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Request for Review; The scope of the review power of the court and court dictatorship
Topic Started: Dec 24 2017, 05:01 PM (2,125 Views)
Barbarossistan


What law, government policy, or action (taken by a government official) do you request that the Court review?

The decision by the court here

2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

The bill of rights of TNP, specifically:

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.

11. No governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region, with the express consent of the Nations of the region or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.

The Constitution of TNP, specifically:

Article 1. Bill of Rights

1. All nations are guaranteed the rights defined by the Bill of Rights.

Article 5. The Court

1. The Court will try all criminal cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.
2. The Court will consist of at least three Justices, who will select a Chief Justice among themselves.

The legal code of TNP, specifically:

Section 3.2: Appointment of Hearing Officers

6. If one or more Justice positions are vacant, or any Justice is absent or has recused themselves, the remaining Justices will promptly appoint replacements from among available citizens to participate as temporary Hearing Officers.
7. If all Justices are vacant, absent, or have recused themselves, the Delegate will promptly appoint the needed Hearing Officers from among available citizens with the agreement of the Speaker.
8. Any recusal or absence of a Hearing Officer will be treated as a vacancy.

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?

yes

here

here


These decisions clearly establish that court decisions are themselves subject to review and clearly establish that the court may not give sua sponte decisions and give standards that must be met for the court to reverse its earlier decisions. The court decision to be reviewed here fails to meet any of the established standards and casually reverses these precedents.


4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated. If you are submitting this request in your capacity as the Attorney General or their designee, please note that here instead.

The decision I ask the court to review is a dogs breakfast of disregard for the Constitution, the Bill of rights, legal precedent and proper legal procedure. The court is an essential institution in safeguarding the rights of citizens under the Constitution and Bill of Rights. With the court taking the attitude that it is not bound by precedent or proper procedure and that moreover its decisions are entirely out of the scope for review while the court may also decide to hand down sua sponte decisions that are entirely outside the bounds of the legal debate as established by the request for review and any briefs filed my rights under article 9 of the Bill of Rights, specifically those of transparency, accountability and due process are gravely harmed if not nullified as I cannot now turn to the court in any case with confidence that the matter will be treated properly. This is a serious violation of the rights and protections I should enjoy under the Bill of Rights, specifically article 9, and the Constitution, specifically articles 1 and 5.

5. Do you have any further information you wish to submit to the Court with your request?

The earlier decisions of the court I have referred to clearly establish that Justices, and one must assume THO's, are government officials and that court decisions are subject to review.
In apparently overturning its earlier decisions I have referred to the court has egregiously failed to meet the standard for such a reversal it had itself set, there was no request to do so and there were no factual evolutions to necessitate such. The court also completely failed to "explain itself fully" on this reversal of precedent and casually sua sponte reversed its own precedent banning sua sponte reversals.

The court moreover ignored the clear legal requirement in article 5 of the constitution that decisions are given by at least 3 justices (or THO's) and the requirement in section 3.2 of the legal code that any vacancies must be dealt with through prompt appointment of a fresh Justice or THO. This by itself should invalidate the decision to be reviewed here.

In doing the aforementioned the court has effectively cancelled articles 5, 9 and 11 of the Bill of Rights by declaring itself an extraconstitutional dictatorship that can sua sponte hand down decisions not limited by any precedent or legal basis and that it may do so even in the person of a single Justice if it regards appointing THO's to meet the constitutional minimum as inconvenient. This is a grave violation of the Bill of Rights and the constitution and the court should reverse this decision and return to its previous proper precedent.

The court may take the opportunity to further clarify its position on the key legal issues raised here. Last but not least it would be desirable if the court would reopen the request for review improperly decided on or give a new decision on that request as part of its decision in this case.

I will file a further legal brief to explain the positions taken above if the court so requests or any briefs filed by others give reason to do so.

Thank you for your attention, I look forward to a prompt decision.
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Bootsie
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The Court acknowledges the request. However, given today is Christmas Eve and tomorrow being Christmas Day, a final decision may be delayed. Thank you for your patience.
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falapatorius
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If it please the Court, I believe recusals of the current judicial roster might be appropriate. This request for review is a response to an R4R that was itself a response to actions taken by the elected Court (ie, accepting an R4R on potentially illegal grounds).
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SillyString
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inFECted

The AG has not had a chance to post in this thread, so I will do so in order that things might not be unduly delayed. The Attorney General's office has unanimously agreed to join this request for review. If there is any question that the petitioner has standing to bring this request, we exercise our right to standing in all matters brought before the Court in order to allow it to proceed.

Speaking as a sole Deputy AG, and not on behalf of the whole office, I agree with Falapatorius that as this review relates to a review that reviews the sitting Court's actions, the Court should recuse itself and allow THOs to be appointed. Additionally, I request that the original Request for Review which prompted the Review whose decision triggered this Review be barred from proceeding until this matter has been resolved.

Edit: Naturally, it is also my stance that none of the THOs who issued the ruling being reviewed should be reappointed to address this request.
Edited by SillyString, Dec 25 2017, 09:13 PM.
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Barbarossistan


I also request that both the sitting justices and all THO's involved in the case resulting in the decision that is the subject of this review recuse themselves as all have a conflict of interest.
Edited by Barbarossistan, Dec 25 2017, 11:13 PM.
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Zyvetskistaahn


Given that this request is asking, in substance, for the recent review to be decided differently and as that review was deciding the legality of the decisions made by a court I was a member of in a request for review, I recuse myself. I will, if my fellow Justices also recuse themselves, notify the Delegate and Speaker of the need for yet further THOs.
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It's "Constibillocode" not "Constibillicode".
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Scorch
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I will also recuse myself.
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I will also add my recusal to the list.
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Pallaith
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Pursuant to law and with the Speaker's approval, I have appointed Owenstacey, Sasten, and Cogoria as Temporary Hearing Officers for the review of this case.
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Dec 28 2017, 11:00 PM
Pursuant to law and with the Speaker's approval, I have appointed Owenstacey, Sasten, and Cogoria as Temporary Hearing Officers for the review of this case.
I confirm that I approve these appointments.
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Owenstacey
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This request for review is accepted.

Briefs will be accepted for the next 5 days, ending at Jan 3 2018, 11:00 PM.
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falapatorius
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I ask the Court to consider this ruling in addition to the previous Court rulings cited by the petitioner (as it further clarifies what a government official in TNP is).

Barbarossistan
 
In apparently overturning its earlier decisions I have referred to the court has egregiously failed to meet the standard for such a reversal it had itself set, there was no request to do so and there were no factual evolutions to necessitate such. The court also completely failed to "explain itself fully" on this reversal of precedent and casually sua sponte reversed its own precedent banning sua sponte reversals.
With respect to the petitioner, I don't believe the decision reached by the Court on this matter actually does that. If we look closely at the text of the ruling:

Quote:
 
Considering the precedent, for instance the ruling on Judicial Recusals as well as the ruling on the Nature of Precedent and the Scope of the Court's Powers, these both make clear (either through actions or words) that the Court is reviewable. This ruling does not change that, it simply re-affirms the high standard for that review being possible.
It appears the Court was upholding precedent as established by the rulings cited in the OP. The decision here maintains that the Court's actions are indeed reviewable, albeit only under exceptional circumstances.

That said, we are left to consider the reasoning for this decision. The action by the elected Court that precipitated these reviews is legally questionable in my opinion. They were asked to review a hypothetical breach of the petitioner's rights as guaranteed by TNP Law. However, the bill was still in the voting phase, hence my calling it a 'hypothetical' breach. Moreover, the bill itself attempted to utilize the emergency provisions as outlined in the Legal Code. Even if the bill did pass, it would still have to survive the Delegate's potential veto. But that is not what this request for review is addressing.

Again, it does appear that precedent was used to justify the Court's decision that is being reviewed here. However, I believe that the actions taken by the elected Court in accepting this request for review easily meets the exceptional circumstances laid out by precedent, and should have been reviewed in full by the THOs hearing the case (rather than using the request to retroactively deny the already accepted request being reviewed).

There is also the question of whether the full Court participated in this decision or not.

I ask the Court to set aside the decision being reviewed here (a non-decision in my opinion), and order a new request with a new slate of THOs. I realize this is getting ridiculous, but I believe it serves the region best to have it's Court be seen to be upholding the laws of the land. Thank you.
Edited by falapatorius, Dec 31 2017, 06:48 PM.
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Cogoria
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The brief of Falapatorius is accepted, however the request to dismiss the case in favour of a new hearing with new Temporary Hearing Officers is not. The court will be proceeding with the request for review brought before us.
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SillyString
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Cogoria
Jan 2 2018, 08:35 AM
The brief of Falapatorius is accepted, however the request to dismiss the case in favour of a new hearing with new Temporary Hearing Officers is not. The court will be proceeding with the request for review brought before us.


I'm slightly unclear on this point - could the Moderating Justice (Owenstacey) please clarify?

By my reading of falapatorius' brief, he is requesting that the ruling issued by THOs Abbey and Plembobria be set aside by this Court as part of its decision, based on the reasoning he has provided, and that this Court order that a proper response to the request for review that I filed be issued.

The statement above seems to interpret falapatorius' request as asking for this review to be dismissed, and declines to do so. However, based on my understanding of his post, it could also be interpreted as having issued a preemptive statement about what the ruling will be on this request, without having issued the ruling itself.

Thank you!

As a side note, the AG's office will be entering a brief on this request as well.
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falapatorius
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Silly String
 
By my reading of falapatorius' brief, he is requesting that the ruling issued by THOs Abbey and Plembobria be set aside by this Court as part of its decision, based on the reasoning he has provided, and that this Court order that a proper response to the request for review that I filed be issued.
Quite right. My apologies to the Court for the confusion.
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Goyanes
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The Office of the Attorney General submits the following brief for consideration. In it, we argue that the ruling that was issued in response to the request for review filed by SillyString was out of scope for the request, and was thus not a legal exercise of the Court's powers.

The Court has a great deal of power and discretion. It is granted the authority to decide what is and is not legal and what is and is not law. In theory, it would be exceedingly hard to rein in an out of control Court through the other branches of government without resorting to emergency measures. Luckily, our government officials are generally both reasonable and interested in doing the right thing. Most of the time, when something goes wrong, it is due to a misunderstanding of the law or the principles behind it.

Cognizant of the Court's power, and the potential for misunderstanding its applications, there are a few safeguards that have been put in place during the history of this constitution. These safeguards exist to remind elected justices of the reasonable limits on the exercise of their power - of when they should not act.

The Constitution states:
Quote:
 
1. The Court will try all criminal cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.

Note the key, bolded phrase: by request of an affected party. This limiter serves two functions. First, it restricts who may make a request of the Court, in what we also call "standing". Second, it restricts the Court from issuing a ruling without receiving a request to do so.

Emphasizing this latter point, the Court Rules and Procedures state:
Quote:
 
2. Prior decisions made by the Court, regardless of its composition at the time, must continue to be obeyed by the Court and by each individual Justice until and unless their validity is formally overturned in a new request for review.
3. The Court is a reactive body. Without any such request, the Court may not proactively overturn previous rulings.

Both of these clauses build upon the same limiting function that is found in the Constitution, and they have some profound implications for the Court's freedom to act independently. Under these rules, the Court is not permitted to spontaneously overturn a prior ruling it has issued even if it has come to sincerely believe that that ruling violates the law. To provide a hypothetical example, the Court is obliged to deny requests for review submitted by individuals without standing, as defined by the Court's ruling on standing. This is the case even if the justices, individually and collectively, believe that that ruling is flawed and the individual in question should be able to file that particular review. They nevertheless have no choice but to uphold the law as it stands, until and unless a request for review is brought on that point and a new ruling is issued.

Speaking of which, a prior Court ruling (The Nature of Precedent and the Scope of the Court's Powers) states (excerpted):
Quote:
 
The Court does not believe, however, that precedent may be overturned sua sponte (unilaterally, at the Court's discretion, without an action being brought), nor do we believe that precedent may be disregarded unless it is conclusively overturned.

Quote:
 
The Court may overturn its prior rulings, but must do so in response to a new request as a result of some factual evolution

In other words, prior precedent is binding until it is explicitly overturned, and precedent cannot be overturned (nor, indeed, can any ruling be issued) without a specific request that the Court do so. All three of these excerpts serve to encourage the Court to be cautious about the power it wields and to react specifically to what it is brought, and not to the questions it independently wishes it could answer.

The occurrence of "a request for review in which a petitioner who ought to have standing does not" absolutely does not meet the threshold for the validity of a ruling being formally overturned in a new request for review by the request of an affected party. Similarly, the occurrence of "a request for review of an action taken by the Court" does not meet the threshold for overturning valid and legally binding precedent stating that judicial actions are subject to review just as much as any others. That precedent states:
Quote:
 
The Court holds that the Court is obliged to review its own decisions should the need arise (and a proper request be made - arbitrary requests for review every time a new Court is elected are not permissible), as it is responsible for doing with all governmental policies.

Although the request asked the Court to determine the legality of a prior Court action, at no point did it raise the question of whether the Court had the power to do so. Based on the language of the Constitution, and a prior Court ruling upholding that same power, the request as filed took the Court's power as given. If there had existed some question in the THOs' minds as to whether they could legally overturn a decision made by a Justice, the correct response would have been to reject the request for review. By the act of accepting the request, the Court created an understanding - furthered a precedent - that doing so was right and proper. To then turn around and issue a ruling that in fact, Court decisions may not be subject to review, and the accepted request will not be answered, goes against all prior precedent and all logic of how the Court functions.

Moreover, the Court's ability to review judicial actions was raised in one brief, but the standard required for whether the Court can issue a ruling on a particular topic absolutely must be higher than "a brief talked about it." Why? Because briefs can include anything under the sun. There is no vetting process for them, and the Court is generally not permitted to categorically ignore a brief - though it may choose not to address one in its ruling. There is no objections or appeals processes for briefs, to call attention to content that is fundamentally not related to the question(s) raised.

The decision that was issued was as unrelated to the topic the Court was asked to review as a decision on the limits of freedom of speech in TNP law would have been - or as unrelated as actual briefs (as in, the underwear) would have been, a picture of which was actually submitted to the Court in a prior request for review. Merely mentioning a part of the law, merely bringing it up in a brief, does not make that part of the law germane to the request for review. It is incumbent upon the Court to keep such distinctions in mind and not exceed its authority.

In summary, the ruling that is being reviewed in this request was issued sua sponte, not in response to a specific request. It is thus a violation of the law and not a valid, legal use of the Court's power. As it is invalid and illegal, it is not binding and does not serve as a ruling on the request in response to which it was issued.

Accordingly, we ask the Court to rescind that ruling, and to issue a ruling on the original request for review filed by SillyString.
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Barbarossistan


For the courts consideration, a quick brief in response to the briefs filed above.

Was precedent upheld?

While the court in the decision reviewed here acknowledged precedent I do not think it upheld it. The precedents cited by the court and me hold that court decisions are reviewable, indeed that the court is constitutionally obliged to so so. The standard of review only exceptional circumstances isnt set in precedent, it was introduced in the decision to be reviewed here, precedent was overturned in that manner. I think Falapatorius attaches too much meaning to the courts statement acknowledging precedent and ignores that the court effectively set a new, difficult to meet, standard that does not fit with the previous finding that the court is not only allowed but obliged to review its decisions when asked. The court then proceeded to apply its new standard in such an arbitrary manner that it immediately became devoid of substance. Effectively, the court decided that it may choose not to review its decision whenever it so chooses, a decided break with precedent.

Sua Sponte decisions

The ability of the court to only rule on what is brought before it by citizens is an important check on its power. Also, for the court t arrive at well-reasoned decisions it is relevant for the public to be able to debate the topics at hand before the court so the court may more fully understand the relevant issues before deciding, this is impossible with a sua sponte decision. As the AG has pointed out the constitution seeks to prevent the court from ruling outside the bounds of the requests brought before it, it behooves the court to respect this boundary.


Reversal of precedent

For the application of the law to be known and predicable it is important that the court stick to its previous decisions. The court cannot be expected to hold to previous decisions under all circumstances, but the precedent cited in my request provides I believe a workable standard for when and how this may be done, the AG's brief works this out further, I shall not repeat it here.


What is to be done?

I recommend that the court nullifies the decision reviewed here and affirms its precedent on sSua sponte decisions and reversal of precedent, the court may take the opportunity to clarify its standards on these matters. With the current decision nullified the request by Sillystring would remain open and the court would have to decid on it. I do not think a fresh slate of THO's is legally required for that and think the court in its current composition may decide on that request, in conjunction with the decision to be given here. I refer to the briefs filed in that matter for the courts information on the issues.

Thank you for your attention.
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Owenstacey
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SillyString
Jan 2 2018, 05:53 PM
Cogoria
Jan 2 2018, 08:35 AM
The brief of Falapatorius is accepted, however the request to dismiss the case in favour of a new hearing with new Temporary Hearing Officers is not. The court will be proceeding with the request for review brought before us.


I'm slightly unclear on this point - could the Moderating Justice (Owenstacey) please clarify?

By my reading of falapatorius' brief, he is requesting that the ruling issued by THOs Abbey and Plembobria be set aside by this Court as part of its decision, based on the reasoning he has provided, and that this Court order that a proper response to the request for review that I filed be issued.

The statement above seems to interpret falapatorius' request as asking for this review to be dismissed, and declines to do so. However, based on my understanding of his post, it could also be interpreted as having issued a preemptive statement about what the ruling will be on this request, without having issued the ruling itself.

Thank you!

As a side note, the AG's office will be entering a brief on this request as well.
After speaking to both of the other THO’s, we have realised that the previous statement by Cogoria was a misinterpretation and is not the concenous view of the THO’s. So to be clear, we are accepting the whole of Falaptorius’ brief and will consider everything mentioned.
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SillyString
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inFECted

Thank you! I appreciate the clarification.

I would like to add some additional thoughts on this matter. I opted not to suggest them for the AG Office brief, as they contain some specific suggestions for the Court on how to proceed that I think would not be entirely appropriate coming from another part of the government. So, please take these ideas as submitted by a private citizen, albeit one with a fair amount of prior legal and legislative experience.

The Court has four options for how to proceed. First, it can choose to uphold the ruling issued by Abbey and Plembobria as legally issued and legally binding, and declare the matter closed. The problems with this potential decision have been laid out, so I will not rehash them, but suffice it to say I think this would definitely be the wrong decision to make.

Second, it can decide that the ruling was legally issued (in other words, in scope, and a valid use of the Court's power), but does not hold up to scrutiny and is therefore overturned. If the Court chooses this path, it will need to make clear, under the terms of the ruling it will be overturning, how it has determined that "exceptional circumstances" have applied. It will also need to decide how to address the request I filed - it can either say that the request was answered and is therefore closed (even though the answer was ultimately thrown out), or it can reopen that inquiry and issue another ruling. Needless to say, I concur with the AG's brief that the ruling was not legally issued, so I do not advise the Court to take this option either.

Third, the Court can decide that the ruling was not legally issued and is therefore not legally binding, and does not answer the question that I posed. I would personally advise the Court, if it takes this option, to additionally take on the responsibility of answering that question itself. Its other options, as I see it, would be to remand the decision back to the original slate of three THOs to decide properly, or to instruct that a third set of THOs be appointed to address the matter. The former is problematic for multiple reasons (one of the THOs went inactive and might be unavailable; no citizen can be forced to serve as a government official so the other two must remain free to decline; and so on), and the latter... well, there is a limit to how many people are interested in being THOs. Having to find a third set is getting pretty extravagant. :P

Fourth, the Court can take the third option, but include in its ruling on this request an updated and expanded explanation for reviewing court actions and decisions. Although this topic was not in scope when the ruling now under review was issued, it has become in scope for this request for two reasons. One, because it is now the topic of the ruling being reviewed, and this allows the court to uphold, overturn, or refine the matter, and two, because it was explicitly brought up by the petitioner, who requested that the Court consider it and rule on it. The Court is of course not required to take this on - just because something is in scope does not mean the Court absolutely must render a decision. It would be just as valid to revoke the most recent ruling, state that the one prior to that stands as-is, and move on.

I cannot offer any guidance to the Court as to whether it should take option three or option four. That decision is entirely up to its members, who must decide for themselves if they think the original ruling offers enough guidance and clarity, or if additional explication is needed.

However, if it decides to render additional guidance on the Court's review of itself, I would like to encourage it to consider the following specific points, which I think are extremely important and which were not adequately considered in the ruling now under review.

1) The first distinction I would like to draw is between court rulings, court decisions, and everything else. For these purposes, I will specifically define "court rulings" as the binding opinions issued by the Court in response to requests for review which get entered into the Court Rulings page under our laws, plus the verdicts and sentences that it issues in a criminal trial. I will also define "court decisions" as all final decisions issued by the Court. This includes court rulings, but also responses to any appeal of an individual justice's actions to the full panel, or the full panel's decision to require a justice to recuse themselves, or anything else which can be said to be rendered by the Court as a body.

"Everything else", then, would include any decision made, or action taken, by an individual Justice that is not adjudicated by the whole body. This could be a Moderating Justice in a trial granting or overruling an objection on certain evidence, or the Chief Justice reorganizing some aspect of the Court, or one Justice accepting or denying a request for review.

As for the point of this distinction, the Court is absolutely right to be extremely cautious when it comes to overturning court rulings, and to be hesitant when overturning court decisions. Ideally, such matters were debated thoroughly by the Court at the time they were rendered, in response to the specific situation that sparked their issuance, and with review of the applicable law at the time. Without good reason to do so, such as compelling evidence that a trial was mishandled, or a clear legal deficiency in a ruling, the Court should default to trying to reconcile a prior ruling or decision with the law and with what is right, and issue a clarification rather than a reversal. This is something the original precedent got right, in my opinion - it should be rare for the officially binding opinion of the Court to be overturned.

However, when it comes to the everything else? That is rightfully an entirely different question. Actions taken by individual justices, taken in their role as elected government officials (or appointed ones, in the case of THOs), do not carry the full force and weight of the Court, nor its power to set binding precedent. Individual justices are not above the law, and their actions and decisions do not deserve special protection from scrutiny any more than any other government official. If a justice has violated the law, either pettily or grossly, the Court is the single body best positioned to correct the situation.

I do not think this distinction was quite adequately made in the original ruling, and it was entirely lost in the one now under review. My request dealt with the specific action of a specific justice, of accepting a request for review contrary to what the law allowed. This is very different than asking the Court to reconsider settled precedent, and ought to be treated differently.

2) The second distinction I would like to draw is that between the standard for review and the standard for reversal.

The standard for review is the hurdles which must be overcome to place a matter before the Court for its consideration. These standards include establishing standing, either as an affected party or as a member of the AG's office; declaring a specific law, policy, or action by a government official as having violated your rights contrary to the law; and following any template established by the Court for submitting requests. It could, hypothetically, include other things - such as being a citizen, which is not a current requirement.

The standard for reversal is one which the Court would apply when considering whether to overturn a prior decision. This could include, for example, determining whether the decision was a valid and legal exercise of the court's powers; whether it aligns with the law and the bill of rights; whether it leaves loopholes open for behavior that ought to be illegal (does it allow a government official to violate someone's rights? Does it allow a citizen to commit a criminal act without repercussions?); whether it clarifies or muddies the legal waters around a particular topic (are people more confused or less about the status of the law?); and so on. (As an aside, I do not think the Court needs to lay out explicit guidelines to create a standard for reversal. Such guidelines would be extremely difficult to prepare adequately, as reversal depends heavily on the specific circumstances that come up. It can more easily advise general caution when deciding whether to do so, much as the original ruling on precedent did.)

I would argue that these two standards must be very different for the Court to function, but the ruling issued by Abbey and Plembobria requires the former to match the latter: "It is the opinion of the Court that the Court's actions in this case are not reviewable. This is because the Court believes that only in exceptional circumstances, in the case of a particularly severe breach, can the Court's actions be reviewed. [...] Requests for review can only be reviewed themselves in exceptional circumstances when all routes of appeal have been exhausted."

This requirement is hugely problematic. By imposing an artificial requirement of "exceptional circumstances" for the Court to even take up a review of its actions, it has simultaneously blocked most possible reviews of its actions (what qualifies as "exceptional circumstances", if a Justice acting illegally does not?) and set precedent that any such reviews that are accepted by definition meet those exceptional circumstances and represent cases where the Court's actions ought to be overturned.

It is wholly inappropriate for any Court to predetermine outcomes for future Courts in such a way. In order to adequately decide if a Justice, or the Court as a whole, has acted inappropriately or made a wrong decision, a sitting Court must be free to consider each request for review on its own merits, to consider briefs made for and against each side, and to review the law as it stands at that time. It also must not treat the members of its own body with any special deference, as they are neither less likely nor less capable of running afoul of the law.

I agree with and support the standard for reversal (of court rulings and decisions, not everything else) being high, as I explained above. But I cannot support the standard for review being any higher than it is now. Did a law, government policy, or action by a government official violate your rights in a specific way? If so, you have the right, as a nation of TNP, to be heard, and to petition for the redress of your grievances.

So, if it chooses to take on this additional question, I would strongly urge the Court to draw the distinctions I have made above when laying out its guidelines.

I hope that these thoughts are helpful for the Court as it deliberates this matter, and I thank the Court for its time.
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SillyString
Jan 3 2018, 03:43 PM
2) The second distinction I would like to draw is that between the standard for review and the standard for reversal.

The standard for review is the hurdles which must be overcome to place a matter before the Court for its consideration. These standards include establishing standing, either as an affected party or as a member of the AG's office; declaring a specific law, policy, or action by a government official as having violated your rights contrary to the law; and following any template established by the Court for submitting requests. It could, hypothetically, include other things - such as being a citizen, which is not a current requirement.

The standard for reversal is one which the Court would apply when considering whether to overturn a prior decision. This could include, for example, determining whether the decision was a valid and legal exercise of the court's powers; whether it aligns with the law and the bill of rights; whether it leaves loopholes open for behavior that ought to be illegal (does it allow a government official to violate someone's rights? Does it allow a citizen to commit a criminal act without repercussions?); whether it clarifies or muddies the legal waters around a particular topic (are people more confused or less about the status of the law?); and so on. (As an aside, I do not think the Court needs to lay out explicit guidelines to create a standard for reversal. Such guidelines would be extremely difficult to prepare adequately, as reversal depends heavily on the specific circumstances that come up. It can more easily advise general caution when deciding whether to do so, much as the original ruling on precedent did.)

I would argue that these two standards must be very different for the Court to function, but the ruling issued by Abbey and Plembobria requires the former to match the latter: "It is the opinion of the Court that the Court's actions in this case are not reviewable. This is because the Court believes that only in exceptional circumstances, in the case of a particularly severe breach, can the Court's actions be reviewed. [...] Requests for review can only be reviewed themselves in exceptional circumstances when all routes of appeal have been exhausted."

This requirement is hugely problematic. By imposing an artificial requirement of "exceptional circumstances" for the Court to even take up a review of its actions, it has simultaneously blocked most possible reviews of its actions (what qualifies as "exceptional circumstances", if a Justice acting illegally does not?) and set precedent that any such reviews that are accepted by definition meet those exceptional circumstances and represent cases where the Court's actions ought to be overturned.

It is wholly inappropriate for any Court to predetermine outcomes for future Courts in such a way. In order to adequately decide if a Justice, or the Court as a whole, has acted inappropriately or made a wrong decision, a sitting Court must be free to consider each request for review on its own merits, to consider briefs made for and against each side, and to review the law as it stands at that time. It also must not treat the members of its own body with any special deference, as they are neither less likely nor less capable of running afoul of the law.

I agree with and support the standard for reversal (of court rulings and decisions, not everything else) being high, as I explained above. But I cannot support the standard for review being any higher than it is now. Did a law, government policy, or action by a government official violate your rights in a specific way? If so, you have the right, as a nation of TNP, to be heard, and to petition for the redress of your grievances.


I would like to offer brief comments, relating to the quoted passages above from the brief of the Deputy Attorney-General, that will hopefully be of assistance to the Court. I am unlikely to be fully across the entire procedural history of this case and the related ones by the time submissions of briefs close. As such, I will only be able to offer these limited comments for now.

SillyString is correctly submitting that a distinction must be made between the threshold for the Court to review a prior decision, and the threshold required to reverse it. It is obvious that some decisions are capable of being reviewed, yet will ultimately be upheld.

Contrary to SillyString, I am submitting that the Court should be able to decline to reach the question, on the merits, of whether a prior decision ought to be overturned. My reading of SillyString's submission is that, should the Court have the jurisdiction (or 'power') to reverse itself, it must reach the legal question.

A distinction must be made between the powers of the Court under the Constitution -- its maximal capacity to act -- and the circumstances in which it will contemplate exercising those powers. The Procedural Rules are an exampe of a mechanism by which the Court limits how and when it will act.

While I do not see a reason for a particularly high threshold, I do believe that there are cases that the Court would appropriately decline to take-up. The Court should not be expected to endlessly labour to review its past decisions, especially if every such request is likely to require the appointment of temporary hearing officers for its adjudication. While I am not suggesting the Attorney would do so, I believe that they would have standing to seek review of all prior Court decisions.

In effect, I believe, there are four levels of inquiry that a Court must go through should it be asked to reverse a decision. The third and fourth will often run into each other (or even together), or their order reversed, but I am separating them here.

1) Does the Court have the power to overturn its earlier decision?

2) Is the Court willing to take up the case? The Court should exercise its discretion to decline to review a prior decision where, for example, the review is unlikely to have a real and appreciable impact on anyone seeking the review, or if it is an abuse of process, or the Court determines a lack of standing, and so forth. This is a matter for the Court's discretion, and it should be cognisant of the need to balance certainty in the law, judicial efficiency and its institutional integrity on one hand; and the unquestionable right of those who come before it to be able to argue their case.

3) Is the decision issued correct?

4) Are there any considerations that would militate against overturning it? For example, is the decision part of a well-reasoned line of precedent that would be disturbed by overturning it, or does it stand alone and aside? Is there any reliance placed upon the decision? Would overturning it cause any material inconvenience?

I recognise that the latter two questions may be somewhat outside the scope of the challenged decision, but their consideration may assist the Court in this case. I believe that the ultimate question is whether the Court answered the second question correctly.
Blue Wolf II
Aug 21 2016, 12:00 PM
As with all Fenda regions, this one deserves a commend
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