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The Ziu => The Lobby => Topic started by: Miestră Schivă, UrN on August 03, 2020, 12:01:52 AM

Title: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 12:01:52 AM
Estimadas és estimats cüncitaxhiens!

Given the sad but well-deserved retirement of Glüc da Dhi from the office of Secretary of State, I hereby announce that, pursuant to Organic Law VII.4 and El Lexhatx C.3.1, I hereby and publicly recommend to His Majesty John, King of Talossa, that @Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM be appointed as Secretary of State, once the resignation of cxhn. da Dhi becomes effective.

It will please the Kingdom to know that Glüc and Txec are already at work crafting a transition plan.

In related matters, it is the Government's intention that the seat on the Uppermost Cort left vacant by Dr. Nordselva will remain vacant. We believe that a 3-member Uppermost Cort is ideal, and 4 members is fine for now until another Judge decides to retire.

Questions? Comments?
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: C. M. Siervicül on August 03, 2020, 06:34:26 AM
Congratulations, D:r Nordselva. I’m sure the Chancery will be in good hands.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on August 03, 2020, 07:28:57 AM
Congratulations, D:r Nordselva. I’m sure the Chancery will be in good hands.

Thank you Sir Cresti.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 12:13:51 PM
In related matters, it is the Government's intention that the seat on the Uppermost Cort left vacant by Dr. Nordselva will remain vacant. We believe that a 3-member Uppermost Cort is ideal, and 4 members is fine for now until another Judge decides to retire.
Wouldn't three members hobble the entire legal system?  As I understand it, the new system you guys just installed requires that every case be initially heard by a single justice, and any appeal goes to the CpI may not be heard by the justice who first sat the case.  And since the new system also states that precedent cannot be set unless three justices hear an appeal, that seems to indicate that no precedents can be set unless there are at least four justices.

G.13.2.1. In accord with Section 6 of Article VIII of the Organic Law, any action commenced in the General Cort of Talossa shall be heard by a single Judge of the Cort pü Inalt.
G.13.2.3. 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.
G.13.2.4. 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 a magistrate.
Org.VIII.6 The decisions or orders of the Cort pü Inalt shall bind all lower corts according to the doctrine of stare decisis provided that that the panel was composed of no less than three Judges after necessary recusal.

As far as I can tell, your new system basically requires that there must be four active justices, or else it breaks down immediately since no precedents can be set.  Indeed, it seems like the legal system is broken right now in that way.

To illustrate, if I were to sue you because I thought the Government had violated my rights, my case would be heard in the new "General Cort" by a justice.  The law states that this decision can't set precedent.  If I lost, I could appeal the case, but there would only be two justices eligible to hear the appeal.  And if the appeals cort doesn't have at least three justices, it can't set precedent either.  So even if I won, the decision wouldn't be binding on lower corts or future uppermost cort hearings.  The cort might rule in my favor and say that the Government had violated my rights, but everyone else in a similar situation would need to file their own case and re-argue it.  Corts currently cannot make binding decisions about anything.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Eðo Grischun on August 03, 2020, 12:21:58 PM
As I understand it, cases will be heard in the new lower court by Justices of the Peace, not by Justices of the UC.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 12:26:26 PM
As I understand it, cases will be heard in the new lower court by Justices of the Peace, not by Justices of the UC.
Didn't the new system explicitly eliminate Justices of the Peace?
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Eðo Grischun on August 03, 2020, 12:48:25 PM
As I understand it, cases will be heard in the new lower court by Justices of the Peace, not by Justices of the UC.
Didn't the new system explicitly eliminate Justices of the Peace?

Apologies, yes it did.  Magistrates will hear cases in the lower court.

Personally, I would need to take guidance from the Attorney General on the matter you mention, as I don't have confidence on judicial law. 
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 02:44:50 PM
In fact, Sir Alexandreu has a good point on this issue, which I neglected to point out. The Government are going to introduce legislation to re-establish a lower court.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 02:53:21 PM
A third court, in addition to the CpI and General Cort?
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 02:55:40 PM
To be absolutely frank, I abstained on the Judiciary Amendment precisely because it eliminated Justices of the Peace. Justice Marcianüs, the author of the bill, assured me that such details could be sorted out later if the Amendment passed. And here we are.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on August 03, 2020, 03:06:17 PM
All of these issues is precisely why I wrote the amendment that enlarged the CpI to five justices so that there was never a time when we could have less than a 3-justice panel for appeals and for setting precedent.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Viteu on August 03, 2020, 03:59:06 PM
TL;DR: the Amendment and Statute, with the exception of the JP (explained), actually keep things as they are yesterday. THe criticism that we have no working trial cort actually is a roll over because the King never did his job. Discharging the JP Cort was two-fold: I don't like the use of "justice" because apparently that confuses people, and I don't like lay judges. But I am not particularly against either of those two in a "hill to die on" kinda way. But by the time this got raised, the veto had happened and it was getting voted on. I pointed out that only a few lines in teh GC cort statute can be changed so theyw ill be appointed a la justices of the peace. That's literally all that needs to happen. But this remains an absolutely true statement: King John never appointed JPs, as he was required to do, so the JP Cort never actually formed, and Talossa did not have a trial cort or any lower cort to hear a new case.

I do not know if I’m allowed to comment here, but I think it necessary to clarify some things.

There is no need to set up a third cort

The Judiciary Amendment of 2020 has a *single* part—the amendment.  When I first introduced it as a Senator, a criticism was that it needed certain legislation to work. So I drafted legislation that was tacked to the bottom. So the act itself has two components—the Amendment and the Statute. I did raise the fact that the Statute should be separated out to avoid confusion, but that was not heeded. Whatever.

Now, the Amendment itself sets the baseline for how many judges must be on the UC. There is the Senior Judge and two permanent Pusine Judges. So the Cort must always have three seats to be filled. The Ziu can increase that number to nine judges maximum. Why this mechanism? Simple. Under the old system, the number of justices was organically set to five.  The Ziu could not, without a constitutional amendment, adjust that number based on the needs of Talossa at that moment. It seemed to me that the number should really be statutory.  However, I was also concerned with cort stacking. So I figured allowing the Ziu to adjust the number of judges as needed, but also put a ceiling on it, with requiring that these changes be passed in consecutive Cosas, would shield the Cort from becoming to partisan. The statutory part of what I proposed set the Cort to five judges because, as it was raised by the King, who would be kicked off of the current Cort?

Next, under section 6, if there is no inferior cort established, a UC Judge can sit as a lower cort.  Lower corts do not issue binding decisions ON CORTS OF COORDINATE JURISDICTION. In other words, if the Ziu creates a lower cort, a UC judge cannot sit a as a nisi prius cort unless permitted by statute. That simple. Further, no corts of coordinate jurisdiction can bind the other. For example, say we grew to over 1000 citizens, and it was determined that we needed an interim appellate cort, say two of them. The appellate cort, sitting above the inferior cort (i.e. not a cort of coordinate jurisdiction) can set binding precedent. But it cannot set precedent on the other appellate cort. One lower cort cannot set binding precedent on the other. This is actually pretty standard in US Federal Courts, which is actually not the case in some state courts (e.g. California and New York’s intermediate appellate courts will bind all lower courts, even those outside of their immediate appellate jurisdiction, until a split).   None of this means that a decision is not persuasive authority. Again, similar to US federal system.

Let’s stay with precedent. Under the old system, prior to the new Organic Law, but the system established in (2014?), a UC justice could sit as a trial court judge, and an appeal could go to a single UC justice, but the result of that appellate decision WAS NOT BINDING. The Organic Law prohibited it. Under the current framework, a decision must go before a three-judge panel for it to be binding, but if only two judges or one are available, then it is not binding. That is not to say that it is not persuasive authority.


Okay, let’s talk about the statute. Yes, this abolished the Justice of the Peace Cort.  I stated I was not a fan of it. By virtue of this statute existing, a UC Judge cannot sit as a nisi prius judge. WOW BUT THE SYSTEM IS BROKEN AT THE OUTSET. Well, okay, this is a valid point, but let us consider that the new Organic Law actually eliminated the ability of a UC justice to hear a case, and we had the JP Cort, but the King never actually appointed any JPs, so Talossa actually has not had a trial cort for months now. I’ve brought his up to people before.

In any event, I do not like the idea of lay persons acting as judges, and that is why that concept was not carried over. But the lower cort, in the from of the General Cort, would continue with appointed judges.  Miestra disagreed with me on this.  However, by the time this issue arose, I was already on the Cort and changes to the legislation would mean another veto.  My suggestion was to go forward, and merely amend the statutory component to remove appointment and replace it with what were then known as PJs. That simple. Like a statute with a few lines.

In any event, the fact that Talossa has no trial cort at the moment was not changed by this amendment because there were no actual appointed PJs because the King never got around to appointing the nominees.  But this is where we are at. A simple statute will remedy this problem.

Or, you can simply abolish the GC, not set any lower Cort, and keep the judges at five so one can sit as a nisi prius cort. The possibilities and versatility of the amendment to address Talossa’s judiciary needs without running to change the Organic Law while preserving judicial independence is evident in the language itself. Like, you can literally eliminate, altogether, el lex G.13.1 and, boom, we have a lower cort. You can create a lower cort and decide how judges get picked. You can lower the number of UC judges to three so we don’t tie so many people to one Cort and prevent them from serving on a lower cort or being in the cabinet. We can grow to 500 people and decide it’s better to have a nine judge cort, so they can sit in panels of three and decide cases. Like, these critiques are a bit disingenuous given that all of the above was available for over a year, and seek to paint the new system as broken at the outset to praise the old system while ignoring that the old system was actually broken.




Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 04:13:21 PM
Thanks so much, esteemed Justice. Good catch that the King never actually appointed Epic and I as JPs so we didn't count anyway.

I suppose the incoming Ziu will decide what kind of provisions we will make for a lower Court. I do like lay justices myself, but there is no FreeDem policy on it so far, so we shall all see.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 05:49:23 PM
I didn't think the previous new system was very good, either. We are agreed on that. I certainly said as much before now, and that opinion isn't changed.

It also sounds like we are agreed that the current system is currently not going to work well unless the law is changed or more justices are appointed. I hope one of these two things will occur soon.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 06:02:16 PM
I've taken option 1, check the Hopper.

IMHO we simply don't have another qualified CpI candidate; though plenty of candidates for CJ (formerly known as JP).
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Viteu on August 03, 2020, 06:19:01 PM
I didn't think the previous new system was very good, either. We are agreed on that. I certainly said as much before now, and that opinion isn't changed.

It also sounds like we are agreed that the current system is currently not going to work well unless the law is changed or more justices are appointed. I hope one of these two things will occur soon.

The problem that arose from the statutory component was my fault--I cannot remember if I wrote the GC language at, before, during, or after the JP act. I have this vague memory that it was around the same time. Ultimately, one thing I had in mind in drafting the amendment and statute was King John's concern for continuity. Hence the two-month window and the instant statutory raising to a total of five judges. I was actually trying to maintain, for now, the old system so we could adjust without running to another constitutional amendment. Overall, I was motivated by a versatililty and an efficient organic law section with the rest to be filled in by statutory law. Section 6 was meant as a safeguard if the Ziu did not act,  or somehow just decided no inferior Cort.

So the issue you raise falls to me in my attempt to create something robust, independent, not subject to partisanship, but not requiring tinkering with the fundamental document of State every time we needed an update.

But there is now a bill that would fix this before implementation, and provided we get some CJs, we'd have four UC judges, a trial Cort, and, in theory, a fully functional judiciary.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 06:22:42 PM
The problem that arose from the statutory component was my fault--I cannot remember if I wrote the GC language at, before, during, or after the JP act.
Writing things like this is really complicated, especially without sharp scrutiny from others, and it isn't very productive to try to decide whose fault it is.  Don't worry about it.

I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.  And that's it.  It's simple and serves all of our needs.  The only change the original system needed was a mechanism to eliminate inactive justices automatically, since that was socially uncomfortable -- that's why the original magistracy was created, if we're real about it.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 06:30:09 PM
I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.

So the other two serving as an appeal Cort, and this two-person Cort being able to set precedent?

I appreciate what you say about being able to force-retire inactive Justices, but that provision never got used.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Viteu on August 03, 2020, 06:34:03 PM
The problem that arose from the statutory component was my fault--I cannot remember if I wrote the GC language at, before, during, or after the JP act.
Writing things like this is really complicated, especially without sharp scrutiny from others, and it isn't very productive to try to decide whose fault it is.  Don't worry about it.

I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.  And that's it.  It's simple and serves all of our needs.  The only change the original system needed was a mechanism to eliminate inactive justices automatically, since that was socially uncomfortable -- that's why the original magistracy was created, if we're real about it.

That's absolutely possible with the amendment without changing the org law again under section 6. My primary concern with that remains the inherent unfairness to an appellant arguing before either same judge and convincing that judge and two colleagues why they are entitled to relief. Of course, a four judge UC would help that. All of this now falls to the Ziu. And once the amendment is in effect, any statute related to it requires 2/3 Cosa support with simple Senate majority, across two Cosas, to change.  The idea being that trying to change the Cort to something political would be subject to scrutiny in an election. But a change that truly addresses Talossa's needs will be obvious and shouldn't be a partisan issue.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 06:36:50 PM
I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.

So the other two serving as an appeal Cort, and this two-person Cort being able to set precedent?

I appreciate what you say about being able to force-retire inactive Justices, but that provision never got used.
Yes, that is the idea, except that the original justice would still hear the case -- they just wouldn't be permitted to be the lead.  It's not a perfect system, because appeals are slightly harder if you start out with one vote against you, but it would address the actual real issues our corts have faced.  And since there has never been an appeal heard out to the end, anyway -- to the best of my recollection -- we shouldn't focus on that.

Justices should get kicked off automatically if they don't respond to some sort of judicial busywork, probably, or some similar mechanism.  Our country is too small for real oversight otherwise, since it's either going to be partisan or too socially awkward (as the past has amply demonstrated).

EDIT: Wrote this before I saw V's reply.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 06:41:15 PM
The problem that arose from the statutory component was my fault--I cannot remember if I wrote the GC language at, before, during, or after the JP act.
Writing things like this is really complicated, especially without sharp scrutiny from others, and it isn't very productive to try to decide whose fault it is.  Don't worry about it.

I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.  And that's it.  It's simple and serves all of our needs.  The only change the original system needed was a mechanism to eliminate inactive justices automatically, since that was socially uncomfortable -- that's why the original magistracy was created, if we're real about it.

That's absolutely possible with the amendment without changing the org law again under section 6. My primary concern with that remains the inherent unfairness to an appellant arguing before either same judge and convincing that judge and two colleagues why they are entitled to relief. Of course, a four judge UC would help that. All of this now falls to the Ziu. And once the amendment is in effect, any statute related to it requires 2/3 Cosa support with simple Senate majority, across two Cosas, to change.  The idea being that trying to change the Cort to something political would be subject to scrutiny in an election. But a change that truly addresses Talossa's needs will be obvious and shouldn't be a partisan issue.
Yeah, I think you could also have four justices or five and the simple system would work great.

As far as I recall, by the way, the soonest a change to the statute could happen would be in more than two months, by the way.  I mean, if I remember correctly, the new system that was just ratified requires that the first Clark have no bills in it, and that second Clark is supposedly supposed to come after a month of recess.  So I don't think any quick fix by the Ziu is possible, thanks to the recent changes.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Viteu on August 03, 2020, 06:41:53 PM
Quick reply-the 2/3 requirement across two Cosas *only* applies to the number of judges on the UC and not any inferior Cort, etc.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Viteu on August 03, 2020, 06:53:35 PM
The problem that arose from the statutory component was my fault--I cannot remember if I wrote the GC language at, before, during, or after the JP act.
Writing things like this is really complicated, especially without sharp scrutiny from others, and it isn't very productive to try to decide whose fault it is.  Don't worry about it.

I think, personally, we should go back to the original system: three justices, one of whom would serve as an initial trial justice.  And that's it.  It's simple and serves all of our needs.  The only change the original system needed was a mechanism to eliminate inactive justices automatically, since that was socially uncomfortable -- that's why the original magistracy was created, if we're real about it.

That's absolutely possible with the amendment without changing the org law again under section 6. My primary concern with that remains the inherent unfairness to an appellant arguing before either same judge and convincing that judge and two colleagues why they are entitled to relief. Of course, a four judge UC would help that. All of this now falls to the Ziu. And once the amendment is in effect, any statute related to it requires 2/3 Cosa support with simple Senate majority, across two Cosas, to change.  The idea being that trying to change the Cort to something political would be subject to scrutiny in an election. But a change that truly addresses Talossa's needs will be obvious and shouldn't be a partisan issue.
Yeah, I think you could also have four justices or five and the simple system would work great.

As far as I recall, by the way, the soonest a change to the statute could happen would be in more than two months, by the way.  I mean, if I remember correctly, the new system that was just ratified requires that the first Clark have no bills in it, and that second Clark is supposedly supposed to come after a month of recess.  So I don't think any quick fix by the Ziu is possible, thanks to the recent changes.

Gah. Okay, so assuming that's the case, for possibly one month, UC judges can sit on the GC if a case commenced then, based on 13.2.1 as adopted.

"13.2.1. In accord with Section 6 of Article VIII of the Organic Law, any action commenced in the General Cort of Talossa shall be heard by a single Judge of the Cort pü Inalt."

The only issue with the proposed statutory amendment is the ostensible change in UC seats. So if that part is removed, the bill creating CJs could be voted on in the Second Clark, and a change in seats for UC moved to separate legislation.*

Or, there's no real requirement that the seats be filled. So the Government could leave that provision as is to see how things work out.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 07:01:22 PM
once the amendment is in effect, any statute related to it requires 2/3 Cosa support with simple Senate majority, across two Cosas, to change.
Can you quote this provision?  I can't find it.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Miestră Schivă, UrN on August 03, 2020, 07:03:26 PM
OrgLaw VIII.3 as amended by 54RZ25:

Quote
The Ziu may enlarge the number of seats designated Puisne Judge to no more than eight, and may decrease the number of seats designated Puisne Judge 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.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on August 03, 2020, 07:07:22 PM
OrgLaw VIII.3 as amended by 54RZ25:

Quote
The Ziu may enlarge the number of seats designated Puisne Judge to no more than eight, and may decrease the number of seats designated Puisne Judge 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.
Yeah, that's what I found, too.  So it only applies to bills that enlarge or shrink the CpI.  So the other statutory bits can be eliminated without the wait.  Good, that makes it easier.
Title: Re: [SENESCHAL'S OFFICE] Recommendation of a Secretary of State
Post by: Sir Alexandreu Davinescu on October 14, 2020, 01:13:12 PM
Acting as regent for the crown, I hereby appoint on behalf of His Majesty King John the following officer, and do bid him to perform his duty to the Organic Law and the nation to the best of his ability:

Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM. as the Secretary of State.