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 19, 2020 10:09:15 GMT -6
The committee will resume. It's now my pleasure to welcome for the first time to the Senate chambers (though not to the full Senate) King John, who will hold the floor until 10 TST tomorrow (January 20).
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 15:50:33 GMT -6
Senator da Schir, thank you. I do have a few questions, or topics I'd like to discuss with Senator Marcianüs.
In no particular order, let's begin with the question of recusal. As I understand it, you answered that you would *not* recuse yourself from a case involving me personally, or the Crown, despite your frequent expressions of personal hostility and repeated accusations of wrong-doing. (And as Sir Alexandreu remarked, these expressions continued in your signature file up until very recently, even though I had objected to them.)
You often act, in New York, as defense counsel. Suppose in some case that you had a client, a State official, who not only was personally known to the Judge, but whom you knew — and indeed, everyone knew — the Judge despised. Maybe the Judge had declared publicly that unless your client resigned from his official position, their enmity would never end. Maybe the Judge had said that your client had no business holding State office, and should move out of New York. Maybe the Judge had repeatedly called your client a "cancer in New York".
I presume you would argue strenuously and vehemently that this particular Judge should recuse himself from the case. Right?
Or take a slightly different pattern. Suppose a defendant had been represented by some attorney who did *not* demand the hostile Judge's withdrawal; the case went on, and the defendant was convicted in the Judge's court. Now you have been hired to appeal the conviction. Wouldn't one of your obvious strategies be to argue that your client had received ineffective assistance of counsel, based on the clearly hostile statements of the Judge, and the former counsel's failure to seek recusal?
You see what I'm getting at. You might be clear in your mind that you wouldn't be prejudiced against me. But a whole lot of evidence has piled up that argues against that impartiality, for quite a few years now, and extending right up until (almost) now. How do you think that I, or anyone else really, could feel comfortable with my being judged by you? As the saying goes, justice should not only be done, it should be seen as being done. And Senator Marcianüs, it would be not just excusable, it would be simply unavoidable, for people to doubt whether your possible rulings against me were an expression of level-headed unprejudiced legal logic, or were an expression of a deep-seated hostility. Do you see my point? And are you still determined not to recuse yourself from cases involving me?
— John R
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 16:16:48 GMT -6
Consider now, a few issues arising from arguments you made as Attorney General, in your Petition to Vacate the Conviction of Eric S. Börnatfiglheu. I asked the Cort whether I could respond to the petition, as it contained a great many accusations against me which were, in fact, not true. You, Senator Marcianüs, objected to my being allowed to speak at all, and in your objections repeated some of the charges you had made, and made some new ones, including (over and over again) the accusation that I was committing "perjury" — notwithstanding that I had not testified at all, ever, on the issues under discussion. (You can refresh your memory of this at talossa.proboards.com/thread/12580/petition-vacate-conviction-esb. It's not pretty.) In a similar case, would you now argue that a third party in my position should not be allowed to comment on a Petition including charges against that third party? Do you now agree that I was right, and you were wrong, concerning the question of whether I had committed "perjury"? Do you still hold that I was, or am, "incredible as a matter of law" regarding the famous phone conversation I had with S:reu Börnatfiglheu? In general, are you pleased with your part in that exchange? Do you think it exhibits lawyerly thinking? — John R
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 16:26:52 GMT -6
Another question arising from the Petition to Vacate the Conviction of Eric S. Börnatfiglheu is this: How should Talossa and the Talossan Corts handle cases in which someone petitions the Cort for something, and other people would like to argue that the Petition should not be granted? We've had more than one case in which, essentially, only one side of a controverted question was heard in Cort, and a decision was rendered. Should our judicial practice be adjusted to make sure that all interested parties have a voice? If so, how?
This is a genuine question by the way, not some kind of gotcha. I don't have an answer; I'm interested in hearing what you think.
— John R
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 17:01:31 GMT -6
Do you in fact believe that I am a "tyrant"? A "liar"? A "cancer on Talossa"? That I believe I am "above the law"?
If you don't believe those things, what changed your mind?
— John R
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 17:11:35 GMT -6
You will remember that the question of whether the King can refuse to proclaim Organic Amendments was decided by the Uppermost Cort (with a Yes); after which, the whole issue — can we, should we, amend the Organic law on this point, and how? — became a prominent political issue, generating various laws and proposed Amendments; was the main issue in a General Election; and then was re-decided by the Uppermost Cort (with a No), overthrowing the earlier decision.
I'm sure you approve the Cort's eventual position. My question, though, is this: Does it strike you as proper for the Cort to act in this way, overturning a recent decision and essentially mooting a referendum and Cosa election? Under what circumstances, if any, should the Cort feel free to reverse itself?
— John R
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 19, 2020 18:54:03 GMT -6
Let me take this opportunity, by the way, to clarify or expand something the Seneschal said in this thread. She wrote:
In my email the Seneschal refers to, I said this:
Now, whether that is "strong" counsel or not, people can make up their own minds. But I certainly did *not* "feel vindicated" at Senator Marcianüs's resignation from the Cabinet.
— John R
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Post by Viteu Marcianüs on Jan 19, 2020 22:16:58 GMT -6
King John,
It is wonderful that Talossa endeavors to actualize democratic institutions, and that we, as a nation, can look beyond personal grievances for the greater good. Certainly, that awesome type of collective forgiveness helped drive reunision, at least publicly. Talossa again showed her perchant for forgiveness when did not outright reject Ben's attempt to return. It's saddens me that he did not see it through. Many people, even so many years later, are still hurt by his actions, but what struck me as uniquely Talossan, what reflects the awesome ability of the average Talossan to look beyond themselves, was that even those expressing the most concern still saw that he potentially offered value. And those merely wanted a moment to reflect. But Ben did not stick around, and that's unfortunate. Perhaps he foresaw a situation where some Talossans would seek to use what should have been a process about immigration into a way that they could air personal grievance. And perhaps that would've been warranted.
In any event, Talossa demonstratred this unique virtue with ESB. Think what you'd like about him, but he stuck around. And look, so much time after his sentence was reduced, he has demonstrated that rehabilitation is possible. He's served faithfully and actively in Government and shows no signs of repeating prior behavior. That concern was, after all, what many expressed concern about.
I am thrilled that you are here, and while I had hoped that your questions would be more about Talossa than your personal feelings, I committed to answering them.
To address the issue of recusal--and I'm thrilled that Sir Alexandreu supplied you with the grounds for this--your initial hypothetical speaks of a judge saying things about s State official. But that question is about the Judge's conduct when in office. But even so, we have elected justices, in those situations, the Justice has to wait two or three years before hearing a case where there would have been a conflict of interest or the appearance of impropriety. But again, this isn't a question about the Justice's comments before getting elected, but what was said after becoming a Justice.
As to your second hypothetical, if a Justice was saying that about my client, again this is the justice saying it about someone in their courtroom, I would move to recuse. To your question about criminal defense, if I did not move, I could not raise it on appeal unless I learned of it after the trial. New York appeallate courts are particular regarding preservation issues.
The problem with this line of questioning is that it presupposes that I cannot distinguish personal feelings about a person from personal feelings about an institution. Regardless of how I feel about you, a question about the organic authority of the crown should never be decided because of how a Justice feels about the occupier of that position.
You ask if I would recuse myself from every case involving the Crown. But isn't that too far? The Crown is, by default, named in a number of actions even though it may not need to be an active litigant. Why would I recuse myself from that? I said recusal would be a case by case basis. It was assumed that this meant no recusal. Nobody bothered to follow up. What that does mean is that I would not see an issue with committing to recuse myself from any cases directly involving claims against you personally for a reasonable period of time. But at some point, and I'm sure you would agree, a sufficient time would pass that this wouldn't be necessary, provided I didn't make further comments.
I trust you also realize that Talossa is unique. I have been chided because I was acting too formally with my approach to litigating in Talossa. Now I am told I need to be just as formal. I can only presume that you, and others, do not want me anywhere near the Talossan judiciary, whether that is as an attorney, as a Justice, as A-G, as a Senator, or just in Talossa. That's unfortunate, and it does not do much good. But here we are. Talossa necessarily has that awesome ability to forgive and set our personal feelings aside because it's the right thing to do, and because we are a small community without a lot of people volunteering to do things. Are you prepared to hold our personal vendetta as the reason to deny helping Talossa's judiciary? That is not a threat. I am not saying I would continue the insults of I am not appointed. What I am asking is simple--can you set aside your hurt feelings here? I certainly am, notwithstanding your harsh criticisms of me in the past.
Turning to your next question, Talossa now has a statute that mandates appointment of special counsel in those situations. But I do not think it was inappropriate to protest to you speaking. You had not been invited. Applying how that would play out in other jurisdictions, following your hypothetical earlier, the reviewing court would look at the record. Does the record establish the charges? But we are harping a lot on the ESB matter. Perhaps I am mistaken, but there aren't tons of criminal convictions where this could come up. Indeed, I can't think of a single scenario, presently known, where this will come up again.
I advocated my position zealously. Incredible as a matter of law is a legal term. You seem to question my legal acumen because I argued a legal standard against you. But in any event, I've already addressed my feeling and my regrets on the ESB matter elsewhere.
To your next question, see above. Again, I note that there's a statute about this.
I do think that, at times, you act as if you're above the law. My main criticism of you, hyperbole aside, is your tendency to assume that what you think the law is controls. As a Justice, however, my feelings about you are irrelevant. You want my honest feeling--I think you honestly believe that what you do helps Talossa; that you see yourself as a father figure. This blinds you. That does not mean I would use the cort to abrogate your authoirty. Additionally, your recent committement expressed in your holiday speech soften my position on you.
Do you know what has been overlooked? At the height of my posts at you, during the ESB matter, I proposed a new org law. Why do I mention it? What I initially proposed did not abrogtate any of your authoirty. It was truly an attempt to just reorganize the Org Law for easier flow. So at the very height of my animus towards you, I still proposed an org law that maintained the authority vested in you the same. That is almost always overlooked because it doesn't feed the narrative that V will use any tool to undermine you. But in reality, when the record is actually scrutinized objectively, it reveals that I've said mean things about you, but I have never attempted to use the corts to evade winning my political positions honestly--through the democratic process.
To your last question--I was not around for the proclamation crisis. But courts in other jurisdictions do have what is called a motion to renew/reargue. To reargue means that you point to where the court overlooked or misapprehended the law or facts. Renew is when there's been a change in law or new facts learned that could not have been learned before that warrant a reveiw. These happen in the same court. In NY, I will move to renew/reargue and appeal. If I win the motion, the appeal is moot.
I do not know enough about the election and subsequent action to comment on the UC's purported reversal. What I will say is that I've seen courts of law resort withdraw a decision and go the other way upon reconsideration. It's extremely rare and should be used only in the most extreme of circumstance, but it is not alien.
My feelings that Talossa should abandon the monarchy remain. But that is necessarily a political question. Regardless of what I have said about you, or you calling me a nut, I have never advocated using the Cort to revoke your authoirty. That must come through the democratic process.
I look forward to your follow up questions.
V
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Jan 20, 2020 9:48:37 GMT -6
Senator Marcianüs —
I'm genuinely sorry to say that I find this response somewhat evasive and quite incomplete.
To take one single issue. Both "perjury" and "incredible as a matter of law" are concepts that, in law, can only be applied to sworn testimony. I never gave any sworn testimony in any proceeding regarding my telephone call with ESB. You are a lawyer; you are neither ignorant nor stupid. And yet you have gone on, and on, in Cort and out, accusing me of perjury, and asserting that I am "incredible as a matter of law". You know better. I find it disturbing that you won't admit it.
I asked you about the so-called proclamation crisis, hoping to hear from you as a widely-read expert on Talossan law. It's disappointing to hear you say you "weren't around" and "do not know" enough to comment on it. Ah well.
This is not simply a matter of forgiveness, nor do my feelings have much to do with the situation. Of course I forgive you, whether or not you acknowledge your faults, as I would hope for your forgiveness for any misdeeds of mine. But my forgiveness, or the forgiveness of the whole community, does not imply that it would be prudent for us to entrust you with a lifetime tenure in a position of great influence among us. It might be more appropriate for you to spend some time behaving well in lesser offices, and only then to pursue a nomination to the Cort.
I thank you and the Senate for inviting me to take part in this process.
— John R
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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 20, 2020 13:05:03 GMT -6
As I anticipated, as we are entering the last week of the hearing, Rule 15 (Intention to Speak) now applies; if the Senator does not speak within 24 hours, the next Senator will be called and Senator Ardpresteir will be called again at the end to complete his other 24 hours if he so wishes.
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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 21, 2020 13:15:56 GMT -6
24 hours having passed, Amada Merþedes now has the floor for 48 hours. Rule 15 continues to apply.
Should Senator Ardpresteir wish to be called again to use his second day, please contact me.
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Post by Béneditsch Ardpresteir, O.SPM. on Jan 22, 2020 0:23:43 GMT -6
I would rather not ask any questions to Viteu Marcianüs. I'd rather not speak more on this score...
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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 22, 2020 5:08:35 GMT -6
Noted. I'd like to take this opportunity to announce that I intend to make a brief business statement as I call the last Senator later today or tomorrow, to outline the next steps in the hearing process as the interview period is ending.
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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 22, 2020 13:26:11 GMT -6
Order. First, I note that 24 hours having passed, the Senator for Cézembre has relinquished the floor. Should Senator Amada Merþedes wish to be called again to use her second day, please contact me.
Second, Rule 25 is amended by adding at the end “The Committee shall not automatically adjourn while a vote is in progress” (this can be challenged through Rule 8).
Now, before I call the Senator for Florencia, I wish to make a brief business statement regarding the next steps of this hearing.
1) Senator del Val will hold the floor for 48 hours until we are due to adjourn on Friday.
2) On resuming on Sunday, if I have received prior notice she intends to speak, Senator Merþedes will hold the floor for her remaining 24 hours. Otherwise, this step will be skipped. 3) At this point, the interview period has ended. Senator Marcianüs will receive the floor to make a closing statement, ideally within 24 hours.
4) Immediately afterwards, I will open the floor to motions to adjourn and report. Ideally, some coordination will happen in the background so that a Senator in favour of the nominee will offer a motion in non-neutral terms, for example “I move that the Committee do now adjourn and report to the Senate with the following: "The Committee of the Whole House has favourably considered the nomination of S:reu Viteu Marcianüs to be Justice of the Uppermost Court".”
5) Depending on the time left, I may allow up to 24 hours of debate on the motion and then put the question, or put the question immediately. The vote will run for three days and is not subject to quorum as this is not the full Senate. 6) If the motion passes, we adjourn with the non-neutral report; if the motion fails, we also automatically adjourn as per Rule 25 (Automatic Adjournment), with a neutral report.
7) Immediately after, the Senate will vote by unanimous consent to receive the report and the Committee will dissolve.
I now call Senator Açafat del Val to hold the floor for 48 hours.
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Açafat del Val
Citizen of Talossa
Posts: 112
Talossan Since: 10-15-2017
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Post by Açafat del Val on Jan 22, 2020 14:50:46 GMT -6
Thank you very much, Mr. Lord President.
I desire to take advantage fully of the 48 hours. Because I do not want to ask all the questions all at once, I do request cordially that the nominee take care to respond punctually but also succinctly. (Don’t take three hours! Keep it brief and to the point.)
Mr. Marcianüs:
First, what is your favorite flavor or ice cream? If without one, what is a favorite dessert?
Second, what is the proudest moment of your entire professional life?
Third, what is in your estimation the difference between law, equity and justice as they relate to the application of justice? Are they the same concepts? Are they distinct?
Fourth, what sort of latitude should a judge exercise in his/her discretion while forming a judgement? Can a judge go “too far”?
Fifth, what is abuse of discretion? How can it be recognized by a lawyer or especially by a layman?
Sixth, what sort of consequence (other than the extreme of impeachment) should Talossa place on judges who may exercise abuse of discretion, commit plain errors, or otherwise cause a misapplication of the law?
Seventh, whichever such consequences may be placed as in the above question, how should they be undertaken? Administratively, perhaps? But Talossan judges don’t earn a salary. Perhaps Talossan judges should face no admonishment for their errors?
Eighth, what is the saddest moment of your life which you desire to share publicly, and how did you overcome it and how did you change as a person from it, if at all?
Ninth, do you have a favorite sports team? Who and why?
Tenth, are you a cat person or a dog person? Or maybe you’re partial to parrots or another type of animal companion?
Eleventh, how do you cut your sandwiches? Diagonally, not at all, or another shape? Maybe you take off the crust?
Twelfth, does Talossa have sovereignty? What makes a country a country? More directly, do you subscribe to derivativism or peculiarism? Why or why not call Talossa “a fun little club”?
Thirteenth, and finally for this round, does Talossa bring you more passion AND happiness today than in the past? Does it bring satisfaction on the whole more than any negative emotion
Thank you kindly, sir, for your answers. AND DON’T FORGET TO BE SUCCINCT!
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