Quote from: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on April 25, 2022, 03:50:08 PM
I understand the trepidation some people have about Witt moderation. With very, very few exceptions, the current scheme has worked well. We as a nation often struggle to fill even the most vital posts, so creating a new bureaucracy doesn't seem terribly wise to me. Something more appropriate might be developed instead. Perhaps a point-based system can be used to determine if a post violates Wittiquette. Rack up so many points, and the post gets moved (not deleted) or locked. Just a thought. Personally, whenever I'm moderating I refer back to Wittiquette to see if something specific has been violated. I will move posts or even lock them, but I don't delete them. That's a step too far. I've also never temp or perm banned anyone. That isn't really my place, except in highly exceptional cases, which no one has yet even come close.

I forgot to add this to my initial response. 

I would strongly discourage a point-based system to determine if a post violates Wittiquette.  This leaves any and all posts vulnerable to the whims of the majority.  It also may not provide the reason that someone awarded a point.  If the point awarding scheme had some mechanism requiring the person to choose which part of Wittiquette is alleged have been violated, I fail to see how such would provide the person's reasoning or justification for doing so.  Unless you're suggesting that if the moderator selects a post for questioning, and then the majority can vote on it, I fail to see how the moderator could assess whether a point should be awarded based on the reason provided.  Moreover, it does not include any review process or ability for the poster to question the points.  Lastly, I'm not clear what the threshold is for a post to be moved or locked, or how to address repeat offenders. 

I don't necessarily disagree with your point about bureaucracy.  In truth, my initial thought was creating a non-partisan and apolitical moderator position subject to the same limitations as a CpI Judge to ensure fairness.

I have included an alternative proposal that I opted not to post out of concern of making things too complicated for Talossa's needs. But my initial idea was: 

(1)   People can report questionable posts for investigation/determination to the moderator, or the moderator initiatre and investigation on their own accord, with each report requiring a short and concise explanation, with sufficient detail to put the respondent on notice of the accusation, on how the post may violate Wittiquette. 


(2)   The moderator may request that the poster explain why they think the post does not violate Wittiquette.  The idea being that any determination is not arbitrary and capricious or unsupported by the record (i.e. not supported by substantial evidence)—the record being made up of only the necessary documents or information needed to make a determination. 

(3)   The moderator makes a determination of whether a violation occurred and, if one did, the chosen course of action: deleting, locking, or moving the post.  If warranted, the moderator could suspend the individual for a time certain depending on volume and frequency of the poster's violations.  The determination must provide sufficent detail to support the moderator's conclusion regarding violation and punishment.

(4)   If no violation, the reporting party may appeal as of right to the CpI.  The respondent may appeal of right to the CpI an adverse determination--whether the conclusion that a violation occurred or the punishment imposed.  The moderator cannot appeal their own determination (this prevents a moderator punting on matters so the CpI takes on their role). 

(5)   In reviewing whether a violation occurred, the CpI must, as a threshold matter, determine whether the conclusion is (1) arbitrary and capricious, or (2) unsupported by the record; in reviewing the punishment imposed, the CpI must determine, as a threshold matter,  whether such is (1) supra, (2) supra, or (3) against the interest of justice.  The idea being that the CpI defers to the moderator and does not become a de facto Witt moderation panel.  The threshold question focuses on whether the moderator is in error based on the aforementioned standards, and, if not, there is no need for the CpI to undertake a de novo review.  If the CpI were to determine that the moderator was in error based on those standards, it can then undertake a de novo review.  The standards proposed are borrowed mostly from judicial review of administrative decisions in the U.S.  This sounds cumbersome but, in practice, it is not terribly complicated.

As mentioned, I omitted the standards of review, etc. from the initial proposed framework because I wanted to avoid overcomplicating this in light of Talossa's needs, provided, however, there is a panel of three moderators.  I include it now as part of a single-moderator proposal.  Both proposals seek to minimize accusations of partiality and unfairness from all sides.  But neither may not be what Talossa needs.

I'm not married to either framework.  If some other framework or the status quo is preferred, I'd only suggest that the Ziu enact some type of judicial review procedure for those decisions, which should include the appropriate standards of review to streamline the process a bit and so the parties know what to argue.

Regarding whether any scheme involving direct review by the CpI as of right is Organic, here are my preliminary thoughts based on a cursory review of the Organic Law (note that these thoughts are not indicative of what I may think following a careful review or arguments from those who think otherwise).  In any event, pursuant to VIII.6, the CpI may not be compelled to exercise its appellate authority.  However, VIII.2 states that the CpI has original jurisdiction in all matters involving, inter alia, the organs of the Kingdom of Talossa.  Because Lex.J.3 appears to imply that Wittenberg is a state organ, this would not be within the CpI's appellate authority but its original jurisdiction.  Of course, VIII.2 also states that the CpI may remand any matter to which it has original jurisdiction to an inferior cort.  In other words, part of this may rest on the CpI accepting the right of appeal as described (I am not at all suggesting amending the Org Law if some framework is proposed because such would likely derail the entire proposed framework, whatever that may be.)

If aframework were adopted, the SOS or Seneschal or even the King could simply ask the CpI if it intends to acquiesce to such.  However, any answer would not be binding.  On the other hand, VIII.6 also states that the King, SOS, or Seneschal may refer an issue to the CpI for an advisory opinion if there is no live case or controversy that would otherwise determine the issue, and there is a reasonable need for resolution.  It could be the case that if the Ziu adopted some type of framework with a right of appeal to the CpI, the King could veto and recommend it to the CpI, or promulgate and the King, SOS, or Seneschal may refer it to the CpI.  The CpI could, in turn, issue a binding decision (three judge panel) on whether it will, by its choice, acquiesce to the framework.  Taht decision could then only be overturned by a subsequent CpI decision where the advisory opinion is challenged. 


Lastly, I repeat that these are only proposals striving to achieve fair and equitable moderation and to minimize accusations of unfairness or partiality, and I'm mostly spitballing ideas.  Either proposal may be too complicated and not needed under the present circumstance, especially in light that this issue does not seem to come up too often.  I will, however, concede only that some other things in Talossa may have contributed to my commentary that some type of framework for judicial review should be considereded. 

Proposed scheme: if we have the numbers--a three-person panel for Witt moderation sans any and all fora that serve as official organs of the State (e.g. the Ziu and the Government and the Judiciary).  Individual provinces may elect to join the scheme if they wish provided that the province's state organs can never be moderated by the panel similar to the national fora.

The panel is made up of one person chosen by the Government (i.e. the party(ies) forming a majority in the Ziu); one person is formed by the Opposition (i.e. the party(ies) not in coalition with or making up the Government); and one person is appointed on a non-partisan by the entire Ziu and Senate (they can continue to serve across governments if they maintain majority support of both houses).  The non-partisan representative is similarly expected to refrain from all politicking a la UC judges. 

A 2-1 or 2-0 decision is appealable as of right to the UC; a 3-0 decision is appealable by permission to the UC or perhaps not appealable at all. A UC judge can serve as the non-partisan member, provided that they do not participate in any appeals or do not compromise the ability of a three-judge panel to hear an appeal.

This may be too bureaucratic or complicated for Talossa, but I figured I'd propose a framework that I would view as a way to achieve the most fair and equitable approach to Witt moderation that protects the minority and the majority from each other. 

Quote from: Baron Alexandreu Davinescu on April 22, 2022, 12:07:45 PM
This is really interesting, and I want to be absolutely clear: are we suggesting that it is an ethical rule that it is out of bounds to reach out to MCs of an opposing party to try to convince them to support a different candidate or coalition? I would really really like to hear an answer from this from the leader of the Free Democrats specifically.

whataboutism

Quote from: Tric'hard Lenxheir on March 31, 2022, 09:07:08 AM
I hereby resign from my seat in the Estats Xhenerais and will not claim a seat in the next Estats Xhenerais. I do however support the idea of a merger with some other province as this province does absolutely nothing and hasn't hardly any active citizens.

Kewl.

I removed TNP from public use. I'm pretty annoyed that my wishes have been so blatantly ignored and episodes reposted to Wiki without permission. I did not grant any permission for TNP episodes to be published to the Wiki or disseminated by any other person. This is not "recovered." These are my property.

I will be asking that they be removed immediately.  If someone would like to use them, they can reach out to me privately.

-V

Quote from: Baron Alexandreu Davinescu on February 18, 2022, 11:32:29 AM

Quote from: Viteu on February 18, 2022, 07:28:18 AM

Quote from: Baron Alexandreu Davinescu on February 12, 2022, 07:07:51 AM
I love this idea. I also think it should be accompanied by gambling.

What do you mean by gambling?

I don't want to poo poo the idea (I like it as well even if I don't play fantasy sports). But gambling on fantasy sports for money may be illegal macronationally.

I was talking about gambling on fantasy sports for money.

Thanks for clarifying. I did a quick google search on the legality of gambling in fantasy sports in the U.S.  I have not verified the accuracy of the information, but I came across the following:

While federal law permits fantasy sports, they are illegal in Arizona, Louisiana, Washington, Iowa, and Montana. 

Some states may have laws against fantasy sports that lack an enforcement mechanism.

Federal law classifies fantasy sports as games of skill, and therefore gambling is permitted provided there are not bets ont he outcome of an individual game or player's performance.

Several states allow participation in, but outlaw gambling on, fantasy sports. In all states, it is important to look into how the law views gambling among friends as opposed to an organized league.

Not trying to shoot down the idea of Talossan fantasy sports (I think it's great).  Each participant will need to check their local laws to ensure that participation is legal, which I think, for the most part, will not be too much of a headache.  But introducing a betting element will complicate this unnecessarily.   

Quote from: Baron Alexandreu Davinescu on February 12, 2022, 07:07:51 AM
I love this idea. I also think it should be accompanied by gambling.

What do you mean by gambling?

I don't want to poo poo the idea (I like it as well even if I don't play fantasy sports). But gambling on fantasy sports for money may be illegal macronationally.

Quote from: Tric'hard Lenxheir on January 24, 2022, 03:32:28 PM
Hope I am doing this right.

Whereas Vuode does not currently have a provincial bird

I propose we name the Rufa Red Knot as the Provincial Bird.

This proud bird has one of the longest migrations of any bird some travelling as much as 9,000 miles! It breeds in the Artic and travels south to the southern tip of South America spending some time during the spring and fall on the shores of La Mar Talossan.

I think we need to format this a bit differently. I'll try to find a template for you use when I'm at my computer.

Quote from: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on December 07, 2021, 11:42:30 AM

Quote from: Viteu on December 06, 2021, 11:54:18 AM

Quote from: Ian Plätschisch on December 05, 2021, 09:45:14 PM

Uppermost Cort
El Lexhatx puts the Clerk of Corts in charge of administering the Cort. This might work well if the Clerk were consistently active, but Clerks have generally not been active for most of the position's history. If the law were followed, this would make it very difficult to conduct any legal business. However, for the past several years, parties to cases and Justices alike have essentially agreed to pretend the position of Clerk does not exist and handle all administration themselves. This has allowed the Cort to function, although it does so in a make-it-up-as-we-go manner that no one quite understands and is ripe for future controversy.

There's been some positive movement since 2019, of course, but it's inhibited by two necessary components--a lack of active judges and a lack of an active clerk.

Who is the current Clerk? Perhaps its time to remove and reappoint someone active?

There is no Clerk. I understand that the Government are working on this.

Quote from: Ian Plätschisch on December 05, 2021, 09:45:14 PM

Uppermost Cort
El Lexhatx puts the Clerk of Corts in charge of administering the Cort. This might work well if the Clerk were consistently active, but Clerks have generally not been active for most of the position's history. If the law were followed, this would make it very difficult to conduct any legal business. However, for the past several years, parties to cases and Justices alike have essentially agreed to pretend the position of Clerk does not exist and handle all administration themselves. This has allowed the Cort to function, although it does so in a make-it-up-as-we-go manner that no one quite understands and is ripe for future controversy.

There's been some positive movement since 2019, of course, but it's inhibited by two necessary components--a lack of active judges and a lack of an active clerk.

Quote from: Ian Plätschisch on November 13, 2021, 09:07:56 PM

Quote from: Viteu on November 13, 2021, 08:36:50 PM

Quote from: Ian Plätschisch on November 13, 2021, 12:17:52 PM

I would rather all this be handled by statute

Fair enough. But absent some provision granting the Ziu authority to do so, I doubt any statute to regulate a Convocation would be enforceable.   Maybe that is a good thing though.

There is this:

QuoteAll other operations of the Convocation shall be decided by the Convocation or prescribed by statute.

I'll concede I missed the provision (or forgot it was there) in reading through the thread. Anyway, ignore my comments. :-)

Quote from: Ian Plätschisch on November 13, 2021, 12:17:52 PM

I would rather all this be handled by statute

Fair enough. But absent some provision granting the Ziu authority to do so, I doubt any statute to regulate a Convocation would be enforceable.   Maybe that is a good thing though.

Quote from: Istefan Perþonest on August 25, 2021, 06:40:23 PM

Quote from: Miestră Schivă, UrN on August 25, 2021, 04:31:25 PM

Quote from: Glüc da Dhi S.H. on August 24, 2021, 06:11:33 PM
(plus there should definitely be some rules to establish what happens if no candidate gets 2/3rd of the vote anyway).

Then the UC continues as a Council of Regency until the Convocation gets its act together. Like what happens with papal elections. A pity we can't actually lock them up and put them on bread-and-water.

I will note that this would create a temptation for members of the CpI (as members of the convocation) to deliberately vote against every candidate for king in order to retain their power as a Council of Regency. Granted, they (we) likely wouldn't have enough votes to do that on their (our) own, but if support for a candidate among the other members wasn't near-unanimous, it could happen.

(A lot of my comment got deleted--cellphonesammirite?!?--so I deleted the incomplete post. Here are my revised 2¢.)

This presumes that all members of the CpI are active.  It also presupposes that all four Judges will work in some implicit or explicit conspiracy to remain in power.  Of course, the CpI is subject to political checks through Org.VIII.5, which enables the Ziu to remove a sitting Judge through the appropriate Notice of Reprimand sanctioning them for acting "in a manner that offends the Ziu in the Judge's official and individual capacity" (emphasis).   

Assuming, arguendo, that the Ziu got whiff of the grand conspiracy to retain power, any member of the Ziu can clark a Notice of Reprimand with removal as the sanction, and with 2/3 Cosa and majority Senate support--removed from the CpI and, ex officio, the Regency.  This standard is inarguably and objectively lower than what is necessary to remove the King--satisfying the threshold of obtaining a judgment from a competent medical authority that the King is incapable of exercising his duties* or a conviction from the CpI for "violation of the Organic Law, treason, bribery, nonfeasance endangering the safety, order or good government of the kingdom or other high crimes[.]"  Then there is Ziu support and an immediate referendum. 

Next, I'm unsure if I could serve as an elector in the Convocation in my own right.  "Any Talossan shall who has been a citizen for at least seven years of when the Convocation is called shall be eligible to be a member of the Convocation[.]" Is that an aggregate seven years or consecutive seven years? Asking for a conspirator friend. 

So, at minimum, you maybe get two or three electors from the CpI.  I do not know if SJ Cjantscheir or PJ Edwards have the time, so then it would fall to me, and I have no doubt PJ Perþonest will claim his right.  But in the off chance that all four Judges are involved, again, the chances of a conspiracy are simply so low and, even so, easily checked by the Ziu.  I think we can recognize the CpI concern is a it of a false cause. 

My thoughts on other points:

(1) I agree with Miestra that this should replace Org.II.4 and, accordingly, strike "Whenever the is no king, the CpI shall serve as Council of Regency"  as redundant (it would remain in Org.II.3).

(2) I agree with Miestra that Ziu should be to call an early Convocation, and I like that the threshold for early convocation is slightly higher and has a cooling off period.  It's a good balance.  Without it, a King could go completely unhinged in year 4 without recourse for three years, which we all know is a very long time in Talossa. 

(3) OMG STOP USING CpI. This it the first time the CpI is even mentioned in the Org Law.  Use "Uppermost Cort" to make it consistent with the other sections, or use Cort pü Inalt and change "Uppermost Cort" in the other sections.  But "CpI" is not defined or even found in the Org Law.

(4) Elector sounds better than member.

(5) If there really is concern about the CpI sabotaging the Convocation to stay in power, I would add something akin to this:

"A sitting Judge simultaneously serving in the Council of Regency and the Convocation shall enjoy the rights and privileges of their peers but shall be disqualified from casting a vote for King in the Convocation."

Purpose: If a CpI Judge really wants to vote, they have to resign the Cort, ergo the Regency, to do so.

(6) I'm also of the mind that overly complex rules and procedures will be problematic.  I'd wager such would also doom the Compromise on the Compromise to failure given that so many people have thoughts.  But there ought to be some parameters for setting how the Convocation conducts business and vote counting (especially in light of the secret ballot) as well as restricting the Ziu's influence.

Here are some draft provisions to consider:

"The Convocation may, as it deems necessary, adopt a rule, procedure, or protocol to conduct operation provided a majority of Electors supports any such rule, procedure, or protocol, or change thereto.  Any rule, procedure, or protocol adopted by a Convocation will not a subsequent Convocation." 

Purpose: This enables a Convocation to set its bylaws and prevents imputation of the bylaws of one to another.

"Before any vote for King is cast, the Conclave shall choose an Elector to serve as Herald in a manner it deems appropriate.  Within 96 hours of a vote for King ending, the Herald, the Secretary of State, and the Council of Regency shall, separately and independently of the other, count such votes, and the Herald, the Secretary of State, and the Council of Regency shall, separately and independently of the other, report one result to the Convocation.   After 96 hours, the vote for King is verified based on the vote count of the majority of timely reported results."

Purpose: Someone has to count votes within a reasonable time, but we cannot be at the mercy of never ending deadlines.  I felt four days was a good time to count votes and report it to the Convocation.  I used the EC as a blueprint and figured the SoS and Council of Regency were good bodies to report a vote count.  But I felt that Convocation should also have someone counting votes, hence the "Herald." Regarding the Council of Regency, this presumes no. 5 in my suggestions is adopted, so the CoR cannot vote anyway.  To ensure there it's not four against two, I tried to make it so the CoR get to report a single result (i.e. the CoR will speak with one voice, not four).  In any event, only a report received within 96 hours may be counted, and each of the three counts must be separate and independent.  Meaning, they are completely independent.  The counter will have verified the vote came from a properly sat Elector and then just mark their vote.  The report should be the total number of votes for a candidate. Presumably the numbers will be the same.   

"The Ziu may enact legislation to impose civil and criminal sanctions upon any person guilty of dispensing to another an Elector's vote absent the express permission of that Elector or absent law providing such.  The Ziu may also enact legislation for the investigation of any suspected malfeasance referred to it by the Convocation, and, if warranted, the enforcement of a violation of any law resulting such investigation may reveal."

Purpose: The integrity of the Convocation and the vote must be protected, but within reason.  The Organic Law should not have criminal conduct. The Ziu should have very limited influence on the Convocation, but the Convocation should not be able to control the Ziu.  So I figured a balance.  In reverse order: The Convocation can refer a suspected malfeasance, whatever that means, to the Ziu.  But the Ziu must have already enacted legislation agreeing to that referral.  This is to cover concerns that really are connected and inseparable from the Convocation, and neither the Ziu nor Convocation can force how the other acts.  The Ziu can enact broad legislation that accepts all referrals for investigation, or it can limit it to specific conduct. The Convocation can select which conduct to investigate, but doesn't have the authority to investigate itself.  Of course, the Organic right to due process and the Organic protection against ex post facto laws means that the Ziu's acceptance and potential liability must exist at the time of the suspected conduct.  Finally, because of the CpI's involvement in the CoR, I wanted to leave open how such conduct might be prosecuted (i.e. a special court, maybe the Common Cort  only, etc.). 

There is an exemption--If the Ziu enacts a law imposing some type of liability on someone who reveals the contents of an Elector's vote, it does not need the Convocation to grant authority for an investigation and possible legal action to follow.  The conduct is actually not tied into the Convocation per se because a Herald or SoS or person on the CoR from a Convocation 10 years ago does not get to decide that the vote is no longer secret.  And also, I felt it necessary to protect the secrecy of the vote. 

Just my 2¢. (I started writing this in response to the concern about the CpI, and then I just kept going.)

---

*Because I'm in a whimsical mood (and I want to stress how the present threshold to commence removing the King is implausible), let's talk about competent medial authority.   I doubt anyone would ever find a competent medical authority to conclude the King is unfit to perform his duties--not because they do not exist, but because I doubt any competent medical authority would entertain such a request.  The exchange would go something like this:  "Hi, we're from the Kingdom of Talossa. We claim part of U.S. territory as an independent country. What's that you say? No, The U.S. hasn't noticed, although it's likely we're simply seen as a mischievous internet club making grandiose claims of sovereignty. But moving along, we need you to assess the medical competence of our King.  What's that? No, really just something about his ability to perform his Organic duties.  No, organic duties doesn't mean like ... natural duties. It means his constitutional duties.  Gross.  Stop asking so many questions.  But yeah, you down? I'm sorry could you repeat that word? Hip-pah? Oh one P... so hip-ah? What's a *bunny ears* hip-ah violation?" 

In other words, this is superfluous, and the only plausible threshold is the CpI conviction, which even then, good luck getting all of the Judges to be active.   

I tend to avoid the Hopper these days, so my apologies for raising these concerns on the eve of clarking.

First, section 6.3, which requires an automatic prima facie (i.e. facial) challenge to the legal sufficiency of the allegations in the charging instrument.  This requires that the tribunal take all allegations as true and determine whether such would establish guilt beyond a reasonable doubt. It does not establish guilt but obligates the Crown to bother to draft a well-pleaded charging instrument.  If the allegations were established as true but would not result in guilt beyond a reasonable doubt, the charging instrument is legally insufficient.  There is nothing that would require briefing or arguments, and the court appears free to set its own procedure. 

Proposed section 6.6 involves preliminary hearings.  As set forth, these involve a hearing before the court to determine if there is probable cause for a felony or serious misdemeanor (sidebar—serious misdemeanor should be defined). This does appear somewhat different in that a defendant can cross-examine witnesses, but to me, there's some degree of evidence or proof involved.

But reconciling the two leaves me scratching my head—6.3 follows the "beyond a reasonable doubt" standard, which is strict.  Generally, it requires that there is no other reasonable explanation from the evidence (or lack thereof)—the jury is basically certain of the defendant's guilt.  66.6, however, has the lower burden of proof of probable cause, which only requires there be a reasonable basis for believing the crime was committed.  This is what loses me—in what scenario would a court that has concluded that the charging instrument alleges conduct that, if true, would establish guilt beyond a reasonable doubt would then turn around and, during a preliminary hearing, resolve that there is no probable cause for the crime? I'm sure there are some very specific circumstances some can muster, but it seems a bit too much procedure for what may come before Talossan courts.

I am not married to 6.3 or 6.6, and I suggest that there may be a way to reconcile the two. 

Second, with regard to section 6.6.6., I am not a fan of the court tinkering with the charging instrument on its own and selecting lesser charges if what is charged does not meet the legal standard.  The court would be doing the Crown's job.  I'd prefer that the charging instrument may include alternative lesser charges from which the court may consider if the primary charge failed. I'd rather place the burden on the Crown to put forth well-pleaded charging instrument than rely on the court to fix the charging instrument.  If the crown does not include a lesser charge (or the wrong one), that's on the crown.

Third, I'd move 6.6.3. below 6.6.6.  It's just a matter of flow in my mind—if a plea may only be entered following the preliminary hearing, then why mention it beforehand.  This is more stylistic I'll concede.

I know this has been up for a while, and my regrets for not commenting sooner. But for some reason I decided to check the Hopper tonight.

-V

(As always, apologies for typos.)