Ian Plätschisch
Senator for Maritiimi-Maxhestic
Posts: 4,001
Talossan Since: 3-21-2015
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Post by Ian Plätschisch on Jan 14, 2020 20:31:58 GMT -6
Many thanks to the Lord President and to the nominee. The most famous uniquely Talossan precedent I know is from Erni v. Talossa: This is also the only uniquely Talossan precedent I know. Is this because I just haven't read enough Talossan Cort decisions, because lawyers and the Cort rarely reference previous decisions, or because there just are not enough decisions in Talossan history to expect that any would be relevant in a new case? Given that new cases do not come up very often in Talossa, do you believe we could ever have a body of uniquely Talossan jurisprudence large enough to be consistently referenced? Once this question is answered, I yield the remainder of my time to Sir Alexandreu Davinescu.
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Post by Viteu Marcianüs on Jan 15, 2020 19:29:07 GMT -6
How do I answer that?
I mean, is it really uniquely Talossan that practice is defined by what you can do without someone raising an objection? It seems like nation-states pretty much follow this practice as a matter of course.
In any event, this standard, labeled the Talossan Tradition Test, has another component that resembles the jurisprudence in other countries: “The Cort is more impressed by timely passion, timely argument, timely objection.” When I read that part of Erni v. Talossa, what I understand the Cort to mean is that Talossans will ultimately view an otherwise valid objection as waived if you do not assert it soon enough. The Cort certainly took this position, and it's one seen in other jurisdictions.
Erni v. Talossa is also a mixed bag. On the one hand, it speaks a lot to Article XVI Section 5 of the Org Law, and should be cited more. Its plain language test, Talossan tradition test, and legislative intent are informative, and certainly are topical to Talossa today. On the other hand, it concludes with this line, “The Cort is also excited to acknowledge its wide-ranging injunction powers-powers it almost itches to exercise.” That gives me pause—the Cort should never itch to exercise power. I am of the mind that the Cort should exercise its authority sparingly, especially when it comes to injunctions. That the Cort was itching to issue an injunction suggests to me that the Cort would consider setting aside legal standards merely to say “Look what I can do.” Of course, that was probably not intended, and it is ostensibly more of a warning when taken in context of monitoring the election, but standing alone, the line should not be followed. Absent that one issue, I think Erni is a great example of the type of legal reasoning that our corts are capable of.
In terms of unique Talossan precedent, I think Marcianüs v. Rt. Hon. Davinescu et al, Case 14-03, from the former Magistrate Cort is quite on point. What other country would face that circumstance? But in any event, it’s a pretty great illustration of how the Cort should approach new issues and develop jurisprudence. That matter implicated the right to privacy as it relates to the control of one’s publicly posted information in Talossa. It addresses the Covenants and, because it was novel, took a common-sense, logical approach to provide four tests to resolve the issue. The Cort then applies each test and explains its reasoning. Although this is not binding precedent, it is highly persuasive and indicative that Talossan further develops Talossan jurisprudence. The right to privacy and the control of one’s information under the Covenants is implicated in that matter. In any event, the Cort does what it should do: an issue was posed, and the Cort came up with a four part test that is logical and easily understood. It did what it was supposed to do. That matter is another excellent illustration of the type of legal reasoning that our corts are capable of.
(To preemptively answer a question about my thoughts on that matter some six years later—the Cort did what it was supposed to do and I cannot say I necessarily disagree with it at this point. While it provides only persuasive authority, if I were confronted with a like matter, stare decisis dictates that I apply that test. Departure would only upset the law. Of course, a matter with distinguishable facts might cause a different outcome, but the legal standard should be followed. If the facts were so unique that it simply did not work, but the matter was still related, the cort should expand the text, not overrule it. Say a fifth part of the test to compliment what is already settled. Setting aside settled law should only occur when attitudes and circumstances have so changed that the prior rule is antiquated and no longer applicable. The cort needs to explain that, however. It should not just give a conclusory statement, but provide why it concluded the rule needed to be overturned.)
For another unique Talossan precedent, we need not look further than In re: Petition for Injunctive Relief re: OrgLaw Amendment (UC). There, the Uppermost Cort, acting in its role as an appellate bench, cites prior UC jurisprudence, interprets it, and applies it to the facts. The UC, of course, can overturn itself, but that did not happen there. This further illustrations that Talossan corts are, in fact, capable and can apply case law and stare decisis.
Each of the foregoing cases provide guidance, and certainly Erni and Marcianüs may speak to issues associated one’s right to privacy, to protect information made public available, and immigration applications. OrgLaw Amendment shows us how the UC can function and that it can cite prior cases.
Turning now to your questions directly: I cannot say if this is only because you have not read more cases. But you are also not practicing law in Talossa, so why would you read cases? I mean, outside of maybe a few people, do you know anyone (not a lawyer) who just reads random cases from courts? But the issue may also be that the Cort and Talossan lawyers need to do a better job at citing earlier decisions. Part of this issue has been previously addressed—not all cases are easily accessible and many Talossans may not be familiar with how to use a case. I think some training, as I outlined in an earlier answer, would help that. But the Cort itself should do a better job at this. The Cort has demonstrated that it can do a better job at this. The rarity of cases, to me, creates a bit of circular logic. Let’s go with that proposition that Corts and lawyers do not cite cases because they are rare: is that because Talossa is not litigious by its nature; or is Talossa not litigious because people do not have easy access to prior decisions to know that they can seek judicial redress? Is the lack of knowledge about prior matters the reason that we do not have more matters? Is the lack of easy access to cases and procedure preventing a party from attempting a suit because they do not know how? Does this inform why the corts and lawyers do not cite cases that are related? I think this is a hard question and my answers are mostly speculative based on what I perceive. But perhaps we remedy some of those issues and see what happens. If someone is willing to do it, let’s get a case reporter together with indexed cases, let’s get some explained rules established with forms. Etc.
To your final question—Talossa has a body of uniquely Talossan law. I think most cases take that into consideration, even if it looks to guidance from outside of Talossa. In my estimation, it is likely that one will find a Talossan approach to standards adopted from external sources, thus making it uniquely Talossan. And who knows, maybe some basic information, as described above, with a simple “how to” guide will help this along. As I said earlier, we should not forget that the legal systems in our larger neighbors were also developed by enthusiasts over years. I see no reason why that is not the case here.
_________ I want to apologize for my delayed response. Your questions took some thinking. Finally, I said I would state this at the outset, but tomorrow may be a busy day for me, so I do not know how quickly I can turn answers around. I hope that I will be able to respond timely with follow up. If, however, my responses are delayed, I leave it to the discretion of the Chairperson to give an appropriate remedy.
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Post by Viteu Marcianüs on Jan 15, 2020 19:31:48 GMT -6
One last thing about Talossan jurisprudence, when I read the UC's approach to exercising certain authority, and its warning in Injunctive Relief, that sufficiently curtailed my concern about Erni.
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Post by Sir Alexandreu Davinescu on Jan 15, 2020 20:55:00 GMT -6
First of all, a moment of testimony that requires no response.
The Seneschal, the leader of your party and the legislator who nominated you, has commented on my previous line of questioning in several regards, but I only wish to return to one. With regards to current court procedures, about which you did not speak initially, she seems to think my expectations are unreasonably high:
I agree that no one uses these procedures, but hopefully it is not from sheer ignorance of them -- they have been posted and pinned to the top of the corts forum for fourteen years now (!!). If legal practitioners (or really anyone who's interested in the courts) have decided never to read a few short documents that have been available for an entire generation, that seems like it’s their fault. The Asmourescu text is not as prominent, but it is one of only four texts (total) ever published on Talossan law and present in the wiki’s library.
Secondly and more importantly, I wish to praise you again for being willing to undergo the first confirmation hearing in Talossan history. It is perhaps a shame that it’s taken us so long, since so many have been confirmed to lifetime posts without any such formal discussion. It has happened informally during nomination bills, of course. And that last thought actually returns me to my line of questioning, since that nominee was rejected out of concerns for his demeanour and temper, as I vaguely recall.
Many of the questions, including mine, have likewise focused on some of your own prior behavior. I asked, for example:
Your opening statement addressed this matter tangentially:
And you further referenced this approach in your answer to me:
As I understand it, you are addressing how you would maintain the appearance of impartiality. You would refrain from public comment on many matters, you would avoid contentious discussions, etc.
But I believe you have not quite addressed the main point here. I wasn’t wondering how you would manage to appear impartial in the future. I was wondering if you could actually be impartial.
So I wish to return to that line of thinking. Having read everything thus far in your testimony, I feel fairly sure that this is not repetitive -- I don't think we've actually addressed the main issue, but instead have skirted it.
1. You have declared that you loathe the reigning monarch in a very personal sense, accusing him specifically and explicitly of multiple crimes. You have further stated that it is one of your primary goals in Talossa to weaken and eliminate the monarchy. You have already acted to try to effect such change. You literally until the moment of this hearing had a message in every single post on Wittenberg referencing this animus.
Here are some examples of your feelings on the matter -- briefly and sparingly, considering the ocean of possible examples:
Intriguingly, you have even made a very obvious point of refusing to acknowledge King John’s title. I did a quick search, and it appears that you have carefully referred to him as “John” or abstractly referred to “the king,” consistently holding to the principle you announced last year, when you said you no longer would recognize his authority. Clearly symbolic, but symbols are there to symbolize things.
How can you assure us that you will actually be impartial in matters concerning the crown, given this deep-rooted and years-old attitude towards both the monarch and the institution? It seems to be an absurd proposition purely on the face of it, short of some sort of recent head trauma. You refuse to even acknowledge the authority of a major branch of the Talossan state and have consistently and carefully shown this refusal even through your choice of language. How could you possibly give any matter concerning this one-third of the Talossan state a fair hearing? What has changed, beyond the fact that it is momentarily inconvenient for you to admit to your feelings?
2. Following from this along another vein... Most major cases in Talossa have involved the monarchy, and most of the rest have still touched on some aspect of royal authority. It’s been central to the ongoing political debate for almost as long as we have existed. So you would, if confirmed, be deciding many cases regarding His Majesty.
That noted, I would also note it would be truly shocking malpractice if any attorney who appeared before you and represented the Crown failed to petition for your recusal. You swore personal hatred of the king and unending enmity to him as a person and the institution he represents, so it would be farce for any Avocat-Xheneral to ignore that.
The motion for your recusal would become a matter of course. It would be so obvious it would be funny! “Your Honour, the crown moves for your recusal, on account of the numerous times you called our client a cancer and swore to destroy him.”
Could you address this issue of recusal? Will you be recusing in cases involving the crown?
If so, doesn’t that mean you will be recusing from most of the biggest and most common cases, if past is any precedent?
If not, why not?
3. Interestingly, you seem to disagree with people like Senator Pinatsch when they have suggested that your behavior has been inappropriate or out of bounds at times, writing when challenged about it, “I offer no explanation as to my so-called “awful and erratic” behavior because I do not necessarily see it as such.” I’d like to return to that, if I may?
I think this response is interesting because it seems to indicate that you don't think you have erred with your behavior in the past, in either word or deed. When asked, you have instead returned to a common theme: that you must act out at times, because it’s how you honestly feel. You have often made this distinction between civility and honesty, as though it were impossible to be both at the same time, and even though it has already led to consequences for your Talossan career (as when you had to leave the Cabinet, after repeated warnings about the code of conduct).
But surely you can’t honestly believe you have always acted and spoken appropriately! You have already expressed regret many times for your behavior. I can give one prominent example:
The last time you attained a position of influence and power was when you were elected as a senator. At that time, you said that I should watch out, because “just imagine how fun Talossa will be now that I'm pissed and coming into the Senate.” You then began your campaign of using my whole English name repeatedly on the public sections of our Wittenberg, apparently to punish and antagonize me.
When others objected to this behavior, which violated well-respected Talossan norms, you became even angrier and doubled-down, even suing the Secretary of State when he edited my name out of your posts. You actually demanded monetary damages from the cort to further punish the Secretary of State, and only backed down from the whole endeavour after some private interventions.
So in regard to all of the above, is it possible that you still think that your behavior at this time was wise or useful, regardless of whether or not you felt you were legally in the right? If you truly think that you acted beyond reproach during the whole misadventure, it seems like it would cast serious doubts on your good judgment, so I was surprised to see you so blithely dismiss concerns about your past.
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Post by Viteu Marcianüs on Jan 16, 2020 9:34:11 GMT -6
S:reu Davinescu, I would like to make a request that you ask me honest and fair questions that are not worded in a way that leave me either looking ignorant or foolish. If this is to be a proper hearing and one to set the precedent for future hearings, I really cannot see another Talossan voluntarily subjecting themselves to this. Up to this point, I have not objected to any questions, and I have largely tried to answer those that did not really want an answer but just an attempt to publicly flog me without any redress or recourse. But I am now sharing my feelings to the Chairperson and the Committee that this needs to be reined in. I am in one of the busiest work months of my career but am giving up a few hours each day to honestly and openly engage this Committee; I get the impression that you would prefer to see me melt down and withdraw my candidacy, or attack you so that you can say “look!” But neither will happen. As I said at the very beginning and have repeated throughout, there are minds that I will not change in this proceeding. Your line of questioning suggests that you are one of them. That saddens me, but it is what it is. I opened myself up to this Committee fully expecting a full and fair hearing, not a relentless flogging from my political enemies. I will not back down, but going forward, I will be objecting to all questions that have already been asked or that I think are an abuse on the part of the questioner. I am properly billing 14-hour days in my professional life between various motions, appellate briefs, and court appearances. And I am doing that while taking another hour or two to timely respond to repetitive questions that do not always appear to want an answer, but are more aimed at saying to Senators, MCs, and King John “LOOK AT HOW HORRIBLE V IS.” At the end of this all, I will have been the only person to have willfully undergone and engaged this type of public scrutiny for such an extended period of time while keeping it under control. But the tone that is being set with many of these questions would make me think that other Talossans would not. This hearing is beginning to go off course, and the Committee must bring it back in. I have made it a point not to respond to an interviewer’s testimony; but that is a personal choice and not, from what I can tell, a rule. I want to clarify something--in your first set of questions, question no. 2 asks whether I was aware of the procedural rules or the Asmourescu text or that I did not think them worth mentioning. Your question presumed one or the other and did not fairly afford me much play. First, the procedure rules are not used by the Cort, and therefore the mere fact that they are posted is ultimately meaningless. It has been my consistent testimony that rules and procedure must be publicly and easily accessible, agreed to be used by the Cort, and actually used. Second, the Asmourescu text is obscure. It took me a while to find it on Wiki last night, and it is about two or three links deep (hey, the area also has the Dandelion Coloring Book I helped Hooligan make back in 2009!). I likely only found it because I was looking for it. In any event, I read both editions. The First and Second editions have some useful information but are not entirely accurate. For instance, a declaratory judgment is not, as he wrote, one where “No one is compelled to do anything as a result.” I am in several declaratory judgment actions—some of them are literally to tell another party that they owe my client indemnification and defense; others are to say that my client does not owe another party indemnification or defense. The first part, when they come out my way, is literally telling the party to do something. These volumes have a lot of good information, and I applaud Asmourescu for them. They would be a good blueprint for what I have in mind about worksheets, but when I saw an edition entitled “The Practice of Talossan Law,” I thought there would be more on the big cases and how to use them, and less on logical fallacies. Turning to your questions: (1) I have already answered this. 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. Senenschal Schiva, UrN, 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. You will note that in the above I use “King John” throughout. I would also point you to the case that I brought regarding public holidays back in June 2019 that was never heard for whatever reason. talossa.proboards.com/thread/13469/petition-organicity-53rz4-53rz11-lex?page=1&scrollTo=165059 You will note that, in that brief, I cited to Talossan case law, referred to Kin John as His Majesty, made it a point to state that the matter was to clarify the Organic law and not personal, and even provided King John with the brief five days before filing it so he would be prepared. That, Sir, demonstrates that the puffery I used to describe my feelings about the monarchy would not translate into judicial activism or partial proceedings if I were on the bench. Also, my recent engagements with King John, preceding this nomination, have been collegial. His commitment to using the veto sparingly and attempting to preemptively make his feelings about legislation known has softened my earlier stated resolve. So you want to know what has changed? Um… life and circumstance. The respective parties are taking a different approach with each other. I outright reject your characterization of my use of “John” or “the King” or “the Crown.” I used the term I thought was appropriate at the time. You ask for assurance that I would be impartial in all matters involving the Crown. See the answers above and the cited case. (2) I would not recuse myself. My history with King John is a mixed bag for sure, but my resolve has soften significantly. Not to mention, how I view the role of the cort is fundamental. So your prior question that is topical to this, I responded as follows: S:reu Davinescu, (6) I cannot other than what I have already said. My role as a Justice would be to apply the facts to the law. I may not personally like a law, but I cannot just strike it down or eviscerate it. I cannot render a decision in such a way to render it obscure or obsolete. I have had the privilege of serving a term as an appellate clerk doing legal research. I may not have liked a party, but I had to give the court objective, neutral reports and not cater my research to where I thought the case should go. I am not trying to abrogate the King’s authority through a judicial position. Frankly, if the Organic Law is clear on the Crown’s authority, then it should be abrogated through the democratic process. My personal feelings have nothing to do with it. I mentioned this earlier but I do view these positions as necessarily forfeiting some rights. To maintain impartiality, I would need to restrict my public commentary. I cannot take back what is out there, but I can make it a point to act in the manner that is expect of a Justice if I’m appointed. Now, again, I do not think I will change many people’s minds on this. But I hope that, if appointed, my conduct would change those minds down the line. Respectfully, Sir, but I do think at this point we are spinning our wheels at the same issue. We have not skirted the issue, but already addressed it directly. I have not convinced you and likely will not convince you. I may not have convinced a majority of the Senate and two-thirds of the Cosa, or King John. That would be unfortunate but the reality. 2) Only some really big cases implicate the Crown, and it is not as widespread as you might think. Looking at the last 16 years of Talossan jurisprudence, many of the UC cases do not involve/implicate the Crown. Here is a list: 2015 Cjantscheir et al v. Itravilatx et al (UC) did not implicate the Crown; 2013 Lowry v. Chancery (UC) did not implicate the Crown; 2008 In re Petition of Ieremiac’h Ventrutx (UC) did not implicate the Crown; 2006 Hooligan v. Chancery (UC) did not implicate the Crown; 2006 Betineir v. Chancery (UC) did not implicate the Crown; 2005 Senats Vacancy Ruling (UC) did not implicate the Crown; 2005 Dandelion Case (UC) did not implicate the Crown; etc. So now, if a recusal is warranted, it would not mean recusing from most of the biggest and most common cases, because precedent is that most of the past and biggest cases do not involve the Crown or King John. Recusal would be taken on a case by case basis. I have said things about King John in anger before, but as I stated above, my position has softened a bit. Our last interaction in Cort was collegial and literally based on a disagreement in the Organic Law. There was no personal animus attached to it. We sought the Cort’s instruction. That is the precedent that is set. Also, I am excited that King John will have the opportunity to interview me in this hearing. I am excited that this is the rare exception where King John can enter the Senate because the process necessarily involves him. Sir, can we be square with each for a moment? Can we each just be completely honest to the Committee? There is absolutely nothing I can say short of withdrawing my nomination that will make you happy, and any answer I give will be viewed as wholly insufficient. I would ask that you acknowledge simple truth. 3) It was unwise to use your full name over your objection on Witt, I will concede that. Was it awful and erratic? Was it as vile and all of the other adjectives used by Senator Pinatsch. No. In fact, you helped set the legal standard that made my use of it permissive (see e.g. 2014 Marcianüs v. Davinescu et al.). You had used your non-Talossan name in Talossa before. During that episode, your name was still on the Wiki. Under the case that you defended, it was established that you placed your full name in the public square and, therefore, it could be used. Was it unwise and a tad bit childish in retrospect, sure I’ll go that far. But was it vile? Was it profane, erratic, volatile? No. Sir, you are dismissive that honesty should be valued over civility. Yet I have never lied or betrayed the trust of Talossa. I cannot say the same about others who have asked questions in this Committee. With that said, I do wish to note my objections to Lüc da Schir regarding the quality and numerosity of these questions. Thank you.
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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 16, 2020 11:17:29 GMT -6
The objections have been noted. I appreciate that the nominee feels as if S:r Davinescu has been dishonest in his questioning; however I can't really take issue with the number of the questions, and I don't think it would be wise for me to comment on the matter of the questions themselves. From my perspective, S:r Davinescu has asked his questions, the questions have been answered and the assumptions duly rebutted, so I don't know what remedy I could offer, or indeed if any remedy is in order at all. I do want to point out that it's extremely noble of the nominee to keep engaging and taking time off his personal schedule to reply to the questions he is asked, however uncomfortable some of them may be.
For the moment, the objections have been put on the record and I suggest we simply move on to the next Senator.
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Post by Viteu Marcianüs on Jan 16, 2020 12:41:22 GMT -6
Thank you. I only wanted my objections noted for the record. S:reu Davinescu still holds the floor and can ask follow up. My objections do not seek to obstruct that to the extent, of course, the questions aren't repetitive. I await further follow up from the Guest.
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Post by Sir Alexandreu Davinescu on Jan 16, 2020 14:30:51 GMT -6
S:reu, my questions are both honest and fair. I know that they have been hard and uncomfortable, though. I appreciate that you invited me to question you, even knowing that I was likely to apply strict scrutiny. I doubt very much you’ll fly off the handle during these proceedings, though, don’t worry. A few weeks’ discomfort is worth a lifetime appointment, and I’m almost through.
I unfortunately do feel as though we are eliding around the central issue of your attitude towards the king. I really, really am not trying to be repetitive or to embarrass you by providing examples of your past behavior. I don’t think that would be worth much or be very persuasive. I just think we’re dancing around the problematic bit.
So then, how can you be impartial, given the vehement and deeply personal ire you have shown? You have given multiple reasons, both previously and now repeated by quoting yourself.
Yes, but how can you be? This is stating the problem, not solving it.
I am not worried about your non-judicial activity. I am worried about your judicial activity.
I am not worried about situations in which a greater authority held you accountable, as when you had difficulty with the Cabinet’s code of conduct. Being abusive in court would have won you no favors, and it’s obvious to everyone you are capable of acting decently.
I’m not worried you’re going to suddenly start calling the king a liar in cort. I’m not worried you’re going to get into big fights on Witt. I’m not worried you’re going to be political.
No, those don’t seem like your challenges. My worry is that you will be heavily biased against the monarchy and its current occupant, and that you will be inclined to discount arguments made in their favor -- regardless of their merit. It would be unlikely to ever earn you impeachment since it would be almost impossible to prove, and given your sustained anger towards the king and the throne over the course of years, it seems likely to me.
Those provided reasons aren’t actually very good explanations of how you’ve become this different person and deserve our trust. Ultimately, I think we fall back on the idea that you are simply and purely asking for our trust as a country. You have changed and won’t engage in “mental gymnastics and activism through abuse of the judicial process,” and you want us to trust you on that.
But here’s the thing…
You haven’t done anything that might indicate that your anger at the king has lessened until this hearing. The parties are taking a different approach to each other? Okay. Your resolve has softened? Okay. Life has gone on, and you’re different? Okay.
So did you write to the king?
Is there a post somewhere before this hearing where you reflect on this and discuss how your feelings have changed?
Is there an email that could provide us with evidence about this?
Is there anything that shows a change in your attitude before the moment when you stood to gain by it?
I don’t know if you had a change of heart or shift in your priorities. Maybe you did. But this is such a dramatic change, and the trust you’re asking for is so enormous, and you have provided such slender evidence -- momentary cordiality and your verbose assurances!
Maybe you have something like that which a senator can authenticate and submit as evidence. If you do, please please produce it. It would set a lot of minds at ease. Search your email or your chat logs. If you hadn’t thought to do so before now, do it. I’m sure the Seneschal and possibly the Cabinet discussed this with you, but before you knew you stood to gain, you must have expressed the “softening of your resolve” somewhere. Share it with us.
You can’t change my mind with simple promises. That's not really that important. I know it makes sense now for you to frame this as some vendetta against you, and I admit that I was shocked this nomination was even made. But there’s probably little I can do or say that will change the course of this hearing, change my mind or no. The folks in charge want you on the cort, and so that will probably happen. I don’t even get a vote. I’m not in the Ziu.
So then. I submit to this committee that I think it likely that the nominee will find it hard to give any case involving the throne an unbiased hearing, given his emphatic and emotional opposition to the institution and its current occupant. I submit that I think he will likely be asked to recuse himself in all such cases, justly, and that he should probably do so. Those both seem like strong objections to his nomination, which must be weighed against what he would bring to the position.
I hope (I truly hope) I am wrong. It’s possible he has a perfect bit of correspondence to submit, and I will breathe easier. Nothing would make me happier, in fact, since I think the outcome of the nomination is not ultimately in doubt.
Either way, I have done my best, and will let it go.
And V, whatever does happen, I do wish you the best. I may not think this is the right position for you, but that doesn’t change the fact that I’m happy you’re generally doing so well.
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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 16, 2020 16:12:28 GMT -6
The first guest counsel for Senator Marcianüs, Eðo Grischun, has the floor until we adjourn at 19 TST tomorrow. (We did have an extra 4 hour buffer, so on account of S:r Grischun being warned very late I have no issue with burning it immediately and adjourning at 19 as initially scheduled, instead of at 15 as per yesterday's update, to give S:r Grischun some extra time. This will not impact the other half of Senator Marcianüs's allotted time, which will take place as scheduled once we resume.)
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Post by Viteu Marcianüs on Jan 16, 2020 16:42:31 GMT -6
You haven’t done anything that might indicate that your anger at the king has lessened until this hearing. The parties are taking a different approach to each other? Okay. Your resolve has softened? Okay. Life has gone on, and you’re different? Okay. So did you write to the king? Is there a post somewhere before this hearing where you reflect on this and discuss how your feelings have changed? Is there an email that could provide us with evidence about this? Is there anything that shows a change in your attitude before the moment when you stood to gain by it? So then. I submit to this committee that I think it likely that the nominee will find it hard to give any case involving the throne an unbiased hearing, given his emphatic and emotional opposition to the institution and its current occupant. I submit that I think he will likely be asked to recuse himself in all such cases, justly, and that he should probably do so. Those both seem like strong objections to his nomination, which must be weighed against what he would bring to the position. I hope (I truly hope) I am wrong. It’s possible he has a perfect bit of correspondence to submit, and I will breathe easier. Nothing would make me happier, in fact, since I think the outcome of the nomination is not ultimately in doubt. I request permission to reserve my answer (i.e. submit evidence) that may be material to this inquiry pending permission by another (others) to share private conversation(s) with the Committee, or, through the Chairperson, to the Guest before the completion of this Hearing. This request is not proof and should be stricken if no such proof is sent (i.e. don't read anything into it). And V, whatever does happen, I do wish you the best. I may not think this is the right position for you, but that doesn’t change the fact that I’m happy you’re generally doing so well. Thank you. The sentiment is shared.
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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 16, 2020 17:02:15 GMT -6
I request permission to reserve my answer (i.e. submit evidence) that may be material to this inquiry pending permission by another (others) to share private conversation(s) with the Committee, or, through the Chairperson, to the Guest before the completion of this Hearing. There aren't really any rules on this, but I'm sure we can put on the record any relevant material that may be brought forward by any member of the Committee, through the Chairman at the first viable occasion, in a similar way to Rule 20 or 17b.
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Post by Eðo Grischun on Jan 16, 2020 17:55:24 GMT -6
Thank you, Senator da Schir. And, thank you to the Senator for the United Provinces for inviting me to this place to engage in this process. I wish to associate myself with all the positive words already said about this hearing. I too hope that this sets a precedent in the way that Parliament operates in the future during nomination processes.
I will jump straight into questions.
1) I, personally, don't have any issues whatsoever in regards to qualification. You are clearly qualified for this role. It doesn't surprise me that you would be seeking to take on this office, but I am surprised that you have chosen now to do it. So, my question is why now? What is it about this moment that is making you take this step?
2) Much has been said on the issues surrounding personal grudges and overly heated grievances and past behaviours relating to same. I agree with you that at a certain point we are just beating a dead horse. Those with these concerns will just keep asking you to make reassurances while all you can do is keep repeating the same reassurances. Therefore, it seems moot to ask you similar questions. That said, I do think there is one useful avenue to explore. Some people looking on will think that you are unable to change and that you won't be able to keep the promises you make on all this. However, you and I have been at each others' throats in the past. The arguments between us several years ago were off the charts and frequent. The grudge became deeply personal for us both. The attacks from both sides were scathing. The subject matter and feeling of our words went far beyond politics at times. Then, we reconciled. So, first, I will take this opportunity to provide my own testimony to this House that the nominee is capable of change, is capable of repairing broken relationships and is capable to act cordially with old enemies. Second, I ask the candidate to discuss this to whatever point he feels comfortable. How did you get from there to here? And, having done it, could you do it again with others?
3) So far, this hearing has focused, mostly, on your opinions of matters of law, legalese, the judiciary, etc. We have thoroughly explored your legal views and qualifications, but we have not really looked at you as a person. The only topic that has come up is the issues relating to my previous question and we have reached the point of ad nauseam on that. I think it would be beneficial to learn more about you on a personal level. That is, 'who' are we considering? So, lifting from job interview style questions, could you tell us a little about how you spend your free time? What do you do for fun? What are your passions outside of work and Talossa?
4) Continuing to explore the personal, who are some of your heroes or inspirations (historical figures or present day) and why?
(It is currently quite late in my timezone. I will be breaking here until tomorrow morning (GMT) ).
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Post by Eðo Grischun on Jan 17, 2020 5:02:56 GMT -6
5) Now going back to legal stuff. As you will know, there exists in Talossan law, explicitly, a protection from double jeopardy. Do you believe that exceptions exist or should exist to the application of double jeopardy? And, if so, what do you interpret to be the limits of this legal principle?
6) As we know, Talossan law may rely on Anglo-American principles. It could be said that elements of Scots Law could find their way into Talossa then. One such example I want to ask you about is the 'not proven' verdict. In Scotland, one can be found guilty, not guilty or the jury can return a verdict of case not proven. What would your reaction be if, today, a case being heard in Talossa concluded with a 'not proven' verdict?
7) In your extra-Talossan life, you are, to some extent, a left wing activist (and please hear me, I am not using the phrase to disparage. I applaud you for it). I say this because I know how passionate your political beliefs can be, especially when something affects or could affect something personal to you or to those close to you. On one hand this makes you a champion of social justice. On the other hand I worry that it could impact on your ability to remain impartial on the bench. Do you believe you have the ability to hear a case and judge it per law without letting this kind of left wing political passion sway you? Could you find in favour of something heinous to your political beliefs?
***
Mr Speaker, no further questions at this time. Again, thank you to all involved and I wish Justice Nominee Marcianüs the very best for the rest of this process.
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Post by Viteu Marcianüs on Jan 17, 2020 19:31:58 GMT -6
S:reu Grischun,
My apologies for taking so long to respond. Today was the first proper “office” day I’ve had all week, and my focus stayed primarily on catching up on work.
In any event, thank you for taking the time to participate in this process. The hearing has, at times, been tense, but we would be hard pressed to find anyone who thinks think this has been a colossal waste of time. Indeed, this type of hearing demonstrates further that Talossa is not just a game. But, like everything Talossan, it takes a distinctly Talossan approach. The Senate, organically envision, some might argue, as the somber, upper Chamber that protects against intrusions, opening itself up for MCs and those who are not in Government, for members of the Chancery, etc, to participate is truly unique. You have been a long part of Talossa, and certainly neither of us can deny that we each have played a significant role in our respective Talossanity. So you should be part of this process, and I’m happy that you are here.
Turning now to your questions:
(1) At some point prior to the last election, I messaged Senechal Schiva that I think I could do more to help revamp the Talossan judiciary from the inside. To be clear, we had this conversation well before the election. Naturally, the prospect of whether there would be sufficient support was unknown, and remains unknown, but my reasoning had a lot to do with the fact that the Cort is not at full strength, nor has it been for quite some time. The open seat inhibited the Cort’s ability to fully function. Also, that non-Talossan life happens is a well-established fact, and some of the Justices are not as reachable. This also inhibits the Cort’s functionality. But nothing was being done about it, and no one was stepping up to do anything about it. Presently, the Organic Law precludes a Justices from participating in many other aspects of Talossan life as it relates to politics, and many of us who are active are part of, in some way, the State and politics. I am tired of a lot of the politics. I came back to Talossan because I wanted to help the judiciary develop, not to be bogged down in political arguments. I tried to do this as Attorney-General, but politics. So when I took a step back, I saw an open seat and a way to perhaps help achieve what I set out to do. It was only a boon that I saw myself replicating the ethics places on judges and justices in foreign jurisdictions and retiring from political life. You ask why now? Circumstance, really. I want to aid Talossa develop more, and this seemed like the right time. What compelled me to message Dame Schiva that night? I don’t know. But once the wheels started turning and the nomination would go through, and I kept saying “full and fair hearing,” and the Lord President jumped on that, I thought, “yeah, this was a good time to do it. We are having a proper hearing with thorough scrutiny; people are taking it seriously; and even if it doesn’t go in my favor, Talossa has taken another leap towards actualizing its potential.”
(2) Unfortunately, you and I fell into the pattern of “political enemy = personal enemy.” We fortified it by viewing every post at the other one as a personal slight. I recall in one particular skirmish in Vuode, I used a term to which you excepted because of its connotation. But something sparked in that time, I explained why I used it, you explained why you were affronted, and we both seem to realize that it was a misunderstanding. We agreed to try that approach again in the future—let’s not assume the worst in each other. From there the patterns kinda fell off and we did not need to message each other privately. We both have probably rolled our eyes at the other’s posts, but absent was the presumption of personal animus. From that point we began to find more common areas of agreement. Where we disagreed, even when we’ve gotten snarky, it’s not really taken personally. And now we work together. But to get there, we both had to get over that pattern.
Relationships, be that friendships or acquaintance, etc., can blossom or shrivel. It can happen intentionally or organically. We made a point to change course intentionally—after a while, the intentional, conscious act fell away organically. So this is a bit esoteric, but it’s how I can describe what happened. We made a point to let go of anger and confront each other without those shackles. And, eventually, disagreement was not predicated on perceived intent of the other person.
(3) Keeping with the job interview: Talossa of course! And I watch TV, go to the gym, hiking, hang out with friends. Okay, but seriously, I like learning new things, so I do a lot of reading. I find a topic and devour a few books before moving on. But my time is limited so a few books is like three over the course of five months. Right now I’m all about the science behind deception. I’m about half-way through “What Everybody Is Saying: An Ex-FBI Agent’s Guide to Speed-Reading People” by Joe Navarro. I’ll probably reread Dune after this given the purported 2020 film (Dune is one of my top favorite stories of all time; Wraeththu is my all-time favorite book to read and Babylon 5 is my all-time favorite show). I go to the movies a lot—the movie theatre by us is one of those full restaurant with table service (i.e. husband drives and I get to drink lots of beer while watching movies). What I really do to unwind: travel. I work long hours mostly because I do what I love, so I don’t notice it. But for the husband setting rules, I’d probably work a lot more. This means I burn myself out. But I do that because I try to travel frequently, and I cannot work fully while traveling, so I’m forced to actually relax. I rarely do touristy things, but prefer to find a bar and meet locals. Trips generally coincide on a September/October and February/March basis, with the occasional June/July. Last October we did Tokyo and Kumamoto for the Rugby World Cup; in March I was in London, etc. Next month I’m heading to Tromso, Norway for a long weekend for my (sixth?) trip to some northern place to try to see the Northern Lights (I figured going into the Arctic Circle in Winter might help; I also prefer the cold). And after that, I’m saving up to try Wasteland Weekend in September (RV already booked).
(4) Personal hero = Hillary Clinton (her strength and passion inspires me) and an aunt who raised me (her name is tattooed on my left arm with a pink ribbon); for professional inspiration Judge Cardozo (Youtube: palsgraf legos) and A.V. Dicey (British constitutional scholar from the 19th and 20th Centuries).
(5) The Organic Law a few years ago referenced double jeopardy, but did not actually explain what it is. It assumed we all knew it. I proposed 50RZ26, which amended the Fifth Covenant, to more explicitly define it, even if it doesn’t identify it outright. Double jeopardy, in my estimation, means a complete adjudication on the merits. That is to say, a person has been fully tried, all appeals are exhausted, etc. That does not mean that, until finality occurs, things can be repeated. So say a person is acquitted at trial, but the Government appeals, well there is not finality. But that does not mean the Government can bring new charges. What it means is that the appellate cort can only remand for a new trial based on the original charging document. So basically, double jeopardy attaches to different aspects of a criminal proceeding. Once the charging instrument is accepted by the Cort, you cannot bring new charges for the same transaction or occurrence giving rise to the original charging document unless its still within the statute of limitations. There would be an exception if the trial had not occurred and the Government provided good cause why it needed to amend (say something new was learned). But if the trial starts and the SOL expired, well, that’s it. If the trial concludes, at that level, unless something higher says otherwise, that’s it. Finality, in my estimation and for Talossan purposes, informs double jeopardy. I do not think I am carving out exceptions, but if I am, I think they’re very restrictive. As I would understand Talossan double jeopardy—it comes down to fundamental fairness to the charged party. The Government cannot delay prosecution by reopening those matters of a proceeding already settled at that level.
(6) I’ve done very preliminary research into that, and it was not recent. I don’t know how I would approach it. It’s an interesting concept. Perhaps related to no contest. I am curious if double jeopardy would attach. We do not have “guilty” or “innocent” but “guilty” and “not guilty.” The evidence may not be sufficient to proven guilt,, but that does not make a person innocent. However, the Government only gets one real shot at proving guilt (with the exception of appellate proceedings, but that is limited to what was produced below generally); so “not proven” to me suggests something in the middle—there could be evidence but it’s not yet available, so we cannot make a conclusive determination. I do not know if that would cause double jeopardy to attach.
(7) Interestingly, I was having a conversation with a partner earlier today that touched upon this. I do primarily defense work. In NY, our trial courts (the Supreme Court) elects judges (Justices) (our court system is literally flipped around; our court of last resort is the Court of Appeals and they have judges). Technically, we have one trial court throughout the state that is represented individually in each 62 counties. It’s a weird system. Four out of NYC’s five boroughs (which are counties in their own right) are known as being pro-plaintiff, and correspondingly more left leaning politics. I do not correlate left leaning politics with pro-plaintiff judges because, well, I think the courts in my area go too far. But I can see why someone might. Anyway, the partner said something akin to “I’m pretty left but even I think the judges in this venue go too far” and I reiterated what I said above—I don’t view it as one or the other, but it’s easy to see why. So my experience in defense work informs that politics should not influence decisions. Justices must apply the law. Relatedly, New York recently passed a statute that, for a one year period only, permits anyone who has ever been sexually abused within the State to commence suit (think priests). Leftist V, from 2012, all for it. Leftist-lawyer V in 2020 – WHAT THE HECK WAS THE LEGISLATURE THINKING? How can you even begin to prove claims from the 1950s? It’s nothing on the victims, but how do you begin to gather proof? It’s actually created a huge mess in the courts here. In any event, I don’t get to choose my clients (I’m only an associate). There are some I learn are the complete opposite of my politics. They get the same representation as anyone else. As it relates to Talossa, and I think this goes back to an earlier question, my political positions must be realized through the democratic process, not through judicial activism. If the Ziu passes a statute that is organic, I do not get to eat away at it by interpreting it in obscure ways that is outcome-driven. I have to apply the law to the facts. I may not like an outcome, but if the evidence supports that outcome, that must be the ruling. I’ve been on the losing side where the law and facts are on my side, but the judge renders a decision that is palpably politically motivated, it is infuriating beyond anything in Talossa. I’m not about to become that judge.
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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 18, 2020 2:20:48 GMT -6
The Committee is adjourned until 10 TST / 16 UTC of Sunday 19. When the Committee returns, King John will have the floor for 24 hours as Senator Marcianüs's second guest counsel.
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