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

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 12:31 pm

[quote="Beathan":32a4pa7v]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.[/quote:32a4pa7v]

What part of:

[quote="The Constitution":32a4pa7v]9. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties (who must be residents of SecondLife or bodies corporate, including states, recognised as such by the law of the Confederation of Democratic Simulators, but who need not be citizens of the Confederation of Democratic Simulators): â€“

(a) to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) to make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject to either (i) a party formally accepting, or (ii) a court finding as a fact at a trial held in accordance with law that a party's conduct is culpable, to impose upon that party in respect of that conduct any penalty, including, but not limited to, banishment from any or all territory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset (including debts and other such duties owed thereto), either immediately or suspended on such conditions as the court may prescribe;

(d) to make any non-penal orders such as to give effect to the rights, duties, powers, privileges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person or body on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction in accordance with paragraph (c) above; and

(e) to order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses so to be removed, banished from the Confederation of Democratic Simulators for the duration of that trial or other hearing (and for up to one hour thereafter) on the ground that that person is disrupting court proceedings, improperly interfering with the administration of justice, or attempting to do so.[/quote:32a4pa7v]

do you not understand?

Beathan · Post by **Beathan** » Sun Dec 10, 2006 12:35 pm

Ash --

Well, the kicker point for me is [quote:1flsxco9]Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution[/quote:1flsxco9].

Therefore, this limitation is subject to the concurrent jurisdiction of the SC as a court -- as a trial court.

I have read and reread the Judiciary Act. It never kicks trial jurisdiction out of the SC without bringing it back in. I acknowledge that this is unintentional. That is a problem with complexity. The more complicated something this, the more likely it is to do something unexpected. The more complicated a statute is the more likely it is to have to be rewritten and amended to work out the kinks. However, we cannot ignore the kinks without sacrificing rule of law. Otherwise, we reduce our law, regardless of what it actually says, to what certain people had in mind when they wrote it. "You know what we meant" is never a proper justification for applying a law differently than the language of the law requires.

I am not arguing for the SC to sit as a court except as expressly stated in the Constitution -- as an appellate court on the limited grounds of the Judiciary Act and as a trial court, with concurrent jurisdiction to the Judiciary, for cases involving "citizen disputes" and "Constitutional" questions.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 1:23 pm

[quote="Beathan":1v83zweb]Ash --

Well, the kicker point for me is [quote:1v83zweb]Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution[/quote:1v83zweb].

Therefore, this limitation is subject to the concurrent jurisdiction of the SC as a court -- as a trial court.[/quote:1v83zweb]

Nothing about the [i:1v83zweb]description[/i:1v83zweb] of the function of the Scientific Council expressly states that the Scientific Council may:

(a) make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject to either (i) a party formally accepting, or (ii) a court finding as a fact at a trial held in accordance with law that a party's conduct is culpable, to impose upon that party in respect of that conduct any penalty, including, but not limited to, banishment from any or all territory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset (including debts and other such duties owed thereto), either immediately or suspended on such conditions as the court may prescribe;

(d) make any non-penal orders such as to give effect to the rights, duties, powers, privileges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person or body on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction in accordance with paragraph (c) above; and

(e) order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses so to be removed, banished from the Confederation of Democratic Simulators for the duration of that trial or other hearing (and for up to one hour thereafter) on the ground that that person is disrupting court proceedings, improperly interfering with the administration of justice, or attempting to do so.

That its function is to "resolve citizen disputes" does not entail that its function is to resolve citizen disputes by doing the above: it can resolve citizen disputes just by allowing appeals on the limited grounds, or by having impeachment hearings. That would have to be implied, only the text of the constitution forbids that, by requiring that the power must be express to exist at all. That its function is to "resolve citizen disputes" does not entail that its function is to "resolve [i:1v83zweb]all[/i:1v83zweb] citizen disputes", especially when another part of the constitution explicitly sets out how most sorts of citizen disputes are to be resolved.

In any event, you are taking us off topic: the question is one of appeals, which even you now seem to agree are regulated to the narrow grounds expressly stipulated in the constitution: because Rule 3 purports to give power for wider appeals, the Act is unconstitutional and must be vetoed.

Oni Jiutai · Post by **Oni Jiutai** » Sun Dec 10, 2006 1:25 pm

[quote:2j9ajjof] I am not arguing for the SC to sit as a court except as expressly stated in the Constitution -- as an appellate court on the limited grounds of the Judiciary Act and as a trial court, with concurrent jurisdiction to the Judiciary, for cases involving "citizen disputes" and "Constitutional" questions. [/quote:2j9ajjof]

Then it looks to me that you and Ash actually agree about the limited nature of appeals to the SC from Courts and, therefore probably about the constitutional status of the procedural rules contained in the Act?

Maybe we need a new thread. Implied Powers of the Scientific Council vs Texualism, anybody?

Beathan · Post by **Beathan** » Sun Dec 10, 2006 1:49 pm

Ash --

The Constitution says that the SC has the "service function" of resolving "citizen disputes." This is explicit. The Judiciary Act says that the SC, as a court, can make any orders to carry out is Constitutional powers. This is explicit. This is all I need.

The description you quote describes the limits of the Judiciary acting as a trial court. It says nothing about the limits of the SC as a trial court. Perhaps the SC's trial authorityt is limited to the same tasks and forms as judicial trial. Perhaps not. There is nothing to go on. This is a matter for interpretaion and self-definition by the SC.

I have provided a simple syllogism for this. I have not seen anyone refute my logic. I provided my logic in syllogism form so that people could easily assess and challenge it. No one has. So far, the closest anyone has come is to say, "oops -- well that was not what we meant." I acknowledge that the Judiciary Act was not supposed to have this effect -- but it does, and we have to either live with it as written or amend it. We cannot pretend that it was written differently and preserve our value of the rule of law.

Beathan

Beathan · Post by **Beathan** » Sun Dec 10, 2006 1:53 pm

Oni --

No, I don't agree with Ash, because the Judiciary Act also explicitly provides that the RA can expand the SC jurisdiction beyond the limits of the Act. [quote:1v8f1sfv]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 [i:1v8f1sfv]any duly ratified Act of the Representative Assembly[/i:1v8f1sfv][/quote:1v8f1sfv].

This act is an Act of the RA. Therefore, even though it expands the power of the SC as a court beyond the limits of the Judiciary Act, it remains Constitutional. It gives the SC appellate jurisidiction over an area about which the Judiciary Act is silent -- the specific procedure as applied in a specific case and the default position of appeals when there is no judicial appellate court. Thus, it is constitutional.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 2:08 pm

[quote="Beathan":qrc5zx55]No, I don't agree with Ash, because the Judiciary Act also explicitly provides that the RA can expand the SC jurisdiction beyond the limits of the Act. [quote:qrc5zx55]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 [i:qrc5zx55]any duly ratified Act of the Representative Assembly[/i:qrc5zx55][/quote:qrc5zx55].

This act is an Act of the RA. Therefore, even though it expands the power of the SC as a court beyond the limits of the Judiciary Act, it remains Constitutional. It gives the SC appellate jurisidiction over an area about which the Judiciary Act is silent -- the specific procedure as applied in a specific case and the default position of appeals when there is no judicial appellate court. Thus, it is constitutional.

Beathan[/quote:qrc5zx55]

That simply does not make any sense, since no Act may [i:qrc5zx55]conflict[/i:qrc5zx55] with the constitution, or else the Council must veto it. The Constitution most certainly does not provide that an Act of the Representative Assembly may reverse the provisions that expressly limit the appeal functions of the Scientific Council. If an Act provides any additional jurisdiciton for the Scientific Council, it must do so only in a way consistent with the constitution, for example, by providing that a person can be fined when impeached, or that unsuccessful appellants to the Court of Scientific Council should have to pay money to the treasury if the court so orders. Your argument [i:qrc5zx55]again[/i:qrc5zx55] begs the question of what Acts the Representative Assembly may pass, since only duly ratified acts of the Assembly bind any institution.

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 2:11 pm

[quote="Beathan":1qqs5bn6]The Constitution says that the SC has the "service function" of resolving "citizen disputes." This is explicit. The Judiciary Act says that the SC, as a court, can make any orders to carry out is Constitutional powers. This is explicit. This is all I need. [/quote:1qqs5bn6]

How can it be "all that you need"? You have ignored what I have written. What is [i:1qqs5bn6]not[/i:1qqs5bn6] explicit from that passage is [i:1qqs5bn6]what sort of[/i:1qqs5bn6] citizen disputes it may resolve, nor [i:1qqs5bn6]how[/i:1qqs5bn6] it may resolve them. That is explicit from other passages of the constitution, which specifically limit the Court of Scientific Council's functions to impeachment hearings and appeals on the narrow grounds.

Flyingroc Chung · Post by **Flyingroc Chung** » Sun Dec 10, 2006 2:11 pm

Oni, congratulations on trying out LaTeX. If you're concerned about the wideness of the default margins, you could put \usepackage{fullpage} just after the \documentclass command, this will put a 1in margin on all sides of the paper.

Beathan · Post by **Beathan** » Sun Dec 10, 2006 2:12 pm

Ash --

You miss my point. The Judiciary Act expressly authorizes some appeals to the SC. It also expressly limits others. However, these two categories do not completely describe all possible appeals. Therefore, the Judiciary Act and the Constitution are silent about some kinds of appeals. The RA is free to legislate in this zone of silence. The RA has done so.

I think you may have intended the Judiciary Act to expressly limit the SC appeals to only those appeals authorised by the Act. However, the Judiciary Act, on its plain meaning, does not do so. In fact, on its plain meaning, the Judiciary Act appears to expressly acknowledge that the RA can act in this regard, as it has done so.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 2:16 pm

[quote="Beathan":26s3s5ml]You miss my point. The Judiciary Act expresses authorizes some appeals to the SC. It also expressly limits others. However, these two categories do not completely describe all possible appeals.[/quote:26s3s5ml]

What about the following does not make it as clear as it conceivably could be that the Council may hear appeals [i:26s3s5ml]only[/i:26s3s5ml] on the grounds specified?

[quote:26s3s5ml]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, [b:26s3s5ml]but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought[/b:26s3s5ml]: 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, [b:26s3s5ml]the Scientific Council when sitting as a court [i:26s3s5ml]shall not [u:26s3s5ml]in any circumstances[/u:26s3s5ml][/i:26s3s5ml] have the power to determine [u:26s3s5ml][i:26s3s5ml]any[/i:26s3s5ml][/u:26s3s5ml] appeal from any Court of Common Jurisdiction only on any or all of the following grounds[/b:26s3s5ml]: 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:26s3s5ml]

(Emphasis added). What exactly do you think that the effect of the above is if it is not what everyone else is arguing that it is?

[quote:26s3s5ml]I think you may have intended the Judiciary Act to expressly limit the SC appeals to only those appeals authorised by the Act. However, the Judiciary Act, on its plain meaning, does not do so. In fact, on its plain meaning, the Judiciary Act appears to expressly acknowledge that the RA can act in this regard, as it has done so.[/quote:26s3s5ml]

What can be plainer than the meaning highlighted in bold and italic above?

Beathan · Post by **Beathan** » Sun Dec 10, 2006 2:17 pm

Ash writes [quote:2p30xfnb]Posted: Sun Dec 10, 2006 1:11 pm Post subject:

--------------------------------------------------------------------------------

Beathan wrote:
The Constitution says that the SC has the "service function" of resolving "citizen disputes." This is explicit. The Judiciary Act says that the SC, as a court, can make any orders to carry out is Constitutional powers. This is explicit. This is all I need.

How can it be "all that you need"? You have ignored what I have written. What is not explicit from that passage is what sort of citizen disputes it may resolve, nor how it may resolve them. That is explicit from other passages of the constitution, which specifically limit the Court of Scientific Council's functions to impeachment hearings and appeals on the narrow grounds
[/quote:2p30xfnb]

Well -- what citizen disputes? All of them. How? However the SC chooses to do so, provided they do so by order and as a court. These seem to follow naturally and unavoidably from the explicit language of the Constitution and the Judiciary Act. The language is general and vague -- providing for great flexibility in action for the SC -- but the language is no less explicit for these reasons.

Again, I think that you are right that the Constitution provides limits on the impeachment power of the SC and on the appellate power of the SC. However, the fact that some of the SC's powers are limited does not mean that other powers are limited, or that those other powers don't exist.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Sun Dec 10, 2006 2:25 pm

[quote="Beathan":1zxanh5h]Well -- what citizen disputes? All of them. How? However the SC chooses to do so, provided they do so by order and as a court. These seem to follow naturally and unavoidable from the explicit language. The language is general and vague -- providing for great flexibility in action for the SC -- but the language is no less explicit for these reasons.[/quote:1zxanh5h]

[i:1zxanh5h]Why[/i:1zxanh5h] does it flow naturally from the language? Why does "such citizen disputes that this Constitution expressly provides that the Council may resolve" not flow more naturally? Indeed, you are suggesting an interpretation of one part of the constitution that conflicts with another part, where an interpretation of that part of the constitution that does not conflict with another part is readily available. What is the reason for such a choice, other than your frenzied desire to see the judiciary have as little power as possible?

The fundamental point that you have totally failed to answer is that "its service function is to resolve citizen disputes" does not [i:1zxanh5h]expressly[/i:1zxanh5h] state that it has the power to resolve all citizen disputes. That such a meaning "naturally flows" (as you suggest) [i:1zxanh5h]means[/i:1zxanh5h] that it is implied. Only express powers of the Court of Scienitifc Council will suffice. That you think that the implication is strong does not make it any less of an implication (and, in any event, as stated above, it is not strong at all).

Beathan · Post by **Beathan** » Sun Dec 10, 2006 2:28 pm

Ash --

Let's say I have nine cookies. I tell you that you can eat one or more of the first three and that you cannot eat any of the last three. What have I told you about the middle three? Nothing.

OK -- let's say I tell you "only eat one or more of the first three -- and do not eat any of the last three" -- what have I told you about the middle three. Nothing, except, perhaps, that you cannot eat them right now. Perhaps later you can eat them, if something happens. Otherwise, it makes no sense to say you can't eat the last three. The middle three must be somehow different from the last three. The most reasonable thing to think is that they are not cookies you can eat now, and they are not cookies that you can never eat, so they must be cookies you maybe could eat at sometime if something happens.

This is how I see the silent gap between the SC's appellate jurisdiction under the Judiciary Act and the specifically prohibited appeals in the Judiciary Act. Some appeals (procedural appeals and default appeals when there is no appellate Court) are not expressly authorized by the Judiciary Act. They are also not expressly prohibited by the Judiciary Act. Therefore, they are contingently prohibited by the Judiciary Act, and the contingency is that the RA has to authorize them by a later Act if they are to be authorized. The RA has done so. Therfore, now they are authorized, and Constitutional.

The SC can now eat at least one or two of the middle cookies.

Beathan

Gxeremio Dimsum · Post by **Gxeremio Dimsum** » Sun Dec 10, 2006 2:34 pm

[quote="Ashcroft Burnham":3dsqf9yx]That simply does not make any sense, since no Act may [i:3dsqf9yx]conflict[/i:3dsqf9yx] with the constitution, or else the Council must veto it. The Constitution most certainly does not provide that an Act of the Representative Assembly may reverse the provisions that expressly limit the appeal functions of the Scientific Council. If an Act provides any additional jurisdiciton for the Scientific Council, it must do so only in a way consistent with the constitution, for example, by providing that a person can be fined when impeached, or that unsuccessful appellants to the Court of Scientific Council should have to pay money to the treasury if the court so orders. Your argument [i:3dsqf9yx]again[/i:3dsqf9yx] begs the question of what Acts the Representative Assembly may pass, since only duly ratified acts of the Assembly bind any institution.[/quote:3dsqf9yx]

Ashcroft, why do you try to bind the very institution from which you claim to derive your powers (and as others have pointed out the only really democratic institution of those set up thus far in the CDS)?

From the perspective of a regular citizen, you have done the following:

1. Presented a mammoth Judiciary Act to an RA which spent lots of time on it, but clearly not enough to remove all the little "easter egg" provisions you inserted to keep power.

2. After passage of the Act, set up an enormous and complicated system to qualify judges. You invited RL friends to come and apply for the available judgeships. I'm not sure if this was before or after it became clear that the people already part of this community rejected doing so for various reasons.

3. Created a complex (and again, huge) Code of Procedures, which you put up for "public review," but refuse to change.

4. Accused people who raised concerns about what has happened so far as ignorant, illogical, skewed, and otherwise unworthy of your time. Is this supposed to inspire confidence in our Chief Judge?

5. Appealed to the Constitution which you manipulated via your Act to fend off all attempts at reigning in this runaway Judiciary. What strikes me is how you argue against the constitutionality of acts passed by the very same RA session which passed the Judiciary Act. If ever there's been an argument against a law like the Judiciary Act based on the intent of the people who created/passed it, this is that time.