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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 5, 2014 15:36:56 GMT -6
Your worship, we have concern that, perhaps the present court is allowing its close ties to the defendant and animosity toward the petitioner's counsel cloud the objectivity of this court. At this time, we move for judicial recusal.
Alternatively, we ask the for a recess to allow us to file a petition for a writ of mandamus with the Uppermost Cort to compel the same.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 5, 2014 16:13:31 GMT -6
The court has no animosity toward the plaintiff nor any improper fondness for the defense and only desires to see the case proceed in a timely fashion. The plaintiff is free to file any motions it so wishes before the Uppermost court but the court sees no reason to recuse itself nor grant a recess at this time. Your concerns are duly noted. The courts previous ruling was issued in response to a plaintiff motion that was substantially changed between the court seeing it and replying to it. The court has reversed itself on that ruling.
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Post by Sir Alexandreu Davinescu on Jul 6, 2014 19:37:50 GMT -6
Your Honour, I thought it would be polite to here notify plaintiff's counsel that I intend to call the plaintiff as a witness after my opening brief (after, of course, the plaintiff has made his case). I'm not sure what would be the best method, but I would suggest that the plaintiff make arrangements now to obtain a guest account on Wittenberg - assuming this cort thinks it reasonable. It might save time later.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 6, 2014 20:50:11 GMT -6
The Court acknowledges the notification. The Court will allow time for the plaintiff to respond to the pending subpoena before ruling.
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Post by Sir Alexandreu Davinescu on Jul 6, 2014 21:42:19 GMT -6
Your Honour, here is my initial reply to the complaint. I pray that it is acceptable, and eagerly await the plaintiff's case. Attachments:Vitosuit.pdf (94.25 KB)
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 6, 2014 22:10:23 GMT -6
The court now invites the plaintiff to file an answering brief as well as a response to the defense intentions to examine the plaintiff.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 7, 2014 6:57:38 GMT -6
We object to the attempt to call petitioner as a witness. The Petitioner is a former citizen who does not wish to directly engage with defendant or defendant's counsel. He has retained counsel to deal with this matter before the court. Petitioner has set forth an argument based upon law and its application to largely non-disputed facts which should be sufficient. Petitioner's reply brief is below:
In the matter of Viteu Marcianüs against Sir Alexandreu Davinescu, the Ministry of Stuff, and His Majesty’s Government, the Petitioner Responds to the Government’s Case.
Privacy: The Right to Be Forgotten Versus the Right to Privacy
While defendant asserts that the petitioner has no right to privacy, he does not seem to address petitioner’s right to be forgotten. The European Union held in Google v Agencia Española de Protección de Datos, Mario Costeja González that an individual indeed has the right to have considered for removal any information which:
“…appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed." Article XVIII Section 9 cements as a fundamental right for a Talossan to renounce his or her citizenship. We must consider that the authors of the organic law considered and intended an individual to be able to sever all ties with the nation. The authors likely did not consider the final disposition of photographs as the concept of a “wiki” would have been a distant conception beyond the grasp of the nation’s humble origins, had anyone even considered something similar in the first place.
Petitioner is not seeking privacy, but is attempting to assert his right to be forgotten. Defendant notes that the Petitioner was not compelled to upload any content to the Wiki. This is true. Neither is a married person compelled to buy a home, contribute to a retirement account, have children, or purchase a plethora of joint assets. That does not eliminate the fact that these assets are contested at the time of a divorce.
Like a situation of divorce, petitioner made contributions to the wiki while a full citizen who, presumably, intended to remain a citizen into perpetuity. Those circumstances changed. As the defendant notes, the government has no inherent right to the biographical information of a citizen. It must therefore fall to this court to determine the final disposition of this intellectual property. At issue is not only who has the right to what, but how we as a nation choose to treat reasonable requests by former citizens who wish to leave Talossa behind them and sever all ties. The defendant cites the licensing agreement. However, married couples are bound by a lifetime vow. This vow is revocable by the courts as circumstances dictate. The failure of a marriage does not mean that those entering a marriage are insincere in their initial commitment. Rather, the court determines that circumstances have merely shifted and warrant a reappraisal of the marital arrangement. Petitioner entered into the licensing agreement when he was a citizen of the Kingdom who actively participated in Kingdom affairs. Pursuant to his Organic rights, he terminated that citizenship in a manner not dissimilar to a divorce. Like a married couple facing divorce, this warrants a reappraisal of the previously agreed upon status.
Defendant asserts that, because the petitioner uploaded information to a Wiki, he has no right to privacy. This is absurd. Petitioner also maintains a Facebook account and walks down public streets (where third parties are free to record his image without his permission). Defendant treats the right to privacy as a static right which can simply be waived in a sweeping motion. In reality, privacy includes the right to have irrelevant information forgotten.
The Relief Sought Versus Compelling Government Interest
While defendant seems insistent that the petitioner demands a full removal of his entry, this is simply not true. Petitioner’s initial request was for a full removal of his wiki entry. After retaining counsel, the request was modified to include the removal of only the photo of petitioner and those narrative portions which he authored.
Defendant asserts that these narratives are “of interest” to unidentified readers. Defendant thus asserts that it would be contrary to nation’s interest to allow the removal of sections related to say, Petitioner’s Podcast, because readers might be interested in the fact that petitioner once had a podcast. The government has no compelling interest to retain information it thinks would be “interesting” or things it thinks would be of amusement to its readers. The wiki, and all government record, should be concerned with the transcription, storage and retrieval of factual events relevant to the nation. To this end, petitioner has stated he does not oppose a non-narrative listing of his offices held. He in no way intends to revise his Talossan experience, merely to distance himself from it. He is not seeking to amend Cosa records showing his votes cast. Nor is he attempting to amend the KoT website to strike any incidental reference to his past actions. Rather, he is attempting to strike from the Wiki actions which he noted because they were relevant to a current citizen of the Kingdom. Once petitioner ceased to be a citizen of the realm, the relevance of his podcast or his reasoning for leaving a particular party dissipated.
Quality and Relevance: Jurisdiction and Explicit Authority
Defendant erroneously asserts that this court cannot overrule the discretionary authority of an appointed government official as it pertains to the rights of an individual. The right of the petitioner should be paramount. And in deciding this matter, the court should take into consideration whether the creation of defendant’s post, and the creation of the wiki itself, was intended to create a data repository where there exists absolutely no recourse to the inclusion or exclusion of information.
The wiki is not a private venture which can shield itself behind the protection of editorial freedom. As an extension of the government, it remains accountable to the people. Its agents may also not take it upon themselves to cease any more authority than is granted to them by statute. Defendant wishes to simultaneously retain and consume his proverbial cake. He would like the court to rule that he, as an agent of the government, has discretionary authority beyond the reach of the court. He fails to show where, according to statutory law, the court is compelled to oblige such a request. Defendant empowers himself, without the shield of law, to serve as the first, second and final arbiter of what information is permitted and what exclusions shall be allowed while attempting to deny the petitioner (and by extension, all persons) the right to contest information included on the Wiki. In circumstances where this implicit authority remains unchallenged, the defendant can enjoy his supposed power. However, if the court should uphold the notion that the government may unilaterally extend its own power leaving the individual no recourse or path for remedy, it diminishes the balancing power of the judiciary and hands the government a blank check for despotism.
Defendant asserts that the quality is of no concern to this court. Defendant is being disingenuous. While defendant attempts to portray this as an extreme request to revise history, the petitioner has requested merely an editing of the existing history to include only relevant fact such as his offices held, dates of citizenship and matters of official record (such as his voting history). Defendant, however, has refused to consider such editing. He holds his word as final and now asserts that petitioner has no right to seek remedy by the courts yet has not shown where, by law, he is granted, as a government agent, this final say with no recourse.
In Summary: 1. The petitioner renews his request to have his Wiki page purged of his photo and to have all narratives written by him excised leaving in place only a factual accounting of his political and appointed offices held and, if available, voting record. 2. Defendant claims that he has unchecked authority and that citizens lack recourse when they disapprove of his “editorial” decisions is without merit. 3. This court has duty and obligation to prevent the overreach of a civil servant’s authority. 4. The right to be forgotten is a fundamental principal and should be weighed against the government interest to retain and publish certain factual and objective information (such as offices held, voting records, etc.).
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 7, 2014 9:13:10 GMT -6
The objection by the plaintiff is sustained. The court cannot compel a non-citizen to appear before it. The court will now wait upon the defense for a rebuttal brief. The court also invites any amicus briefs from the government.
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Post by Sir Alexandreu Davinescu on Jul 7, 2014 18:46:48 GMT -6
Your Honour, I respectfully request that you reconsider your ruling on the objection. If a non-citizen has standing to request action through this cort, and has implicitly recognized the authority and competence of this cort to command that action, then that non-citizen must also be considered to have assented to the equitable consideration of that action.
It is perfectly understandable that the plaintiff does not wish to testify. Plainly stated, his testimony will demonstrate several flaws in the plaintiff's case. But it is unjust if the plaintiff may select which judicial procedures he wishes to follow. Either he is a plaintiff in this suit and may be called to give testimony and provide evidence, or he should drop the suit. Otherwise, we are establishing that non-citizen plaintiffs may sue and compel evidence and testimony from citizens, while being immune to the defense's own attempts at discovery.
This cort must be careful not to establish the precedent that being a non-citizen confers extraordinary advantage in the courtroom, as it is contrary to justice. Respectfully, I ask that you reverse your ruling and over-rule the objection.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 7, 2014 18:58:35 GMT -6
Your worship, as defendant wishes to raise the issue again we renew our objection. The petitioner's entire legal argument is included in the briefs submitted through counsel. The defendant is attempting to elicit additional arguments from the plaintiff with out the benefit of counsel.
In retaining counsel, plaintiff takes his initial claim to injury and filters it through an admitted attorney to formulate a legal strategy. We presented a brief and the defendant replied. Now he is seeking to quiz the petitioner for the purpose of fishing for fodder to augment his case. If there exists inherent flaws in the logic presented in the brief, let defendant argue those points. Any questions the defendant might pose to gather information not contained in those briefs would be an attempt by the defendant to admit arguments we didn't raise.
Essentially, defendant doesn't seem to like the argument we presented and so he intends to try to force us to present an alternate argument.
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Post by Sir Alexandreu Davinescu on Jul 7, 2014 19:09:32 GMT -6
Your worship, as defendant wishes to raise the issue again we renew our objection. The petitioner's entire legal argument is included in the briefs submitted through counsel. The defendant is attempting to elicit additional arguments from the plaintiff with out the benefit of counsel. In retaining counsel, plaintiff takes his initial claim to injury and filters it through an admitted attorney to formulate a legal strategy. We presented a brief and the defendant replied. Now he is seeking to quiz the petitioner for the purpose of fishing for fodder to augment his case. If there exists inherent flaws in the logic presented in the brief, let defendant argue those points. Any questions the defendant might pose to gather information not contained in those briefs would be an attempt by the defendant to admit arguments we didn't raise. Essentially, defendant doesn't seem to like the argument we presented and so he intends to try to force us to present an alternate argument. Surely the learned counsel is not suggesting that all plaintiffs should be granted immunity from giving testimony or providing evidence?
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 7, 2014 19:20:59 GMT -6
Your worship, we object to defendant's direct interaction.
If it please the court, we further support our objection by the fact that this is not a criminal proceeding nor a civil proceeding where a "witness" would be appropriate. The defendant is not accused of a crime and has no inherent right to face an accuser. Nor has the petitioner witnessed a specific act which is relevant to this court. The petitioner has no evidence. The issue before the court consists of two diverging views of law. Those views have been presented and remain before the court for disposition. If the defendant wished to secure testimony, the proper avenue would have been a deposition rather than attempting to stall the proceedings by calling witnesses to speak to an act which cannot have been physically witnessed.
The defendant had the opportunity to present evidence prior to submitting his reply brief, which he did. Now, after we have replied, defendant chooses to argue with the court rather than filing a rebuttal. The defendant has had months from the time of being served with this action to the proceedings commencing to request a deposition and yet has failed to do so until now.
The entirety of the argument of the petitioner is contained in the briefs. That's it. His replies to those briefs constitute the totality of the case.
Defendant then attempting to address counsel directly in court with yet another sarcastic response makes a mockery of these proceedings.
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Post by Sir Alexandreu Davinescu on Jul 7, 2014 21:32:31 GMT -6
Your Honour, both sides in a proceeding have the right to call witnesses and present evidence. Prohibiting me from calling witnesses, or from calling the plaintiff, would grossly damage not only my ability to prepare my defense, but also set a poisonous precedent. I would suggest that the rules of evidence for the Cort pu Inalt might be helpful here, stating as they do, clearly, that "Except as provided by or inherent or implicit in these rules, the Organic law, or statute, no person has a privilege to ... Refuse to be a witness," with only specifically enumerated exceptions (counsel, clergy, spouse, etc.) As the most immediately pertinent guide - the longstanding rules of our highest cort - I would suggest that this principle, as well as our reason, would urge Your Honour to over-rule the objection.
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Dr. Txec dal Nordselvă
Puisne (Associate) Justice of the Uppermost Court
Fraichetz dels punts, es non dels mürs
Posts: 4,063
Talossan Since: 9-23-2012
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Post by Dr. Txec dal Nordselvă on Jul 7, 2014 22:09:40 GMT -6
The court would urge the counselors to direct any discussion to me and not to each other. The court will revisit this ruling as soon as it has had time to consider arguments.
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Post by Adm. T.M. Asmourescu, O. Ben. on Jul 8, 2014 5:02:35 GMT -6
Your honor, I again assert that this is simply not a case where a matter can said to be "witnessed." We must consider the content of any statement by petitioner in this request. Defendant cannot possibly ask petitioner if he physically observed something pertinent to this case as this case deals with the abstract application of law.
What then can the petitioner offer? The ONLY possible outcome is that the defendant can then ask the petitioner questions which attempt to sidestep the briefs submitted. Consider, your honor, if this were a matter of corporate contract law. Calling a witness would be relevant if the witness say, witnessed the signing of a contract. But if the case revolved exclusively around the application of law to the case, then who can rightfully be called a witness?
Defendant is attempting to deceive the court by calling the defendant as a witness when the defendant in fact witnessed nothing. The crux of our case is that the defendant does not have the legal authority to act as the sole arbiter of what is included on the Wiki. He has the opportunity to respond to that assertion in his rebuttal, but instead, he is deciding that he does not like the argument the petitioner has presented and so he would like to put the petitioner on the stand to force him to raise new issues. That would be a violation of the petitioner's rights. Petitioner has the right to retain counsel and have that counsel raise a legal argument.
Defendant is acting in bad faith. He could have presented his questions to be asked to counsel prior to these proceedings. He could have included these questions during his evidentiary motions. He didn't. Instead, he waited until we responded to his brief. Now, well into the proceedings, he wants to claim this as discovery?
Your honor, the defendant says it best himself:
"Plainly stated, his testimony will demonstrate several flaws in the plaintiff's case."
The defendant is not looking for the testimony of a witness. He is instead looking to introduce unqualified legal opinion as this would be easier for defendant to assault. That isn't witness testimony.
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