Proposed Constitutional Amendment re: Judiciary Act

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Beathan
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Proposed Constitutional Amendment re: Judiciary Act

Post by Beathan »

Changes to Section 8.1 and 8.2.

<remove>
[add]

With respect to the judiciary:

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: –

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

(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); [or]

[(c) Acted unreasonably in a procedural matter, which shall be immediately appealable.]

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 ground<s>: –

<(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> [this ground] have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council. [The Court of the Scientific Council, sitting as an appellate court, shall presume the truth of facts found by the court from which appeal is made.]

Beathan

Last edited by Beathan on Sun Dec 10, 2006 7:49 pm, edited 1 time in total.
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Ashcroft Burnham
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Post by Ashcroft Burnham »

If you're so keen on appeals, why not just have the Chair of the JC increase the court/judge quota to allow for superior and inferior Courts of Common Jurisdiction?

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Post by Beathan »

Because I fancy that the SC will do a better job as Supreme Court -- and Gwyn as chief justice of that court.

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Oni Jiutai
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Post by Oni Jiutai »

Leaving aside the question of whether the amendment is a good idea or not (I'll come back to that later), I think it needs further refining to be clear.

The last 'both' in Section 1, just before we go into alphabetic numbering needs to be removed, since it only makes sense if there are only 2 grounds of appeal and you need to have both of them.

And (more importantly) Section 2 now contradicts Section 1. 1 says that the SC can resolve any dispute between the parties (which must include factual disputes), but 2 says it must not disturb the findings of fact. Does replacing "issue in dispute" with 'question of law" help with that?

Also, it seems odd to me that the SC would have power to review the procedural decisions of the Court on grounds of reasonableness, but only to review the decision itself on a point of law.

For example, say Party A has appealed several times about procedural matters to the SC (and these might be pretty minor, relating to the order of calling witnesses and such). In the end Party A wins, but Party B feels that the Court's findings of fact are completely at odds with the evidence. I think B would feel fairly upset that they were denied a route of appeal on the vital issue, that A had had on a procedural issue. And I think B would be right.

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Post by Publius Crabgrass »

[quote="Beathan":3ehjwipo]Because I fancy that the SC will do a better job as Supreme Court -- and Gwyn as chief justice of that court.

Beathan[/quote:3ehjwipo]
Beathan,

Just as hard cases make bad law, basing judgments about institutional structures upon the personalities that for the moment hold a governmental position is ill advised.

However, the debate over the SC's jurisdiction has been useful to me, for it has highlighted the ways in which the Judiciary Act has changed the SC's role (roll?). Looking over the past forum postings and the RA transcripts, it seems that these rather significant changes were made with very little debate and little public understanding of the consequences. Gwyn's recent set of open meetings is a good start on a needed discussion of the proper place of the SC in our government.

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Post by Beathan »

Oni --

Right you are about the "both" -- it should be removed.

You are also right about the tension between the second ground for review and what the Court of Appeals cannot consider. I will explain what I have in mind, and I welcome suggestions on how to resolve it.

What I think we do not want is: 1. the SC taking new testimony and 2. the SC disturbing factual findings based on disputed but real evidence. What we do want is the SC being able to correct: 1. misinterpretations of law, 2. Constitutional violations, and 3. unreasonable decisions. As part of 3, we want the SC to be able, taking the facts as found by a judge as true, to come to different conclusions. If the facts don't support a conclusion, we want the SC to be able to reverse it. That is, even taking the facts as found by the judge as true, the facts, taken together and assumed to be true, are insufficient to support the result, the result should be changed.

You point out that this insulates fact finding from review -- even if the judge just made up the findings, without good evidence. This is a problem. We need to narrow the limitation on appeal further to address this problem. In the U.S., we call this a "substantial evidence" appeal. We probably should have somesuch basis for appeal. Again, I welcome suggestions.

I think this also answers your third point about the scope of review of the final decision -- it is not limited to a point of law, is has the primary purpose of reviewing for legal mistakes. However, that review also includes mistakes in reason. In American jurisprudence, law is conceived as including the reasoning of judges applying the law, so reviewing a case for bad thinking is part of reviewing it for bad law. (This is proably an inherent feature of Common Law.) Again, we want the SC to review for legal mistakes and for bad reasoning -- but not to get behind fact finding (except, perhaps, on substantial evidence grounds) or take testimony.

I will take amendments to this Act accomplishing these things as friendly amendments. I do take the clerical amendments proposed by Oni as friendly amendments already.

Publius --

I agree completely. It is unwise to base a legal system on the current personalities of its likely participants. That said, I favor institutions with a history over those without one. This is because an institution's history has value as a check on its future behavior. This is also because an institution with a history can be analysed more deeply and thoroughly just because there is more to analyse. Thus, although I was snide in my answer to Ash, I think that there is good reason to privilege the SC as the ultimate institution for resolving disputes and Constitutional issues.

Beathan

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":2wv7roqe]However, the debate over the SC's jurisdiction has been useful to me, for it has highlighted the ways in which the Judiciary Act has changed the SC's role (roll?). Looking over the past forum postings and the RA transcripts, it seems that these rather significant changes were made with very little debate and little public understanding of the consequences. Gwyn's recent set of open meetings is a good start on a needed discussion of the proper place of the SC in our government.[/quote:2wv7roqe]

My original proposal for the new judiciary was made back in August. There was intensive debate between then and October when the Judiciary Act was passed. It was as clear as it possibly could be from the beginning of August that what I was proposing, and what was ultimately accepted by our legislature, was that the ordinary cases (including ordinary appeals) would be heard by Courts of Common Jurisdiction, and cases of constitutional significance would be heard by the Court of Scientific Council. That was, of course, a significant departure from the old setup where all cases were heard (or not) by the Scientific Council. The reason for that was that the Courts of Common Jurisdiction were designed to be a professional judiciary, consisting of people with a legal background of some sort (eventually, I had hoped to institute our own system of legal education here to [i:2wv7roqe]give[/i:2wv7roqe] people a legal background), whereas the Scientific Council always had been a set of people whose particular expertise was the constitution, but were not people with any particular legal expertise, so their jurisdiction was limited to constitutional matters.

That was, of course, the most significant change of the Judiciary Act: to create a new, professional judiciary to do some of what the Scientific Council had done before, leaving the Scientific Council with its more specifically constitutional function. It makes very little sense to say, therefore, that the issue of the Scientific Council's function was not adequately debated: the position was, as far as I was aware, was that a very high proportion of people, including many on the Scientific Council themselves, welcomed the idea of somebody with legal expertise taking over what is ultimately a challenging function that is difficult to get right, leaving the Scientific Council free to concentrate on the constitutional issues for which it was really formed (one gets the distinct impression that the Council's judicial function was added as somewhat of an afterthought by a designer of a constitution who did not foresee the importance of a judiciary). The then and current Dean of the Scientific Council was, as I understand it, more than happy no longer to be burdened with this task.

So, the [i:2wv7roqe]very substance[/i:2wv7roqe] of the Judiciary Act itself was to take most (but not all) judicial function from the Scientific Council, and give it to a new, professional judiciary, who would be better able to handle the ordinary caseload because of their legal background. It is true that this concept was not [i:2wv7roqe]questioned[/i:2wv7roqe] by anybody at the time, but that does not mean that it was not considered: it could equally well mean that all those who had an interest in the matter and turned their minds to it, as all had an opportunity to do, did not think that it needed questioning. It is certainly not true that there was inadequate [i:2wv7roqe]opportunity[/i:2wv7roqe] for debate: the nature of the new judiciary must have been apparent to everyone who knew the slightest thing about it, which is, everyone who read the forums, talked to me in-world, attended the in-world meetings of the only political faction who at the time held meetings in-world (the CSDF), or attended the many meetings of the Representative Assembly at which it was discussed.

I understand the importance of having appeals in general, but that does not mean that the Scientific Council should be burdened once again with the task of hearing ordinary appeals: it means that you need to create a second court so that we can have, as was always intended (as was clear from my original proposal) appeals between different Courts of Common Jurisdiction. You can do that straight away - we will soon have more judges (the applications are nearly marked), enough to staff such a court.

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Post by Oni Jiutai »

[quote:37fpjtmh]What we do want is the SC being able to correct: 1. misinterpretations of law, 2. Constitutional violations, and 3. unreasonable decisions[/quote:37fpjtmh]

I'm not convinced that we do.

Basically, because the JA sets up a system for appeals within the Courts, which is currently being implemented.

I can see the argument for establishing the SC as a Constitutional Court, sitting rarely on important constitutional issues. Something in the model of the original conception of the US Supreme Court. I'm not sure I agree with it, but I can see it. :wink:

Using them to deal with unreasonable procedural orders by judges - or even disputes over the general law - seems to me unnecessary and to add a procedural step (and if there are procedural appeals as well, steps) to the whole process - with the associated costs in time and trouble. Justice delayed is justice denied and all that.

It seems to me that the main argument for bringing in the SC (expecting on Constitutional matters) is to prevent the Judiciary running out of control. If things get to that point, I would have thought that the sensible response is (a) start impeaching people and / or (b) reform whatever seems to be causing the problem and, if finally necessary, (c), slash and burn the whole thing as a failed experiment.

I should say, for the avoidance of doubt, that I don't think that's going to become necessary.

As for a way of describing the evidential appeals, the English formulation is "a decision that no reasonable court could have properly reached on the evidence".

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Post by Beathan »

Oni --

On a point of information, the original conception of the Supreme Court in fact had the Supreme Court doing more, not lesss, work than it currently has. The US Constitution places all Federal judicial authority "in the Supreme Court" along with whatever other, lower courts Congress creates. Thus, the Supreme Court originally had all judicial authority (or -- as I put it, as the "source and seat" of all judicial authority). Second, although it is now vestigal, the Supreme Court has historically had areas of original jurisdiction. The seminal case establishing judicial review (Marbury v. Madison) was heard by the Court based on an original filing with the Court. Additionally, the Court has historically had original jurisdiction regarding tax matters.

My theory of the SC is thus closer to the original conception of the US Supreme Court than the alternatives.

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Post by Ashcroft Burnham »

We do well not to assume that, because our system is like a particular first-life system in one or other respect, it must or should be like it in another. Specific arguments for the benefit of any given arrangement are all that will suffice to show that it is good. A real-life anology merely might show that something is workable: it does not show that it is desirable. (In this case, for example, our Scientific Council is not like the US Supreme Court because the members of the Scientific Council are not, and Judges of Common Jurisdiction are, people with specialist skills and expertise in the law).

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