Quote from: Lüc on February 28, 2020, 07:45:12 AM
I would strongly caution against Clarking a bill that has been so substantively changed two days before the Clark is set to begin. While there's a good chance you will be on the UC from tomorrow onwards,

Now, to my objections. I frankly don't see the problem with calling UC judges "Justices". It's a Talossan tradition that goes back from the creation of the UC in the late 1980s and has never caused any confusion. "Judges" were the Mags, when that still existed - it matched the US (federal) style and just made sense.

I don't really get the expansion of Puisne Justices. Aren't there already four PJs + one SJ according to the 2017 OrgLaw?

Finally, I need a clarification of the proposed GC. Is it basically the old MC, but with UC justices serving as judges of first instance? Also, maybe this can be combined with the JP idea, where we still have JPs that can serve on the GC. I guess that if we had any JPs at all, we could have seen how well the system worked.

I'll defer to the Seneschal about splitting the bill.

To the use of Justices--for the most part, I prefer to refer to them as Justices.  But there seems to be a dissonance in recognizing that Justices and Judges are, for the most part, interchangeably used, and that they are mere titles. I am, of course, responding to a certain theory advanced by a sitting Justice at the moment.

For clarification on the US system, the Supreme Court has Justices, the Circuit Courts of Appeals and District Courts have Judges. District Courts also have Magistrate Judges. The responsibilities of a Magistrate Judge varies based on district court, with some handling everything up to trial, and others handling only what the District Judge needs them to. In any event, I would be fine with using Justice for the UC, Judge when a Justice sits as a nisi prius Judge, and Magistrate in lieu of Justice of the Peace.

A compromise between my and Meistra's positions could be to retain the Justice of the Peace as a Magistrate, but allow a UC Justice to sit as  Judge if a Justice of the Peace is unavailable.

Quote from: Miestrâ Schiva, UrN on February 27, 2020, 08:13:11 PM

Quote from: Viteu on February 27, 2020, 05:32:18 AM
The statute abolishes, in its entirety, the Justice of the Peace, which is a decent idea but I think maybe some of us would prefer to avoid

Yeah, I refer my learned colleague to the dictum in Hall v. Oates (1981), viz. "I can't go for that."

I honestly don't think we need any fulltime judges on a lower court. I prefer "citizen justices", who can become qualified by sitting an exam, with appeal to the UC. As we've found, declaring someone a fulltime judge is the best way to make them inactive.

I would respectfully point the Seneschal to a recent case where a single errant judge, acting much as a Justice of the Peace would, let Guy Incognito trash our legal system in such a way an appellate UC felt he could not remedy the trash. I also think the Seneschal should start enforcing the 60 day or your out rule. Notably, the statute requires the Clerk to inform the Seneschal when a judge fails to respond so appropriate action, if warranted, can be taken.

I should note that I included language that the Scribe can make edits for accents and other marks, typos, and to fix subsections for consistency issues.

All,

I've finished up the Judiciary Amendment of 2020.  Please see the FIRST post at https://wittenberg.talossa.com/index.php?topic=98.msg543#msg543.  Apparently there is 20k character limit on new Witt, so I removed the prior version with strikethrough and posted it below for posterity.

In any event, changes are as follows:

• All subsections were removed; it still is easy to follow


• I removed references to 1997 Organic Law because the actual UC will not change so there's continuity


• Justices will no longer be known as Justices; they will be Judges.  On the federal side in the United States, our lower and intermediate courts use the title Judge, and only the Supreme Court has Justices.  In practice, the titles are somewhat honorific without any distinction as to function.  New York we reverse, our lower and intermediate courts have justices, and our Court of Appeals has Judges.  New York is actually closer to the older approach because Justices were elected and Judges were appointed.  But then again, our family courts, also elected, has Judge.  So my point is, there's no meaningful distinction really.  A quick review at other common-law counties suggests there's different approaches lacking consensus on distinction. In any event, some here don't seem to realize this and think the title "Justice" means something other than it does, so I thought it simpler to remove "Justice" altogether.

Next, I included an accompanying statute that would only come into effect if the amendment is implemented.

• The statute increases the number of Pusine Judges by two, for a total of five UC Judges, and keeps all present Justices but restyles them as Judges appropriately--continuity achieved


• The statute abolishes, in its entirety, the Justice of the Peace, which is a decent idea but I think maybe some of us would prefer to avoid


• The General Cort of Talossa, an inferior nisi prius cort of general jurisdiction and first instance is established in its stead
• For now, and because a UC panel only requires three judges, a case will be assigned to a UC judge, who will sit as a Magistrate (not a magistrate judge), and who cannot on a panel reviewing an appeal from one of their decisions in that case.  This is somewhat inspired by an old US approach called "riding circuit" (although not a perfect analogy).


• I added some language to G.14 in that the Clerk is now required to inform the Seneshchal if a Judge/Magistrate fails to respond to an assignment or timely issue decisions in a matter. I think this is important so the Government can take appropriate action for missing Judges (there is a provision that the Clerk reaches out to the Magistrate and has discretion to determine if this is warranted, like if the Magistrate says, "hey sorry work was crazy this last week, will post tomorrow" then it can be overlooked, but if the Magistrate never responds and the Clerk has to reassign the matter, they must inform the Senechshal.


• Finally, I added a new section to el Lex (Ian is going to maim me to the fullest extent permitted by the law I'm sure) under G.15, which calls for the UC to either set up its own official reporter or ask the Scribe or Government to do it. However, because the General Cort is a statutory cort created by the Ziu, it can dictate who does it. I'm leaving it up to the Scribe or Government for now.

As many of you know, it's an open question how much time I have left in the Senate (or if I'm not going anywhere at all!), so i intend to Clark this for March, even if the Fates determine that I cannot vote for it in March.  If, however, I am appointed, I will need to resign and adhere to my commitment to retire from public/political life.  I do hope, in that event, to see this adopted and ratified.

Quote from: Ián Tamorán S.H. on February 25, 2020, 04:51:17 PM
I shall temporarily sign off here, with the reminder of what I have said (or hinted at) often in the past: the function of Justice is Justice, not Law. Human law is an attempt to codify Justice, but in final analysis Justice cannot fully be codified or restricted into unwavering pre-ordained channels - it is more subtle, and deeper, than that.

Respectfully, reminder disregarded as superficial and missing the forest for the trees. I wish you had taken a more subtle, nuanced, and deeper approach to the case, but you seemed to have been guided by your misconceptions of law and justice, which seriously hurts the service of Justice in Talossa.

Apparently there is a 20k character limit, so I copied the prior version and am posting it here for posterity.
_________________________
I posted this in old Witt at http://talossa.proboards.com/thread/13839/judiciary-amendment-2020?page=1&scrollTo=169020.

I have updated the numbering scheme to follow Section 3 of Article VIII of the 2017 Org Law per Senator Platschisch's concern. 

______


Confirmation is not a foregoing conclusion. But if it is, this may be the final bill I try to pass. I tried to fix many of the issues others had with the Judiciary Reform Amendment.

This is a rough draft filled with typos. But I think it's a good starting place. To follow- a statute for inferior courts that would go into effect of this is adopted.

Judiciary Amendment of 2020

WHEREAS, in July 2019, the Ziu of the Kingdom of Talossa adopted the Still Into This Amendment in the third Clark ("53RZ18") over the objections of the King;

WHEREAS the Chancery submitted 53RZ18 as Referendum 1 in the General Election for the 54th Cosa;

WHEREAS the people ratified 53RZ18, with the resultant promulgation by the King occurring by operation of law;

WHEREAS the foregoing is to or will supplant the 1997 Organic Law with 2017 Organic Law upon certification by the Ziu or the elapse of one year from the date of adoption, whichever is sooner;

WHEREAS 53RZ18 was a step towards cleaning up the Organic Law and did not seek to substantively modify the organs of the State;

WHEREAS the Ziu recognizes that the Judiciary of the Kingdom of Talossa must be adaptable and responsive to the dynamic needs of Talossa;

WHEREAS continuity in and of law is tantamount to an effective judiciary;

THEREFORE, the Ziu amends the 2017 Organic Law by deleting in whole Article VIII: The Courts as contained in 53RZ18 and adopted by the people, or, inasmuch as remains in effect, strikes in its entirety Article XVI: The Courts, as contained in the 1997 Organic Law;

BE IT FURTHRE KNOWN, upon amending or striking the foregoing, the Ziu adopts as Article VIII: the Courts the following provisions or, as necessary, Article XVI: The Courts, the following provision;

FURTHER, all justices appointed to the Uppermost Cort at the time that this amendment is adopted and implemented shall continue in that position in the newly constituted Uppermost Cort pursuant to the terms of their original confirmation provided they so desire to do so:

The Courts

Section 1. The Judiciary

The judicial power of the Kingdom of Talossa shall be vested in one Cort pü Inalt, in English the Uppermost Cort, and in such inferior courts as the Ziu may from time to time ordain and establish.

Section 2. Authority of the Judiciary

(1). The judicial authority of the Cort pü Inalt shall extend to all matters, in law and equity, arising out of a case or controversy;

(2). In all matters affecting ambassadors, public ministers, the State of the Kingdom of Talossa (including its organs), and a Province or other subdivision recognized by this Organic Law, the Cort pü Inalt shall have original jurisdiction. In all other cases, the Cort pü Inalt shall have appellate jurisdiction both as to law and fact over all inferior corts established by the Ziu. Nothing stated herein shall limit the authority of the Cort pü Inalt from remanding a matter to which the Cort pü Inalt has original jurisdiction to an inferior cort as it deems necessary.

Section 2. Composition of the Cort pü Inalt

(1). The Cort pü Inalt shall consist of a permanent seat designated as Senior Justice, and two permanent seats designated as Puisne Justice.

(2). The justices shall be ordered according to their seniority on the Cort pü Inalt, with the senior most justice occupying the seat of Senior Justice.

(3). The Ziu may enlarge the number of seats designated Puisne Justice to no more than eight, and may decrease the number of seats designated Puisne Justices to no less than two, provided that, in addition to the requirements for other legislation, two-thirds of the Cosa and a majority of the Senate support modification in two consecutive Cosas.

(4). Neither a reigning King or his or her Consort, nor a Regent during his or her regency, nor the Secretary of State, nor the Seneschal, nor any other member of the Cabinet shall be a Justice of the Cort pü Inalt.

Section 3. Appointment to the Cort pü Inalt.

(1). Any member of the Ziu may nominate a person to an open seat on the Cort pü Inalt. The nominee shall be approved by two-thirds support in the Cosa and majority support in the Senate. Upon such approval, the King shall appoint the nominee as a Justice of Cort pü Inalt.

(2). If the King shall decline to appoint a nominee, then, upon approval by two-thirds support of the Cosa and majority support in the Senate, the nominee shall be considered appointed.

(3). Every Justice of the Cort pü Inalt shall be subject to a re-appointment in intervals of five years, measured from when their initial appointment. These intervals may be increased two to no more than 10 years provided that any legislation retroactively applies to all sitting members of the Cort pü Inalt and is supported by two-thirds of the Cosa and a majority of the Senate in two consecutive Cosas.

(4). Unless otherwise set by law, re-appointment shall be deemed automatic if no member of the Ziu has requested a re-appointment vote in the Cosa immediately preceding the expiration of the Justice's term; and re-appointment shall only require a simple majority of each house in the Ziu. The Ziu may modify the foregoing provided the requirements of re-appointment never exceed that for appointment.

Section 4. Removal from the Cort pü Inalt.

(1). A Justice shall remain on the Cort pü Inalt for the duration of their term, until they choose to retire, or, as prescribed by law, until such time as the Ziu shall remove him or her from their seat or until he or she can no longer perform their duties on account of incapacitation.

(2). In the event that a sitting Justice of the Cort pü Inalt acts in a manner that offends the Ziu in their official and individual capacity, or is found guilty or has pleaded guilty to a crime in Talossa, a member of the Ziu may move for a Notice of Reprimand, which shall set forth an individual charge with the stated punishment contained therein, which shall not exceed removal from his or her seat as Justice.

(3). To impose the sanction of removal, a Notice of Reprimand must receive, in addition to requirements of other legislation, two-thirds support in the Cosa and majority support in the Senate.

Section 5. Authority of the Cort pü Inalt.

(1). Until such time as inferior corts are established, a Justice may sit as a nisi prius cort in all civil and criminal matters.

(2). No decision or order issued by an inferior cort or nisi prius cort shall bind a coordinate cort.

(3). The decisions or orders of the Cort pü Inalt shall bind all lower corts according to the principles of stare decisis provided that that the panel was composed of no less than three justices after necessary recusals. The Cort pü Inalt may, as it deems appropriate, issue decisions or orders that are non-binding provided that it explicitly states that intention in the decision or order.

(4). A nisi prius cort or an inferior cort deviating from binding precedent must state so with clarity and refer the matter for appellate review.

(5). Notwithstanding any contrary proscription, the King, the Secretary of State, or the Senechal may refer an issue to the Cort pü Inalt for an advisory opinion provided that any such panel reviewing the position is composed of no less than three Justices after any necessary recusals, there lacks a live case or controversy that would otherwise determine the issue, and there is a reasonably need for resolution of the question.

(6). A matter arising under the Covenants of Rights and Freedoms is appealable as of right to the Cort pü Inalt. In all other instances, the Cort pü Inalt may not be compelled to exercise its appellate authority. However, when declining to do so, the Cort pü Inalt must issue an order declaring such, and no such declaration shall be deemed as the Cort pü Inalt adopting or setting as binding precedent the appealed from decision or order.

(7). The Cort pü Inalt, and any other cort existing under this article, shall interpret all matters through the lens of the Covenants of Rights and Freedoms.

(8). Any justice that is a named party in a matter shall recuse himself or herself from hearing any and all parts of the matter.


*MODIFIED 1/12/2020 at 2:23 p.m. EST - fixed puisne and changed to "Senior Justice" in light of Senator da Schir's feedback on Old Witt.

It dawns on me that my "I'm done talking about this" may be percieved as cutting off the conversation, rude, and indicative that I was annoyed or sensitive.

None of this could be further from the truth. Ive learned in my career that "relitigating" an issue that is decided outside of the courtroom after you lose fuels resentment and frustration. The loser may want to vent but can come off as whiney. The winner may come off as smug. And nothing gets solved.

In many instances, NY uses short form orders. Meaning, for a lot of cases, after argument, the Court issues it's decision and then tells counsel to write out the order. I have a rule, "the loser never writes the order they lost." It's cruel. But when we confer, it's easy to start arguing again. I often say, "counselor, the Cort made its decision. Appeal it if you don't like it." Why? Because I have to work with these people and it's easy for the loser to lose his temper. Win graciously.  When you lose, someone who doesn't rub it in your face is appreciated.

That is not what, I think, Epic was doing here. But we both stated our positions and that was that. Others can chime in. I saw no reason to relitigate the issue.

So please, do not think I was being dismissive or rude. I will talk legal theory all day, but once we have an answer, especially one with so many tempers, I felt it best to walk away. 

Quote from: Miestrâ Schiva, UrN on February 24, 2020, 09:29:10 PM
Another comment: if we had a functioning National Bar in this country, I would wish that counsel for both the Government and the Respondent* would have been subject to discipline (eg. barred from taking the next UC case) for regular outbursts and talking-out-of-turn in the just-concluded appeal.

In other words: we need a functioning National Bar in this country, because the lawyers are unruly.

(* You can't bar me, I'm the Seneschal  8) )

If I make it on the Cort, this is on my list. The Cort is supposed to set up the bar. I'm sure I could find support.among the justices to get this going.

Quote from: Magniloqueu Épiqeu Ac'hlerglünä da Lhiun on February 24, 2020, 05:37:02 PM
Sure, it is not binding, as I said, but we touched upon many subjects such as double jeopardy, what constitutes a trial, what are the elements of a trial in Talossa, etc. At least, the Ziu and the Ministry of Justice should take notice of this, and maybe implement some of these findings into law. But in order to do that, knowing what arguments the Justice actually accepted might be helpful, if not strictly necessary.

And, as for example in England, the Government can still try to have points of case law overturned or corrected in another appeal, if it believes that things were handled incorrectly. This case has effectively only found that any such appeal, correction, nullification, etc. would have no effect on an acquittal handed down, because of the bar on double jeopardy.

How can the Ziu and the Ministry of Justice take notice of this case when the only reason that Panache got away with committing a crime is because a single errant justice completely disregard statutory law?

As it relates to double jeopardy, the Cort is basically saying that the mere act of labeling something an acquittal, even when it was not, makes it an acquittal.  Basically, we needn't define words because you get to make it up as you go.  Anyway, I'm done arguing about this.

Quote from: Magniloqueu Épiqeu Ac'hlerglünä da Lhiun on February 24, 2020, 05:27:35 PM
While this matter cannot be further appealed, and therefore is indeed not binding per se, it can still prove at least persuasive to future Corts and general jurisprudence in Talossa. And I think it should be given the chance to do just that; there were a lot of arguments from all sides that merit deeper contemplation, debate, recording, and reasoning. All in all, the obiter dicta and rationes dicendi of this case would be invaluable to future jurisprudence.

There's no need for deeper contemplation.  The case will be recorded on the Wiki, and it can be cited, and a wise attorney will note that it is not binding and that the case helps your client in the short run but hurts the Rule of Law by allowing a single errant justice to disregard statutory law.  I really don't see how you can splice this any other way.

Quote from: Magniloqueu Épiqeu Ac'hlerglünä da Lhiun on February 24, 2020, 05:17:19 PM
Indeed, I find this case to be of the utmost importance to Talossan jurisprudence. I really hope that the Cort will write up a more detailed reasoning of their judgement, just to understand what exactly they hold to actually be valid in the Talossan legal system.

That would not be appropriate as the Order is final and entered.  Also, it's not binding precedent.  The only valid import I see in this matter is that the lower cort got the law wrong.  The only other purpose this case serves is that a single errant justice, which an appellate cort held made "serious errors in law and procedure," can, in effect, let a defendant walk away from any crime simply by defendant mislabeling a motion and thus only based on a minute technicality.  That should, of course, alarm all Talossans.

That said, you put forth a good argument and you should be proud of yourself--pyrrhic or not.

"Indeed, it can be argued that if a trial did occur, it was rather loose."

Oddly, if the Cort is of the mind that no trial occurred, then there could be no acquittal.  So I find it hard to reconcile the two.  It is implied, of course, that the lower cort erred significantly in its application of law.

That said, in my professional practice, when I have lost or won a motion, I do not really care to relitigate the matter outside of the courtroom.  So that's that. 

In any event, I thank the Cort, the Government, and the Defendant for their hard work on this case.  But I remind everyone involved that this matter is not binding, and to the extent that this provides some persuasive authority, it's that the lower cort's application of the law was erroneous and Panache got off on a technicality. 

Regarding libel/slander, collectively known as defamation, Talossa has adopted a more US appraoch because, like the US and unlike the UK, Talossa has a codified constituional right to free speech.

Even without that constituional protection, the UK goes a bit to the extreme. The person suing for defamation does not have to prove the statement is defamatory. The accused had to prove its not. It completely reverses the burden of proof.

All of that said, I don't support a rule about this other than if something is considered defamatory, an admin can edit a post to highlight unsubstantiated claims. Otherwise the admins will start acting in a quasi-judicial function.  Not to mention, a rule will have a chilling effect on free speech.

Quote from: Lüc on December 05, 2019, 08:58:48 AM
Smoking Senators and guests have been banished to the parking lot behind Greene Hall.

I'm literally smoking as cig as I'm reading this new rule.

May his memory be for a blessing.