Your Honour, my response to Sir Alexandreu's brief comes in three parts:
I) The evidence of the post by Iason Taiwos to which Justice Nordselva and I replied;
II) The remainder of Sir Alexandreu's petition; and direct questions asked by Justice Cjantschéir;
III) Summary and additional points.
I. THE POST IN QUESTION1. The post in question was made on a public Facebook page named "Free Democrats of Talossa". The page is still there, and other posts may be observed at
www.facebook.com/Free-Democrats-of-Talossa-1015924651800463/?fref=ts.
2. The post in question was deleted by Iason Taiwos less than 24 hours ago, upon my pointing out to members of the Free Democrats where the post was - as cxhn. Taiwos had sincerely believed he'd put in in the private Free Democrats Facebook group, and rumours were going around that our private group had been "hacked". I pointed this out to him just to settle his nerves about possible hacking.
3. I solemnly affirm and declare that I would have advised cxhn Taiwos most strongly NOT to delete the post if I knew he was going to do something so foolish. Deleting the evidence just makes one look bad.
4. However, thankfully Sir Alexandreu made a screenshot so this Cort can take a good look at it. And I submit that, when you take a good look at it, there is nothing there.
5. "Don't fall for it." Those are the four words upon which Sir Alexandreu - not actually a party to this case - demands the recusal of Justice Nordselva. His argument is that, with these words, Dr. Nordselva "advised a potential party to litigation not to take part in the suit".
6. My main argument here is that Dr Nordselva did no such thing, for a number of reasons. The first is that: J
ustice Nordselva declares that he did not even see that the note purported to bear on the current Petition.7. I can simply quote Justice Nordselva's prior statement in this matter:
If we accept Justice Nordselva's account here, he did not actually realise that the note had any relevance to the ongoing Court Case on the petition, since he did not read the image, nor did he re-read the note after posting. He made, instead, a reasonable assumption that the note was part of Sir Alexandreu's campaigning as RUMP leader, and could be reasonably assumed to be tendentious at best, whatever the content, without checking further. There is no
prima facie evidence to indicate that Justice Nordselva is not telling the truth about this.
8. Now, imagine if we assume that Justice Nordselva is not telling the truth - that he did, in fact, see and read Sir Alexandreu's note to cxhn. Taiwos. We now go to:
the note may have been legal in form, but was in fact political, in wording, intention and address.9. In his ongoing attempts to be granted standing as a party to the present Petition, Sir Alexandreu appears to have written to a large number of past and present MZs, in the hope of getting them to "stop all past amendments to the Organic Law being overturned by injunction" (see screenshot). Obviously I didn't get one of these messages, but Senator Lüc da Shir and former Senator Glüc da Dhi certainly did (source: personal communication). The implication seems to be that this was in the nature of a "spam email" to vast quantities of past and present MZs - and seeing as neither I nor any other Free Democrat legislator got one, this was in the nature of a
political mailout rather than an actual attempt to gather parties for something like a "class action suit". In addition, the note's description of the matter of the current Petition - which is not about "overturning all previous OrgLaw amendments" except on an extremely tendentious and politicised misreading - also bears upon the note being of a political nature.
10. Petitioner submits that the line between politics and the judiciary in Talossa is blurred beyond belief. On the current Uppermost Cort, one Justice is the leader of a political party; another, the deputy leader of another; a third is continuously mentioned as a possible RUMP cabinet minister - by Sir Alexandreu himself!; a fourth stood as a "write-in-candidate" in the previous elections. We have therefore developed the tradition in the Kingdom of Talossa that it is permissible for a Justice to have political beliefs and partisan allegiances and that they act on them,
outside the frame of their judicial duties.
11. On the other side of the bench, however, the temptation is always there for Plaintiffs and Petitioners before this Cort to use the Cort for political reasons. I submit that
this is precisely what Sir Alexandreu was doing in his note. I submit that - if we assume that Justice Nordselva did in fact read the note, which he has declared on his honour that he did not - then "Don't fall for it" is not advice from a sitting Justice not to join an attempt to become a party to a suit. If it were, then the form of words would be more like "Don't do it," or "Ignore it". "Don't fall for it" in this context means
"Do not be deceived by the politicised misrepresentation of the subject matter of the Petition".12. This is a political court case. It bears on the powers of the King re: legislation, which are a political issue as well as a legal issue. Given that Justice Nordselva is a leading member of a political party which has as its stated policy the curbing of the King's political role, to expect him to refrain from any political comment at all would effectively disqualify Justice dal Nordselva for any political activity at all, which is currently not convention or law in the Kingdom of Talossa (though some may argue it should be). But it would be extremely convenient for Sir Alexandreu - as for all those who wish to see this Petition fail, including the Respondent.
13. What we have here is in the nature of a 'political trap'. Sir Alexandreu seems fit to politicise this case with tendentious misreadings of the subject matter of the Petition, and to try to build political capital in the form of "gathering plaintiffs" against it; and yet he cries foul at anything which can be squinted at until it looks like bias from one of the Justices. Politicised misuse of a judicial proceeding is fine for me, not for thee, it seems. If the note in the screenshot had read:
it would have been much more honest (although equally tendentious); and this controversy would never have arisen as Justice dal Nordselva's comment would have been unexceptional. The controversy arises because of Sir Alexandreu's
cloaking of a political mailout in pseudo-legal garb.14. Sir Alexandreu attempts to bring up questions of "conflict of interest" (see s.3 of his motion). And if this Cort case was against the Free Democrats of Talossa, that might be relevant. (His bringing up of United States law in s.4 is certainly irrelevant.) But his interpretation of the Tenth Covenant right to a fair and impartial trial and general principles of "conflict of interest" would actually require
totally non-political justices. The question of whether UC justices should retire from all partisan politics is a good one, but one for the Ziu and the people to decide after sober argument. But imagine in the United States if, for example, Justices Scalia or Bader-Ginsburg were asked to recuse themselves from a case because of their known political opinions or sympathies on one side or another.
15. To grant Sir Alexandreu's request for a recusal on these grounds alone - assuming that Justice Nordselva is lying about not having read the note - would:
a) massively delay Cort proceedings in this issue, in which time is a factor, given the Cort's refusal to grant an injunction on the referendum on 48RZ14. Petitioner
repeats that this is a case that
must be decided before the people begin to vote on 48RZ14, in the interest of informed voting in that referendum;
b)
ipso facto grant Sir Alexandreu status as party to this case, a status for which he has been vehement in pushing for and which hitherto had little chance of success;
c) set an extremely dangerous precedent that Justices of the Uppermost Cort must make no political comment at all; or at least no comment on anything cloaked in a legal garb, no matter how politicised it is;
d) set an equally dangerous precedent of allowing this Cort to be used for political campaigning by parties to cases.
16. It shouldn't need adding, but it is best to end on this note:
Justice Nordselva has shown no bias in this case whatsoever so far. He was in fact the spokesperson for the majority panel which rejected the 2 June petition. Just last week, he rejected those parts of this Petition calling for an injunction on the referendum on the "3/4 Majority Amendment". Sir Alexandreu attempts to read "bias" into four off-hand words which he has no way of showing had any relevance to this Cort case at all. This is, to put it mildly, reaching, and to be less polite, disingenuous.
II. OTHER POINTS FROM SIR ALEXANDREU'S PETITION AND RESPONSES TO JUSTICE CJANTSCHÉIR1. In his initial demand for recusal, Sir Alexandreu made the following claim:
2. This sentence is extremely misleading, possibly deliberately so, for two reasons. Firstly it contains the implication that Justice dal Nordselva "has been discussing this case... with the Avocat-Xheneral". The "evidence" proffered shows nothing but
the Justice and the A-X commenting on the same thread. They did not address nor did they respond to each other. This is blatantly misleading.
3. Secondly, this sentence also contains the implication that
Justice Nordselva had been offering the Avocat-Xheneral advice. Both Justice dal Nordselva and myself responded incredulously, both having assumed that was what it had been intended. But Sir Alexandreu's meaning seems to have been in fact that Justice dal Nordselva was "offering advice" to Iason Taiwos, someone who was not a party to this case and had no real likelihood of being. Section I above convincingly rebuts this, I think.
4. However, in the second part of his motion, Sir Alexandreu has taken advantage of the misunderstanding in II.3 above to ask the Cort to go on a "fishing expedition" into the private communications of the Free Democrats of Talossa political party. Sir Alexandreu has a long history of wanting to read other people's private communications, eg. his insistance on reading all the Cabinet discussions re: Case 14-06. But it is too much to expect the law to satisfy his curiosity for no reason.
5. With this, I reply to Justice Cjantschéir's direct questions as follows:
As indicated above, Justice Nordselva is a leading member of the Free Democrats of Talossa, a political party which bases itself on the question of monarchical reform. He is also a good friend of mine who has provided emotional support over years. "The subject of the case" is an ambiguous term. If it means "the general principle of the limit of the King's say over Organic Law vetos", the answer is
probably, in the context of wider discussion within the Free Democrats, but not
after this Cort case started. If that is grounds for recusal, I return to my argument at I.15 above: that that would mean the effective exclusion of all justices from being involved in partisan politics at all, a question which should be left to the Ziu and people, not this Cort. There are some examples of this from the Free Dems forum (but see II.11 below).
6. If, however, the question is: "did you discuss this Petition in particular, i.e. possible ways of pleading, points of law?" the answer is
no. I have made comments on the case in the Free Democrats of Talossa forum, as both Party Leader and Attorney-General - for example, complaining on a personal level about the stress involved in running a concurrent election campaign and constitutional Cort case. But
Justice dal Nordselva has never made any comments in response which are relevant to the case. At the most, he has made "pat-on-the-back, there-there" noises (as a friend would do) and said
nothing judicially compromising. Of course that probably means he reads my comments (unless he glosses over them without reading, as he affirms to have done in the case of Sir Alexandreu's note). This would count as "passively listening", in the sense of Sir Alexandreu's motion, s.20. I leave it to the Cort to decide whether "passively listening" to me whining about my personal stress means Justice dal Nordselva has to recuse.
7. It is also important to note that
actual filings and legal strategy in this Petition have never discussed in the FreeDems group. These have been discussed only with my legal advisors, Senator da Lhiun and Admiral Asmourescu, via Facebook and Wittenberg personal message.
8. Let me give one example of to what extent this case has been "discussed" on the FreeDems' forum, and I hope the Justice won't mind (of course I can't ASK him if he'd mind because that would be more recusal bait!). On 4 February, after the Cort refused the temporary injunction on 48RZ14, I made a post to the FreeDems forum asking what our party position should be on the referendum considering it was going ahead. Justice Nordselva commented as follows, verbatim:
To which I replied:
The Cort should definitely not endorse Sir Alexandreu's request to go fishing in our partisan discussions; but that gives a flavour of what Justice Nordselva meant when he said "I have pointedly refused to comment on any case".
9. Justice Cjantschéir's second question is:
No. On the Free Democrat forums, my discussions of the case and vague calls for suggestions have been extremely general,
not technical or legal, aimed towards the party as a whole, and written in the presumption that Justice Nordselva would ignore them. At one stage, I prefaced discussions of the case with the words "[TXEC], DON'T READ THIS!!!" and a number of spaces just in case he "passively overheard" something; but I came to believe that this was otioise. I trust him to be ethical.
10. Justice Cjantschéir's third question is:
The answer to that is a flat NO. The only people whom I discuss future filings in this Cort with are my legal advisors, Senator da Lhiun and Admiral Asmourescu, via Facebook and Wittenberg personal message.
11. However, if any more argument was needed, there is a way in which the Cort (or at least one of its members besides Justice dal Nordselva) can have full access to the Free Democrats forum to confirm that my descriptions of how I talk about this case and how Justice dal Nordselva responds are accurate. I will happily explain this to Justice Cjantschéir or any other Justice in chambers, as it relates to the personal privacy of a Justice.
3. SUMMARY AND ADDITIONAL POINTS1. There is no need for Justice dal Nordselva to recuse himself because:
a) there is no conflict of interest.
b) his four-letter reply to the post contained in the Screenshot is not evidence of political bias.
c) the Cort may decide that said reply contains a political opinion as to the underlying issues of the case, but those are permissible for a Cort Justice, and to rule otherwise would be to effectively disbar Cort justices from all partisan politics, a step which should only be taken by the Ziu and people.
d) I have
not directly discussed this Petition nor asked for advice on this Petition from Justice Nordselva. I have discussed this case in general (not legal) terms and asked advice from the Free Democrats FB group as a whole; but Justice Nordselva has been
very careful not to offer anything that could help in that context.
e) I have
not made Justice Nordselva privy to any information not available to the other Justices of this Cort.
2. In addition, Petitioner requests that the Cort:
a) ask Sir Alexandreu Davinescu to show cause for
why he should not be held in contempt for deliberate ambiguity in his statement prior to submitting of this petition (http://talossa.proboards.com/post/141226) which cleverly "dangled" the implication that Justice dal Nordselva was colluding with myself, while his evidence shows no such thing. It is reasonable to conclude that this was intentional, from the fact that he refused to submit his weak evidence
until he had already gained the right to a hearing. Of course, this mean that his proposed "fishing expedition" into FreeDem political discussions should simply be ignored.
b) rule in future against
a citizen who is not party to a case bringing petition against a Justice in that case. The fact that Sir Alexandreu - who had been hitherto unsuccessful in gaining standing re: this Petition - has managed to bring the case to a halt, delaying and therefore denying justice, sets a dangerous precedent. If in future any one can walk in, "off the street" as it were, to an ongoing Cort case,
without presenting prima facie evidence in advance, and attempt to have a Justice recused, it will certainly make the administration of justice in this Kingdom even harder, more drawn out, and almost impossible to resolve. Proper procedure would have been for Sir Alexandreu to hand this evidence over to Counsel for the Respondent. But, your honour, I think he just wanted to "muscle" his way into standing on this case. This should not be allowed.
c)
reverse its decision to allow a response to this brief by Sir Alexandreu and Counsel for the Respondent, or at best allow an additional 24 hours for both replies together. It allows them both to "run down the clock" on this trivial side matter and delay even my response to Respondent's petition to dismiss, let alone the substantive Cort case. This Cort should stamp down very firmly on the use of delay and frustration tactics, given that Talossan justice is a by-word for being slow and inefficient at best. I cannot stress this enough, your honour - in this case, given the refusal of an injunction on the 48RZ14 referendum, time is a factor.