Advisory Opinion Removal Amendment

[Breneir Tzaracomprada]

Whereas, presently the King, Seneschal, and Secretary of State can request an advisory opinion from the Cort pü Inalt, and

Whereas, presently the Government's chief legal advisor, the Avocat-Xheneral, nor the principal originators of legislation-members of the Ziu, can request an an advisory opinion from the Cort pü Inalt, and

Whereas, by removing this advisory opinion we can adopt a preferable "case or controvery" approach to legislative consultation rather than using them as "ad-hoc lawmaking."

Therefore, be it enacted by the Ziu of the Kingdom of Talossa, that Article VIII, Section 6 of the Organic Law, which currently reads as:

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

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

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. 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.

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

Notwithstanding any contrary proscription, the King, the Secretary of State, or the Seneschal 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 Judges after any necessary recusal, there lacks a live case or controversy that would otherwise determine the issue, and there is a reasonably need for resolution of the question.

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.

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.

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

Is amended to read as follows:

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

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

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. 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.

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

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.

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.

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

Uréu q'estadra så
Breneir Tzaracomprada (MC-Green)

[Sir Ian Plätschisch]

I strongly caution against this.

While I have never been in support of advisory opinions, I do see the logic in the case of executive officials such as the Seneschal, the King, and (most especially) the Secretary of State. If someone must make a decision in the course of their duties, and they are truly concerned that decision will be challenged (causing a huge headache), I get why advance guidance is appreciated.

The same does not apply to any old MZ who just wants to humor their curiosity in the absence of a live controversy.

[Breneir Tzaracomprada]

I strongly caution against this.

While I have never been in support of advisory opinions, I do see the logic in the case of executive officials such as the Seneschal, the King, and (most especially) the Secretary of State. If someone must make a decision in the course of their duties, and they are truly concerned that decision will be challenged (causing a huge headache), I get why advance guidance is appreciated.

The same does not apply to any old MZ who just wants to humor their curiosity in the absence of a live controversy.

Do you support allowing the A-X to seek an advisory opinion?

[Baron Alexandreu Davinescu]

Advisory opinions should be minimized as much as possible.  In many countries, they are used as a method of ad hoc lawmaking.  I'd prefer advisory opinions be removed completely, and instead use a "case or controversy" standard.

[Breneir Tzaracomprada]

Advisory opinions should be minimized as much as possible.  In many countries, they are used as a method of ad hoc lawmaking.  I'd prefer advisory opinions be removed completely, and instead use a "case or controversy" standard.

Removing the advisory opinion entirely is an option I had not considered and I would support if it means creating the new approach you describe. I will edit the current proposal to that effect now.

[Baron Alexandreu Davinescu]

This change would ensure that a lawsuit could be brought only when there was a live case or controversy. The court would only hear a case if there was some existing problem that they could solve, in other words. I think it's a problem because it makes the judiciary into an ad hoc legislature that is only presented with one side before making their ruling, rather than an adversarial process.

Such a change kind of seems like the opposite of what you were going for, which was expanding the advisory opinion role in which authorized people can just ask the court to rule about something that's not in front of them. So I'm very surprised to hear you say that.

[Breneir Tzaracomprada]

This change would ensure that a lawsuit could be brought only when there was a live case or controversy. The court would only hear a case if there was some existing problem that they could solve, in other words. I think it's a problem because it makes the judiciary into an ad hoc legislature that is only presented with one side before making their ruling, rather than an adversarial process.

Such a change kind of seems like the opposite of what you were going for, which was expanding the advisory opinion role in which authorized people can just ask the court to rule about something that's not in front of them. So I'm very surprised to hear you say that.

You may find this hard to believe, Alexandreu, but I do find calm, logical arguments persuasive. You presented an alternative which persuaded me.

[King Txec]

As someone who has been in all three roles that permit advisory opinions, my thoughts are that while it may be seen by some as ad hoc legislating, these types of opinions are definitely useful in certain cases. Not every official has an attorney on staff, and not every official is an attorney. I would support removing so-called advisory opinions but it would be useful if someone like the Chancellor or the Bar or some other lawyerly type was available to provide guidance in cases that don't rise to the high bar of the Cort pu Inalt.

On the other hand, this removal also gives even less work to the already very light work of the Cort. Just some thoughts from one who has been at all levels, including the Cort.

-Txec R

[Breneir Tzaracomprada]

I would support removing so-called advisory opinions but it would be useful if someone like the Chancellor or the Bar or some other lawyerly type was available to provide guidance in cases that don't rise to the high bar of the Cort pu Inalt.

-Txec R

I think this is a fantastic idea and I'm wondering if it might be achieved by internal government policy. Assuming the removal of the advisory opinion the alternative advice mechanism might not need additional legislation.