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

[Patroklus Murakami]

[quote="Publius Crabgrass":18b9ze0b]As to the constitutionality of the new rules, and in particular Rule 3, I would be inclined to agree with you [i:18b9ze0b]if the judiciary had established a meaningful system of appellate review[/i:18b9ze0b]. 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.[/quote:18b9ze0b]I'm afraid the question is not whether the Chief Judge is behaving reasonably or not. The question is whether this Bill is constitutionally sound or not. I've based my conclusions on the provisions of the Constitution. Show me where it says, [i:18b9ze0b]in the Constitution[/i:18b9ze0b], that the SC has the right to hear appeals if the Courts of Common Jurisdiction fail to establish an appeals procedure. If you can show me that you have a case; if you can't then this is really an expression of what you would hope to have rather than what we do have.

[quote:18b9ze0b]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.[/quote:18b9ze0b]I agree we need more than one judge. This is a good reason for proceeding with the qualification and recruitment process that has been put in place. If it fails to deliver the two more judges that you have decided need to be in place, we should review the application process.

[quote:18b9ze0b]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:18b9ze0b]as applied[/i:18b9ze0b] if the judiciary establishes a meaningful system of appellate review.[/quote:18b9ze0b]The SC cannot conclude this for the reasons I outlined in my ealier post. If the RA wishes to give the SC wider powers to receive appeals than those determined by the Constitution then it needs to pass a Constitutional Amendment to that effect. We can't 'wish into existence' the system we'd like to have when the Bill that was passed doesn't take into account the actual Constitutional set up.

[Publius Crabgrass]

[quote="Patroklus Murakami":1p4f80il]Show me where it says, [i:1p4f80il]in the Constitution[/i:1p4f80il], that the SC has the right to hear appeals if the Courts of Common Jurisdiction fail to establish an appeals procedure. If you can show me that you have a case; if you can't then this is really an expression of what you would hope to have rather than what we do have.[/quote:1p4f80il]
Here goes:
[quote="Article 8, Section 1":1p4f80il]The Scientific Council (SC) is a self-selected meritocracy. Its governmental role is to interpret and enforce the constitution.[/quote:1p4f80il]
[quote="Article 8, Section 12(emphasis added)":1p4f80il]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 [i:1p4f80il][b:1p4f80il]or any duly ratified Act of the Representative Assembly[/b:1p4f80il][/i:1p4f80il].[/quote:1p4f80il]

[Oni Jiutai]

Since I've packaged my thoughts on this in response to Roc's request for views, I'll link to that:

[url:4gv9y2qi]http://oni-jiutai.name/Note%20on%20SCJA.pdf[/url:4gv9y2qi]

It's in pdf format, because I'm experimenting with LaTex.

[Patroklus Murakami]

Publius

The section you have quoted does not give the SC the right to hear appeals if the Courts of Common Jurisdiction fail to establish an appeals procedure. The section says 'Its governmental role is to interpret and enforce the constitution.' How do you derive from that a right to hear appeals? The Constitution, as amended by the Judiciary Act, is very clear about the limits to the SCs ability to hear appeals. It would be acting [i:4yo1dszf]unconstitutionally[/i:4yo1dszf], according to my analysis, if it were to allow Rule 3 of the revised code of procedure to remain and then receive appeals under that rule.

I have covered the reason why the final section you quote does not apply in my earlier post. Why do you think my argument is faulty? You haven't given any reasons.

[Publius Crabgrass]

[quote="Patroklus Murakami":j7g4tbbh]I have covered the reason why the final section you quote does not apply in my earlier post. Why do you think my argument is faulty? You haven't given any reasons.[/quote:j7g4tbbh]
Wow, that last line looks like the kind of question posed by He Who Needs A Hobby.

However, in reply, I'll refer you back to my observation that unreasonable judicial action is equivalent to unconstitutionality, thereby requiring the SC to interpret and enforce the constitution. If the SC denies an appeal from unreasonable action because it thinks it does not have the authority to do so, so be it, but that does not make the bill unconstitutional.

[Ashcroft Burnham]

[quote="Publius Crabgrass":32jvb0rw]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:32jvb0rw]if the judiciary had established a meaningful system of appellate review[/i:32jvb0rw]. 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:32jvb0rw]as applied[/i:32jvb0rw] if the judiciary establishes a meaningful system of appellate review.[/quote:32jvb0rw]

This is a misconceived argument, since nowhere in the text of the constitution provides no basis for the Scientific Council to conclude that its own view as to reasonableness over-rides the express wording of the constitution. Whatever it believes the situation ought to be as regards appeals, the Council does not have any power to ignore the express words of the constitution, and allow an unconstitutional act merely because it wants to do so. You write that constitutionality entails reasonableness: that is misconceived for two reasons. Firstly, the constitution does not state that, and the Council's appellate jurisdiction is limited to what is provided for by the [i:32jvb0rw]text[/i:32jvb0rw] of the constitution. Secondly, the principle is that the Scientific Council are not the body that has been entrusted by the constitution to safeguard judicial reasonableness in general, as the express and highly explicit language of the constitution makes clear. What the Scientific Council believes is reasonable is no more likely to be actually reasonable than what the Judges of Common Jurisdiciton think is reasoanble.

If the problem is the lack of appeal mechanisms, the solution is for [i:32jvb0rw]you[/i:32jvb0rw] to declare that there should be a second court and a fourth judge, so that we can have appeals between Courts of Common Jurisdiction, as was always intended, not for the Scientific Council to ignore deliberately the express and clear meaning of the words of the constitution merely because its members would like there to be some sort of appeal.

[Ashcroft Burnham]

[quote="Publius Crabgrass":38fcnpmv]However, in reply, I'll refer you back to my observation that unreasonable judicial action is equivalent to unconstitutionality, thereby requiring the SC to interpret and enforce the constitution. If the SC denies an appeal from unreasonable action because it thinks it does not have the authority to do so, so be it, but that does not make the bill unconstitutional.[/quote:38fcnpmv]

This entirely misses the point. Not only does the text of the constitution not provide that unreasonable judicial action entails unconstitutionality, and not only does the text of the constitution provide that the Scientific Council may only allow appeals on grounds stated in the text of the constitution, but the point is, and always has been, that it is not for the Scientific Council to judge the reasonableness of judicial action in general, any more than it is for for Joe Random Avatar to judge (determinatively) the reasonableness of judicial action in general. However important that reasonableness is in general, the constitution does and must set out precise rules about who may adjudicate the reasonableness of others' decisions, in what circumstnaces, and on what bases. This debate is about precisely what those written rules entail as to the powers of the Court of Scientific Council when hearing appeals. Your response merely begs the question of whether the constitution confers upon the Court of Scientific Council the power to adjudicate the general reasonableness of any decision whatsoever of a Court of Common Jurisdiction.

[Beathan]

I am inclined to agree with Publius in principle, if I were only considering the intent, not the plain language, of the Judiciary Act. The intent of the Judiciary Act was to take the judicial function, except the limited appellate judicial function regarding Constitutional issues and balance of power isses, from the SC and give it to the new Judiciary. On this intent, the Judiciary should hear all trials and all initial appeals, while the SC's court-like powers would be limited to special Constitutional appeals.

However, this entire system is made subject to control by the RA -- and that control is necessary to preserve democracy. Judicial independence is preserved by not allowing RA intervention in specific cases. However, democratic control is preserved by giving the RA the penultimate trump (second only to the Constitution) over all matters that act as general rules. For our purposes, right now, the general matter at issue is the court procedure. The Judiciary Act clearly subordinates rules passed by the Judiciary to rules passed by the RA.

With regard to the specific process of review. I agree with Publius as well. First, appellate review is critical -- and the failure to provide for such review is a problem of Constitutional magnitude. On that basis, it is appropriately an issue for the SC under the SC's Constitutional authority. Further, I note that the Judiciary Act specifically allows the RA to pass Acts that give the SC jurisdiction. This is such an Act. Finally, the Judiciary Act specificly gives the SC carte blanche, as a Court, to do whatever actions are necessary to perform its Constitutional duties.

It is this last proviso that I find to be an independent basis for S.C. concurrent trial court jurisdiction with the Judiciary. Concurrent jurisdiction means that they both can hear some cases -- the Judiciary can hear all cases, the SC can hear those cases involving "citizen disputes" and "Constitutional issues". Further,they can hear these cases as trial courts. The Judiciary Act limits the SC appellate court jurisdiction, not its trial court jurisdiction.

As I predicted, this interpretation is unpopular -- largely because it was not only unintended, but contrary to the intent of the Judiciary Act. However, rule of law requires that the meaning of words control, even when those words were misspoken. When such problems occur in legislation, the problems have to be addressed, not ignored. The proper remedy is to seek amendment of the Act to close this loophole, and I submit that the supporters of exclusive Judiciary jurisdiction over trials should seek such amendment, rather than ignore or deny the problem on the ground that it was unintended.

That said, I think that this concurrent jurisdiction could be a godsend. Supporters of the Judiciary and its judges and procedures could use judicial trials to resolve their disputes. Skeptics of the Judiciary could seek relief through S.C. trial. Further, different procedural rules could apply in each system. Simple, commonsense rules could apply in SC trials. Complicated and legalistic rules could apply in Judicial trials. People could pick their own medicine -- and we would all be better off for this freedom of choice.

For that reason, although unintended, I think that the problem I have found with the mechanism that stripped dispute resolution from the SC is a blessed mistake and a real opportunity. I, for one, would cease complaining about the Judiciary, judge selection, and hypertechnical procedure if I knew that, as a citizen, I could protect myself from ever being exposed to those things in practice. Surely, this is a good thing. Surely, even my most inveterate enemies would welcome this opportunity to shut me up and sit me down.

Beathan

[Publius Crabgrass]

[quote="Beathan":1emybilz]Surely, even my most inveterate enemies would welcome this opportunity to shut me up and sit me down.

Beathan[/quote:1emybilz]
Never! I was so looking forward to seeing you and Michel cross swords as advocates in court. I think we could sell tickets - a moneymaker for CDS!

[Beathan]

[quote:iwi4r749]Never! I was so looking forward to seeing you and Michel cross swords as advocates in court. I think we could sell tickets - a moneymaker for CDS![/quote:iwi4r749]

I, too, welcome that prospect -- provided Michel is not acting as an advocate from the bench. I believe that Ash would fairly call the touches in such a bout. Despite my recent call for his impeachment, I think that Ash would make a good judge (although I am more skeptical of his skills as a legislator or administrator). However, I think that, to safely have Ash as a judge, we need some constitutional check on his tendency to give the Judiciary sweeping authority. That is, we need SC appellate review of the Constitutional issues of power distribution and balance in our state.

Beathan

[Beathan]

Out of a desire to keep things simple, which is my goal, but not my strength, I want to offer the following syllogism.

The Judiciary Act gives the SC the authority "12. 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. "

One of the powers conferred upont the SC by the Constitution is to resolve "citizen disputes."

Therefore, the SC has the power to make whatever orders are necessary to resolve citizen disputes when it is asked to resolve those disputes. The only limitation is that the SC must act as a court -- "the Court of the Scientific Council" -- when doing so.

This means that if citizens seek SC resolution of a dispute, the SC can issue procedure and scheduling orders, orders requiring trial or hearing, and orders issuing judgment.

This strikes me as a straightforward, plain language argument that is based on sound logic. Other than that this argument was unexpected and unintended, is there anything wrong with it?

Beathan

[Oni Jiutai]

Is the difficulty that:

[quote:11tn88cx]Its service role is to resolve citizen disputes.[/quote:11tn88cx]

is a description of what the SC is for, rather than a power?

It's powers are Section 8 only surely?

(You know - you guys could have arranged a slightly easier legal conundrum for me to think about first time out)

[Beathan]

Oni, surely governmental institutions are defined by their power. There is no distinction, in this context, between what a thing is and what a thing does. Institutions are what they do. Therefore, if the SC is a governmental institution that resolves citizen disputes, it has the duty to do so. The Judiciary Act gives it the power to do its duty. Therefore, the Judiciary Act gives the SC the power.

I acknowledge that we would be in a world of hurt if the Judiciary did not give the SC this power. That problem is at the core of another debate on these forums -- the current role of, and even the continuing point of, the SC after the Judiciary Act. Fortunately, the Judiciary Act provides it own cure -- giving the SC the power to do whatever it needs to do to perform its Constitutional duties.

I again quote the Judiciary Act [quote:3ms1n4cf]12. 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[/quote:3ms1n4cf]

The power to decide citizen disputes is implied from the duty to resolve those disputes. In other words, ought implies can. It is incoherent to say that someone ought to do something that they cannot do. To make something obligatory, it must first be possible.

Second, I note that the Judiciary Act does not restrict the SC's authority, as a court, to its exercise of powers conferred by the Judiciary Act, or to Section 8 of the Judiciary Act, as Oni asserts. Rather, the Judiciary Act empowers the SC to the extent of the SC's "Constitutional duties." Many of those duties predate the Act and are found in the original and unrepealed text of the Constitution.

I agree that the Judiciary Act could have been written "12. 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 [i:3ms1n4cf]the Judiciary Act[/i:3ms1n4cf]." I think that Ash, Pat and others wish that it had been written this way. If it had been, I would not be able to make the two arguments that I am making: 1. That the RA can empower the SC to hear an expanded range of appeals, as it did here and 2. That the Judiciary Act retains, rather than repeals, the SC's original trial court jurisdiction over citizen disputes.

Beathan

[Ashcroft Burnham]

Beathan, the constitutional power are the powers set out in the text of the constitution. That text does not provide for, and, in fact, expressly prohibits, hearing of appeals from Courts of Common Jurisdiction on any ground other than those expressly specified.

[Beathan]

Ash, I agree that the Judiciary Act limits the appellate jurisdiction of the SC. However, the point is that the Judiciary Act appears to expressly allow the RA to expand that appellate jurisdiction, as it did here. Further, the Judiciary Act does not, on its plain reading, limit the original trial court jurisdiction of the SC when resolving Constitutional questions and Citizen disputes.

The limits on the SC's appellate jurisdiction are limits on just that -- the appellate jurisdiction. They do not limit original trial court jurisdiction.

The Judiciary Act gives the Judiciary the power to hear all trials, but it does not specifically require that all trials be heard by the Judiciary. Concurrent jurisdiction is possible. On the plain reading of the Act, concurrent jurisdiction is actual.

Further, the definition of the SC acting as a Court defines cases in which it does so. It is does not expressly limit that activity only to those kinds of cases. The Judiciary Act states
[quote:5uk2evo0]The Scientific Council shall sit as a court when it exercises, or is considering whether to exercise, its power: –

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.
[/quote:5uk2evo0]

It does not say [quote:5uk2evo0]
The Scientific Council shall sit as a court [i:5uk2evo0] only [/i:5uk2evo0] when it exercises, or is considering whether to exercise, its power: –

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.
[/quote:5uk2evo0]

Again -- the Judiciary Act, on a plain reading, gives the SC appellate jurisdiction that the SC did not have before, but does so on strict limits. It also repeals the Constitutionally prescribed process for SC trials. However, it does not repeal the trial power of the SC. Rather, it mandates that power as a concurrent power, with the general trial power of the Judiciary, for two kinds of cases: 1. citizen disputes and 2. Constitutional matters.

Beathan