Request for review: Refusal of Justice Funkadelia to recuse himself.

[Flemingovia]

Title: Request for Review: Refusal to Recuse

I hereby request that the Court review the following action by a government official>: The refusal by justice Funkadelia to recuse himself from the review of the election commissioners’ comduct, shown here:

The Court has made the decision to accept this request for review.

Both Kialga and Severisen have recused themselves from deliberation on the matter, which means that I will have to appoint Temporary Hearing Officers to hear the case.

That said, I am going to be postponing the period for submitting briefs until two THO's have been appointed.

This was in breech of his oath of office, given here (highlighting mine)

I, Funkadelia, do hereby solemnly swear that during my term as Justice, I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of Justice, with all the powers, rights, and responsibilities held therein.

________________________________________


I believe that the above action has violated the following portion of the Bill of Rights:

5. All Nations of The North Pacific have the right to be protected against the abuse of powers by any official of a government authority of the region.

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.

I further believe that the above action has violated the following portion of the Adopted Court Rules:

Chapter 3.3 Justices must endeavor to recuse themselves from matters where they have a conflict of interest.

I believe that it has violated the adopted court rules in the following way: The use of the word “endeavour” in the rules presupposes that the justice will do everything in their power to avoid an apparent conflict of interest. In this case the other two justices have seen the conflict, and have recused themselves. The Petitioner has called for it, and the Attorney General has publicly posted stating that a recusal is appropriate.

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Code:

This action by a government official has specifically violated my right to: a fair and unbiased hearing in the constitutional court of TNP

It has violated my right in the following way: Justice Funkadelia has clear conflict of interest in the current R4R concerning the conduct of the election of justices, march 2015. The other justices have recognised that and have recused themselves yet Funkadelia has refused to do so and has further personally appointed THOs, meaning that the whole process is no longer transparently unbiased and fair.

 

[Funkadelia]

I, of course, will be recusing myself from any deliberations on this matter.

 

[Grosseschnauzer]

May I strongly suggest that all three justices, having been candidates in the election and ballot at issue, should be recusing themselves. The failure of the Election Commissioners to include "abstain" as an option affected all three Justices as candidates in the election, and not just Justice Funkadelia.

If I need to file a separate R4R to emphasize the actual or poetential conflict of interest of all three Justices on this matter, then I or I'm sure other members of the voter class would be glad to do so. The appearance of a potential conflict is just as serious as an actual conflict.

And since I was the voter who originally pointed out the omission on the ballot, I would not be interested in acting as a THO. So the political hegemony of TNP need not fear any involvement from me.

 

[Severisen]

Thank you for submitting this Request for Review, Flemingovia.

Grosseschnauzer, you are aware that Justice Kialga and myself have recused ourselves from the other RFR? Or are you suggesting that we ought to recuse ourselves from this RFR as well?

 

[RPI]

Would you please post an update on this if you have one?

Thanks

 

[Severisen]

TheGrimReaper has been appointed as a THO. He will soon take his oath, and then there will be a period for the submission of briefs.

 

[Severisen]

Having sworn his oath, the five day period for the submission of briefs begins now.

 

[Flemingovia]

I thank the court. I have little to add to my earlier submission, but would elaborate on points made earlier as follows:

TNP has interpreted conflict of interest fairly strictly in the past. I can think of no prior situation where a candidate in an election, when the conduct of that election was called into question, would have considered themselves suitable to be the moderating justice of a review of that election.

Even if Funkadelia was capable of being wholly objective, it is important for the reputation of the court that not only is justice fairly administered, but that it is also SEEN to be fairly administered. We have a situation in TNP where Conflict of Interest is not closely defined in our laws. That is good - the tighter the rules the greater the loopholes - but it means that we rely on the integrity of the justices and common sense to guide the justices. When that fails, it is for the court as a whole to intervene.

My preferred option would have been for the other two elected justices to have put into effect chapter 3 clause 4 of the court rules:

Justices are required to recuse themselves from any matter where the majority of the Court orders them to.

This request for review was only made when it became apparent that the other justices did not intend to do this. Should the other justices require Funkadelia to recuse himself, this R4R shall immediately be withdrawn

It can be demonstrated that Funkadelia is not objective in this case. In this post before even appointing THOs or considering the evidence, or consulting, he has declared that the finding of the R4R would not restart the ballot or find anything untoward in his candidacy in the election. This was entirely inappropriate and prejudicial to the deliberations of the court. He has shown clear subjectivity.

It could be argued that he is just one of three presiding over the R4R .... but he is (currently) the moderating justice and has personally hand-picked the other two hearing officers. He has made assurance that those he has picked will be "neutral and agreeable candidates" - but the very fact that he had to make that assurance shows that he is on an unstable footing.

 

[RPI]

Should the Court order Funkadelia recuse himself, would his previously appointed Hearing Officers also be removed from the case?

 

[Flemingovia]

Logic suggests the appointments would be invalid.

 

[Severisen]

The period for briefs has ended. The court will now deliberate.

 

[Flemingovia]

Hello,

The court has been deliberating for about a week now. Is it unreasonable to ask for an update?

 

[Severisen]

I actually just came to post one. We are quite near a decision. I expect it should be posted within a day or two, barring an unforseen circumstance. I thank the petitioner for his patience.

 

[Flemingovia]

No worries, cobber as McM would probably say.

 

[Kialga]

Ruling of the Court of the North Pacific​

In regards to the Judicial Inquiry filed by flemingovia on Refusal to Recuse

Opinion drafted by Justice Kialga, joined by Justice Severisen and THO The Grim Reaper​

The Court took into consideration the Inquiry filed here by flemingovia.

The Court took into consideration the Relevant parts of the Bill of Rights and Adopted Court Rules of the North Pacific:

5. All Nations of The North Pacific have the right to be protected against the abuse of powers by any official of a government authority of the region. Any Nation of The North Pacific has the right to request the recall of any official of a government authority of the region in accordance with the Constitution, that is deemed to have participated in such acts.

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

3. Justices must endeavor to recuse themselves from matters where they have a conflict of interest.

2. The petitioner in an accepted request for review, as well as any of the participating parties in a criminal trial, may file a request asking the Court to order the recusal of any Justice from hearing or ruling on a particular case.

The Court opines the following:

The Request before the Court is on the refusal of a Justice to recuse himself from a Request where the petitioner believes a conflict of interest and lack of transparency in the review. It is to the agreement of the Court that, should Justice Funkadelia continue to be engaged in the Review, there is the potential that Justice Funkadelia will have bias.

The Court, upon reviewing the above, has reached the decision that Justice Funkadelia recuse himself from the Request for Review on Election Commissioner's Conduct.

The currently assigned Temporary Hearing Officers are hereby deemed procedurally invalid. As it stands, with all elected Justices being recused from the case, the Delegate will need to select new Temporary Hearing Officers. The current Temporary Hearing Officers are strictly invalid on a procedural basis, and may be reassigned should the Delegate deem fit, without having an immediate Conflict of Interest due to their initial appointments.

 

[Flemingovia]

Thank you for the ruling. I look forward to the delegate appointing THOs in the *original* request for review.

What a shame it took this long, and legal action, for common sense to assert itself.

 

[Funkadelia]

I whole heartedly disagree with the ruling of the court.

In his petition, the petitioner of the request for review asked specifically that the result of the case not decide the outcome of the past election, but instead provide guidance for future elections. Due to this, I did not recuse myself because of that fact. I, nor any of the other Justices, had any gain to make in the case because, according to the petitioner and (I hope) in the sensible minds of the Court, the results of the past election were a done deal. The recusals of Severisen and Kialga was totally unnecessary and only served to slow the court proceedings down. So my reasons for remaining on the bench were twofold: 1) Because I did not have a vested interest in deciding what should happen if the event that occurred in the last election would occur in a future election. I am surprised that the Court overlooked this in their decision. What bias would I have? No one has even outlined what sort of bias I could bring to this case. They were clutching at straws throughout this whole petition, especially where they claimed I had a bias for saying that the past election's results would not be considered. The petitioner and most other people generally aired concerns about changing the results of last election. I agree, doing so would be absolutely asinine. While I think that Flemingovia's request is absolutely ridiculous, I can at least see a desire for guidance on this issue for the future. 2) I did not want to slow the court proceedings down further, hence my quick appointment of THO's to the case to get it done and over with.

This is what is wrong with the TNP court system. Since the Courts are elected, they must make decisions to pander to the voters to ensure they hold their position for the next election. It's a nonsensical practice that results in a poor administration of justice. The reason why these Justices even recused themselves, and by extension forced me to recuse myself was to ensure votes for the next election. All the Justices had to do was to privately (or even publicly) say "I think Funkadelia should recuse himself" and that would have been that. But instead, this farcical court decided to drag this out into an official ruling. I refuse to operate in this manner. This case was supposed to be a simple, innocuous case, but people in the region were swayed by the vile, condemnable personal attacks levied towards me by Flemingovia. It's absurd, and I am extremely disappointed that this had to happen in the first place.

I resign from my position on the bench. If the Court is going to operate in this manner, I want no part of it.

 

[punk d]

The post above is a childish reaction. There's no other way to put it.

The court makes decisions we all disagree with it and many of us have been on both sides of the court ruling angst. But the rant above should have a tagline - "taking my ball and going home with it".

 

[Funkadelia]

The post above is a childish reaction. There's no other way to put it.

The court makes decisions we all disagree with it and many of us have been on both sides of the court ruling angst. But the rant above should have a tagline - "taking my ball and going home with it".

The only childish things here were the pathetic personal attacks directed towards me over the past few weeks over this.

 

[Gulliver]

This whole thing has been a pointless mess. The Court rules provide very plain, straightforward procedures saying that a party may request a recusal, and that a majority of the court may force the recusal. All that needed to happen here was for Flem to make the request and then for the other two justices to vote on it.

Instead, this entirely separate request for review was filed and the Court deemed to hear it rather than point to the relevant rules. What should have been a quick procedural matter has now been dragged out pointlessly into weeks of farcical political theater.

An argument could be made for while Funk should have recused himself in the first case, but it absolutely did not justify the absurd and petty personal attacks that were made against him and his character, nor the way in which Funk's decision was treated as some breach of the law rather than the easily resolved procedural issue it was. I don't blame Funkadelia for not wanting to hold a post where, after being forced to win election for it twice within a month, you try to finally do your job and get treated like this just for having the audacity to disagree on what constitutes a conflict of interest.

 

[Flemingovia]

This whole thing has been a pointless mess. The Court rules provide very plain, straightforward procedures saying that a party may request a recusal, and that a majority of the court may force the recusal. All that needed to happen here was for Flem to make the request and then for the other two justices to vote on it.

Instead, this entirely separate request for review was filed and the Court deemed to hear it rather than point to the relevant rules. What should have been a quick procedural matter has now been dragged out pointlessly into weeks of farcical political theater.

An argument could be made for while Funk should have recused himself in the first case, but it absolutely did not justify the absurd and petty personal attacks that were made against him and his character, nor the way in which Funk's decision was treated as some breach of the law rather than the easily resolved procedural issue it was. I don't blame Funkadelia for not wanting to hold a post where, after being forced to win election for it twice within a month, you try to finally do your job and get treated like this just for having the audacity to disagree on what constitutes a conflict of interest.

This bit is just plain wrong:

The Court rules provide very plain, straightforward procedures saying that a party may request a recusal, and that a majority of the court may force the recusal. All that needed to happen here was for Flem to make the request and then for the other two justices to vote on it.

I think you have mis-read our rules. The court rules do not put the onus on the petitioner to request a recusal; justices are expected to do the right thing and, if they do not, the other justices are expected to force them to recuse themselves.

3. Justices must endeavor to recuse themselves from matters where they have a conflict of interest.
4. Justices are required to recuse themselves from any matter where the majority of the Court orders them to.

Please note in the above that there is no mention of “a party may request a recusal”.

As it happens, I did raise formal objection to the refusal of Funk to recuse himself:

I call shenanigans, and formally object to your refusal to recuse yourself. there is no way this can be considered fair and objective hearing.

And requested that he recuse himself:

I urge to you recuse yourself before you look like a stubborn idiot.

I also reminded the other two justices of their duty to force funk to recuse himself:
both in a public post here (clicky) and in a PM to the other two justices.
Others, including the serving AG, added their voices that Funk should either recuse himself or be recused.
I put forward this R4R only when it was obvious that Funk was ignoring this, and the other two justices were also ignoring the issue (neither even did me the courtesy of acknowledging my PM). Even when I opened this thread I gave both Funk and the other justices a reasonable way for this to be resolved in a more regular manner:

My preferred option would have been for the other two elected justices to have put into effect chapter 3 clause 4 of the court rules:

Justices are required to recuse themselves from any matter where the majority of the Court orders them to.
This request for review was only made when it became apparent that the other justices did not intend to do this. Should the other justices require Funkadelia to recuse himself, this R4R shall immediately be withdrawn.

The other issue Gulliver raises is my “petty personal attacks” on Funkadelia. Here I make no apology. Nationsates is a political simulation designed to be played by grown ups. In playing it I expect to receive hard knocks, and I expect to dish them out too.
There is one point in Gulliver’s post that I totally agree with, and that is that this has been a total farce. If Funk had seen sense at any point, or if the other two justices had done their duty by the adopted court rules, then things would never have got to this point. I am just now glad this is done with and the original R4R can be heard by an unbiased and objective court.

 

[Gulliver]

This bit is just plain wrong:

The Court rules provide very plain, straightforward procedures saying that a party may request a recusal, and that a majority of the court may force the recusal. All that needed to happen here was for Flem to make the request and then for the other two justices to vote on it.

I think you have mis-read our rules. The court rules do not put the onus on the petitioner to request a recusal; justices are expected to do the right thing and, if they do not, the other justices are expected to force them to recuse themselves.

3. Justices must endeavor to recuse themselves from matters where they have a conflict of interest.
4. Justices are required to recuse themselves from any matter where the majority of the Court orders them to.

Please note in the above that there is no mention of “a party may request a recusal”.

Chapter 4, Section 2 provides:

2. The petitioner in an accepted request for review, as well as any of the participating parties in a criminal trial, may file a request asking the Court to order the recusal of any Justice from hearing or ruling on a particular case.

Now, this is under "Appeals" for whatever reason, but it is is there.

And I am aware that you made a request for recusal, which is why I never said you didn't in my post.

 

[Severisen]

There is a place for the public to discuss the court. This is not that place. As such, I am locking this thread.