Living Cosa Confusion

[Ian Plätschisch]

Azul all,

The logic of my Prime Dictate to hold the Living Cosa for the November Clark in December (during a month of recess) went like this:
-Org.IV.11 states "The Cosa may set and hold Living Cosas (live parliamentary meetings) to coincide with a Clark as described by law." This seems to indicate that there is some legislative leeway as to what it means for a Living Cosa session to "coincide" with a Clark, and that it could include times outside of the traditional window for a Clark.
-Lex.H.20 seems to expand on this, saying "The Seneschál may, if events warrant, issue a PD authorizing a Living Cosâ in the following calendar month." Note that this provision does not state that the PD must authorize a Living Cosa for the following Clark.
-With regard to holding a Living Cosa during a month of recess, Org.IV.9 describes a month of recess as a month "in which no Clark is published." If we held the Living Cosa in December, there would still have been no Clark published in December, because it would have been published in November.

I realize there are a few issues with this reasoning, but I was hoping it was good enough that we could all agree to go with it. Apparently not. In the immortal words of Justice Lauriéir, "[P]ractice, in the Talossan context, is all too frequently defined by what one can get away with without triggering any objections." I did not get away with it.

I have no interest in litigating this, so I have withdrawn my Prime Dictate. Given the circumstances I believe it best not to have a Living Cosa this term. I have been reliably informed that, because the bill enabling the Living Cosa was a Sense of the Ziu, it is not technically binding.

There has been some grumbling that I did not start planning the Living Cosa soon enough. I thought it would be inappropriate to begin the process before the enabling legislation passed (on October 21st), although I now admit that wasn't a good idea.

[Baron Alexandreu Davinescu]

I am very loathe to set the precedent that the Seneschal can simply ignore the direction of the Cosa to do a Living Cosa, and I am not sure that it's true that the ephemeral law passed to authorize the Living Cosa is not binding.  It's true that el Lexhatx seems to imply that a bill can be nonbinding, and if it is, it must have a specific label in its title.  But I don't think putting that label on something makes it automatically nonbinding, and I also note that the OrgLaw would overrule it anyway.

I'd suggest the best thing to do is to give official notice there will be a pro forma Living Cosa in which nothing will happen and during which it is recommended that no one be in attendance, and I will just open and close it without anything happening.  We'll need to have a public link available for anyone to attend in theory, by law, since they need to have the opportunity to hypothetically cast a vote, but no one will be recognized and a quorum will not be present.

[Ian Plätschisch]

That sounds fine, just let me know when you would like me to say it is happening.

See below.

[Miestră Schivă, UrN]

I am very loathe to set the precedent that the Seneschal can simply ignore the direction of the Cosa to do a Living Cosa, and I am not sure that it's true that the ephemeral law passed to authorize the Living Cosa is not binding.

Of course it is. 57RZ21 is a Sense of the Cosa, just like all those non-binding Senses of the Ziu we've been voting on this term. Nowhere in the text of the bill does it say that it's legislation, and El Lexh H.20 mentions "a vote of the Cosa", not a law endorsed by the Senäts and King. That's the A-Xh's formal opinion.

I'd suggest the best thing to do is to give official notice there will be a pro forma Living Cosa in which nothing will happen

My opinion as A-Xh is that this would be ridiculous and the Seneschál should not do this.

[Ian Plätschisch]

Given that I employ an A-Xh to advise me on these matters, and that she was the one who proposed the bill in question, I would be a fool not to heed her advice.

[Baron Alexandreu Davinescu]

I am very loathe to set the precedent that the Seneschal can simply ignore the direction of the Cosa to do a Living Cosa, and I am not sure that it's true that the ephemeral law passed to authorize the Living Cosa is not binding.

Of course it is. 57RZ21 is a Sense of the Cosa, just like all those non-binding Senses of the Ziu we've been voting on this term. Nowhere in the text of the bill does it say that it's legislation, and El Lexh H.20 mentions "a vote of the Cosa", not a law endorsed by the Senäts and King. That's the A-Xh's formal opinion.

Org.IV.11 says that the Cosa may "set and hold Living Cosas."  That is the clear delegation by the Organic Law of a specific power to the Cosa, and no statute can limit that power to require the Seneschal's approval or to say that it doesn't really count if the bill is named a certain way.

If the Cosa passes a bill saying that there should be a Living Cosa during a specific time, that is the exercising of that power.  I don't think that it should just be ignored, and I think it would be a pretty horrible precedent to grant the Seneschal the right to ignore the overwhelming majority of the Cosa in this matter.

[Miestră Schivă, UrN]

"may set and hold Living Cosas ... as described by law". The provisions of H.20 are the problem here - in particular the requirement for 2 weeks notice, which appear to have taken away all the actual dates on which the TNC might be available. There is a way around that, and it's called a PD, which is a pretty blunt instrument.

Funny thing about that "overwhelming majority" - there doesn't seem to be an actual majority of MCs who can make any date between November 17-21, which are the remaining dates avaiable to us. If we could still do it, I would advise the Seneschál to set a date post-haste; but from what I can tell the TNC are not able/willing to turn up on any of those dates and want it to be an empty farce, which I can't go along with.

I stand by my interpretation of the law.

[Baron Alexandreu Davinescu]

Funny thing about that "overwhelming majority" - there doesn't seem to be an actual majority of MCs who can make any date between November 17-21, which are the remaining dates avaiable to us. If we could still do it, I would advise the Seneschál to set a date post-haste; but from what I can tell the TNC are not able/willing to turn up on any of those dates and want it to be an empty farce, which I can't go along with.

None of that has anything to do with the law.

Some of the TNC got a message asking us in the last week of October to start planning a big early November meeting.  I tried really hard to help, offering a bunch of ideas, as I'm sure the Seneschal will tell you (which is probably why you're the one picking a political fight over this, and not him).  It was a bad idea to wait until the last minute to plan this.  You guys should have done a better job.

But I think turning this into a political fight is counterproductive and short-sighted, and so we should just move back to the actual topic.  Okay?

I think the law is pretty clear that the Cosa has the power to set and conduct Living Cosas.  No one else in the OrgLaw is granted that power, and there are no limits placed on it, except that all the MCs need to have a chance to vote remotely.  It's not "legislation" that requires the Hopper, the Senats, or anything else.  It's a power of the Cosa.

Secondly, el Lexhatx cannot overrule any part of the OrgLaw.  Statutory law is invalid to the extent it attempts to countermand the constitution.  So even if a law was passed saying that the Cosa couldn't set a Living Cosa in the winter, that wouldn't be valid and wouldn't actually bind the Cosa.  The Cosa could still set a January Living Cosa if it wanted, no matter what a statute says.

So if the Cosa exercises its undisputed power to set a Cosa, it doesn't matter if there's a part of a stature that suggests that it's nonbinding.  Statutes can't limit an Organic power like that.  So we must consider that the Living Cosa has been set by the Cosa, since the Cosa voted in favor of setting a Living Cosa in very clear terms.

No one is suggesting that the Cosa didn't really mean to set a Living Cosa.  No one is suggesting that the Cosa doesn't have the power to do that.  And no one is suggesting that el Lexhatx can place restrictions on the powers of the Cosa.  So it must be binding, and the Seneschal cannot simply ignore it because it's convenient.

It will take five minutes, it needn't be a big deal, and it will prevent us from setting a pretty bad precedent for the future.

[Miestră Schivă, UrN]

Let me just tap the sign again:

"may set and hold Living Cosas ... as described by law"

If the TNC are available for any date between November 17-21, then name that date and I will advise the Seneschal to call the LC for that date. Or, if the TNC are available for an earlier date and are amenable to a PD temporarily waiving parts of El Lex H.20, tell me that date and I will advise the Seneschal accordingly.

What I will not do is advise the Seneschal to set a date for a meeting to which the TNC have already said they won't turn up and which the Túischac'h will close down without allowing any participation. That is not "setting a Living Cosa".

[Baron Alexandreu Davinescu]

Let me just tap the sign again:

"may set and hold Living Cosas ... as described by law"

But that brings us right back to the text of the statute which says "The Cosa may hold living Cosas during subsequent Clarks by a vote of the Cosa naming the specific month in which the event is to take place."  And they did!  There is no limitation there, and any limitation elsewhere on legislation isn't going to apply because the OrgLaw controls!

I'm honestly not even sure what point you're trying to make here -- maybe I am misunderstanding?  What other specific limitations are placed by statute on the Living Cosa power that enable the Seneschal to simply ignore them?

A pro forma session is a common thing, incidentally, not a weird new invention.

[Miestră Schivă, UrN]

What power does the Túischac'h to say that he's simply not going to allow any business at a Living Cosa?

Perhaps if the Túischac'h is not willing to hold a proper Living Cosa, because his own party is unavailable, he should appoint a temporary Deputy who is willing to do so with whomever turns up.

[Baron Alexandreu Davinescu]

What power does the Túischac'h to say that he's simply not going to allow any business at a Living Cosa?

Perhaps if the Túischac'h is not willing to hold a proper Living Cosa, because his own party is unavailable, he should appoint a temporary Deputy who is willing to do so with whomever turns up.

The Túischac'h is specifically tasked to "preside, direct and maintain order during Living Cosas."  That would include opening a Living Cosa, recognizing that no Cosa members are in attendance and there is no business to be conducted, and closing the session.  The common rules of order would still prevail if a quorum of MCs present demanded a motion or whatnot, but presumably that won't happen, since we're doing this to be nice and stay above board with the law.

[Baron Alexandreu Davinescu]

Here's a video of an example of a pro forma session from the United States Senate: https://www.c-span.org/video/?522242-1/senate-pro-forma-session

That's basically what I had in mind.  It would be quick and easy, it would meet the needs of the law, and it would allow us to amicably (and in a timely fashion) plan for a real Living Cosa at the start of the next term.

[Miestră Schivă, UrN]

The common rules of order would still prevail if a quorum of MCs present demanded a motion or whatnot,

Okay, that changes things a little. My advice to the Seneschál was there was no point setting a date for something that (substantively) wasn't going to happen. But if the issue is that a minority party (and the Túischac'h) don't want it to happen, but that majority rules, then we're in a different landscape. I will discuss matters further inside Cabinet.

Meanwhile, if we are to talk about precedents, I certainly don't want to set a preference where one party and/or the Túischac'h can turn a Living Cosa into an empty nothing because it's not convenient to them. That really would be overriding the Cosa majority's rights under OrgLaw IV.11!

[Baron Alexandreu Davinescu]

Look, you guys can schedule it when you want, obviously, and I'll try to be there if I can at all do so.  I'm sure everyone else in the TNC will also try to be there.  I think it would be preferable for the Government to wait so the most people can participate, but I have no control over the matter. 

Making this successful has been my focus, and I have suggested a whole lot of solutions over the last week to that end: immediately doing a poll and getting a specific date and time; declaring a different month of recess; issuing a PD to suspend requirements for once; or using a pro forma session now and doing a real one next term.

The TNC is all about participation and activity and having fun.  Those are our priorities.  We'd like to attend a Living Cosa because it seems like it might be fun for a good number of folks.  This doesn't need to be contentious -- it should all really be very low-stakes.  Let's just plan something we can all attend.