Urgent Request for Court Opinion

[Eluvatar]

In the recently closed vote on a motion to recall Delegate-elect Blue Wolf II, there were 22 Regional Assembly members at the close of the vote.

Of these members, 12 voted in favor, 3 against, and 4 abstained from voting.

Following Regional Assembly rule one, included below, the Speaker found a percentage of 80% in favor and 20% against.

Rule 1. Absentions

Absentions shall not be included in determining any matter voted upon by the Regional Assembly other than to determine the participation of a quorum.

Blue Wolf however, in arguing that there needed to be a supermajority of voters, brought the attention of the Attorney General's office to the actual words in the Constitution with regard to Recall:

3. The Assembly may remove any holder of any elected or appointed office or position by a motion of recall approved by a two-thirds supermajority of the Regional Assembly.

That language states that a two thirds supermajority of the whole Assembly is required, not the votes cast.

If one therefore lumps abstentions with opposing votes and absent voters, the recall vote has only 12 of 22 voting for it and fails.

However, if one follows Regional Assembly procedure and ignores those who choose to abstain, then 12 voted for and 18 regional assembly members did not choose to abstain, making two thirds in favor of recall.

The Regional Assembly is empowered to adopt procedures under Article I Section 3 Clause 3:

3. All Government bodies are allowed to create rules for its own governance.

Yet another wrinkle is presented by the fact that the 80% voting in favor in a 7 day vote is sufficient to amend the Constitution. In the past the Regional Assembly has at least twice used this power to do other things than amend the actual text: in the declaration of Great Bights Mum as Delegate and in the adoption of Tresville as Delegate.

And a final complication is that Blue Wolf II was removed from the Regional Assembly after he voted, and the Speaker did not count his vote. However, going by the rule that the supermajority required is of the regional assembly's total membership, Blue Wolf II would not indeed count, not being a member at the conclusion of the vote.

The Attorney General's office hopes that the Court may rule on these questions soon.

 

[Mahaj]

This has been seen and will be discussed.

 

[Vilnoia1]

If I may ask the court....

Can the court please look at this post (Delegate Removed from RAhttp://forum.thenorthpacific.org/topic/6894964/) as posted by GS and conclude if Blue Wolf even actually holds office since removed from the Regional Assembly.

 

[Grosseschnauzer]

May it please the Court:

I wish to prepare and file with the Court an amicus brief on this matter focusing on the way required votes are described in the Constitution, and to show that the only precedent pointing to a requirement for an absolute majority made by then Elections Commissioner in january 2009 was in fact, erroneous.

 

[Grimalkin]

This Court will hear the amicus curiae brief from Grosseschnauzer. You have 24 hours to file it.

 

[Blue Wolf II]

I would also like the opportunity, for the sake of fairness, to argue against any statement Grosse might make up to a full 24 hours after he has made his initial statement.

 

[Grosseschnauzer]

Actually Blue Wolf, it should be the other way around. You are the party seeking relief, I'm just offering some insights I can bring to what many of us think is the basis of your claim. But then, you haven't exactly explained the basis for your claim, so we're left guessing. So if anything, I reserve the right to file a rebuttal to any response that you present because of your lack of clarity, and seek the leave of the Court to respond in kind.

 

[Blue Wolf II]

This is not "guilty until proven otherwise".

 

[Eluvatar]

This is a request for a judicial opinion, not a trial.

 

[Grosseschnauzer]

In the Court of The North Pacific

In the Matter of Judicial Review of the Privleged Motion to Recall Blue Wolf II as Delegate​

Amicus Filing from the Democratic Federation of Grosseschnauzer as Speaker Pro Tempore of the Regional Assembly​

May It Please The Court:

The following brief is filed by the undersigned as amicus of the Court in connection with the pending urgent request filed by the Attorney General in regards to the objection of Blue Wolf II to the vote of the Regional Assembly that passed a privileged motion to recall Blue Wolf II as Delegate and remove him from office.

I file this brief based upon my personal familiarity with how the results of the elections and votes in the Regional Assembly have been determined throughout the period of time the current Constitution has been in force, and my personal familiarity with the deliberations that led to the enactment of the Constitution, and other pertinent actions of the Regional Assembly since that time. My personal familiarity has been in the roles of candidate, or as Speaker, or as a member of this Court, or as Vice Delegate, or as Delegate, or as an election commissioner; in the past few weeks I have served as Speaker Pro Tempore and as Acting Speaker under Rule 2 of the Regional Assembly [See note 4] when the privileged motion was presented and put to a vote. Since this proceeding arose unexpectedly and on short notice, I’m not able to provide links to each and every instance of a determination of an election or of a vote in the Regional Assembly that is relevant to the practice of the Regional Assembly, but I am relying on my knowledge of the history of our region and my continuous membership throughout that time as a member of the Regional Assembly in making this presentment.

It is my understanding that Blue Wolf II bases his objection on the failure of the Speaker to apply a standard enunciated by Gracius Maximus for requiring an absolute majority of the membership of the Regional Assembly in connection with the Delegate election of January 2009.

The fact is this: that precedent was in error; plain and simple. It was contrary to the express constitutional language concerning the election of the Delegate; and to the extent the treatment of votes cast to abstain at the time of the election were a part of what led to that determination in January 2009, the Regional Assembly enacted an amendment to the Election Law and Rule 1 of the Regional Assembly Procedure a month later to overrule the practice that required the specified majority to be of all Regional Assembly members, and not to include those who voted on a particular matter or in a particular election by an abstention. (The directive to disregard abstention is fundamentally inconsistent to a requirement that would require use of the whole number of Regional Assembly members since it would effectively convert abstentions to negative votes contrary to the current language of Rule 1 and Law 26.

First, let me turn to the 2009 matter.

During the period leading up to the January 2009 election, the Regional Assembly considered a constitutional amendment and the original version of Law 30 on the Security Council. The vote as originally announced by the then Speaker, determined that the required two-thirds majority of the R.A. who had voted had not been reached; however, if abstentions were not included, a two-thirds majority had been reached. The practice of including abstentions in determining the results of elections and Regional Assembly votes on all other matters had originated as a result of a Court decision in January of 2006, where the Elections Commissioner had requested advisory opinions on certain questions. [See Note 1] It is not clear when the Speaker began to include abstentions in determining the results of votes in the R.A., but it had been established by the fall of 2006, when as Prime Minister, I had to temporarily assume the chair of the Regional Assembly during a vote while the Speaker took an announced absence (a permitted practice under the Constitution of the time.)

When the 2009 Security Council amendment vote was closed, and the Speaker made its announcement of the result, a motion was made to overrule the chair as to the use of abstentions in the result. In the course of that discussion, the Speaker submitted the question to the Court, and the Court effectively overruled and reversed the practice. See Note 3. (The presiding Chief Justice at that time was Gracius Maximus.) As this was going on, the Regional Assembly developed and then enacted Rule 1 on abstentions and an amendment to the Election Law (Law 26) concerning abstentions to make clear that abstentions, while recorded, could only be used to determine if a quorum was present, and not for any other purpose, such as the results of elections and any other matter in the Regional Assembly.

The error of the 2009 Election Commissioner determination can be shown in the language of the Constitution concerning the election of the Delegate and Vice Delegate. To show this I’m quoting the pertinent provisions of the Constitution that state what voting majorities are required in the Regional Assembly for elections or for any other matter stated in the Constitution:

Article I, Section 3:
8. Election of the Speaker of the Assembly and Judiciary officials shall require a plurality vote of the Assembly.
9. Election of the Delegate and Vice Delegate shall require a majority of the votes cast by the Assembly.

Article II, Section 3:
3. The Assembly may remove any holder of any elected or appointed office or position by a motion of recall approved by a two-thirds supermajority of the Regional Assembly.
4. Any agreement or treaty signed with a foreign region or organization must be introduced to the Assembly by the Delegate or his/her Cabinet designee. The Assembly must approve the agreement or treaty by a three-fifths supermajority vote.

Article III, Section 1:
6. The Delegate may veto bills passed through the Assembly that do not attain at least 60% supermajority in favor.

Article V, Section 1:
3. Assembly members may apply to join the Council if they meet the minimum Influence and endorsement levels prescribed by law. Other trusted members of The North Pacific who meet the minimum influence and endorsement levels prescribed by law may also apply to join the Council if the Regional Assembly grants an exemption to the Regional Assembly membership requirement by a two-thirds supermajority vote.

Article V, Section 2:
3. From time to time, the Council may, by majority vote, recommend an order of succession to the Delegacy beyond the Vice Delegate among members of the Security Council who are members of the Assembly. The order of succession shall be determined first, by length of current service on the Council, and if necessary, then by influence level, and then by endorsement level of Council members who have equal levels of service and then, of equal influence level. The Assembly shall immediately vote on the adoption of such recommendation by a majority vote.

In each instance in the current Constitution, the required proportion for a matter to be decided by the Regional Assembly is in terms of the body, and not in terms of the total or whole number of members. This practice has consistently been interpreted, with the sole exception of the one January 2009 Election Commissioner ruling, to mean of those Regional Assembly members who participated in the vote. I would further argue that the 2007 Regional Assembly which adopted the current Constitution as a constitutional amendment to what is usually referred to as the August 2005 Constitution, was aware of the distinction of a majority in terms of the Regional Assembly as a body, and a majority of the members of the Regional Assembly, meaning the actual total number of members at any given time. Proof: The enactment of TNP Law 11 under the August 2005 Constitution which dealt with forum movement:
from http://forum.thenorthpacific.org/topic/630028/:

TNP LAW 11
Change the Official Regional Forum
Section 1. Change of Official Forum authorized.
Pursuant to Article II, Section 3, Clause 3 of the Constitution of The North Pacific, as revised from and after 7 July 2005, which provides in pertinent part that: "3) No government official shall have the authority to change the designated off-site forum for regional governance without approval of a majority of the members of the Regional Assembly," the government of The North Pacific is authorized to establish a new forum at http://s13.invisionfree.invalid/TNP/index.php?act=idx to exercise the functions of all designated forums and subforums related to the government currently based at http://s2.invisionfree.invalid/The_North_Pacific/.
Section 2.
The United Federation of Hersfold is designated as the initial root administrator of the new official forum at http://s13.invisionfree.invalid/TNP/index.php?act=idx.
Section 3.
This act shall take effect upon its adoption pursuant to Article II, Section 3, Clause 3 of the Constitution, which requires approval by a majority of the members of the regional assembly, and shall be implemented by all officials of the various entities of the TNP government as expeditiously as possible thereafter.

The current Constitution changed the requirement to the "two-thirds supermajority" language used for Constitutional amendments.

One also has to consider that the Constitution consistently uses the word "supermajority" to refer to any majority greater than a simple majority of those voting. This view is supported by the fact that there has not been a single other vote since the forum movement adopted in Law 11 that has required any proportion of a majority in terms of the number of members in the Regional Assembly. Had such a interpretation been intended, the Regional Assembly having shown that it knows the difference in the use of these terms, it would have said so in the way it formulated the phrasing in the current Constitution adopted the following year.

Now, another way of viewing this consistently is the way the Regional Assembly has responded to the abstention issue in 2008-2009. Once the issue of the 2006 Court decision on elections was challenged within the Regional Assembly, the various discussions in that period were consistent that abstention cast by members should not be used to determine the total number of votes cast, and by which the required majority could be calculated. Likewise, the simultaneous amendment to Law 26 on the same topic, shows that elections have also been determined by application of the required majority on the number of votes cast for any candidate, and disregarded abstentions and votes for any other persons. (See examples of elections after the January 2009 election that did not apply G.M.’s absolute majority interpretation: http://forum.thenorthpacific.org/topic/6734131/; http://forum.thenorthpacific.org/topic/6756455/.)

Finally, in the only other completed vote in the Regional Assembly on a motion for recall, neither its movant nor the chair make any announcement, reference any requirement or make any reference to the "whole number" standard to determine the result of the vote on that motion. See http://forum.thenorthpacific.org/topic/6841540/.

In sum, the application of the 2007 Constitution’s "supermajority" language has meant that the proportion of votes required in an election or in any other matter voted on by the Regional Assembly is determined by the number of valid votes cast, not based on the whole number of members in the Regional Assembly. Further, the current rules concerning the counting of abstentions preclude a "total number of members" interpretation because disregarding abstentions cast by members logically precludes the ability to apply the total number of members in determining the result; a conundrum that is avoided if one used the number of valid votes cast in the Regional Assembly, and this is consistent with Regional Assembly practice under the current Constitution since its adoption. If a change to the "whole number of members" standard is sought, that is something that would require use of language that was applied in the adoption of former Law 11 "a majority of the members" of the Regional Assembly,” as opposed to "a .... [super]majority" of the Regional Assembly.

I thank the Court for its attention and will be available if the Court has any questions.

Respectfully submitted,

The Democratic Federation of Grosse schnauzer
Speaker Pro Tempore and member of the Regional Assembly

Notes:

Note 1: See http://forum.thenorthpacific.org/single/?p=224914&t=634959

Here is the link to the Court's decision that led to the current practice on absentions. It's buried deep within the Court's archive subfoirum, and you have to re-set the search parameter to "from the beginning, but here's the link: (click on this link)
[http://forum.thenorthpacific.org/single/?p=105398&t=630031]

Court decision by Chief Justice Byardkuria February 10 2006

Erasmus

Majority/50% rule
I interpretated, it seems completely wrongly, that the majority simply meant 50%. Just to make it clear... Majority means >50% of the cast votes. Does this count abstain or no? Since Heft and I said they wouldn't count.... can they lead to a runoff?

Abstentions, while not counted for victory totals, do constitute votes. As such, a majority is defined as more than half of all ballots cast, rather than half of all ballots cast for a candidate. So yes - if 90 votes are cast, and the totals are 44-43-3, a runoff would be required, as it would be difficult for either candidate to successfully demonstrate a mandate.

(bolded emphasis mine.) Although stated in the context of elections, this appears to be the origin of the current treatment of absentions in RA votes, although it wasn't part of the issue at the time of the linked Court decision.

Exactly how and when it started to be applied to the RA isn't clear to me, but this was the Court decision cited to me in the fall of 2006 for the change in RA procedure.

Note 2: Election Commissioner statements on January 8, 2009; see http://forum.thenorthpacific.org/topic/635011/ and http://forum.thenorthpacific.org/topic/635012/.

Note 3: Court Decision on Abstentions In The Regional Assembly: see http://forum.thenorthpacific.org/topic/634970/

Note 4: Adoption of Regional Assembly Rule 2 vote: http://forum.thenorthpacific.org/topic/635086/

Edit for format codes issues only.

 

[Grimalkin]

The Court thanks Grosseschnauzer for the brief filed. We will begin our deliberations.

 

[mcmasterdonia]

I don't mean to put any pressure on or anything, but is there a time frame on a decision?

 

[Grimalkin]

The Court will come to its decision when it comes to its decision. This is a weighty issue.

 

[Blue Wolf II]

Grosse's arguments seem to focus more on "this is the way we have always done it until now and no one has ever said the wiser" rather than "this is the way the law is actually written".

Somewhat telling.

 

[AC195]

Blue Wolf II made a request. Why don't you all take a set away from your computers before throwing him under the bus. Christ.

 

[Blue Wolf II]

Given the time sensitive nature of this issue and the fact that the executive branch of the government is basically dead on its feet until the matter is resolved, I respectfully request that the Court make its ruling within the next 24-hours so we can all move on to more pressing matters.

 

[Grimalkin]

Again, this is a weighty matter and the Court is still actively deliberating. I can affirm that we will come to a decision before the conclusion of the special election.

 

[Blue Wolf II]

Before the conclusion of the nominations or the election themselves? The nominations are to end in just under six days, it should be noted.

 

[Todd McCloud]

Honestly, this shouldn't be taking as long as it should IMO. 2/3 of 22 rounded up is 15. 12 people voted 'aye'. 12<15.

Therefore, repeal doesn't happen. The law doesn't specify 'of those voting'. If it did, then under the same provisions 21 people could abstain, 1 person could vote 'aye', and your delegate's just been repealed. Such a system would be dangerous and rather silly.

 

[Flemingovia]

Honestly, this shouldn't be taking as long as it should IMO. 2/3 of 22 rounded up is 15. 12 people voted 'aye'. 12<15.

Therefore, repeal doesn't happen. The law doesn't specify 'of those voting'. If it did, then under the same provisions 21 people could abstain, 1 person could vote 'aye', and your delegate's just been repealed. Such a system would be dangerous and rather silly.

Todd: Give them time, these are weighty matters.

Given that trials in TNP last for six months and then peter out, this still falls within a TNP definition of "urgent"

 

[Grimalkin]

The Court has reached a decision.

In reach its decision, the Court looked primarily at all the instances of voting as proscribed in the Constitution. The Court also considered the amicus brief filed by Grosseschnauzer.

The Court, however, decided that it was appropriate to follow the letter of the law as there is no indication in the Constitution for one to add the phrase "votes cast" to the interpretation of the voting clauses.

While some may look at the phrase "of the Assembly" as a bit vague, the Court saw just the opposite. The Court saw that it was in fact incredibly specific, especially given in context of a provision of the Constitution which eases the restrictions on voting by allowing bills pass with a specific quorum. There is no such provision for elections, recalls, or treaty ratifications.

Therefore, the Court rules the following:

1) All votes, except where the phrase "votes cast" is used, are required to be a percentage of the entire Assembly. For example, if a vote calls for a 2/3 supermajority of the Assembly, then it must 2/3 of the ENTIRE Assembly, not of votes cast by the Assembly.
2) RA Rule 1 is in violation of procedure as set by the Constitution and is therefore ruled Unconstitutional, except in cases of elections as defined in TNP Law 26.
3) The recall vote of the Delegate Blue Wolf is declared Unconstitutional.

 

[Abstain]

I would like to request a quick clarification on this from the court to prevent any issues arising from verifying member activity in regards to the "two missed votes" law.

Is the court declaring that the entire vote that was held unconstitutional and therefore cannot be counted as a legal vote before the RA and preventing it from being counted in regards to the "two missed votes" law?

Or are the courts declaring that the method for determining the outcome of the vote was unconstitutional and while the vote was held in a legal manner the announced results were unconstitutional as they were reached by a means not dictated by the laws of the region?

I ask this as there were six members of the RA who missed the recall vote but did not miss the vote held prior to the, the vote on the Proposed Law on RMB Advertisement Regulation.

 

[Blue Wolf II]

Hail to the King, baby.

 

[Grimalkin]

Or are the courts declaring that the method for determining the outcome of the vote was unconstitutional and while the vote was held in a legal manner the announced results were unconstitutional as they were reached by a means not dictated by the laws of the region?

This would be correct.

 

[Todd McCloud]

Most excellent - the little news blurb atop the main forum index should probably be removed, too.

 

[King Durk the Awesome]

Hail!

 

[Govindia]

Could you please explain how the current voting procedures are unconstitutional? I don't think I understood that Your Honour

 

[Vilnoia1]

How are abstentions unconstitutional?

 

[Grimalkin]

Abstentions are only defined as not counting as votes in TNP Law 26 with regards to elections and nothing else. There is no such distinction regarding abstentions with relation to everything else the Regional Assembly covers in the Constitution or TNP Law 26. Without such a distinction, the Court was forced to rule that abstentions still count against a required majority.

 

[Govindia]

Abstentions are only defined as not counting as votes in TNP Law 26 with regards to elections and nothing else. There is no such distinction regarding abstentions with relation to everything else the Regional Assembly covers in the Constitution or TNP Law 26. Without such a distinction, the Court was forced to rule that abstentions still count against a required majority.

Your Honour, people have abstained in votes for years before this ruling is made. No one has ever had a constitutional issue with this before?

 

[Grimalkin]

"People have abstained in votes for years" is not a valid defense. The Court looked at the letter of the law. I'm sure some court that comes after will overturn this one, and then some court down the line will overturn it. It's the nature of the judiciary process.

The Court has made its ruling. I think we are done here.

 

[Grosseschnauzer]

The problem I'm having is that this ruling with regard to abstentions is opposite the ruling of the Court issued by then-Chief Justice Gracius Maximus in January 2009 that held that abstentions should be excluded from determining the results of votes in the Regional Assembly, whether they were cast in elections or on other matters. The Rule that the Court struck down was a virtually verbatim paraphase of what was explicitly stated in that opinion.

This clarification seems to return us to the practice prior to that decision, which that decision overturned.

We'll just have to amend our way out of this, then.