The Appeals Act

[Baron Alexandreu Davinescu]

The Appeals Act

WHEREAS there's no limit on appeals, so no case is ever really closed unless every appeal is exhausted, and

WHEREAS it's wildly unjust for a resolved case to hang over someone's head indefinitely, and

WHEREAS the corts have not established a rule about this

THEREFORE a new provision shall be inserted as the fifth subsubsection to the first subsection of the third section of Title G of el Lexhatx, reading

There is a 90-day statute of limitations on all appeals.

Uréu q'estadra så:
Baron Alexandreu Davinescu (MC-TNC)

[Baron Alexandreu Davinescu]

This bill is withdrawn, as the Cort has acted with astonishing rapidity to address the issue.

[Üc R. Tärfă]

Wouldn't be better to have it fixed by law instead?

[Baron Alexandreu Davinescu]

When I initially discussed this bill, I said that I would not have proposed it if there was a cort rule addressing the topic. Currently, I think it's barely legal to legislate on the matter at all, and it comes down to a case-by-case basis for individual provisions about whether or not there is organic backing for laws about cort administration. It is almost certainly not organic right now for us to purport to overrule any cort decision on procedure. We can say that there has to be a law protecting to process or speedy justice under the Covenants, but that doesn't really hold true if such a rule already exists.

So with the advent of that rule, I don't think this bill would be organic, plus I am honorbound to keep my word.

[Viteu]

I would tread carefully with passing legistlation (or even an Organic amendment) dictating what a co-equal branch can and cannot do.

*edit -- this isn't a threat but only a concern that the balance of power between bracnches and an independent judiciary are essential.

[Baron Alexandreu Davinescu]

Well, I guess I agree that we should be careful, S:reu Cadì, but there's a very long history in Talossa of the Ziu dictating the terms under which the corts shall operate.  It was just a few years ago that you yourself wrote and sponsored a wholesale revision to Title G (https://wittenberg.talossa.com/index.php?topic=645.0), which itself includes the current laws regulating appeals.  Surely if it was permissible then, it's permissible now.

[Sir Txec dal Nordselvă, UrB]

I'm working to get this bill removed from the Clark. Hopefully MPF will get to it in time.

[Üc R. Tärfă]

Coming from a civil law system I don't really understand/share many of your point of views (especially the American one because at least in the UK there's parliament supremacy) because we have a different understanding of how a judicial system works. And this has always been a problem for talossans like me, because you all take things for granted that for us are not: there is a very large knowledge deficit with regard to this issue.

[Miestră Schivă, UrN]

Coming from a civil law system I don't really understand/share many of your point of views (especially the American one because at least in the UK there's parliament supremacy) because we have a different understanding of how a judicial system works. And this has always been a problem for talossans like me, because you all take things for granted that for us are not: there is a very large knowledge deficit with regard to this issue.

I think we need a full and open debate on this topic. We all want an independent judiciary - but I think we need to determine if the Talossan judiciary really is a "co-equal branch of government" with the King, Cosa and Senäts in Ziu assembled, under our Organic Law - and whether it should be, whether it is or not.

There is a huge problem that US Americans are often barely aware that other forms of government/judicial procedure exist, or that they're not inherently inferior to the US constitution, and so Talossans from US America tend to be surprised when US ways of doing things are not accepted by all as a default. Of course, Talossan jurisprudence is always going to be US-flavoured as long as we are a common law system, just because almost all our CpI Justices have been US Americans. But everything is subject to the Organic Law.

[Viteu]

Well, I guess I agree that we should be careful, S:reu Cadì, but there's a very long history in Talossa of the Ziu dictating the terms under which the corts shall operate. 

I'm aware. And there are a plethora of reasons for this tradition. Off the top of my head—

-IMHO, Talossa seems to have a penchant for trying to replicate the UK model of parliamentary sovereignty and fusion of powers within a US framework of constitutional supremacy and separation of powers. In other words, at times, Talossa wants to be like the UK but just cannot seem to quit the US.

-Most of the time, Talossans cannot be bothered to check what the Organic Law says, and this often translates into the Ziu acting closer to Parliament than Congress. Of course, when we don't like something, it's time to run to the Organic Law.*  (I'm being vague and generalizing.)

*Sidebar—while I put forth an argument questioning the premise of the Legal Repair Act, I loved that you bothered to check and propose a fix to what you perceived was a constitutional issue.

-Many Talossans do not understand, are uninterested, or do not care about how the courts function or their role.  The corts are rarely used, so it's easy to miss questionable legislation.

-We enact legislation for items that ought to be administrative law (i.e. Ministries enacting rules and regulations), and the 1997 Organic Law had items better suited for statutory law.  This likely stems from our small population (i.e not enough people to do different jobs), and that most of our active citizens are MZs. 

-Some do not care or appreciate the separation of powers, maybe because it bores them or the view it as unnecessary given our small size.

I did not say that the Ziu lacks authority to enact legislation concerning the time to take an appeal, I cautioned to tread carefully when one branch seeks to dictate what a co-equal branch can and cannot do. Whether the Ziu can enact legislation that governs the Judiciary depends on what it is trying to legislate.  Not to mention, the Ziu has broad authority to regulate most aspects of the General Cort because it is a creature of statute, which is similar to the fact that Congress can regulate the Federal District Courts and Federal Courts of Appeals because Congress created those courts, but Congress has very limited authority to regulate the Supreme Court because it is a co-equal branch established by the constitution. 

It was just a few years ago that you yourself wrote and sponsored a wholesale revision to Title G (https://wittenberg.talossa.com/index.php?topic=645.0), which itself includes the current laws regulating appeals.  Surely if it was permissible then, it's permissible now.

This is a gross misrepresentation of what I did and, I dare say, a patent lie.

You leave out that I said it was not a reform bill, did not change substantive areas except those I identified, and was only meant to cut out fat.

You conveniently gloss over that I said, "It is not my admission that I view any part as wholly Organic, that I agree with the law as written, or that I concede authority.  I'm a sitting Judge on the Uppermost Cort, so I want to be explicitly clear that there may be parts that are outside of the Ziu's authority.  But, again, this is not the place for that debate.  If I start nitpicking, we will get buried in those arguments and no changes will be made.  So I set aside my personal opinions in the spirit of a simple recodification act under the presumption that no one understands this to mean my tacit approval of any part of the legislation, only my thought on how to clean it up."

Let's look at the relevant sections.

Lex.G.3. Appeals and Tribunals. was recodified from Lex.G.4. I said, "I don't believe I made many changes, if anything beyond a typo fix, here."

The actual text is largely from 43RZ3 (drafted and sponsored by Capt. T.M. Asmourescu) with 53RZ22 (drafted and sponsored by by Ian Plätschisch) adding some language.

Lex.G.4. The Clerk of the Corts was recodified from Lex.G.5, and this is said were the only changes "Courts -> Corts, and I believe I made it the Clerk of THE Corts for consistency."

The actual text is from 42RZ4 (drafted and sponsored by Capt. T.M. Asmourescu).

To further illustrate how much I didn't change, you can compare pre-recodification Title G to post-recodification Title G.

I did not write a wholesale revision to Title G. I drafted a recodification bill with great effort to make as little changes as possible, and certainly fixing typos or changing court to cort for consistency are not substantive revisions of the relevant parts.

Not to mention, those statutes were adopted back in 2011 when the article in the Organic Law concerning the corts looked very different.

It bears repeating that I was unequivocal that the bill was not my admission that it is wholly Organic, that I agreed with the law as written, or that I conceded authority, and that there may be parts outside of the Ziu's authority.

Surely this means that my straightforward recodification of Title G was not an admission of permissibility.

[Viteu]

Coming from a civil law system I don't really understand/share many of your point of views (especially the American one because at least in the UK there's parliament supremacy) because we have a different understanding of how a judicial system works.

I have absolutely no idea what civil law v. common law has to do with this issue. 

I feel confident that civil law countries have written constitutions, and that those constitutions establish independent judiciaries. (Although I will recognize countries have their own way of doing things.)  I think that I'm safe in saying that many countries with civil law systems have constitutions that enshrine the separation of powers. 

Or am I mistaken and civil law countries don't have constitutions, there is no separation of powers but rather fusion of powers, and that the court systems are not independent and can be controlled by the whims of the legislature?

The differences between the common law and civil law systems are not as vast as people think, and while there are differences, the results tend to align.

Whether Talossa should adopt a civil law system is not at all relevant to the question of to what extent, if any, the Ziu can regulate the Uppermost Cort.  I feel like any time there is a discussion about the Talossan court system, people are quick to bring up the civil law-common law issue without stopping to think, "is it actually germane?" 

I also do not get why you think parliamentary sovereignty is a good thing? Like the UK likes to think it has an independent judiciary (at best I'd say it's quasi-independent because of the respect for convention), but any court that can be abolished at the whims of Parliament isn't truly independent, is it?

Although the Organic Law clearly favors constitutional supremacy and separation of powers à la the US framework, Talossans seem to teeter between that and parliamentary sovereignty à la the UK model  because of, in my estimation, convenience, romanticization, laziness, or ignorance. 

I've long advocated that Talossa should look more to the Australian model, which is much closer to our framework than the US or UK (also, the 1997 Organic Law was modeled after the Australian Constitution).  On the issue of the judiciary, however, Australia is closer to the US. 

And this has always been a problem for talossans like me, because you all take things for granted that for us are not: there is a very large knowledge deficit with regard to this issue.

I think you need to give yourself a bit more credit—if you can read the Organic Law and understand that the Organic Law is supreme and sets the parameters i nwhich the Ziu and CpI can act, then there is not as much of a knowledge deficit as you think. The civil law-common law question is not relevant or informative here.

[Baron Alexandreu Davinescu]

Yeah, I agree with most of your reasons about why people struggle with this.  Most people don't actually know their own system of government that well in terms of the principles involved (although Talossans punch above their weight in that regard, as a rule).  Here, we're talking about also knowing the principles involved in a very different system, plus our own fast-changing system.

The Talossan system is like someone took a photocopy of a photocopy of the US Constitution and stuffed it together with a madman's account of 19th century Britain.

It's glorious.

It was just a few years ago that you yourself wrote and sponsored a wholesale revision to Title G (https://wittenberg.talossa.com/index.php?topic=645.0), which itself includes the current laws regulating appeals.  Surely if it was permissible then, it's permissible now.

This is a gross misrepresentation of what I did and, I dare say, a patent lie.

You leave out that I said it was not a reform bill, did not change substantive areas except those I identified, and was only meant to cut out fat.

Well, yes, I did leave that out.  None of that is relevant.  The breadth of the ennumerated powers of the Ziu to enact legislation doesn't expand to accommodate our good intentions.  If it's Organic for the Ziu to set a limit on appeals, then that's true whether or not we're cutting fat.

I'm not trying to give you a hard time.  I know you were just trying to limit the scope of your changes and make it all read like a cohesive whole.  And you didn't actually change a lot of those things you consider questionable.  But that bill still represented a positive affirmation by the Ziu of their authority to legislate on those topics.

Imagine that the appeals provision was challenged on the basis of a flaw in the original legislation, back when the appeals limit was created.  Let's say that the bill didn't actually pass because the Secretary of State got drunk and miscounted the votes.  And now someone wants to appeal their conviction for being a Floridian after five years, and says that the limit on appeals never really became a part of the law.  Is a cort going to agree with him?  No, they'd note that the Ziu passed the same language in your bill.

I don't think you did wrong by not fighting over every point, and also it was absolutely the sane thing to do.  I did the same thing with el Lexhatx, which is why the stupid sanctuary thing is still in the law: we just slapped all the dozens of laws together into one weird casserole.

And I don't want to make too much of this, either way.  I think this instance of judicial oversight is fine, and I think we'll hopefully make it doubly fine by allowing the Ziu to explicitly do this sort of thing.  Even more, I think it's probably downright good for the CpI to actively promulgate rules about its own operations. 

There's a lot more here that we agree on than disagree, so let's just leave this particular point alone.

[Viteu]

Coming from a civil law system I don't really understand/share many of your point of views (especially the American one because at least in the UK there's parliament supremacy) because we have a different understanding of how a judicial system works. And this has always been a problem for talossans like me, because you all take things for granted that for us are not: there is a very large knowledge deficit with regard to this issue.

I think we need a full and open debate on this topic. We all want an independent judiciary - but I think we need to determine if the Talossan judiciary really is a "co-equal branch of government" with the King, Cosa and Senäts in Ziu assembled, under our Organic Law - and whether it should be, whether it is or not.

There is a huge problem that US Americans are often barely aware that other forms of government/judicial procedure exist, or that they're not inherently inferior to the US constitution, and so Talossans from US America tend to be surprised when US ways of doing things are not accepted by all as a default. Of course, Talossan jurisprudence is always going to be US-flavoured as long as we are a common law system, just because almost all our CpI Justices have been US Americans. But everything is subject to the Organic Law.

While I tend to agree with your point about United Statesian in general (and I'd wager it's true for most people in other large countries in that I doubt the most people in Brazil, China, Russia, or India know or care that other forms of government/judicial procedure exist), I think it's unfair to say that about Talossans.  Also, Louisiana is a civil law jurisdiction, so most US lawyers know of the system like many attorneys in civil law countries have heard of the common law.  The average lawyer in either jurisdiction will probably not understand the other system. So let's be fair here.

I will also mention that Org.L.VIII.1 is virtually identical to US Const. art. III § 1, and VIII.2 is a truncated version of art. III § 2 (although similar, there are key differences).  Further, it makes sense that we inherited the US common law in much the same way the US inherited it from the UK.  So yes, Talossan  jurisprudence is influenced by the US for the reason you stated but also because the constitutional provisions are similar.  But I still think our framework is somewhere between the US and Australia.

I'll repeat what I said above—the civil law-common law question is not at all relevant to whether the Ziu can control the CpI.  Not to mention, the two systems are not as different as people like to think and they tend to reach the same result.

[Viteu]

But that bill still represented a positive affirmation by the Ziu of their authority to legislate on those topics.

. . .

There's a lot more here that we agree on than disagree, so let's just leave this particular point alone.
[/quote]

No, it isn't. But i'll drop it.

[Miestră Schivă, UrN]

The Talossan system is like someone took a photocopy of a photocopy of the US Constitution and stuffed it together with a madman's account of 19th century Britain.

It's glorious.

This quote deserves a Hall of Fame entry.