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Post by Gödafrïeu Válcadác’h on Jan 13, 2020 8:40:52 GMT -6
Thanks to our presiding officer for an orderly hearing and to our hearee for a positive, well-mannered, and spirited one.
1. Mr. Marcianüs, when real life hands you lemons, what will you do to make very sure you channel your angst in such a way you do not go off on a scree and fit in the Cort? It is rare when you do this, but it is troublesome to some.
2. In terms of the law, how much of a literalist are you, and what does that even mean?
I yield the rest of my time. - GV
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Post by E.S. Bornatfiglheu on Jan 13, 2020 8:54:40 GMT -6
I thank the Lord President for his accommodation.
The role of a Justice is, in some ways, a theological office. The individual must take the information provided and, with their own reading of the law, come to a conclusion. And under Common Law jurisdiction, that decision then becomes sticky. No other such position in a free society holds such a particular authority. We must take particular care when choosing such individuals.
I thank Senator Marcianus for his forthright answers. In this case, the philosophical approach to our processes must take pride of place alongside the conduct of the individual.
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Post by Viteu Marcianüs on Jan 13, 2020 9:46:50 GMT -6
Thanks to our presiding officer for an orderly hearing and to our hearee for a positive, well-mannered, and spirited one. 1. Mr. Marcianüs, when real life hands you lemons, what will you do to make very sure you channel your angst in such a way you do not go off on a scree and fit in the Cort? It is rare when you do this, but it is troublesome to some. 2. In terms of the law, how much of a literalist are you, and what does that even mean? I yield the rest of my time. - GV (1) I'd prefer to use those lemons over some fried halloumi cheese (it's a real problem of mine in fact; and $17/lb, this has become a really expensive addiction). In the past, I have not done the most stellar job at walking away from my keyboard, or realizing that I am using Talossa as the vehicle to express some frustration that has nothing to do with it. That's a character flaw that I have been working on for years. Part of how I process anger originates from some unfortunate events growing up (who in Talossa knew that V is, in fact, a high school drop out?), and you'll have to take that conclusory statement as face value. I am generally an open book about this stuff and would discuss that with you privately, but not in a setting where everything I am writing is being scrutinized. In any event, taking a step back from Talossa in terms of political life will aid me in this. Also, I want the Cort, and, if appointed, my position on the Cort to always been seen as fair and impartial and one that bolsters the Rule of Law. This obligates me to conform my behavior in a manner that achieves that goal. And it is not something I am necessarily unfamiliar. When I first went into litigation, I began working with a partner on a motion that we were sure we were going to lose. The partner kept saying, "we're going to lose this, so don't be upset." Anyway, the day of argument, I am one of five or six attorneys, and the last one at that. The Court goes down the line asking each attorney whether they oppose and how my client would appear in the case. At the end, she does not really say anything to me, but I politely interjected to clarify one fact on the record. I spoke for maybe five seconds. The judge's look at me can be described as, "Counselor, thank you for clarifying, but read the tea leafs and shut up; i'm obviously granting your motion." So, learning to shut up is important. A few weeks later, I appeared for what was my first proper motion. I wrote it from the beginning, did all of the research, knew the law. It concerned a recently amended statute. I was completely right on the law and the caselaw. The Judge looked me straight in the eye and said, "I do not care what the law says; motion denied." I was furious. The Court knew it could get away with it because they knew I would not appeal it, and in that particular court, an appeal would take years. But I had to say, "Okay Your Honor," leave the courtroom, and process the anger elsewhere. Trust me, I had some choice words for the judge, and I still do, but I would never approach that judge, even outside of Court, and tell her those words. I can state I disagree with her, but I have to be respectful. More recently, I was arguing another motion before the Court. As against one party, the judge started off by hounding me with questions. Now, he seemed amenable to my position, but there was that one hiccup that he could not get over. Truthfully, this was an argument I had to put in although I did not think I had a strong chance of winning. The second argument was the primary one. When we got to that, the Judge did not even acknowledge me, but instead was hounding codefendant. Counsel was talking in circles, and also slightly misrepresenting the facts. But remembering my earlier experience, I shut up. The Court was obviously on my side here. Trust me, I could feel my bottom jaw quivering. I wanted to jump in and correct the record. But I had the voice in my head saying, "you don't need to do it; if you speak you will likely hurt yourself. Let the Court do its thing." Anyway, I ended up winning the main part of my motion. I can provide more examples of times that I have been in a court and wanted to mouthoff or say something but knew to shut up, or responded in an appropriate fashion. I know that I am not helping my clients if I do not control my emotions; I can be passionate but I have to be respectful. I also know that, when you are on the other side of the bench, you have to show impartiality and not let your emotions get to you. I will end this answer with this - I keep getting asked for reassurance about my conduct if I am appointed. I understand the concern and acknowledged that I expected these questions. I have never said that anything I am saying should mean not asking these questions. But the answers will start to be repetitive. I know everybody wants reassurance, and I want to give them that reassurance, but I am beginning to come to a loss as to how I can do that as all possible answers have been exhausted. As I said at the beginning, I do not necessarily expect to change a lot of minds on this issue, but, if appointed, I endeavor to change those minds through doing the job. That will take faith and the benefit of the doubt from some Talossans. I am respectfully asking for that. To the extent that, in my opening speech, I said that the seats should only go to those that are, among another thing, deserving, I want to modify my use of "deserving." Upon reflection, nobody deserves any position in Talossa (except for those honorary titles that are meant to award behavior). Nobody deserves to be King, nobody deserves to be Seneshal, nobody deserves to be a Justice, nobody deserves to be an MC, nobody deserves to be Secretary of State. These should not be positions that we hand out because of someone's long history of work in Talossa. In my estimation, when we are deciding who should be any of those positions, what we should be asking is: Is the person qualified? Will that person enhance the institution? (2) There are different approaches to interpreting the law that judges take. Literalism is one of them - just read the words; no external sources; and the words themselves must always provide answers. This is a strict "the judge does not decide what the law ought to be" approach. But this, I believe, hurts equity and justice. It does not account much for inconsistency in a statute or the organic law. I favor a more doctrinal approach under stare decisis - cases are decided in a consistent fashion, and we deviate only when absolutely necessary. Now, the Organic Law does indicate how a Judge should decide a case: follow exact precedent (extreme stare decisis) when exactly on point; where there is no exact precedent, come up with a new rule by reinterpreting an old rule or by applying what it considers principles of justice consistent with the Covenants. But the courts must render decisions with due regard to the original intent of any law, and if there is a difference in interpretations as to the meaning of a law, the court should render an official interpretation with full respect to the Covenants. As someone who favors a doctrinal approach influenced by the living tree doctrine, my approach is in line with this direction: use what we have to decide matters to keep the law consistent; when there is no on-point decision, look to what is available to come up with a workable rule; defer to the statutory intent when necessary, and always keep the Covenants in front of you. Judges should refrain from rendering decisions based on what they think the law out to be. But Judges should not allow blind application to result in injustice. Judges should not just set aside statute or law, but if a specific set of circumstances would cause injustice, then it should as narrowly as possible rule in such a way to mitigate that injustice. Also, generally speaking, if there is one main issue that disposes of a matter, the court should refrain from using dicta to decide other issues. To answer your question directly - i'm a literalist insomuch as if I read something and it is plain and obvious, if the result does not result in a patent injustice that violates the Covenants, then I would render a decision even if I disagree with the result because, well, there's no real ambiguity or play in the joints. It's plain as day and it's not my place to rewrite statute or organic provisions.
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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 Jan 13, 2020 10:33:01 GMT -6
Senator Gödafrïeu Válcadác’h has yielded the rest of his time, but I do believe he had indicated, or someone else has, that Miestrâ Schivâ, UrN would be invited as the Senator's guest counsel. Please indicate whether this is correct "soon", otherwise I will be moving on to the next Senator ( Ian Plätschisch).
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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 Jan 13, 2020 14:41:06 GMT -6
Dama Miestrâ has the floor for the remainder of Senator Valcadac'h's time, that is for the next 33 hours, until 24 TST of January 14th, or 6 UTC of January 15th.
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Jan 13, 2020 14:45:22 GMT -6
Grült méirçi, estimat Mençéi. Buna ziuâ, Senatôr Marcianüs, és méirçi à vhoi ocså për irë. I will start by reassuring you that I'm not intending to ask for any more pledges that you will refrain from effing and jeffing and picking fights! My questions are as follows. 1) I don't believe I'm revealing any state secrets when I reveal that one of the reasons I nominated you was your assurance that you could do more to reform the Uppermost Cort's procedures "from the inside", as it were, than as a Senator or even Attorney-General. Could you please explain your plans for accomplishing this to the Committee, given that I don't believe you could do anything unilaterally as the most junior UC Justice? How do you think you would gain support from your colleagues for your plans? 2) Sir A. Davinescù's second and third questions relate to existing UC procedure and existing UC precedent. Meanwhile, his first question to you takes you to task (not unfairly) over the need for tolerance by someone of your professional expertise of Talossa's culture of "enthusiastic amateurs". However, my personal belief is that Sir Alexandreu should look in the mirror somewhat, in that he tends to use his commendable memory for the minutiae of Talossan history to the disadvantage of those who haven't been involved in this Kingdom for 15 years and read TalossaWiki from top to bottom. I'm pretty well-read myself and I had never heard of these 2006 procedural documents to which he refers (or Admiral Asmourescù's text), and I've never heard that any UC justices actually use them either. My point is that so much of existing regulation, precedent and history in this Kingdom is "buried in the archives" - and that, instead of those who have delved deep into the archives using this "secret knowledge" to their political advantage, it should be codified, publicised and made easy for every "enthusiastic amateur" in Talossa to find. So my specific question is: how do you think Talossan judicial precedent and procedure can be made more accessible to the broad masses, and what specifically could you do as a UC Justice to make this happen? As opposed to what could be done by the Government or the Ziu. 3) Sir A. Davinescù's sixth question brings up an interesting point. If this Committee recommends you to the Ziu, and if the Ziu appoints you to the UC, are you expecting a Royal veto? 4) The Senator from Atatürk brings up the question of "grace" with regard to strenuous public criticism of Cort decisions. I am old enough to remember the outcome of the "Proclamation Crisis" Cort cases, where the King loudly and publicly rejected the final decision of the Cort, so I'm not flustered by "cheek". Talossa's judicial system, it appears to me, requires public confidence to operate; justice must not only be done but to be seen to be done. A broad public acceptance that the Cort system produces justice, it seems to me, requires on one hand the public's acceptance that the Uppermost Cort has the final say on what is legal and what is not in Talossa; but on the other hand, broad public confidence that the Uppermost Cort will take into account in its decision-making not only statute and Organic law, not only precedent, not only general principles of Anglo-American law, but the necessary substrate to all these things - common sense, natural justice, impartiality, and decisions made on what the law IS, not what a Justice thinks it SHOULD be. My question would therefore be: do you think that the current Uppermost Cort has, or deserves, the confidence of this nation that all these things are taken into account in its decisions, and therefore that it has the right to have its decisions accepted by all as fair and binding? How would you improve, or establish, this confidence as a Justice?
Grült méirci për vos rispunzâs.
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Post by Gödafrïeu Válcadác’h on Jan 13, 2020 16:41:09 GMT -6
Dama Miestrâ has the floor for the remainder of Senator Valcadac'h's time, that is for the next 33 hours, until 24 TST of January 14th, or 6 UTC of January 15th. Yes. Time yielded to Miestra Schiva - Apologies to all
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Post by Viteu Marcianüs on Jan 13, 2020 21:47:31 GMT -6
Senenschal Schiva, UrN,
Thank you for putting forth my name as a nominee to vacant position of Justice to the Uppermost Cort of Talossa. And thank you for your continued confidence in my legal abilities.
Okay, I will jump right into my answers.
1) I understand that no justice could act unilaterally regardless of seniority. To your point, as the junior most justice, I would have the most to prove. The Court has not had a new justice since 2015!
As you are very much aware, many others and I have worked tirelessly to get the judiciary fully functional in recent years. But we must be honest without ourselves that Talossa is not a particularly litigious society, and only major issues seek judicial review. The slow wheels of our judiciary also results in many matters going unadjudicated, and the parties sort of resolving the matter for themselves. One can easily view this as a cause to the lack of litigation involved in Talossa, and that may on per se be a bad thing. But the problem here is that the Cort too often does not address matters or issue final decisions
I cast no blame or seek to explain the reasons for this other than—real life happens. Regardless of a party’s legal experience, there is a certain expectation of what the Cort is expected to do. And often, the role is thankless, with as many detractors as there are supporters. Talossa rarely finds issues that receive virtual universal support, and if they do, chances are, it’s not before the Cort.
In my roles as a Member of the Cosa, a Senator, Attorney-General, Distain, I have explored different avenues to get the cort functioning from the outside. Almost never can one find a consensus. But what I do observe, along with many others, is not necessarily a systematic change to the judiciary, as I have been a strong proponent, but a systemic change to the judiciary. The type of systemic changes that are needed necessarily require the willingness of justices sitting on the cort.
Those systemic changes or improvements would come in the form of finally getting the National Bar set up. Of course I could not go at it alone, or institute a bar course or bar exam without others supporting me. However, we should not ignore a cardinal rule of Talossa—more people are likely to do something after one or some take the initiative. I do believe that I will need to have a dialogue with the other justices, but I am willing to do the heavy lifting and provide the framework for them to modify. That involves, as mentioned, a bar exam and course, instituting more procedural rules, accompanies potentially by commentary to explain them, forms for all litigants, and discussion to ensure that all justices are on board and that we all agree to adhere to some common set of guidelines, and certainly one set of rules when sitting as the Uppermost Cort.
I am not delusional in thinking that I will waltz on into the Uppermost Cort and fix everything overnight. But having been on the opposite side of the bench since at least 2015, I am in a position of feeling the effects of a lack of cleaner procedure, or differing approaches in how litigation proceeds, than some of the Justices.
The question is how can I fix the Cort from the inside—well, I can put together the rules and procedure and propose them to the Cort, try to get them to adopt it. At the very least, I can have clean rules for when I act as a trial judge, and I can ensure that my decisions look at Talossan law and jurisprudence in the hope that other justices begin to do the same. In more hard labor terms, I can also lend my thoughts, when asked of course, or my help, when requested, on deciding matters. Ultimately, if I am appointed, my first question to the rest of the Cort is—how can I help?
2) Sir A. Dainescu’s question triggered a thought I had a while ago but, because many other things came up, got put on the back burner—We need an official reporter. As its writing a decision, the Cort is in the best position to identify the topics. The cases could be given to the Clerk, with topic headings, who would assemble them in volumes. The topics would be kept in an index for ease of reference. Looking for a case on a certain topic would mean looking at the index, seeing what has been decided, and going right to the volume with that case. I imagine that this would start prospective with future decisions, and there can be an “early reports” volume collecting all prior cases. Given that each would need to be meticulously reviewed to ensure subject matter and whether it is still good law (or been superseded by statute or another case), that will take a minute. But the key thing is to come up with a way for every Talossan to have equal and easy access to cort rules and procedure, and most importantly, cort cases. It is my intention to hopper something to this effect shortly.
3) This question seems to be the most difficult. King John and I have not exactly been allies, and I have not, in any regard, minced my words for him. He and others know my position on the monarchy. But at the same time, I think he also knows that my critiques originate not from personal animus towards him, but because I see democracy as something fragile and hungry. Democracy dies when we begin to chip away at our democratic institutions. I do not like the monarchy, and I will not pretend that I do to get a seat on the Uppermost Cort. But my concern for democratic tradition and the Rule of Law is greater than my dislike for the monarchy. Against my arguments, the people of Talossa have decided they want a monarchy. They get to decide the extent to which they have a monarchy. That has been my position. They do not get to have that robbed from them by the Cort. I like to think that King John knows that, notwithstanding my personal feelings, if the Organic Law says something is his prerogative, it will remain that way until the democratic process says otherwise, not by me engaging in mental gymnastics and activism through abuse of the judicial process. I also like to think that he understands my commitment to developing and preserving the institution of the Cort as a truly neutral arbiter of matters. So do I expect a Royal Veto? I honestly don’t know. I will ask this—while I invited King John to ask questions in this Committee, I would prefer that he not share his inclination unless he felt it was necessary before the actual vote. By that I mean, to whatever means he thinks it is necessary, I would rather him come to an honest decision on his terms.
4) I think the Cort tries, honestly. A judge must be willing to make tough decisions and withstand public scrutiny. The Cort’s strength must come from a multitude of voices that rely on some type of authority for their decision making. The Cort will instill confidence in its ability when it explains its thinking in terms that make sense, even if unpopular. But to do that, matters need to be heard by all of its members, not just one justice. When sitting as trial judges, the cort will look to itself for guidance. A judge may get an initial impression looking at a matter, but if another judge decided something similar, perhaps reading their decision will turn on a light bulb. With all due respect to those on the cort, right now there is really one primarily active justice, two semi-active justices, and one nonactive justice. That is not only hurting Talossa, that is hurting the judiciary.
Now, we can only speculate (and go by their reasons that they share) as to their present activity level. That could be any reason, but also, it’s a lot of work! It is my hope that, if I am appointed, I can reach out to all of the judges to offer to help them. It is my hope that we can work together as a team to find a way to assign matters, set rules and procedure, and help each other administer justice. I think Talossa is a very forgiving place, more so than some might believe. And I think in that forgiveness we give the present cort the benefit of the doubt. I imagine this will be controversial, but I think our forgiveness, general understanding that Talossa is a hobby, and being told what the Cort ought to be is what sustains its authority. I’d like to help improve that by helping the Cort rebuild its authority based on what it ought to be – the impartial institution that Talossans can turn to for legal redress.
I want to add that even in the most developed common-law judiciaries with the most entrenched Rule of Law, we will all find a case, or line of cases, that we do not think should be binding, or that we want to see changed. So I am not suggesting that any individual case has eroded the public perception of the Cort, but the inaccessibility and lack of easily obtainable legal redress has resulted in the Cort’s authority being borrowed. Again, and I hope everyone who has read this far realizes how much I am stressing this—non-Talossan life happens and I am not disparaging anyone for that. I will have periods of inactivity. But that should not be an excuse for an entire branch of government being quasi-functional. I also want to really underscore, the Cort tries, but perhaps it and those who come before it can commit to doing a slightly better job.
At the end of the day, I think I can help improve the judiciary and to work with other justices to get it functioning as many of us hope it would.
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Jan 13, 2020 22:38:49 GMT -6
Thank you for clarifying the difference between "systemic" and "systematic" change, Senator. This is a distinction which I had not considered before, and which may be important for us: if I understand your meaning correctly, the latter means "changing the rules", but the former means "changing actual practice", am I right?
I may have further follow-up questions later.
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Post by Viteu Marcianüs on Jan 13, 2020 22:57:25 GMT -6
Yup!
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Jan 14, 2020 2:23:23 GMT -6
Thanks for that succinct response!
A few other follow-ups then:
1) On the subject of systemic change in the Cort, you said: "Ultimately, if I am appointed, my first question to the rest of the Cort is—how can I help?" What happens if you get no answer to that question, because none of the other Justices (or at least not a majority) are interested or "awake"? I have in mind the way that Florencia's government creaked to a halt for ages because none of the people who could actually do anything were around.
2) My feeling is that if you are to run into a veto with the King, it will certainly not be anything to do with your jurisprudential philosophy or your plans for the Cort. It will because he thinks you are rude, nasty and churlish, to be blunt. It should not be surprising that he counselled me strongly against making you Attorney-General in the last government; and that he felt vindicated when you resigned due to Code of Conduct issues. If he does veto, will you want the Ziu to override that veto? Can you work with a King who doesn't think you're a fit and proper person for the role?
3) On the issue of confidence in the judiciary, you said: "The Cort will instill confidence in its ability when it explains its thinking in terms that make sense, even if unpopular." I would agree with this. I have in mind the recent decision in the "Sebastian Panache" case, where I didn't even bother to read the Cort's decision because its outcome was so aggressively contrary to common sense that I wasn't even prepared to make the effort to understand Tamorán CJ's reasoning (which I'm sure he made a totally internally consistent argument for). Do you think that judicial rulings, then have some kind of duty to be transparent and understandable by the Talossan layperson? Would you consider, for example, that judges be required to issue "100-word abstracts" of long decisions - or is this a job that might better be left to a Cort reporter?
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Post by Viteu Marcianüs on Jan 14, 2020 4:30:49 GMT -6
1) If there is not a majority, then it’s working with those who respond. If no one responds, then at the very least I can introduce rules and procedure when I’m sitting as a trial judge, and nudge those who would sit on a panel with me to adopt them for that panel. Other projects, such as putting together fill-in forms to file complaints and whatnot would not require court approval as it would contain all the relevant information to bring an action. I want to work with everyone on the cort; but if I must go at it alone for a bit, I will do just that. It would mean that my approach is not the shared approach of the Cort, but if I am assigned to a case, the parties will know what to expect.
2) Yes and yes. In John’s defense, he must work with/has worked with a republican Seneschal. I see no reason why this is not a two-way street. Plus, a Justice should be apolitical (in Talossa, that might be difficult given the small community). But I am mindful that I have helped establish a precedent whereby non-judicial activity could get me thrown off the bench. If Talossa takes the leap of faith in me that I am asking, I cannot imagine that the Ziu would tolerate me abusing that faith at all.
3) Transparency – yes. But not all rulings will be readily understood by a layperson. As jurisprudence develops, certain legal terms of arm will develop with it. That can be confusing to a layperson. I’d like to ensure that those instances are provided somewhere, whether that is wiki page, for those who are not Talossan lawyers to read. Do not think this is unique to Talossa. Ask an American attorney what it is to be professionally embarrassed, and you’ll hear something like, “the Judge scolded me” or “my client was horrible.” Ask an Australian barrister the same question and you’ll get “I had a conflict of interest arise.”
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Jan 14, 2020 14:14:24 GMT -6
Thank you. No further questions, esteemed Mençéi.
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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 Jan 14, 2020 15:14:21 GMT -6
Thank you. We come now to the Senator for Maritiimi-Maxhestic, Ian Plätschisch, who will hold the floor for 48 hours, until 3 PM TST (21 UTC), January 16.
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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 Jan 14, 2020 15:35:56 GMT -6
The schedule in the first post has been edited. Senator Marcianüs's guest counsels will now both have contiguous allocations (not broken by the adjournment scheduled for Saturday 18); we will adjourn four hours earlier on Friday 17; and we will adjourn an hour later on Friday 24.
After Senator Marcianüs's turn, as we approach a string of Senators that have not announced a guest and that might therefore not use the full 48 hours, Rule 15 (Intention to Speak) will apply to encourage optimal usage of the time allocation.
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