Taiwos replied, writing in part, “I won’t, [Txec],” indicating he had taken Justice dal Nordselva’s advice not to take part in the suit.

9. Avocat-Xheneral Schivâ next commented on the post, writing, “He’s just trying to banjax my petition to override the Royal veto on OrgLaw reforms. He’s telling arrant lies.”

10. While at this time all of these comments were still publicly available, a copy of a screenshot will be included with this brief.

11. The above exchange represents two forms of impropriety on behalf of Justice dal Nordselva.

12. Justice dal Nordselva’s comment appears to have served as legal advice to a potential party in ongoing proceedings currently under consideration before Justice dal Nordselva. This advice was taken by Taiwos, who thereby states that he will not take part in that matter. Thus, Justice dal Nordselva has acted to influence those proceedings in such a way as to weaken the case of one of the litigants.

13. Further, by advising a potential party to a suit not to cooperate with a particular current litigant, Justice dal Nordselva creates a clear appearance of bias against that litigant. Even if his intervention and legal advice did not materially affect the outcome, there is clear reason to believe that he is biased in his consideration of the matter.

Allusions to Ex Parte Discussions Create a Further Appearance of Bias

14. Ex parte discussions between an interested party and a judge constitute a clear impropriety. This is another generally-accepted principle of Anglo-American law, even if there are no explicit provisions in Talossan law.

15. As an example, in the United States of America, Title 12 of the Code of Federal Regulations §263.9 defines an ex parte communication as “any material oral or written communication relevant to the merits of an adjudicatory proceeding that was neither on the record nor on reasonable prior notice to all parties that takes place between.”

16. In the event of an attempt at an ex parte communication, fairness requires that the incident be made public and steps be taken to ensure that it does not continue and that there has been no impropriety. The Code of Federal Regulations, for example, requires that

(c) Procedure upon occurrence of ex parte communication. If an ex parte communication is received by the administrative law judge, a member of the Board or any other person identified in paragraph (a) of this section, that person shall cause all such written communications (or, if the communication is oral, a memorandum stating the substance of the communication) to be placed on the record of the proceeding and served on all parties. All other parties to the proceeding shall have an opportunity, within ten days of receipt of service of the ex parte communication, to file responses thereto and to recommend any sanctions, in accordance with paragraph (d) of this section, that they believe to be appropriate under the circumstances.

(d) Sanctions. Any party or his or her counsel who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to any appropriate sanction or sanctions imposed by the Board or the administrative law judge including, but not limited to, exclusion from the proceedings and an adverse ruling on the issue which is the subject of the prohibited communication.

17. While sanctions might not always be appropriate, and particularly in Talossa, some innocent mention might be made, repeated attempts to influence or ask advice from a sitting judge by one of the litigants in an ex parte communication is wholly improper.

18. During early discussions of this impropriety, when Davinescu initially requested recusal, both Justice dal Nordselva and Avocat-Xheneral Schivâ made statements which imply that there has been some private discussion of the case between them, extending to multiple exchanges in which Justice dal Nordselva was asked for advice by the Avocat-Xheneral. These attempts and discussions were not publicly disclosed or acted upon, creating a further appearance of bias on the part of Justice dal Nordselva.

19. Justice dal Nordselva made the following statement (http://talossa.proboards.com/post/141229/thread):

Sir Alexandreu,

I have looked back at any comments I may have made anywhere and I have pointedly refused to comment on any case. I have told the A-X that I cannot offer advice on numerous occasions. I cannot imagine what you are referring to. Do you have evidence of your claims?

EDIT: You have not been granted standing in this case, so any request from you to recuse myself is improper as you are not a party to this matter.

This constitutes an admission that the case has been discussed to such an extent that Justice dal Nordselva “told the A-X that I cannot offer advice on numerous occasions.” This admission is corroborated by a statement by Avocat-Xheneral Schivâ, who posted the following statement (http://talossa.proboards.com/post/141240/thread):

Your Honours, I hereby make the following motion that Sir Alexandreu Davinescù be required by this Cort to produce any evidence he may have of Justice da Nordselvâ "discussing this case elsewhere and with the Avocat-Xheneral -- even extending so far as to offer advice", within the current business day, or else be found in contempt of Cort.

For someone who is not (yet) a party to the case to be holding up a black bag labelled "SHOCKING EVIDENCE" and requiring to be made a party to the case before he will open the bag is a reasonably transparent parlour trick. I confess myself utterly baffled about what this kind of "evidence" could be. If it consists of verbatim records of discussions between myself and Justice Nordselva on this case, I welcome them being entered into the record - although alarm bells will ring about how these discussions got to Sir Alexandreu, and open up whole new questions of espionage.

Other than that, I don't see how they can be relevant. This is a delaying tactic and a cynical use of legal procedure to prevent the substantive issue of this case being discussed. I would urge Sir Alexandreu to be very, very careful about the bag of worms he is now opening.

Avocat Xheneral Schivâ’s statement that “records of discussions between myself and Justice Nordselva on this case” might be evidence of impropriety is corroboration of the fact that such discussions took place.

20. The above exchanges indicate that during private conversations, Justice dal Nordselva either participated in or passively listened to discussion about the case, and “on numerous occasions” declined to provide advice on the matter during these ex parte discussions. This constitutes argument or discussion to which opposing counsel was not privy.

21. It was improper for Justice dal Nordselva to conceal these incidents from counsel, and it creates a further appearance of bias that Justice dal Nordselva did not reprimand Avocat Xheneral Schivâ and ensure that there was no repeat of the impropriety.

Request

22. We request that Justice dal Nordselva recuse himself due to the appearance of bias in these proceedings.

23. We further request the release of the unredacted transcripts of all non-public discussions between Justice dal Nordselva and Avocat Xheneral Schivâ in which these proceedings were mentioned or discussed.

[Dame Litz Cjantscheir, UrN]

The Cort thanks Sir Alexandreu Davinescu for the timely filing of his brief and notes the contents of same.

I further put on record that I have received to my chambers copies of the original evidence, namely a screenshot noted in point 10 of the aforementioned brief. Any party to this case whom has not received same should contact Sir Alexandreu Davinescu to be furnished with a copy.

The Cort will now allow Dr. Txec dal Nordselvă an opportunity to reply. S:reu Justice dal Nordselvă has until Noon (12:00pm) Talossan Time on the 10th February 2016 to lodge his reply with this Cort.

The Cort wishes to put both the Petitioner and Respondent on notice that they may be called upon to reply to the above brief.

[Sir Alexandreu Davinescu]

Your Honour, just to amend one thing I wrote: the post referenced in the brief and included in the form of a screenshot as evidence has now been deleted entirely. I apologize; I should have included a request for his cort to order that no evidence be destroyed.