In re: Election Dispute (Tresville et al.)

[Grosseschnauzer]

This thread for for discussion of this case and drafting of a court opinion.

I'm looking at the following provisions in the Bill of Rights, the Constitution, and the Legal Code

Bill of Rights

10. Each Nation entitled to a vote in any manner under the fundamental laws of the region is entitled to the equal treatment and protection of that Nation's right to vote.

11. No governmental authority of the region has the power to suspend or disregard this 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 this Constitution.

Constitution

Article I

Section 3

7. Candidates for these elected officials must be members of the Assembly for 30 days before nominations begin..

Article II

Section 2: Speaker of the Assembly

1. The Assembly is led by the Speaker, whose task it is to lay out a uniform set of guidelines by which proposed legislation and other actions may be considered and voted upon.
2. The Speaker decides the order in which bills will be voted upon and is responsible for opening and closing each vote.

Section 3. Legislative Action

6. The Assembly is granted the power to legislate rules and institutions necessary and proper to carry out the mandates of this Constitution.

Article III. Delegate and Vice Delegate

Section 1/

3. The Delegate is responsible to ensure the good governance of the Executive Branch of TNP and may appoint and remove at will executive officers from the Assembly to serve at his pleasure.. Executive officers must maintain membership in the Assembly.

Article IV

Section 1

4. The CLO may vote to immediately bring any piece of legislation to an emergency vote before the Assembly.

Legal Code

TNP LAW 26
Election Dates

This law is hereby enacted to enable an election schedule for the offices and elections prescribed in Article I, Section Three of the Constitution of The North Pacific.

SECTION ONE

The election cycle for the 4-month terms of The Delegate, The Speaker of the Assembly, and CLO members, shall begin on the first day of the months of January, May, and September.

SECTION TWO

The election cycle for the 6-month terms of The Judiciary, including the Chief Justice, shall begin on the first day of the months of April and October.

SECTION THREE

This Act shall take immediate effect.

TNP LAW 28
Regional Assembly Registration and Membership

Section One. A Law on Regional Assembly Registration and Membership is hereby adopted, as follows:

QUOTE


Regional Assembly Registration and Membership

Article I

Membership Requirements

Section One

Membership in The North Pacific Regional Assembly does not require UN membership, in accorance with the TNP Bill of Rights.  However, the following requirements must be met and confirmed for membership.

1. Assembly member applicants must maintain a nation in The North Pacific.

2.  Each member Nation will by oath, abide by the Constitution of The North Pacific and The North Pacific Legal Code.

3.  Each member Nation shall refrain from the threat or use of force against the territorial integrity or political independence of any other nation or region in a manner inconsistent with the Constitution of The North Pacific.

4.  Each member Nation shall refrain from giving assistance to any nation or region against which The North Pacific is taking defensive or enforcement action. Exceptions shall be given to Nations acting with official authorization of the North Pacific Army or Intelligence Agencies, and is subject to the consent of the Cabinet.

5.  The use of a proxy server by an applicant for Regional Assembly member status is grounds for automatic denial of Regional Assembly member] application.

a. Proxy server usage is defined as the use of an IP connection with the intent of rendering a forum user anonymous, aka proxy spoofing, or any such practice designed to allow a member to have multiple accounts on the TNP forum.

Section Two

All Assembly applicants are required to post the following Oath, as their application to join.  The Oath will be posted by the applicant in the thread provided by the Speaker of The Assembly.
QUOTE
Your TNP Nation's name
Your UN Nation's name

I, (forum user name), as the leader of The North Pacific nation of (your TNP nation's name), pledge loyalty to the Constitution, Bill of Rights and Laws of The North Pacific Region, and to act as a responsible member of its society.  I understand that if my Nation leaves The North Pacific region for reasons other than for official government business, that I may be stripped of my right to vote and required to reapply.  I pledge to only register one Nation to vote in The North Pacific.  I understand that my registration of, or attempt to register, multiple Nations to vote in The North Pacific shall warrant the summary withdrawal of my right to vote from all my Nations, past, present, and future, as well as possible expulsion from the Region. I further understand that if any nation under my control directly wages war against the North Pacific, or allies themselves with a region waging war, declared or not, against the North Pacific, this shall warrant the summary withdrawal of my right to vote from all my Nations, past, present, and future, as well as possible expulsion from the Region.  In this manner, I petition the Speaker of The Regional Assembly of The North Pacific region for membership in the Regional Assembly.


Article II

Registrant Processing and Membership Confirmation

Section One

The Speaker of the Assembly, or a deputy so appointed by the Speaker, shall be responsible for processing and confirming the Assembly membership of applicants.

1. The Speaker shall provide and maintain a forum thread for the posting of Assembly applications.

2. The Speaker or assigned deputy, shall respond to applicant requests within 14 days. Failure to respond to the applicant within the specified period will result in automatic admittance of the applicant to the Assembly.

3. The Speaker will work with the forum Administrators and any Intelligence information provided to the Speaker, to ensure applicant compliance with membership eligibiliy.

4. The Speaker or assigned deputy will be responsible to maintain and post an updated list of Assembly members. The list shall be updated no less than once a month.

Article III

Member Removal

In accordance with Article II, Section Three of the Constitution, providing for the removal of unelected goverrnment members, the following methods and instances are provided for removal of Assembly members.

Section One

Violation of the Constitution or Laws of The North Pacific

1. Any Assembly member that has been found by due process to be in violation of the Constitution and Laws of The North Pacific shall be removed with immediate effect by The Speaker.

Section Two

Inactivity

1. Assembly members whose] nation has CTE'd (Ceased to Exist) or who have moved out of The North Pacific when not on offical business shall be removed from membership automatically by the Speaker.

2. Assembly members who fail to indicate their activity on the forum by posting for over 30 days shall be removed from membership automatically by the Speaker.

Section Three

Proxy Use

Use of a proxy server by an Assembly member, without specific official TNP permission for Army or Intelligence purpose, is forbidden and is grounds for immediate removal from the Assembly.

1. Forum administrators shall inform the Speaker in the event that an Assembly member is found to be engaged in the use of a proxy server to access the forum.

2. Upon notification, the Speaker shall immedately remove the offending member from the Assembly.


Section Two.. The Law contained in Section One of this Act shall take effect upon its adoption pursuant to the Constitution. Current members of the Regional Assembly are required to subscribe and execute the oath as enacted by the Law contained in Section One of this Act within one week after enactment pursuant to the Constitution.

Section Three., If, once seven days has elapsed after the Law contained in Section One of this Act takes effect, a member of the Regional Assembly has not executed such oath, they shall be suspended from membership in the Regional Assembly as well as any office or position they may otherwise hold in The North Pacific. This suspension shall be enforced by the use of a temporary mask by forum administration. Once the oath has been duly executed, the suspension shall be lifted promptly and without delay.

 

[Romanoffia (Guest)]

Here is how I see it so far in a nutshell.


1. If we simply allow the election to stand we are in conflict of the Constitutional provisions concerning the validity of a candidate to run for office or be nominated as such.

"7. Candidates for these elected officials must be members of the Assembly for 30 days before nominations begin.."

Clearly both candidates are in violation.

To simply let the election stand or hold a new election with the same candidates in question would allow both candidates in question to skirt the Constitution would cast doubts upon the credibility of this government, the Constitution and the Court.



2. If we hold another election, it would give the appearance of legitimizing the candidacy of two candidates who knowingly and willingly applied to run for office of the Delegate in violation of constitutional provisions thus showing a disregard for the Constitution. To hold another election including the disqualified candidates would cast doubts upon the credibility of this government and the Court.

It is to be presumed that any candidate who knowingly manages to get admitted to the ballot by error, negligence or contrivance would be disqualified from participating in a run-off or re-do of an election by principle of due diligence on the part of said candidates or election officials.




3. If we hold the two candidates who are in violation of constitutional provisions as 'invalid candidates' and then make the next highest vote-getter the Delegate we would be adhering to the Constitution in detail without having to either legislate from the bench or have the RA create an ex post facto law to deal with this matter. It would then be only logical to accept the next highest valid candidate with the most votes as Delegate. In the absence of a 'next qualifying' candidate, a new election excluding the violators in question should he conducted immediately as though the nominations and elections were being held at the original date, thus back-dating the issue without affecting the actual dates of term. The Present Delegate would remain delegate until replaced.



The logic behind The following three items is as follows:

I.

To permit the two disqualified candidates to participate in another election for Delegate would only excuse the violation of the Constitution and applicable laws and violate the rights of the legitimate candidates at the time of the initial election. Since the two candidates were in violation of the election rules by Constitution, any re-vote should exclude the violators who by one means or another, negligent or not, from the new vote. There is to much of a chance that such a critical error being used as a political tool in the future as to set a precedent allowing election law violators (ignorance of the law is no excuse nor is negligence in due diligence) to simply wait until the conditions excluding them pass and then go for another election.


II. Permitting candidates disqualified in an initial election to run in a 're-do' of an election would only permit violators of election laws to skirt the Constitution. Thus, but candidates strictly in violation of law and Constitution should be disqualified in any re-run of an election. To permit those initially disqualified in the original election, which concerning the other valid candidates is still legitimate, would violate their rights as provided under the Constitution.

III. Lacking a third candidate with a plurality or simple majority, a new election should be conducted as excluding any invalid candidtates.



There are three possible ways I see to deal with this matter, some more or less distasteful than others.

I certainly hope that I am also not the only Justice who weighs in on this matter as it puts me in a very difficult position.



R

 

[Byardkuria]

There is a teeny issue, in that I was a candidate for one of the races that would be rerun, creating the possibility a.) of the appearance of a conflict of interest and b.) that I might actually screw up and win the damn thing.

 

[Romanoffia (Guest)]

That had crossed my mind.

Any decision we arrive at must be above politics. You could recuse yourself in the final decision and that would leave me to take the whipping for any political shit-fits that anyone will (and they will, of course) have.

So far, I am thinking about just running the election again under the logic that the first election involving the two candidates in question was set aside. Under this logic, the relevent first elections, being set aside would be make it as though the election was a non-event and never happened in a Constitutional sense.

So, what about running the contentious elections again with the original slate, no re-nomination and no re-campaigning with the entire original slate of candidates (including the two questionable candidates) who would at this time meet the requirements to run for office?

The alternative is to go through the entire process all again which could result in chaos/infighting.

Essentially, we could just re-set the voting booth for the contentious offices.

Any thoughts on this?



R

 

[Grosseschnauzer]

Here's my first draft:

Joshua has filed a petition with the Court concerning a post-election dispute that has arisen concerning the election of Tresville as Delegate, and the election of Rhindon Blade as a member of the Council of Lower Officials:

I hereby request that the court rule on the current situation over the election results for WA Delegate and CLO. Due to the fact that Rhindon Blade and Tresville were ineligible at the time (less then 30 days in the RA).

I also would like the court to make a ruling on holding a new round of voting for WA Delegate and CLO. And that the period of voting be shortened to 2 - 3 days.

Thank you!

Apparently the parties do not appear to dispute the primary facts.

Tresville initially sought reinstatement on April 20 2008, at 03:31 PM GMT, but requested that he be treated as a citizen of The North Pacific without RA membership. He subsequently decided to seek reinstatement as a member of the Regional Assembly on August 5 2008, at 06:00 AM GMT. Under Section 3 of Law 28, the suspension of his status as a member of the Regional Assembly is lifted once the required oath is posted.

Rhindon Blade applied for Regional Assembly membership on August 26 2008, at12:05 AM GMT. The time of his acceptsnce into the Regional Assembly is not shown, but there is a reference in the application thread to his acceptsnce no later than September 1 2008, at 05:54 AM GMT.

There is no provision of the Constitution or the Legal Code that sets the specific date for a nominations period in the designated months for elections under Law 26, and under Law 26, the elections cycle begins on the first day of the designated month(s). The only reference to nominations is in Article I, Section 3, Clause 7, which provices that “[c]andidates for these elected officials must be members of the Assembly for 30 days before nominations begin.” The Speaker opened a nominations thread on September 1 2008, at 04:39 AM GMT. We also take judicial notice that The North Pacific has been in a state of war with a foreign region, a status which has constitutional implication in the matter before us.

While the actual facts are not in dispute, the application of those facts to the legal principles in place under the organic documents that govern The North Pacific is not as clear.

Article I, Section 3, Clause 7, of the Constitution provides that “Candidates for these elected officials [Delegate, Vice Delegate, Speaker, Council of Lower Officials] must be members of the Assembly for 30 days before nominations begin. The only other provision, in the Legal Code, concerning the time frame of an election cycle is contained in Law 26, which sets the months during which an election cycle is to take place. Nowhere in our organic documents is anything stated about the time period when nominations take place or how long nominations may be made in the election cycle.

Under Article V, Section 2, we are obliged as a Court:

2. All matters of judicial review to examine the constitutionality of Government policies, actions, and laws are to be brought before the full three-member Judiciary.
3. The official opinions crafted as a result of judicial review are to be binding upon all agents, officers, agencies, and Government bodies of TNP. If a policy, action, or law is deemed unconstitutional, any evidence collected via these unconstitutional means is inadmissible in the Assembly or in any TNP court of law.

We are obliged to view all proceedings in this Court in the light of the provisions of the Bill of Rights; in this instance, Clauses 10 and 11:

10. Each Nation entitled to a vote in any manner under the fundamental laws of the region is entitled to the equal treatment and protection of that Nation's right to vote.
11. No governmental authority of the region has the power to suspend or disregard this 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 this Constitution.

While it is undisputed that as of the time nominations actually opened, neither Tresville nor Rhindon Blade had been members of the Regional Assembly for 30 days, it is also undisputed that at the time Tresville posted his reinstatement oath on August 5, no election calendar had been established that contained a statement of the nominations period for the elections to be held in September of 2008. Thus, Tresville had no notice that his reinstatement as a member of the Regional Assembly under Law 28 would take place within 30 days before nominations opened. In this respect, he was deprived of the protection afforded under portions of Clause 9 of the Bill of Rights, namely that:

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 this Constitution.

.

In my view, the failure of the Regional Assembly to enact clear rules for the conduct of elections, and the failure of the Delegate to timely designate Election Commissioners and charge their duties to conduct the election, is the primary cause of the inadvertent failure for Tresville to have been reinstated in the Region Assembly more than 30 days prior to nomination. (Reference Constitution, Article II, Section 3, Clause 6; and Article III, Section 1.)

Rhindon Blade, however, presents a different result. While his application to join the Regional Assembly took place on 26 August, the earliest reference in the records of his acceptance into the Regional Assembly is on 1 September, approximately one hour after the Speaker opened a nominations thread. No matter the other problems surrounding the election process, the failure of Rhindon Blade to meet the 30 day requirement is inescapable and conclusively established.

We now turn to the question of a remedy in general, and the particulae remedy sought by Joshua.

While the Court “is invested with the powers and obligation to investigate the constitutionality of Government policies, actions, and laws,” we are not vested with the power to creating a remedy. Further, the language of the Constitution does not give the Court the power to provide an advisory opinion as to whether a proposed action may be constitutional. The remedy to the questions currounding the eligibility of Tresville to stand as a candidate for Delegate, which were not determined until after the election results were announced, is a political question that must be determined by the Delegate or his appointees, the Regional Assembly (including any action that may be initiated by the Council of Lower Officials), or both.

I am not convinced that Tresville’s election was unconstitutional or that he can be found ineligible in this election because of the denial of due process rendered to Tresville in not having prior notice of the el;ection schedule so that he would have an opportunity to assure his eligibility under the 30-day provision, and the consequential inequity rendered to the right to vote as protected under the Bill of Rights.

On the other hand, Rhindon Blade was not admitted to the Regional Assembly until after nominations had actually opened. There are no concieveable set of facts that I can find that legitimates a candidacy under those circumstances. However, as with Tresville, the remedy for Rhindon Blade’s situation is a political question that must be determined by the Delegate or his appointees, the Regional Assembly (including any action that may be initiated by the Council of Lower Officials), or both.

In both instances, once a remedy is formally determined by the Delegate, the Regional Assembly, (including any action that may be initiated by the Council of Lower Officials) or both, then this Court can legitimately determine whether that action is specifically constitutional.

Accordingly, I would deny the petition, and return this matter to the Regional Assembly to resolve in such manner as it sees fits, or allow the Delegate or his designated Election Commissioners to address the matter.

 

[Byardkuria]

As an aside, I did not notice on scanning any provision that the 30 days were required to be contiguous. I seem to recall that the reasoning behind the 30-day provision was to keep people from mysteriously arriving the day before the elections with a whole bunch of friends, as well as ensuring that there was at least a passing familiarity with the region. Even with a hiatus in the middle, thirty non-consecutive days should be sufficient to meet these goals.

Incidentally, depending on which way we decide to rule, I will either a.) recuse myself or b.) withdraw candidacy. Hopefully B, but we'll see.

 

[Grosseschnauzer]

Byard,, you need to decide whether to withdraw as a candidate or to recuse yourself from the case. Roman and I have reached iopposite conclusions as you can see by our draft opinions, and I can't tell if Roman has even read my draft opinion yet.

If you decide not to recuse trhen you need to decide if you agree with Roman's opinion or mine.

 

[Byardkuria]

I realize it puts the Court in a bit of a bind, but I think recusing myself is the proper way to go, under the circumstances. Sorry guys.

 

[Romanoffia (Guest)]

Since when does the RA Speaker have the right to call a re-election before the court can decide on the matter?

 

[Romanoffia (Guest)]

I just ordered the halt to a re-election.

The CLO is in violation of the Constitution as is the speaker of the RA and who told the speaker/CLO that the court could not arrive at a decision and why were no the justices told of this considering the justices would be the ones to make that decision?

This is flaunting the Constitution and the Court's authority by the CLO and RA.

It's a slippery slope.

 

[Grosseschnauzer]

The earlier case is deadlocked. Byard has recused himself, and the cureent state of the draft opinions you and I drafted reach opposite conclusions.

Further, the Constitution requires a three judge panel for issues of constitutionality, and since there is no mechanism to replace Byard for the panel in the Constiution or elsewhere, that means there is a deadlock. I believe the new petition reaches the same result since Byard and I are both in the same posture in the second petition, and presumably would have to recuse ourselves, and leaves the court without a full three-judge panel to decide questions of constitutionality in the new petition.

 

[Romanoffia (Guest)]

The earlier case is deadlocked. Byard has recused himself, and the cureent state of the draft opinions you and I drafted reach opposite conclusions.

Further, the Constitution requires a three judge panel for issues of constitutionality, and since there is no mechanism to replace Byard for the panel in the Constiution or elsewhere, that means there is a deadlock. I believe the new petition reaches the same result since Byard and I are both in the same posture in the second petition, and presumably would have to recuse ourselves, and leaves the court without a full three-judge panel to decide questions of constitutionality in the new petition.

I rescinded my order to stay the re-vote of the slate.

What I see here in this particular petition is an attempt to cause a revote on those offices that are unaffected.

My suggestion is, given a recusal of one of the three judges, we should be able to arrive at a decision with the two remaining judges without having to go through the mess of creating another judge.

As for the current election under way for delegate and one CLO seat, we could treat it as a virtual tie and let the re-vote/run off stand.

I'm sure I'll personally be standing in right in line with the feces that hits the mass air moving device and be targeted by the usual jackasses who target me, but I'm willing to take that risk. As usual. ;D

What say you?

 

[Grosseschnauzer]

It almost doesn't matter.

Here is hiow I would proceed.
An opinion of the Court, not attributed individually by any of us, dismissing the Joshua petition for lack of a three judge panel. Then Roman, if you wish to publish your draft opinion as a dissent, you can do so. I can do the same thing with my opinion as well.

The underlying issue in my opinion are political questions that either the Delegate's appointees or the RA shou;d have gone ahead and resolved. At that point we could have entertained a challenge on the constitutionality of an action. What we have from Joshua is a request for an advisory opinion which we have no authorit to do. The real problem is that there have been no rules adopted to handle the election process. Several folks (Haor Chall among them are assuming that the "election cycle" beginning on the first day of the month equals the beginning of nominations. No where is there any law saying that. Likewise, while the RA (and therefore the Speaker) may organize judicial elections (because the Constitution says so), it doesn't say so for the general election, which means the Delegate must appoint people to supervise the election. Part of what is going on here is that someone assumed they could follow an bill on elections that was defeated in the RA as if it had been passed. In sum, it's the RA's mess, and they need to clean it up.

 

[Romanoffia (Guest)]

It almost doesn't matter.

Here is hiow I would proceed.
An opinion of the Court, not attributed individually by any of us, dismissing the Joshua petition for lack of a three judge panel. Then Roman, if you wish to publish your draft opinion as a dissent, you can do so. I can do the same thing with my opinion as well.

The underlying issue in my opinion are political questions that either the Delegate's appointees or the RA shou;d have gone ahead and resolved. At that point we could have entertained a challenge on the constitutionality of an action. What we have from Joshua is a request for an advisory opinion which we have no authorit to do. The real problem is that there have been no rules adopted to handle the election process. Several folks (Haor Chall among them are assuming that the "election cycle" beginning on the first day of the month equals the beginning of nominations. No where is there any law saying that. Likewise, while the RA (and therefore the Speaker) may organize judicial elections (because the Constitution says so), it doesn't say so for the general election, which means the Delegate must appoint people to supervise the election. Part of what is going on here is that someone assumed they could follow an bill on elections that was defeated in the RA as if it had been passed. In sum, it's the RA's mess, and they need to clean it up.

A good solution.

I would actually support that decision and sign onto it. Although dismissing on the issue of only two judges of a required three-judge panel will only bring on more petitions to the court.

Look at it this way - we have a three judge panel making a decision, but one judge recuses himself from the proceedings because of a conflict of interest, but, nonetheless, we still technically have a three judge panel with one judge remaining silent and 'abstaining' from being in deliberations or decision making.

Essentially comment that there is a three judge panel and that the recusal of one of the judges doesn't technically diminish the number of judges on the panel.

Then we just dismiss the case on that basis giving a final decision that is beyond appeal for all intents and purposes. We can even arrange it so that I take the brunt of any accusations (there's a method to this madness) and let the RA election thread be ordered to continue unhindered.


R

 

[Grosseschnauzer]

IN THE MATTER OF

Request for Judicial Review, as filed by Joshua: -


Joshua filed the following petition with the Court:

I hereby request that the court rule on the current situation over the election results for WA Delegate and CLO. Due to the fact that Rhindon Blade and Tresville were ineligible at the time (less then 30 days in the RA).

I also would like the court to make a ruling on holding a new round of voting for WA Delegate and CLO. And that the period of voting be shortened to 2 - 3 days.

Thank you! smile.gif

Given the provisions of the TNP Law 1, sections 2 and 3, to wit;

Section 2: Oath of Office

The following Oath of Office shall be required for all Government Officials, as according to Section 1 of this Act:

I, (insert forum username), do hereby solemnly swear that during my duly elected/appointed term as (insert government position), 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 (insert government position), with all the powers, rights, and responsibilities held therein.

emphasis added

Section 3: Penalties for Violation

1 - This Oath shall be binding on all government officials as previously covered, and violations of said Oath may be ground for indictment of impeachment charges in a legal Court of The North Pacific, pursuant to the guidelines and procedures laid out in Article IV of The North Pacific Constitution, The North Pacific Legal Code, and the guidelines of The Ministry of Justice.

Associate Justice BYARDKURIA, a candidate in the election of the Delegate of the North Pacific, is left with no alternative but to recuse himself from this case due to the not insignificant possibility of a conflict of interest, or appearance thereof, in entering any decision affecting these positions and/or elections.

Per Article V, section 2, clause 2 of the Constitution of the North Pacific, to wit:

2. All matters of judicial review to examine the constitutionality of Government policies, actions, and laws are to be brought before the full three-member Judiciary.
emphasis added.

The Court is unable to enter judgement on the request as filed due to an inability to muster the constitutionally required three-member Judiciary.

ENTERED THIS XXX DAY OF XXX
Chief Justice GROSSESCHNAUZER, concurring in part and dissenting in part.
Associate Justice ROMANOFFIA, concuring in part and dissenting in part
Associate Justice BYARDKURIA not participating.

CHIEF JUSTICE GROSSESCHNAUZER, dissenting in part and concurring in part.

While I concur in the judgement of the Court, I dissent in order to state my views on the underlying facts and issues I find exist in this matter. Apparently the parties do not appear to dispute the primary facts.

Tresville initially sought reinstatement on April 20 2008, at 03:31 PM GMT, but requested that he be treated as a citizen of The North Pacific without RA membership. He subsequently decided to seek reinstatement as a member of the Assembly on August 5 2008, at 06:00 AM GMT. Under Section 3 of Law 28, the suspension of his status as a member of the Assembly is lifted once the required oath is posted.

I note that while not filed as a submission to the Court, some have raised the question of what "suspension" means under Law 28. I believe the word connotes a status that restricts the individual from exercising any benefits or privileges of membership in the Assembly, but does not connote removal from membership in the Assembly.

Rhindon Blade applied for Assembly membership on August 26 2008, at12:05 AM GMT. The time of his acceptsnce into the Assembly is not shown, but there is a reference in the application thread to his acceptsnce no later than September 1 2008, at 05:54 AM GMT.

There is no provision of the Constitution or the Legal Code that sets the specific date for a nominations period in the designated months for elections under Law 26, and under Law 26, the elections cycle begins on the first day of the designated month(s). The only reference to nominations is in Article I, Section 3, Clause 7, which provices that “[c]andidates for these elected officials must be members of the Assembly for 30 days before nominations begin.”

The Speaker opened a nominations thread on September 1 2008, at 04:39 AM GMT.
I take judicial notice that The North Pacific has been in a state of war with a foreign region, a status which has constitutional implication in the matter before us.

While the actual facts are not in dispute, the application of those facts to the legal principles in place under the organic documents that govern The North Pacific is not as clear. (The "organic documents" is a shorthand way of rewferring to the Bill of Rights, the Constitution, and the Legal Code.)

Article I, Section 3, Clause 7, of the Constitution provides that “Candidates for these elected officials [Delegate, Vice Delegate, Speaker, Council of Lower Officials] must be members of the Assembly for 30 days before nominations begin. The only other provision, in the Legal Code, concerning the time frame of an election cycle is contained in Law 26, which sets the months during which an election cycle is to take place. Nowhere in our organic documents is anything stated about the time period when nominations take place, or how long nominations may be made, in the election cycle.

Under Article V, Section 2, we are obliged as a Court:

2. All matters of judicial review to examine the constitutionality of Government policies, actions, and laws are to be brought before the full three-member Judiciary.
3. The official opinions crafted as a result of judicial review are to be binding upon all agents, officers, agencies, and Government bodies of TNP. If a policy, action, or law is deemed unconstitutional, any evidence collected via these unconstitutional means is inadmissible in the Assembly or in any TNP court of law.

We are obliged to view all proceedings in this Court in the light of the provisions of the Bill of Rights; in this instance, Clauses 10 and 11:

10. Each Nation entitled to a vote in any manner under the fundamental laws of the region is entitled to the equal treatment and protection of that Nation's right to vote.
11. No governmental authority of the region has the power to suspend or disregard this 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 this Constitution.

While it is undisputed that as of the time nominations actually opened, neither Tresville nor Rhindon Blade had been members of the Assembly in good standing for 30 days, it is also undisputed that at the time Tresville posted his reinstatement oath on August 5, no election calendar had been established that contained a statement of the nominations period for the elections to be held in September of 2008. Thus, Tresville had no notice that his reinstatement as a member of the Assembly under Law 28 would take place within 30 days before nominations opened. In this respect, he was deprived of the protection afforded under portions of Clause 9 of the Bill of Rights, namely that:

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 this Constitution.

.
In my view, the failure of the Assembly to enact clear rules for the conduct of elections, including a complete election calendar and the failure of the Delegate to timely designate Election Commissioners and charge their duties to conduct the election, is the primary cause of the inadvertent failure for Tresville to have been reinstated in the Assembly more than 30 days prior to nomination. (Reference Constitution, Article II, Section 3, Clause 6; and Article III, Section 1.) I have been unable to ascertain under what provisions of our organic law the Speaker had the legal authority to open the nominations thread when he did since that would be a function of executive function, which are the responsibility of the Delegate and his appointees.

Rhindon Blade, however, presents a different result. While his application to join the Assembly took place on 26 August, the earliest reference in the records of his acceptance into the Assembly is on 1 September, approximately one hour after the Speaker opened a nominations thread. No matter the other problems surrounding the election process, the failure of Rhindon Blade to meet the 30 day requirement is inescapable and conclusively established.

We now turn to the question of a remedy in general, and the particulae remedy sought by Joshua.

While the Court “is invested with the powers and obligation to investigate the constitutionality of Government policies, actions, and laws,” we are not vested with the power to creating a remedy. Further, the language of the Constitution does not give the Court the power to provide an advisory opinion as to whether a proposed action may be constitutional. The remedy to the questions currounding the eligibility of Tresville to stand as a candidate for Delegate, which were not determined until after the election results were announced, is a political question that must be determined by the Delegate or his appointees, the Assembly (including any action that may be initiated by the Council of Lower Officials), or both.

I am not convinced that Tresville’s election was unconstitutional or that he can be found ineligible in this election because of the denial of due process rendered to Tresville in not having prior notice of the election schedule so that he would have an opportunity to assure his eligibility under the 30-day provision, and the consequential inequity rendered to the right to vote held by all nations as protected under the Bill of Rights.

On the other hand, Rhindon Blade was not admitted to the Assembly until after nominations had actually opened. There are no concieveable set of facts that I can find that legitimates a candidacy under those circumstances. However, as with Tresville, the remedy for Rhindon Blade’s situation is a political question that must be determined by the Delegate or his appointees, or by the Assembly (including any action that may be initiated by the Council of Lower Officials), or both.

In both instances, once a remedy is formally determined by the Delegate, the Assembly, (including any action that may be initiated by the Council of Lower Officials) or both, then this Court can legitimately determine whether that action is specifically constitutional.

Accordingly, I would deny the petition, and return this matter to the Regional Assembly to resolve in such manner as it sees fits, or allow the Delegate or his designated Election Commissioners to address the matter.

Associate Justice Romanoffia, concuring in part and dissenting in part:

While I concur in the judgement of the Court, I dissent in order to state my views on this matter.

1. If we simply allow the election to stand we are in conflict of the Constitutional provisions concerning the validity of a candidate to run for office or be nominated as such.

"7. Candidates for these elected officials must be members of the Assembly for 30 days before nominations begin.."

Clearly both candidates are in violation.

To simply let the election stand or hold a new election with the same candidates in question would allow both candidates in question to skirt the Constitution would cast doubts upon the credibility of this government, the Constitution and the Court.

2. If we hold another election, it would give the appearance of legitimizing the candidacy of two candidates who knowingly and willingly applied to run for office of the Delegate in violation of constitutional provisions thus showing a disregard for the Constitution. To hold another election including the disqualified candidates would cast doubts upon the credibility of this government and the Court.

It is to be presumed that any candidate who knowingly manages to get admitted to the ballot by error, negligence or contrivance would be disqualified from participating in a run-off or re-do of an election by principle of due diligence on the part of said candidates or election officials.

3. If we hold the two candidates who are in violation of constitutional provisions as 'invalid candidates' and then make the next highest vote-getter the Delegate we would be adhering to the Constitution in detail without having to either legislate from the bench or have the RA create an ex post facto law to deal with this matter. It would then be only logical to accept the next highest valid candidate with the most votes as Delegate. In the absence of a 'next qualifying' candidate, a new election excluding the violators in question should he conducted immediately as though the nominations and elections were being held at the original date, thus back-dating the issue without affecting the actual dates of term. The Present Delegate would remain delegate until replaced.

The logic behind The following three items is as follows:

I.

To permit the two disqualified candidates to participate in another election for Delegate would only excuse the violation of the Constitution and applicable laws and violate the rights of the legitimate candidates at the time of the initial election. Since the two candidates were in violation of the election rules by Constitution, any re-vote should exclude the violators who by one means or another, negligent or not, from the new vote. There is to much of a chance that such a critical error being used as a political tool in the future as to set a precedent allowing election law violators (ignorance of the law is no excuse nor is negligence in due diligence) to simply wait until the conditions excluding them pass and then go for another election.


II. Permitting candidates disqualified in an initial election to run in a 're-do' of an election would only permit violators of election laws to skirt the Constitution. Thus, but candidates strictly in violation of law and Constitution should be disqualified in any re-run of an election. To permit those initially disqualified in the original election, which concerning the other valid candidates is still legitimate, would violate their rights as provided under the Constitution.

III. Lacking a third candidate with a plurality or simple majority, a new election should be conducted as excluding any invalid candidtates.

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[Byardkuria]

Hey, you stoleded my verbage!

 

[Romanoffia (Guest)]

Oooh, very nice! Especially since the RA is already doing exactly that!


I'll sign that one!