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Messages - Viteu

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1
The Hopper / Re: Fifth Covenant - Inadvertent Reversion
« on: February 25, 2021, 08:55:52 PM »
Man, it's embarrassing to get a reminder of how little the Ziu (me included) actually reads this stuff.  :(

I'm as guilty as anyone, I fear.

I'd ask this also get clarked.

2
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: February 25, 2021, 08:54:49 PM »
Please clark!

3
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: February 12, 2021, 04:38:46 PM »
Not at all a healthy separation of power. Normally a Judge is supposed to interpret the law and award a fair and equitable sentence. However, sometimes they are required to pass certain Direction to render complete justice in certain matters where no law exists.  Judge made laws are considered interim measures, until such time the legislature takes a conscious decision on the same. Here we have a sitting Judge framing the Constitution. Ha ha. 

To think of that these same very people had problems with others wearing many hats.

False accusations aside, what about this act is me framing the constitution?

4
The Hopper / Fifth Covenant - Inadvertent Reversion
« on: January 12, 2021, 03:16:38 PM »
I wanted to bring the following to the Ziu’s attention.  I went to check a covenant while preparing a response to Meistra in the Legal Committee thread, and it occurred to me that we accidentally overrode a covenant when adopting the 2017 Organic Law.
 
The Fifth Covenant, pre-50RZ26, read as follows:

Any person charged with an offence shall be presumed innocent until proven guilty, and has the right to request information on his legal rights. No accused person shall be twice put in jeopardy of life, liberty, or property for the same offence, or without due process of law; nor shall any citizen be compelled in any criminal case to bear witness against himself. Excessive fines, and cruel and bizarre punishments, shall not be inflicted.

The Due Process Amendment, 50RZ26, modified that language to:

No person shall be deprived life, liberty, or property without due process of law, nor denied equal protection of law. Any person charged with an offense must be informed of their legal rights upon seizure by the government, and must be presumed innocent until proven guilty by a court of law. No person shall be subject to answer to the same criminal offense after the criminal charge has been properly adjudicated in a court of law, nor shall any person be compelled in any criminal case to bear witness against himself, nor shall any person be subjected to excessive fines, nor shall any person be subjected cruel and unusual punishment. The Ziu shall have the power to enforce this Covenant by appropriate legislation.

The Still Into This Amendment, 53RZ18, reverted this back to the pre-Due Process Amendment language.  Hence, the old Covenant appears to have been replaced upon adoption of the 2017 Org Law, and is current recorded in same.    I’m assuming this was inadvertent because Ian P. co-sponsored 50RZ26.  Hence, it appears we overlooked this and, I’d wager, it was intended for the 2017 Org Law to not change this Covenant. 

Although I encourage another to do so, I will draft a bill to fix this, which I hope should not be controversial, in a week or so.

5
Wittenberg / Re: [Public] Committee of Legal Reforms
« on: January 12, 2021, 01:02:27 PM »
Per the SOS, the Lobby is open once something is being discussed.  I'm unsure about the rules of which forum is restricted to the Ziu, but given the clarification, no need for this thread.

6
The Lobby / Re: Committee of Legal Reforms
« on: January 12, 2021, 12:59:06 PM »
Are the citizenry in general really not allowed to reply to discussions here?  For goodness sake, change that so people like the justices can participate!

I'm not the author of this thread, but since it is in the lobby of the Ziu, anyone can come and go in the lobby...

If that's the case. My apologies for the confusion. I'm actually unsure exactly which legislative forums are restricted to the Ziu.

7
Wittenberg / Re: [Public] Committee of Legal Reforms
« on: January 12, 2021, 12:57:04 PM »
Tenant/tenet... Tomato/typo.

8
Wittenberg / [Public] Committee of Legal Reforms
« on: January 12, 2021, 09:38:32 AM »
My apologies to the Ziu, I realized after the fact that the Committee of Legal Reforms thread is in the Lobby and not in Wittenberg.   I posted based on the "new posts" feed.  Having realized my mistake, the post has been removed.  But I do think there is a conversation that should be open to Talossa-at-large.  So I'm reproducing my commentary here.  The original thread can be found here
______


I want to chime in regarding the alcohol analogy.  Although there is a shared minimum alcohol consumption/purchasing age of 21 among the States, it is not the same law across the Country.  In Wisconsin, someone under the age of 21 can certainly be served an alcoholic beverage in a public establishment by their parent or guardian, while in North Carolina they cannot.  Even assuming Wisconsin did have an outright ban on underage alcohol consumption, it only applies to committing the offense if present in Wisconsin, an 18-year-old who consumes alcohol in Cezembre would not have broken a Wisconsin law because they did not consume alcohol in Wisconsin.  By way of example, my first trip to Europe at age 20, I purchased and consumed a beer in Schwedenplatz (public place) in Vienna.  Did I break New York law? No. New York has a similar law to Wisconsin, but even so, I purchased and consumed alcohol publicly in another country where the conduct was permissible. So I did not have to worry about facing criminal charges when I returned home.

The US, federal and State, rarely imposes criminal liability for conduct that occurs outside of a jurisdiction.  Where it does, it's very limited circumstance--think sex tourism.  So this is not the best analogy.

Regarding the merit of the Regent's thoughts, I generally find them agreeable.  I see the value is removing Wisconsin law from our criminal law, but we cannot possibly address every instance of criminal conduct that may present itself given our resources and needs.  I like the idea of a carefully regulated special counsel, but I would add that a tenant of criminal law is that a person must be able to know what they're doing is illegal.  There must be a benchmark.  Also, Talossa is unique in that we're seeking to hold someone criminally liable for conduct outside of Talossa for general crime.  I'd say further narrowing--only those crimes of such magnitude as to impact the wellness and health of Talossa, should be permissible for consideration of judicial incorporation (I'm thinking of murder or statutory rape as opposed to a speeding ticket).
 


9
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: January 12, 2021, 08:07:14 AM »
A substantive summary is encouraged.

Having said that, and speaking now specifically as the A-G, I should caution us from putting this to a Clark too quickly. Between the impending referendum concerning the future of our head of state, as well as the background work on a "new" Organic Law, it may be poorly advised to adopt such a large and sweeping reform of El Lexhatx. It would be better to see what plays out elsewhere, so as to avoid changing the changes after the fact.

Unfortunately, reforms of El Lexhatx must necessarily go in tandem with reforms of the Organic Law if we wish to avoid - as the kids say - a cluster**** of law.

Respectfully, I disagree.  The referendum is happening.  Even assuming that Talossans vote for an elected Head of State, that will only require minor changes to this legislation if adopted.  Also, can we realistically say that anything would actually happen before 2022?

Similarly, while there is another new Organic Law being worked on, do any of us actually see that being finished and passed before 2022 or 2023? I am being realistic here. It took the last Organic Law about three years to come into effect.  We should not refrain from cleaning up our laws on this prospect, lest the Ziu can put its feet up for the next year!

To be sure, this is not a reform bill.  This is re-codification bill.  If I had to quantify, I'd say 97% of it is already in Law, and 3% (if not lesser) actually makes substantive changes. 

10
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: January 12, 2021, 08:02:17 AM »
It's been a minute since I did this, and I cannot remember all of the changes. I do have red-lined (track changes) version that I will gladly share. 

To start, I was not in Talossa when El Lexhatx was first adopted.  I commend AD (and others) for their hard work in codifying the disparate Talossan acts into a single, cohesive codex.  It has been my impression that when AD did not attempt to slip anything into law or change anything without transparency—it was an honest means to streamline governance and the law.

With that said, we are all aware of the hyper-politicized nature of Talossa, and the slightest modification can sometimes be misperceived as a slight. I am also hyper-aware that AD and Miestra each have carefully guarded parts of El Lex G--ex parte communications and the GC Cort respectively.  The Judiciary Reform Amendment and accompanying enabling legislation inadvertently modified the GC Cort, which took another act to fix.  That was my fault.  But against this backdrop, I made sure not to touch either of those sections outside of renumbering to stay above reproach. 
Turning to what this bill is not:

•   It is not a reform bill.  Outside of those substantive areas identified below, it does not change much.  It merely cuts fat and reorganizes topics for easier read. 
•   It is not perfect.  There will be typos—either mine or rolled over. That is why people have proofreaders.  Please identify typos, and I will gladly fix them.  To that end, if it is desirable that I create a google doc for ease of editing, I will.
•   It is not a chance to debate substance.  Of course I cannot control the Ziu.  I hope that we can establish a precedent that a simple recodification to trim fat does not become an exhaustive exercise in substantive reform, regardless of necessity.  Naturally, this would not preclude an immediate subsequent bill to accomplish reform, nor create a “why didn’t you propose this then” argument. 
•   It is not my admission that I view any part as wholly Organic, that I agree with the law as written, or that I concede authority.  I’m a sitting Judge on the Uppermost Cort, so I want to be explicitly clear that there may be parts that are outside of the Ziu’s authority.  But, again, this is not the place for that debate.  If I start nitpicking, we will get buried in those arguments and no changes will be made.  So I set aside my personal opinions in the spirit of a simple recodification act under the presumption that no one understands this to mean my tacit approval of any part of the legislation, only my thought on how to clean it up.

On to the changes, it has been over a week-and a lot has happened-since my initial posting. But I will attempt to identify any substantive changes. 

•   For the most part, the act follows this outline: the Corts -> Authority -> Procedure -> Judicial Decisions/Tenure.  Certain parts fall in more than one category, and some simply seemed out of place in others.   If you think a section is better suited elsewhere, propose it! It will take some renumbering but if it works better elsewhere, let’s do it!
•   I introduced individual headings for the sections, but kept the general descriptions already present. This will make more sense as we go.
•   Lex G.1. The General Corts. This remains unchanged from what is presently the Law.
•   Lex G.2. The Practice of Law.  We previously had two places regulating the practice of Law in Talossa, with one still referencing the defunct Royal Talossan Bar.  Each statute was slightly different, in that one addressed who can practice law while the other set out how to become licensed to practice law.  This is now merged with the references to the RTB removed.  Everything goes through the National Talossan Bar.  As a reminder, I did author the statute regarding the NTB.  I do clarify that while the UC can delegate proposed rules to a committee, ultimately it will admit any new lawyers.  This was my original intent, and I think the cleane dup wording better explains that.  Also, with regard to those who seek a waiver to practice law because they are already lawyers or have training elsewhere, as written, it says “home country.”  I changed it to “another country” because “home country” was never my intent and is unnecessarily restricting.  Also, what is a home country?
•   Lex G.3. Appeals and Tribunals. I don’t believe I made many changes, if anything beyond a typo fix, here. 
•   Lex G.4. The Clerk of the Corts.  Courts -> Corts, and I believe I made it the Clerk of THE Corts for consistency. 
•   Lex G.5. Court Officers.  Not many changes here except I did make the Uppermost Cort the final authority on the appointment of Judicial Officers.  This is because the Cort really ought to be in total control over how it functions, especially that the UC is an independent branch.  The GC does exist by statute, so there is some control the Ziu can exercise here. ((easteregg to something I referenced above if you care)) Ultimately though, this only comes into play in the event of ping-pong between the Monarchy and the UC on judicial officers.  If it came down to whether the UC really wanted to remove someone or appoint someone, and the monarch was opposed, well, it is the UC’s branch, so the UC should have final decision-making authority.  I do not think this will ever come to fruition, and it would not be without controversy.
•   Lex G.6. Criminal Law.  This has more of the substantive changes but out of necessity.  The Ninth Covenant guarantees a right to a jury trial or one by tribunal.  Also, there was some confusion when it came to a recent trial with criminal procedure.  With that in mind, we do not have enough people for jury trials, but with the new fully staffed-GC, we have enough for a tribunal of the Crown, which will make a prima facie determination whether the factual allegations in a criminal complaint are sufficient that, if proven, the accused would be guilty of the crime alleged.  So this means the charging instrument must clearly lay out the elements of the crime and the facts that, if established, show guilt.  An accepted criminal complaint means jeopardy attaches, but the caveat is that if the People can show good cause, then they can withdraw the criminal complaint without risking jeopardy.  Remember, a case only has 90 days for trial, so if an informal plea is worked out, the People may want some wiggle room.  On the other hand, if the case is dismissed of failure to prosecute, the defendant should not be prejudiced for the People’s malfeasance.  A lot of this is already in law; I was merely keen to clean it up. I encourage this part to be scrutinized and compared to the already-existing provision.
•   Lex G.7. Statue of Limitations – No changes I recall.
•   Lex G.8 – Wrongful Prosecution. I cleaned this up to clarify the elements and set a standard of proof.  Also, it explains that wrongful prosecution is not established merely because the People lost a case, but when they prosecute with actual malice. 
•   Lex G.9 – Ex Parte Communication. Unchanged.
•   Lex G.10. Service in General. I think this is largely unchanged. I believe I added 10.5-- if the charging instrument in a criminal trial is rejected, it is immediately appealable to the UC.  This seemed necessary in light of the above changes.
•   Lex G.11. Judicial Tenure. Unchanged.
•   Lex G.12. Judicial Decisions. Unchanged. 

11
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: January 01, 2021, 04:13:06 PM »
8. Wrongful prosecution.

Wrongful prosecution consists of prosecution characterised by malice, damage, and absence of probable cause. In the event that a person is wrongfully prosecuted, the person may initiate a Malicious Prosecution suit against the person who wrongfully prosecuted them.

8.1. A Malicious Prosecution suit may be initiated if either:

8.1.1. The person prosecuted is acquitted;  or

8.1.2. The Tribunal has rejected the charming instrument as facially insufficient on the basis that if all allegations were accepted as
true, the individual would not be guilty of the purported crime.

8.2. To prevail, it must be shown by a preponderance of the evidence that:

8.2.1. the Prosecutor acted with malice in bringing the charge; or

8.2.2. the Prosecutor commenced the proceeding for the sole purpose to harass the individual with knowledge that charging
instrument did not have a basis in law; and

8.2.3. the charging instrument patently lacked probable cause; and

8.2.4. the plaintiff sustained damage through injury to reputation, deprivation of liberty or property, or other damage that may be assessed and relevant in the context of that matter.

8.3. The Cort shall award punitive damages to dissuade such further conduct.

9. Ex Parte Communication

9.1. A member of the bar shall not initiate ex parte communications, or other communications made to a judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:

9.1.1. When circumstances require it, ex parte communication for scheduling, administrative, expert testimony, or emergency purposes, which does not address substantive matters, is permitted, provided:

9.1.1.1. the member of the bar reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

9.1.1.2. the member of the bar makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

9.2. If a member of the bar inadvertently initiates or receives an unauthorized ex parte communication bearing upon the substance of a matter, the member of the bar shall make provision promptly to notify all the parties of the substance of the communication and provide the parties with an opportunity to respond.

9.3. A member of the bar shall make reasonable efforts, including providing appropriate supervision, to ensure that these provisions against ex parte communications are not violated by others subject to the member of the bar's direction or control.

10. Service in General.

10.1. The Secretary of State shall accept service of any complaints or claims to the Cort pü Înalt or General Cort of Talossa on behalf of all citizens. The Secretary of State shall email notice of said complaints or claims to the concerned citizen and affirm to the Cort that they did so on that date (the "date of service").

10.1.1 If either party in a case before the Cort fails to respond to such a notice as specified in section 10.1.1 within 60 days of the date of service, the Cort may, upon a motion by the adverse party, enter default judgement against the nonappearing party. Default judgment can only be entered for a period of three months after default. A default order may be vacated, upon good cause shown, within three months after it was entered, by motion of the aggrieved party.

10.2. In all civil matters, if a Judge or Magistrate fails to respond to the assignment of a Case by the Clerk of the Corts within 14 days, then the Clerk of the Corts shall assign the case to another Judge or Magistrate and inform the Senechal of the failure to appear.

10.3. A Judge or Magistrate may request a matter be transferred to another Judge or Magistrate for any reason. If that request be for any other purpose than a conflict of interest, and the Judge has not presided over any substantive part of the proceeding as a Magistrate, they shall be from the proscription enumerated in section 10.2.4 of this article.

10.4. If a Magistrate fails to address a filing from either party within 14 days of receipt, then the Clerk of the Corts shall inquire as to the status of the Magistrate and may appropriately reassign the matter to another Judge if warranted. If a Magistrate fails to respond to a Clerk’s inquiry within 14 days, the Clerk shall reassign the matter and inform the Seneschal of the Magistrate's failure to appear.

10.5 All criminal matters shall, pursuant to the Ninth Covenant, be heard before a Tribunal of the Crown, which shall be compromised of no less than three Magistrates in the General Cort of Talossa.  A determination by the General Cort to dismiss a charging instrument for facial insufficiency shall be immediately appealable to the Uppermost Cort of Talossa.

11. Judicial Tenure.
Judges of the Uppermost Cort and of any inferior court may retire through voluntary leave of office. This shall be accomplished through submitting a letter of retirement to the King. The retirement shall take effect immediately upon confirmed receipt by the King or an authorized representative.

11.1. Uppermost Cort Judges may be compelled to retire through organic removal from office through an act of the Ziu in accordance with Article VIII of the Organic Law. In accordance with the appropriate section, the inactivity of a Justice is defined as the failure of that Justice to act, rule, or appear in an open case the Justice is assigned to or participating in for more than 60 days, as certified by the Ziu in a majority vote.

11.1.1    A Justice of the Cort pü Inalt shall be declared inactive, and to have vacated their seat, within the meaning of Organic Law VIII, if the Clerk of the Corts, contacting the members of the CpI to assign a case as described in this title, is unable to contact that Justice or does not receive any response to their enquiries, within 30 days.

11.2. Retired Judges or Magistrates shall enjoy the style "Honorable Mister/Madame" for life in commemoration of their service to the Nation, and may utilize the title "Retired Judge/Magistrate."

11.3. Retired status will be honorary in nature and shall not confer any authority or responsibility within any Talossan Court or the National Talossan Bar or over its members, students or associates. Neither shall these titles, in and of themselves, confer membership in the National Talossan Bar enabling the holder to engage in the practice of law.

11.4. Retired status can be revoked only in the event of a conviction by a Talossan Court for misconduct while serving in a judicial capacity. In the event of such conviction, revocation of retirement privileges shall be contained as part of the sentencing order. Retired status can also be revoked by the Ziu through majority vote and approval by the Monarch. Such legislative action can be taken only after the retiree has been convicted by a Talossan Court for misconduct while serving in a judicial capacity and only after all appeals have been exhausted.

11.5. Retired status will also be revoked in the event the retiree shall be convicted of a felony by any Court of the Realm. Felony convictions by a provincial court shall be forwarded to the Minister of Justice for review. If cause for revocation of retirement status is found based upon the nature of the conviction, the Minister of Justice shall propose or cause to be proposed a measure of the Ziu to revoke any and all privileges of retirement from the accused, after all appeals have been exhausted.

11.6. Retired status shall be considered waived if a retired Justice, Judge or Magistrate resigns their citizenship and shall be considered revoked if the retiree has their citizenship terminated by a Court of the Realm.

11.7 Every person appointed a judge to the Uppermost Cort of Talossa shall publicly make to the Citizens of Talossa and subscribe to the following declaration within 10 days of such appointment:
I, [NAME], do solemnly, sincerely and truly affirm and declare that I will duly, faithfully and to the best of my knowledge and ability execute the office of Judge of El Cort pü Inalt without fear or favour, affection or ill will towards any man, woman or child and that I will uphold the Organic Law and the laws of the Kingdom of Talossa. This I do solemnly affirm.

12. Judicial Decisions

12.1. Every cort rendering a decision shall set forth the reasoning for that decision. This declaration must be published in the next Clark. Cort decisions will be written up in the Clark if the authors want them to, with due regard to brevity.

12.2.   All final decisions or those interlocutory orders must be codified in an official reporter.

12.3. The Cort pü Inalt may request that the Government or Scribe maintain official reporters of decisions on behalf of all Talossan Corts, or it may direct the Clerk of the Corts to do so on its behalf.

12.3.1. If the Cort pü Inalt shall request the Government or Scribe to maintain official reporters, then the Cort pü Inalt must designate, in the decision, whether it shall be deemed binding, and if so, it shall be reported in an official reporter entitled "Cort pü Inalt" and abbreviated to "CPI" in citations. All decisions of the Cort pü Inalt designated nonbinding shall be reported in an official reporter entitled "Cort pü Inalt Apeindix" and abbrivated to "CPIA" in citations.

12.3.2. All final determinations of the General Cort shall be published in an official reporter entitled "General Cort" and abbreviated to "GC" by the Scribe or an individual designated by the Government in the same fashion as described in G.12.1.3.1. Nonfinal or interlocutory determinations that impact the rights of a party must also be reported in the GC reporter. All other determinations need not be reported in the GC reported unless so designated by the General Cort. Determinations not contained in the GC reporter shall be styled as General Cort Slip Opinions and must be made publicly available on a State-run website in consecutive order by date with an affixed number with an appropriate pin cite every 200 words, for ease of reference, that shall be listed as follows: Case Name, Year GC Slip Op NUMBER, *Pin (Full Date, Magistrate's surname, M.) (e.g. Doe v Smith, 2020 GC Slip Op 001, *1 [27 February 2020, Smith, M.]). 

12.3.3. If the Scribe or the appointed Government Ministry determines any aforementioned volume becomes lengthy, a subsequent volume shall be created with the appropriate cardinal prefixed prior to the reporter.

12.3.4. The Cort pü Inalt may direct the Clerk of the Corts to normalize case captions according to rules it may set forth, which shall then be used in any reporter.

12.3.5. The Cort pü Inalt may publish an official style manual enumerating proper citations for any source, which shall be followed by all parties filing documents with any national Talossan cort.

Uréu q'estadra så:

12
The Hopper / Re: An Act to Recodify El Lexhatx G (Justice)
« on: January 01, 2021, 04:12:58 PM »
4. The Clerk of the Corts. 
The Clerk of the Corts shall be an apolitical position appointed by the reigning Monarch or the Cort pü Inalt upon recommendation of the Prime Minister and shall serve in the following capacities:

4.1. The Clerk shall receive and file actions brought by individuals or their representative attorneys and assign to each requested action a docket number.

4.2. The Clerk shall then assign the case to a tribunal in the lowest cort holding jurisdiction over the matter.

4.3. Judicial assignments shall be made at random. In cases where a clear conflict of interest should arise, the Clerk shall assign the case to the next jurist in that order.

4.4. The Clerk shall maintain a record of docket numbers and judicial assignments to be archived along with the final disposition of the case for ease of reference.

4.5. This file shall be available to any citizen for use in the preparation of legal strategy, the study of law or for any legitimate purpose.

4.6. Appeals shall be filed as separate actions and will be assigned new docket numbers but shall be archived together with the original action for ease of reference.

4.7. The Clerk shall acknowledge the receipt of any filing and shall, within 72 business hours of said acknowledgment, assign a docket number and make a judicial assignment.

4.7.1. In the event the Clerk fails to assign a case within the 72-hour window and such tardiness is result of one or more of the following conditions, the Clerk's absence shall be deemed excused and no further penalty should be pursued:

4.7.1.1. Active Military Service (In the Armed Forces of Talossa or an Allied Nation)

4.7.1.2. Birth or Death of an immediate family member

4.7.1.3. Marriage or Divorce

4.7.1.4. Any circumstance which is beyond the power or control of the Clerk and which would hinder a reasonable person from executing these duties

4.7.2. In the event the Clerk anticipates a length absence, even for an excused purpose, they should consider resignation to ensure the people are adequately served.

4.7.3. If the Clerk of the Corts fails to assign cases within the 72-hour window without an excuse as defined in El. Lex. G.4.7.1, and such failure to act exceeds 60 days, the office of the Clerk of the Corts is deemed vacant.

4.8. The individual holding the office of Clerk of the Corts shall enjoy immunity from civil or criminal suit for any actions performed in the course of his or her official duties while holding this office. This immunity shall be lost upon leaving office. Due to the nature of the Clerk's responsibilities, an individual may not hold the office of Clerk of the Corts, or any deputy thereunder, while simultaneously holding office as a Justice of the Uppermost Cort or any national inferior court.

4.9. The Clerk of the Corts serves at the pleasure of the King and the Cort pü Inalt and may be dismissed by royal decree. In the case of alleged misconduct, the Clerk of the Corts may be removed from office by Prime Dictate. The Cort pü Inalt shall have final say over the dismissal of the Clerk of the Cort in situations of conflict with either the Crown or the Prime Minister.

4.10. Any individual who shall be found to have accepted bribe or other gratuities for the purposes of manipulating the assignment of jurists shall be guilty of public corruption of an officer of the Cort, a felony, and shall suffer a punishment to be determined by the court.

5. Court Officers.
The Clerk or the Senior Judge of the Cort pü Inalt may deputize Court Officers to assist in the execution of these duties. Such deputization shall be made publicly by the Clerk or the Senior Judge and may be for a temporary term or an indefinite term, which the Clerk or Senior Judge shall stipulate in the public notice of deputization.

5.1. The Deputized Officer shall have authority to assign judicial cases immediately after the initial 72 hours have passed from the initial filing if the Clerk fails to make the assignment during that time period.

5.2. The Deputized Officer shall follow the procedures set forth in this title with regards to the assignment of cases and shall do so impartially without regard for political, personal, or financial consideration.

5.3. The Officer shall serve at the pleasure of the King and Cort pü Inalt, may be removed by the King or Cort pü Inalt at any time.  The Cort pü Inalt shall have final decision authority on removal in circumstance of conflict between it and the Crown on removal. However, the principal supervision of the Officer shall fall to the Clerk of the Corts, who shall retain the right to dismiss the Officer as well.

5.4. Due to the nature of these duties, no deputy shall be appointed who is seated on the bench of the Uppermost Cort or any inferior cort. Nor shall any appointee hold the portfolio of Attorney General or Minister of Justice.

5.5. The Deputy shall be permitted to make the initial judicial assignment (that is, the assignment within the initial 72-hour window) in situations where the Clerk is party to a filed case or where another conflict of interest would prevent the Clerk from serving on a particular case filing.

6. Criminal Law: In the interest of providing the accused with the rights granted to them by the Ninth Covenant of Rights and Freedoms, the following rights shall be considered to be inalienable and shall be afforded to all citizens in civilian trials:

6.1. The Ministry of Justice, on behalf of the Crown, shall submit a charging instrument to the Clerk of the Cort identifying, in plain language, the charge to be brought against the accuse, and the factual allegations to be proven to support said charges.  Nothing in this section shall limit the Ministry of Justice from relying on unpleaded allegations provided such does not prejudice the accused.

6.2. Upon receipt of the charging instrument, the Clerk of the Cort shall refer the matter to the appropriate tribunal of the Crown as defined by law. 

6.3. The tribunal of the Crown shall test the sufficiency by making a prima facie determination that if the factual allegations contained therein were proven true beyond a reasonable doubt, then the accused would be guilty of the crime as alleged.  Jeopardy shall only attach if the tribunal of the Crown accepts the charging instrument as sufficient.  If the tribunal is not satisfied of such, then it shall reject the charging instrument as insufficient on its face and jeopardy shall not have attached.

6.4. The accused must be informed of the charges against him by the Crown within seven days of said charges being accepted by the Tribunal of the Crown.

6.5. Such notification must be submitted to the accused in writing, by either an electronic medium such as email, a typed letter, or by a handwritten letter. A copy of every such notice shall be archived in the Royal Archives by the Royal Archivist immediately after he receives a copy of said notice. If the notice is given in the form of a hand-written letter, the Royal Archivist shall make a copy of the letter in an electronic format, such that it may be added to the Royal Archives.

6.6. The Prosecution shall have up to 90 days from the time of notification of the accused in which to prepare its case. If a case is not prepared by the Prosecution within the allotted time, then the matter shall be dismissed, unless the Prosecution can show that such delay is through the fault of the accused.

6.7. If a case is not prepared within the 90-day limit, then the Prosecution may request up to an additional 30 days to prepare its case, which shall be granted or denied by the tribunal assigned to the case. This section takes precedence over G.1.6.

6.8. The decision shall be based on the legitimacy of reasons given by the Prosecution in the interests of justice, equity, and efficiency.

6.9. If a matter is dismissed for failure to prosecute, then final jeopardy shall attach unless the Prosecution is able to provide new evidence against the accused with which to build a case. A new case must meet the same statute of limitations for any offense.

6.7. The Prosecution may withdraw a charging instrument upon good cause shown to which jeopardy shall not attach.    

7. The Statute of Limitations.

The Statute of Limitations on all offences shall be 36 months from the date the offense occurred for all criminal matters, or 36 months from the date that the injury party should have known of the offense in all civil matters.  If the injury party is less than 14 years of age or without sound mind of body at the time of discovery, this period shall be tolled for no more than 12 months running from their 14th birthday or when deemed competent.

7.1. This statute of limitations shall not apply to:

7.1.1. any action for which a period of limitation is fixed by any other limitation enactment;

7.1.2. fraud upon the court, which for the purpose of this title shall be defined as: (i) to embrace that species of fraud which does, or (ii) attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.

7.1.3. war crimes as they are defined in the Charter of the Nürnberg International Military Tribunal of 8 August 1945

7.1.4. crimes against humanity, whether committed in time of war or in time of peace, as defined in the Charter of the Nürnberg International Military Tribunal Tribunal of 8 August 1945, eviction by armed attack or occupation, inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

7.2. If any person commits a series of criminal acts sharing a common nexus, the period of limitation shall begin to run from the date of the last act in the series.

7.3. Nothing in this title shall revive any action for which the statute of limitations has accrued or affect any action commenced before the date this title came into force.



13
The Hopper / An Act to Recodify El Lexhatx G (Justice)
« on: January 01, 2021, 04:12:35 PM »
WHEREAS El Lexhatx intends to provide a single code of law for the Kingdom of Talossa as enacted by the Ziu;

AND WHEREAS the foregoing admirable intention must be honored through constant scrutiny to ensure consistency and ease of access;

AND WHEREAS it has come to the attention that, through several amendments since adoption, El Lexhatx G. Justice has become cumbersome to follow;

AND WHEREAS someone finally took the time to scrutinize this statute to remove repetition, conflicting provisions, and to clarify certain procedure regarding criminal offenses;

AND WHEREAS absolutely no statute drafted by Alexandreu Davinescu, specifically the ex parte communications subsection, has been changed in any way, except to be recodified and moved for consistency.

BE IT ENACTED by the King, Cosâ and Senäts of Talossa in Ziu assembled as follows:

That El Lexhatx G. is absolished in its entirety. 

BE IT FURTHER ENACTED that the following shall be codified into El Lexhatx as section G. Justice:

G. Justice.

1. The General Cort of Talossa

1.1.    The Ziu enlarges the number of Puisne Judges to a total of three in accord with Section 3 of Article VIII of the Organic Law.

1.2.    The Ziu establishes the General Cort of Talossa, which shall be an inferior nisi prius cort, cort of first instance, and of general jurisdiction consistent with Article VIII of the Organic Law.

1.2.1. Any citizen of Talossa who has satisfied the Ministry of Justice of their knowledge of Talossan law and jurisprudence, and of their good character, may be recommended to the King or to the Cort pü Inalt to be named as a Community Jurist (CJ).

1.2.2. Community Jurists may be deprived of this designation by the Cort pü Înalt, upon presentation of a preponderance of evidence by the Ministry of Justice that their good character or their legal knowledge is no longer satisfactory.

1.2.3. The Clerk of the Corts shall appoint, by random selection, a single Community Jurist to preside over the General Cort for any case arising under this section.

1.2.3.1. If no qualified CJ is available to hear a given case, the Clerk of the Corts shall appoint a single Judge of the Cort pü Inalt to preside over the General Cort for that case.

1.2.4. The judicial official presiding over a matter in the General Cort of Talossa shall be styled as "Magistrate" for the purposes of that proceeding.

1.2.5. Unless an appeal lies as of right, an aggrieved party to an action may seek leave to appeal any determination of the General Cort to the Cort pü Inalt.

1.2.6. A Magistrate may not sit as a Judge on the Cort pü Inalt for any appeal related to a proceeding over which they presided as a magistrate.

1.2.7. A Magistrate must recuse themselves from a matter upon a real or apparent conflict of interest.

2. The Practice of Law in the National Corts of Talossa. 

The following guidelines shall exist for the practice of law within the realm:

2.1. The practice of law shall be defined as the representation of individuals, corporations and government bodies before the Uppermost Cort, Military Cort, or any inferior court established by the Ziu; or the professional discussion or advice on matters of a legal nature.

2.2. Practice before the Uppermost Cort or any inferior National Court established by the Ziu shall be limited to members in good standing of the National Talossan Bar.

2.3. Practice before Military Courts shall be restricted to members of the National Talossan Bar or to any commissioned officer granted waiver by the Minister of Defence to serve as a legal representative, pursuant to Ministry of Defence guidelines.

2.4. Practice before Provincial Courts shall be governed by Provincial Law.

2.5. No part of this law shall limit an individual's ability to represent themselves before any court of the realm.

2.6. Provincial Premiers (or the provincial equivalent thereto) shall have the authority to represent their Province, in actions brought before a National Court, as a function of their office. This responsibility may be delegated only to a member of the National Talossan Bar.

2.7. The use of titles such as lawyer, attorney, barrister, solicitor, or councillor/counselor-at-law or any other title reserved by guidelines of the National Talossan bar shall be restricted to those who are licensed to engage in the practice of law within the realm.

2.8. Individuals who are party to an action brought before a Cort of the realm and cannot find suitable legal representation due to a shortage of qualified practitioners of law, conflicts of interest or for personal reasons to be outlined in a petition presented before the cort, may apply for a waiver to permit any adult Talossan citizen to represent them before the Cort in a specified legal action serving as a legal proxy.

2.9. Individuals operating under waiver shall not be entitled to present themselves as attorneys, lawyers, barristers, solicitors, or councillor/counselor-at-law, nor shall approval of such waiver imply membership in the National Talossan Bar.

2.10. Petitions for waiver shall be made to the Cort in which the action is to be brought. All waivers shall expire upon the final disposition of the case and shall remain in force through any appeal. Waivers granted by a lower court need not be renewed or reissued if the action is brought before the Uppermost Cort in appeal. Waivers may be terminated by the petitioner or the proxy at any time during court proceedings and shall notify the Court of said termination within 48 hours of its effective date. Waivers may be withdrawn through judicial order in the event of misconduct or inadequate representation.

2.11. Corts shall grant petitioned waivers unless the designated proxy has been convicted of a felony, has presented themselves unlawfully to be an attorney, lawyer, barrister, solicitor or councillor/counselor of law, has falsely claimed Bar membership or other official standing within the National Talossan Bar or has received monetary compensation or other financial consideration in exchange for his/her representational duties or when a suitable member of the bar is available for representation in the matter, unencumbered by conflicts of interest or personal disputes.

2.12. Admission to the National Bar of Talossa.

2.12.1. The National Bar of Talossa shall be governed by the Uppermost Cort, which shall establish the procedure, ethics, and
standards for those seeking admission to the National Bar of Talossa.

2.12.2. The National Bar of Talossa shall possess the sole authority to admit new individuals to practice law in the Corts of Talossa established under Article VIII of the Organic Law.

2.12.2.1. Admission to the Bar shall be limited to those who are eligible to vote in National Elections, and who satisfy any reasonable requirement set forth by the National Bar of Talossa.

2.12.2.2. The National Bar of Talossa shall set the standards, character, and other requirements for admission.

2.12.2.3. The National Bar of Talossa shall accept the application of any individual claiming to have satisfied the requirements for admission, and, if satisfied that the applicant does meet the criteria for admission after careful review and consideration, shall refer the applicant with supporting documentation to the Uppermost Cort for admission.

2.12.2.4. The Uppermost Cort of Talossan shall accept or deny all referred applications within a timely manner. An individual is not authorized to practice law until the Uppermost Cort of Talossa admits the application to the National Bar of Talossa, and an individual may not refer to themselves as “pending admission.”

2.12.3. An individual who has earned a degree in the practice of law in another country, or who has been admitted to practice law in another country, or who has completed one year of legal education as well as legal training in another country, may seek a waiver for admission to the National Bar of Talossa by petitioning the Uppermost Cort of Talossa for such a waiver, provided proof for the basis of waiver is attached to the petition.  The Uppermost Cort may grant said waiver with no less than the consent of two Judges of the Uppermost Cort.  The Uppermost Cort may increase the number of Judges required to give consent as it deems necessary but may only decrease the number to the statutory limits with the same number of Judges required to give consent.

2.12.4. It shall be a criminal offense for any person to knowingly or recklessly practice law in Talossa without express statutory permission.

2.12.4.1. The above provision is not applicable to an individual who represent themselves, known as pro se party, or to any individual who is a member of or has received authority by the Ministry of Justice to represent the Government in any Cort throughout Talossa.

2.12.4.2. The following office holders may, at the discretion of the Chancery, be exempt from the above requirements and shall be granted full membership to the bar while they hold such office, for the purpose of performing their official duties: the Prime Minister, the Distain, Judges of the Uppermost Cort, and Judges of any inferior Cort.

2.12.4.3. An Attorney General, as head of the Ministry of Justice, or Deputy Attorney General as authorized by the Ministry of Justice, who is not admitted to their bar in their own right, is a de facto and de jure member of the bar for the duration that they hold that office.

2.12.5. The National Bar of Talossa shall set, as it deems necessary, the Code of Conduct to govern attorneys.

2.12.5.1. An individual admitted may have their admission revoked for cause with the consent of no less than a majority of the Judges of the Uppermost Cort of Talossa; in such a circumstance, the individual is no longer permitted to practice law in the national courts of Talossa.

2.12.5.2. All members of the bar admitted prior to the adoption of this statute shall continue to be deemed automatically admitted and may continue to practice law

2.12.6. Any rules, regulations or code of conduct not set by a statute, Talossan Law or by the Organic Law, shall be a matter for the Bar to set itself as far as permissible by the aforementioned Laws.

3. Appeals and Tribunals.

3.1 It shall be understood that any provincial court decision may be appealed at the National level before the lowest inferior court and that any decision by this court may be appealed to the Uppermost Cort. No Cunstaval shall proclaim any new provincial constitution that fails to provide a right to appeal decisions of the provincial court or courts (if any) to the Cort pü Înalt or such other national courts as may be created by the Ziu. National courts shall not interpret or rule on matters of provincial law unless the province has no system of courts, has not proclaimed a constitution or has standing law that matters of provincial law be handled through National Courts. Rather, the decisions of these courts will ensure no provincial court decision runs contrary to the Organic or Statutory Laws of the Kingdom, and that the rights of all involves parties, as guaranteed by the Rights and Covenants of the Organic Law, are protected.

3.1.1 All appeals, as with other court actions, shall be filed with the Clerk of the Corts. Upon official judicial assignment, the cort may either dismiss the case, by declining to hear it, or begin hearing opening arguments in the matter as presented by all relevant parties.

3.1.2 Appeals or other actions brought before any national court shall be heard within 90 calendar days from the date of assignment by the Clerk of the Corts.

3.1.3. The court, if it decides not to hear the case or appeal, shall issue a written statement justifying its decision within the time frame given in 3.2.

3.1.4. If a court does not comply with 3.2. or 3.2.1., it may be subject to an investigation for non-feasance conducted by the Ministry of Justice.

3.2. Under the principle of reformatio in peius, the worsening change of a verdict, no appellate court shall be allowed to change an appealed ruling in such a manner that would be disadvantageous to the petitioner.

3.2.1. In civil actions, appeals may be ruled in a detrimental manner to the appellant (reformationes in peius) only when both parties submit appeals.

3.2.2. In criminal procedures, reformationes in peius are forbidden whenever the appeal is lodged by the convict or in favour of the convict. In case of appeals from both parties, reformationes in peius detrimental to the convict shall be forbidden.


14
Wittenberg / Re: Appointment of CJs
« on: December 31, 2020, 03:58:56 PM »
On December 23, 2020/XLI, in my duties as Deputy Attorney General, I called for nominations for the role of Community Jurist, as set out in 55RZ7 / El Lexhatx G.13.2, in a post on Wittenberg (https://wittenberg.talossa.com/index.php?topic=628.0).

Three Talossan citizens nominated themselves for this role: Senator Ián Plätschisch, Túischac'h Txosue Roibeardescù, and Secretary of State Dr Txec dal Nordselva. All these being fine candidates, the Deputy Attorney General accordingly recommended all these names to the Regent (acting for the King) for appointment as Community Jurists, under El Lex G.13.2.1, by Wittenberg private message.

The Regent raised an objection to naming Dr Nordselva to the role, arguing that this set up an impermissible "separation of powers" conflict with his role as Secretary of State. The both the Ministry and Government did not agree with this assessment.

Previously, the Regent and the Government had agreed that making the Seneschál a CJ would be inappropriate, because most lawsuits in Talossa are against the Government. Such matters do not, in the Government's opinion, arise for the Secretary of State. Moreover, Dr. Nordselva, as a former CpI Justice, is the most eminently qualified of the three.

The Government asked the Regent, therefore, to officially name s:reux. Plätschisch and Roibeardescù as CJs, and to announce publicly why he was rejecting the Government's recommendation of Dr. Nordselva, so as to start a public discussion on the question. The Regent refused to do this, instead insisting that the Government continue to "discuss", via Wittenberg PM, his assertion of an impermissible separation of powers conflict between the Secretary of State's office and being a Community Justice. The Government found itself at a loss as to how to do so, because we simply, point-blank disagree with the Regent on this point.

We continue to not understand why the Regent refuses to nominate s:reux Plätschisch and Roibeardescù, about whom there is no debate as to their qualification. And we decline to waste further time. Thankfully, the law provides an alternative to the Regent's demand that we "DEBATE HIM".

Therefore, again under El Lexh G.13.2.1, the Ministry of Justice hereby recommends s:reux Ián Plätschisch, Txosué Roibeardescù, and Dr Txec dal Nordselva, to the Cort pü Inalt to be named as Community Jurists (CJ).

Respectfully,
Þon Txoteu É. Davinescu, O.SPM
Deputy Attorney General

It is so ordered.

15
Wittenberg / Re: ANNOUNCING: The Campaign for Dual Head of State
« on: December 09, 2020, 10:45:04 PM »
While I'd prefer abolishing the monarchy, a position I've state repetitively for years, if Talossans prefer keeping the monarchy in some form, i could accept something similar to Japan, where the Emperor is the Head of State but doesn't even a nominal executive. Rather all executive authority is delegated to ministers, and the Emperor cannot act without the consent of the Cabinet. Ultimately, the Emperor's role is to serve as the symbolic, unifying head of the country. He appointed the Prime Minister (cannot withhold) based on the Diat. No veto.

Or something akin to Sweden, where, in 1975, transferred all executive powers to a Counsil of State. They act on behalf of the King and sign bills, answerable to Parliament.

Or something similar to Norway, where a council of state is the executive (king, prime minister, another), latter two chosen by King with consent of Parliament (generally an election).

Or something similar to the Netherlands, where the Monarch cannot act without a responsible.Minister also signing off.

Of course these are very simplified summaries, but informative.

I do not like the idea of dual Heads of States power jumping based on Clark.
.
I could live with an elected monarchy that only serves as a symbol of the country. A Regent could be appointed by that monarch, with the consent of the Ziu, to perform the necessary executive tasks, provided such person could, with the backing of the Ziu, be subject to recall from the people.

Just some thoughts.

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