DECISIONS OF THE COURT OF THE NORTH PACIFIC posted opinions in chronological order 31 July 2005 IN THE COURT OF THE NORTH PACIFIC In the Matter of A Petition for Judicial Review (UN Delegate Candidate Eligibility Requirements) BEFORE Grosseschnauzer, Chief Justice. An expedited proceeding for judicial review was filed by the Prime Minister, Tresville, under Article V, section 8 of the Constitution of The North Pacific effective from 7 July 2005. The petition states: (bolded language in original petition.) The quoted constitutional provision is the introductory paragraph of Article III, Section 2 of the Constitution. (Note: A reference to the “Constitution” throughout this opinion is a reference to the Constitution of The North Pacific effective from 7 July 2005.) We infer from the petition that the question really deals with the relationship of various provisions of Article III, sections 1, 2, 3 and 4, which deal generally with the election of the “Cabinet” and sections 7 and 8, which deal specifically with the election of the UN Delegate. The Court takes judicial notice that an election for UN Delegate is scheduled for 1 August to 7 August 2005 in accordance with the Constitution that requires expedited determination of the petition. A notice of the expedited proceeding has been publicly posted at the official off-site forum by the Court since the nomination period for the office of UN Delegate is underway and there was no other means of expeditious notification to otherwise unidentified interested parties available to the Court. (See http://s2.invisionfree.com/The_North_Pacif...howtopic=4918.) Turning to the petition filed by the Prime Minister, and to the responses filed to the petition in the thread for this proceeding, we answer the question posed as follows. We believe that, in looking functionally at what the various provisions of the Constitution describe, the Delegate is a member of the elected Cabinet, and not just the Cabinet as a whole – which also includes the deputy ministers. This conclusion is not affected by the provision that the UN Delegate is expressly precluded in the Constitution as an elected member from voting in the Cabinet. We conclude, further, that the provisions governing Cabinet elections as a whole in sections 1, 2, 3 and 4 of Article II of the Constitution apply to the election of the UN Delegate unless expressly varied by an applicable clause of sections 6 or 7 of that Article. This conclusion reflects a sound method of interpretation that gives the fullest possible application to all of the provisions of the Constitution without disregarding any of its provisions, and we believe this interpretation best fulfills the intention of the original Constitution as well as the two revisions of the Constitution as to the election of the UN Delegate, the Prime Minister, and the other Ministers listed in Article III, section 2 (Note: By this we refer to Article II section 2 of the original constitution, (posted in June 2004 by Blackshear at http://s2.invisionfree.com/The_North_Pacif...?showtopic=1567 with an amendment shown here: http://s2.invisionfree.com/The_North_Pacif...?showtopic=2608 as well as Article II, section 2 of the revision that took effect in April, 2005 posted here: http://s2.invisionfree.com/The_North_Pacif...?showtopic=4177, as well as Article III section 2 of the current revision that became effective 7 July 2005). There is nothing in the regional archives as to the development of the first or second revision that evidences a contrary intention. (Note: see http://s2.invisionfree.com/The_North_Pacif...?showtopic=3761, and http://s11.invisionfree.com/True_North_Pacific/index.php?c=4 .) This conclusion is reinforced by the following: Article III, section 3, clause 6 of the Constitution states that: In addition to Article III, section 3, the phrase “Cabinet-level position” appears in Article III, sections 1, 4, and 5. In each instance it appears to be a synonym for the word “Cabinet” or the phrase “elected members of the Cabinet” and the definitional language quoted above reinforces that usage. Sections 1, 4, and 5 of Article III all deal with the Cabinet generally. Section 2 notes that “except forthe UN Delegate for the Region, the Prime Minister and each Cabinet minister shall have a vote on any Cabinet action.” (Emphasis added.) This language clearly indicates that the Delegate is an elected member of the Cabinet. As to the provision in Article III, section 7 concerning the requirement that “a newly-elected Delegate shall be required to forfeit any position they may hold as Prime Minister, a Cabinet minister, a deputy minister, or as Attorney General, they may hold,” the Constitution consistently uses the phrase “Cabinet minister” to refer to the Minister of External Affairs, the Minister of Immigration and Internal Affairs, the Minster of Defense, the Attorney General as Minister of Justice, the Minister of Culture and Education, and the Minister of Arts and Entertainment, collectively, as opposed to a reference to the Cabinet as a whole (which would include the Prime Minister and the UN Delegate.) This is shown, for instance in Article III, section 3, clause 1, which states that “ No person, through one or more Nations, who has acted in any Cabinet-level position as Delegate, as Prime Minister, or as a particular Cabinet Minister, for more than one half of a term to which some other person was originally elected, shall be subsequently elected to that elected office of the Cabinet more than once, pursuant to this section.” In addition, the referenced provision in Article III, section 7 is merely reinforcing Article III, section 4, clause 3, which provides that “Cabinet members shall not hold more than one Cabinet-level position at the same time,” a provision that clearly applies to the UN Delegate due to the constitutionally provided definition of “Cabinet-level position.” As to the differences between procedures for the election of the Delegate and the election of the Cabinet generally, we note such things as the different time periods during which candidates are nominated or may declare themselves (which was changed by a proposal adopted in the s11 constitutional convention) as between the UN Delegate and the other elected members of the Cabinet, the fact that the Prime Minister is the default administrator of Cabinet elections, while the Minister of Immigration and Internal Affairs is the default administrator of UN Delegate elections, the fact that voters in Cabinet elections generally must be registered voters, while voters in elections for UN Delegate must be both registered voters and must have a nation within TNP who are UN members, and the fact that a specific durational residency requirement of three months prior to candidacy is imposed on candidates for UN delegate, while candidates for other offices are only required to be residents. (All candidates are required to be participants in the off-site forum for at least a month prior to candidacy.) These differences can be attributed to a desire to handle the election of the UN Delegate in a specialized manner, and not to a desire that the process differ in all respects from the election procedure for other members of the Cabinet. There is nothing in the Constitution that evidences an intention that the general requirement that all elected members of the Cabinet be registered voters not apply to candidates for the UN Delegate. Accordingly, we hold that the requirement does apply to the UN Delegate, and that any candidate for UN Delegate must be a registered voter. In conclusion, we summarize our holding as follows: The UN Delegate is an elected member of the Cabinet. The general principles and provisions that apply to the election of all elected members of the Cabinet that appear in Article III, sections 1, 2, 3, and 4 apply to the election of the UN Delegate unless there is a variance in a specific provision of Article III, sections 6 and 7 as to the election of the UN Delegate, in which case, such provision takes precedence. As a result, any candidate for UN Delegate must be a registered voter as required for any candidate for any elected office in the Cabinet. We will note for the record that both of the Associate Justices were provided an opportunity to review and comment on the draft text of this Opinion. The petition is granted. Let judgment be entered accordingly. 5 September 2005 IN THE COURT OF THE NORTH PACIFIC In the Matter of A Petition for Judicial Review (Registered Voter Application of Insane Power) BEFORE Grosseschnauzer, Chief Justice. After consulting with Associate Justice Byardkuria (who has also confirmed the information concerning the deletion of the nation Insane Legensa), this proceeding is hereby DISMISSED, with instructions to the Minister of Immigration and Internal Affairs to dismiss the application due to ineligibility since the applicant's nation does not currently exist. In the future, it is recommended that the Minister of Immigration and Internal Affairs determine each registered voter application since the constitutional method for review of those decisions is intended to be the mechanism described in Constitution Article II, Section 3. That provision permits the Cabinet to review any Ministerial action or decision at the request of any two registered voters, and then having formulated its position on the Ministerial decision, transmit it to the registered voters for a decision through a referendum supervised by the Speaker of the Regional Assembly. From what few statements that were submitted there were factual issues presented, not legal questions, which made the judicial review mechanism inappropriate. One other point -- the validity of any referendum conducted prior to 7 July 2005 has to be determined on the basis of the constitution then in place, and not under the current constitution. Should either of the players whose applications were rejected by the registered voters of the region in accordance with the provisions of Article I, section 4 of the April Constitution revision under which the those questions were decided, choose to apply again, the only viable manner of review for the new applications under the constitution in effect from 7 July 2005 is that described in the preceding paragraph. The Minister of Immigration and Internal Affairs has to make the initial decision, whatever that may be (approve, deny, refer to the Cabinet, refer to the registered voters for a referendum decision). The constitution gives the Minister that sort of discretion, and rather than pass the buck, he should exercise the duty and authority given to him under the constitution. The review mechanism of Constitution, Article II Section 3 is there as a check and balance to a decision or action by any of the elected Ministers; that is what it is there for, and the ultimate arbiter of such political decisions are the body of registered voters, which is where that decision is committed under the constitution. (And we would note that the constitution specifies registered voters, and not the regional assembly, since such referenda do not involved the adoption of a statute or the adoption of a constitutional amendment.) This matter should have never been initiated as a judicial review proceeding; the constutition clearly set out a mechanism for a Ministerial decision and a review of that Ministerial decision under the review provisions of Article II, Section 3. They should have been followed in this instance. PROCEEDING DISMISSED. 18 September 2005 IN THE COURT OF THE NORTH PACIFIC The North Pacific versus Cathyy. Before Associate Justice Byardkurdia RESPONSE TO INTERLOCUTORY APPEAL AS FILED SEPTEMBER 17, 2005 The Court affirms the prior decision with respect to the gag order in criminal proceedings. While readings of TNP Law 4, Rule 507 may be interpreted as indicating that a defendant or other named party may not discuss matters of the case with their counsel, a similarly strict interpretation would also prohibit public filings of complaint or appeal with respect to any aspect of the case. As this would violate the rights of named parties with respect to counsel and due process, such interpretations cannot be accepted as factual and enforceable. As these guidelines are recognized as purely interim, the Court is not prepared at this time to amend the guidelines as given; however, by way of clarification and pending finalization of the Court procedural document, no portion of Law 507 as written should be interpreted in such a way as to make good faith efforts to prepare defense unlawful. As such, the interpretation of this Court is that Rule 507 applies solely to communications between those parties possessing bona fide involvement in the case (e.g. named parties, respective counsel, officers of the Court, potential witnesses, etc.) and those without any such involvement, provided that such communication is germane and relevant to the roles of the communicating parties in the trial. Methods of communication which are inherently public, such as forum posts, cannot be assured to exclude those parties without involvement, and, as such, are prohibited. Communications related to pending action and taking place between involved parties, provided such efforts represent a bona fide attempt to prepare cases for hearing, are not subject to Rule 507. Upon review of all relevant passages, and examination of Court rules, the Court finds that the final charge, of attempted coup d’etat, does not meet the provisions of Rule 506(a) concerning citation of violation for the charge presented. As such, the charge of attempted coup d’etat is dismissed as submitted. Please note that this does not constitute a finding of innocence or guilt for purposes of appeal or further trial. The Court also affirms the prior ruling with respect to appointment of a lead prosecutor. At this time, at the time of filing, and at the time of appointment, the designated prosecutor is or was not a member of the Cabinet (Article 3, Section 5, Clause 4, Constitution of the North Pacific), and, as such, not subject to exclusion under Rule 503( c). However, the Court also recognizes the likelihood that this status may change prior to initiation of proceedings, and strongly recommends that the Office of the Attorney General investigate the likelihood of such change. If any such change is found to be reasonably certain, it is requested that the Attorney General designate replacement counsel in order to avoid any additional delays in procedure, or, failing such, indicate intent to rely on the co-counsel designated in the original indictment. - Byardkuria Associate Justice, Court of the North Pacific PETITION GRANTED IN PART; DENIED IN PART. Concurring Statement by Grosseschnauzer, Chief Justice I post a concurrence solely to point out that there is nothing preventing the Attorney General from filing a supplemental or superceding indictment that conforms to the provisions of Rule 506. I also point out that I do not concur with Justice Byardkuria on the handling of this interlocutory appeal in the sense of it would establish any precedent whatsoever because there is no basis in the Constitution, the Legal Code or the Court rules currently being used that authorizes such a proceeding. Accordinly, all parties are cautioned that Justice Byardkuria's statement should not be used as precedent in future situations. 23 September 2005 IN THE COURT OF THE NORTH PACIFIC The North Pacific versus Cathyy. BEFORE Grosseschnauzer, Chief Justice. On the matter of an Interlocutory Appeal: The undersigned has previously expressed his reservations that a right to file interlocutory appeals even exists under principles of TNP law, and the draft interim Court rules do not mention that such a proceedure exist. With that reservation stated, and that this statement therefore has no precedental value, the ruling of Justice Byardkuria is AFFIRMED. The determination of whether a particular nation is a registered voter is a matter placed by law as a responsibility of the Minister of Immigration and Internal Affairs. As a matter of judicial notice of fact, as shown in the appropriate threads of the Ministry of Immigration and Internal Affairs forum, the court notes the statements of Minister Baribeau that a complete review of all registered voters had to be conducted for administrative reasons, and that the process was not completed until this past week. The undersigned will also note that a request was made by the Court even before the draft interim Court rules were posted for comment (and temporary implementation pending adoption of final rules) to the Minister for a complete and current list of registered voters so as to prepare the initial list of jurors in order of call. Therefore, under the circumstances, the preparation of the juror list under the described procedures could not even begin until a current registered voter list was made available to the Court. Now that a list has been supplied, the process of preparing the juror list has begun, and the posting of a juror list in a random order of the randomly assigned drawing numbers will be completed shortly. As to any objection to the inclusion of a registered voter on the list supplied by the Minister of Immigration and Internal Affairs, the constution provides a metnod of Cabinet review of Ministerial action, and the undersigned notes that that process has not been invoked or used by defendant or her counsel, or more accurately, by any two registered voters on behalf of defendant or her counsel. That would be the appropriate remedy to contest those determinations of fact. The ruling of Justice Byardkuria is therefore in all respects is AFFIRMED and the proceeding seeking an interlocutory appeal is DISMISSED. PROCEEDING DISMISSED.