Special Commission on the Judiciary (bill as passed by RA)

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sat Dec 09, 2006 5:46 pm

[quote="Beathan":2tzx2yyi]With regard to my argument that common sense requires that the SC be able to review acts of the Judiciary for reasonableness. Ash asks, why should this check apply to judges and not to the SC. Well, first, we have far more reason to believe that the SC will be reasonable given its membership than we have given the membership and prospective membership of the Judiciary. "Reasonable" is surely one of the words that springs to mind if someone is asked to describe Gwyn. I'm not sure that the word would even make the list of people asked to describe me, or Ash, or Michel, or any other judicial hopeful (official or unofficial). (Except the new member, Oni, who Justice described to me as "reasonable" by way of contrast.) [/quote:2tzx2yyi]

A personal assessment of the character of judges is certainly not any conceivable basis upon which the Scientific Council can or should interpret the constitution, and I do not appreciate this sort of personal attack, which is quite improper, and in breach of forum moderation guidelines.

Beathan · Post by **Beathan** » Sat Dec 09, 2006 5:50 pm

Ash --

I know it is after midnight where you are. However, please reread my post. I was not talking about appeals. I was talking about your interpretation of your duty, as a CDS judge, to follow RA ratified Acts. In your post, you seem to indicate that a judge can disregard an act with impunity provided he willfully misinterprets it or simply ignores it. You indicated that a judge could be reviewed and reversed only if the judge "expressly purports to disapply" the Act. As a standard of judgment, this is wrong, silly and horrifying all at once.

With regard to whether my post breached forum guidelines, merely because I called for your impeachment as a matter of public concern, I request a ruling from the moderators. Is it appropriate for a citizen, on these forums, to call for impeachment of a public officer and to state reasons therefor, even though those reasons, because the impeachment process is personal, must be personal or particular to the officer involved?

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sat Dec 09, 2006 5:56 pm

[quote="Beathan":3dvepbpw]This is Krytocracy in its boldest form. This theory is irresponsible and antithetical to any constitutional union of balanced arms of government. This theory is so dangerous to the CDS as a democratic society that I call on the present government to institute proceedings to remove Ash from his office. [/quote:3dvepbpw]

Are you seriously suggesting that a judge should be impeached for no more than [i:3dvepbpw]citing the text of the constitution[/i:3dvepbpw]?

Publius Crabgrass · Post by **Publius Crabgrass** » Sat Dec 09, 2006 5:58 pm

[quote="Beathan":n4u5vqh5]I'm not sure that the word would even make the list of people asked to describe me, or Ash, or Michel, or any other judicial hopeful (official or unofficial). (Except the new member, Oni, who Justice described to me as "reasonable" by way of contrast.) [/quote:n4u5vqh5]Context is everything, Beathan. I recently described Oni to you as seeming to be "reasonable" compared to [i:n4u5vqh5]you[/i:n4u5vqh5], not Ash or Michel.

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sat Dec 09, 2006 6:01 pm

[quote="Beathan":2hu548i2]I know it is after midnight where you are. However, please reread my post. I was not talking about appeals. I was talking about your interpretation of your duty, as a CDS judge, to follow RA ratified Acts. In your post, you seem to indicate that a judge can disregard an act with impunity provided he willfully misinterprets it or simply ignores it. You indicated that a judge could be reviewed and reversed only if the judge "expressly purports to disapply" the Act. As a standard of judgment, this is wrong, silly and horrifying all at once. [/quote:2hu548i2]

And I suggest that you re-read the consitution: the part about expressly purporting to disapply is [i:2hu548i2]written in the constitution[/i:2hu548i2]. It is not my interepretation: it is a quote.

[quote:2hu548i2]With regard to whether my post breached forum guidelines, merely because I called for your impeachment as a matter of public concern, I request a ruling from the moderators. [/quote:2hu548i2]

Again, you grossly misrepresent what I wrote. Stating that I am an unreasonable person in general is an attack on character, and forbidden by forum moderation guidelines.

Beathan · Post by **Beathan** » Sat Dec 09, 2006 6:02 pm

Publius --

Fair enough. Sorry for misunderstanding you -- and misattributing the conversation to Justice. I was also overlooking you when I described Justice as "the only reasonable lawyer in the CDS." With you, Oni, and Justice, we now have three.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sat Dec 09, 2006 6:06 pm

[quote="Beathan":1fa2d6kj]Fair enough. Sorry for misunderstanding you -- and misattributing the conversation to Justice. I was also overlooking you when I described Justice as "the only reasonable lawyer in the CDS." With you, Oni, and Justice, we now have three.[/quote:1fa2d6kj]

Do you consider everybody who disagrees with you "unreasonable"?

Beathan · Post by **Beathan** » Sat Dec 09, 2006 6:11 pm

Ash --

No. Please note that I don't place myself in the "reasonable lawyer" list. Personally, I think that I am reasonable. However, I know that our current conflict has the appearance of two people being unreasonable and of talking passed each other (or yelling passed each other). We have each been called "pigheaded" and worse. I don't think this disagreement, as important and well-meant as it is, has done either of our reputations any good.

However, I note that as a private person, my poor reputation harms no CDS institution. Yours, however, casts the judiciary itself into disrepute. I hope that the future will give us each a real opportunity to restore our reputations and prove that we deserve respect. Until then, I have to privilege those attorneys who have stayed above the fray (Justice and Publius) and those too new to have been tainted (Oni) over those of us who have dogs in this fight.

Beathan

Publius Crabgrass · Post by **Publius Crabgrass** » Sat Dec 09, 2006 6:15 pm

No offense taken or meant. I was just making the point that the sides of this debate (Ash and Beathan) could both be viewed as taking unreasonably polar opposite positions (not that the people are necessarily unreasonable), but I haven't seen that from Oni here.

Surely there is some room for compromise when reasonable people act reasonably, or as Rodney King famously said, "Can't we all just get along"?

Beathan · Post by **Beathan** » Sat Dec 09, 2006 6:21 pm

Publius --

Surely you are right. Surely this Act is that compromise -- at least insofar as procedure is concerned. Surely, as chair of the PJSP, you are in the best position to enact somesuch compromise on judicial qualification and appointment.

I hear your point, accept it, and agree with it. For that reason, I withdrew my intent to seek judicial office in the same post in which I entered the fight against the Judiciary Act. I think that the reasonable compromise can be best seen from a viewpoint outside the Act.

Beathan

Beathan · Post by **Beathan** » Sat Dec 09, 2006 7:59 pm

Ash --

As Publius states, context is everything. The phrase "expressly purports to disallow" appears in the following, which is a limitation of the SC's jurisdiction to hear appeals. The SC shall not hear an appeal on the ground "that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); " I note that disapply is a highly technical term meaning "To decline to apply a rule or law that previously applied."

On this ground, I note that the limitation does not apply when a Constitutional question -- including a question of the Judiciary's failure to act as required (to act reasonably), or a question that the Judiciary has failed to provide something necessary to its constitutional administration of justice (appeals), or a question concerning the Judiciary's Constitutionally suspect disregard of an Act of the RA which regulates the Judiciary.

With regard to the SC, I note that the Judiciary Act states that "The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly." This means that the SC has the authority to hear appeals under this Act of the RA -- because that authority was given it by a duly ratified Act of the RA. Also, this provision means that the SC fully retains its Constitutional jurisdiction, which includes the entire scope of powers set forth in its description as "The Scientific Council (SC) is a self-selected meritocracy. Its governmental role is to interpret and enforce the constitution. Its service roll is to resolve citizen disputes and moderate user forums and events." (This section of the Constitution survived the Judicial Act's wholesale repeal of other sections.) Thus, even under the Judiciary Act, the SC still has full jurisdiction to resolve Constitutional matters. (It even retains full jurisdiction to hear and resolve "citizen disputes". I submit that this means that the Courts of Common Jurisdiction only have exclusive original jurisdiction to hear disputes involving noncitizens under paragraph 16 of the Judiciary Act. All citizens retain a right to seek direct dispute resolution from the SC. This will be an unpopular interpretation -- but it is one to which I am forced by the plain language of the Judiciary Act.)

With regard to the RA, I note that the Judiciary is expressly subject to ratified Acts of the RA, just as the SC is. "Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings. " Thus, the Judiciary Act specifically subjects the Judiciary to the superior authority of procedural acts ratified by the RA. The current Procedure, under the Commission Act, is just such an act.

Thus, both in its restriction of the Judiciary and in its empowerment of the SC relative to the Judiciary, the Commission Act is Constitutional.

Flyingroc, I know that this is exactly not the simple statement you requested. I will try to think of a way to put these points more simply --and in nonlegalese. Perhaps, the simple statement is that the RA has the power to pass general Acts, and it did so. These acts are presumed to be Constitutional. Only the SC can find them unconstitutional, and then only if they violate the plain language of a clear text in the Constitution. There is no such violation here. On the contrary, the Constitution clearly allows the RA to pass this kind of statute and to define processes for the Judiciary and the expand jurisdiction of the SC sitting as a court. Further, on the plain meaning of the Constitution and the Judiciary Act, the SC, as a court, retains judicial power over all cases involving a citizen dispute or a Constitutional question. Only noncitizen cases are excluded from SC jurisdiction except its limited appellate jurisdiction under the Judiciary Act.

In other news -- good news folks, the SC is everything it ever was, and more, because it is no longer limited by the repealed parts of Constitution, but can do (under the Judiciary Act) whatever it thinks is necessary to fulfill its Constitutional function.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 3:31 am

[quote="Beathan":297gueou]As Publius states, context is everything. The phrase "expressly purports to disallow" appears in the following, which is a limitation of the SC's jurisdiction to hear appeals. The SC shall not hear an appeal on the ground "that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); " I note that disapply is a highly technical term meaning "To decline to apply a rule or law that previously applied."

On this ground, I note that the limitation does not apply when a Constitutional question -- including a question of the Judiciary's failure to act as required (to act reasonably), or a question that the Judiciary has failed to provide something necessary to its constitutional administration of justice (appeals), or a question concerning the Judiciary's Constitutionally suspect disregard of an Act of the RA which regulates the Judiciary.[/quote:297gueou]

This is the same argument that you have made before and I have addressed before. It is not the text of the constiutiton that requires the Courts of Common Jurisdiction to act reasonably, so it is not within the ambit of the Court of Scientific Council's jurisdiction to allow an appeal on that basis. See above for the detailed arguments that I have already presented, and you have ignored, in support of that contention.

[quote:297gueou]With regard to the SC, I note that the Judiciary Act states that "The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative
Assembly." This means that the SC has the authority to hear appeals under this Act of the RA -- because that authority was given it by a duly ratified Act of the RA.[/quote:297gueou]

That argument is circular, since it says nothing about which acts should be ratified. No unconstitutional act may be ratified. Any act that purports to give the Court of Scientific Council a power expressly disallowed by the constitution is unconstitutional. This Act does just that.

[quote:297gueou](It even retains full jurisdiction to hear and resolve "citizen disputes". I submit that this means that the Courts of Common Jurisdiction only have exclusive original jurisdiction to hear disputes involving noncitizens under paragraph 16 of the Judiciary Act. All citizens retain a right to seek direct dispute resolution from the SC. This will be an unpopular interpretation -- but it is one to which I am forced by the plain language of the Judiciary Act.)[/quote:297gueou]

If you think that this is a concievably possible interpretation, what meaning can the following have?

[quote="The constitution":297gueou]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: â€“

(a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: â€“

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council. [/quote:297gueou]

If the meaning was the perverse meaning that you suggested, the above would have no effect, would it? Any such interpretation would be deliberately ignoring an express part of the constitution, would it not? And any such interpretation for that reason would be deliberately dishonest, would it not?

[quote:297gueou]With regard to the RA, I note that the Judiciary is expressly subject to ratified Acts of the RA, just as the SC is. "Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings. " Thus, the Judiciary Act specifically subjects the Judiciary to the superior authority of procedural acts ratified by the RA. The current Procedure, under the Commission Act, is just such an act.[/quote:297gueou]

Again, you totally miss the point, since that tells us nothing about which acts should be ratified.

[quote:297gueou]In other news -- good news folks, the SC is everything it ever was, and more, because it is no longer limited by the repealed parts of Constitution, but can do (under the Judiciary Act) whatever it thinks is necessary to fulfill its Constitutional function. [/quote:297gueou]

It is extremely fortunate for all the citizens that you did not become a judge here, given your desire to ignore the language of the constitution and "interpret" the law to whatever you want it to be, come what may.

Patroklus Murakami · Post by **Patroklus Murakami** » Sun Dec 10, 2006 4:17 am

After careful consideration of the posts in this thread, the Act passed by the Representative Assembly yesterday and the Judiciary Act I've come to the conclusion that Rule 3 of the revised Code of Procedure is unconstitutional. My recommendation to the SC when they meet later today is to strike out "but such pretrial order may be immediately appealed to the Scientific Council, which may reverse, remand, or amend any order that it deems unreasonable." from Rule 3.

Rationale:
The Judicary Act amended the Constitution with the following text "17. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings." It is on this basis that Justice's Bill, passed by the RA yesterday, overturns the Code of Procedure (5th of December version) which Ash issued on 6 December. The RA is within its constitutional rights to overturn the Code of Procedure (I don't think this point is disputed) and has provided an alternative.

The problem arises in Rule 3 because the Bill seeks to provide a right of appeal to the Scientific Council which contradicts the provisions of the Constitution on this point. The Constitution, as amended by the Judiciary Act, is quite clear. The Scientific Council, when sitting as the Court of Scientific Council, may only receive appeals in a limited number of circumstances. (These are laid out in Article III, Section 8 Powers of the Scientific Council).

In order to change this to make Rule 3 applicable, the RA would need to pass a Constitutional Amendment altering the part of the Constitution referred to above. The change cannot be made with a Bill.

Beathan has interpreted a number of other sections of the Constitution as giving the SC wider powers to receive appeals or which would, in some other way, make this provision constitutional.
[quote="Beathan":3j2mxb9m]With regard to the SC, I note that the Judiciary Act states that "The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly." This means that the SC has the authority to hear appeals under this Act of the RA -- because that authority was given it by a duly ratified Act of the RA.[/quote:3j2mxb9m]The key phrase here is 'duly ratified'. Unless and until the Bill passed yesterday is ratified by the SC it is not in effect. The SC is duty bound to consider the Bill and judge whether it is constitutional. Rule 3 of the revised Code of Procedure is not and must be struck out for the reasons outlined above. In order to 'make such orders as is necessary' for the SC to acquire this power the SC would have to order the RA (a polite request might be better ) to come forward with a Constitutional Amendment to provide the necessary authority for Rule 3 to take effect.

Beathan goes on to say that because this section "The Scientific Council (SC) is a self-selected meritocracy. Its governmental role is to interpret and enforce the constitution. Its service roll [i:3j2mxb9m]sic[/i:3j2mxb9m] is to resolve citizen disputes and moderate user forums and events." remains in the Constitution, that the Judiciary only has the exclusive right to resolve cases involving non-citizens and that CDS citizens have the right to have their disputes resolved by the SC. This is clearly contrary to the provisions of the Judiciary Act which stated that the Courts of Common Jurisdiction are charged with resolving such disputes (Art VII, Section 9) 'subject to any powers of the Scientific Council when sitting as a court'. In other words, the SC retains its service role, but within the context of our newly developed legal system.

Publius Crabgrass · Post by **Publius Crabgrass** » Sun Dec 10, 2006 8:54 am

Pat,

As to Beathan's argument that attempt to limit the Court of Common Jurisdiction to the uncommon disputes brought to it, I fully agree. The intent of the Judiciary Act is clearly to provide a mechanism for citizen disputes, leaving the SC to other (and higher) duties.

As to the constitutionality of the new rules, and in particular Rule 3, I would be inclined to agree with you [i:3sp650xj]if the judiciary had established a meaningful system of appellate review[/i:3sp650xj]. The Chief Judge argues elsewhere that as of right now he must be the sole judge of whether he is acting reasonably, since the SC's appellate jurisdiction is narrowly tailored to higher constitutional questions. I happen to believe that judidical unreasonableness=unconstitutionality.

A judicial system that allows its sole judge the unchecked discretion to be the sole decider of whether that same judge is acting reasonable is not an appropriately functioning system. Since there is only one judge at the moment, and no appellate review within the judicial system, this leaves the SC as the guardian of the rule of reason. (Or, to quote a signature line oft sighted in these forums, "We do not permit a man to rule, but the law""). The SC's declaration that its duty to supervise the impelementation of the judiciary was a bit premature. Its role is still needed until there is an intermediate court for appeals and our judiciary is more than a one-man-band. Then the RA could and probably should amend Rule 3, or the SC could safely decline to accept any Rule 3 appeals.

The SC should conclude that the Special Commission bill is constitutional, reserving the right in the future exercise of its appellate function to conclude that appeals about unreasonable judges may be unconstitutional [i:3sp650xj]as applied[/i:3sp650xj] if the judiciary establishes a meaningful system of appellate review.

Flyingroc Chung · Post by **Flyingroc Chung** » Sun Dec 10, 2006 9:13 am

I'm compiling the stuff people sent me overnight (and agreed to have it made public) [url=http://aliasi.us/nburgwiki/tiki-editpage.phpl:kpnzyjwy]here[/url:kpnzyjwy].

Hope people find it useful.