Flemingovia v Grosseschnauzer (2014)

The Court of the North Pacific is now in session and will hear the case of Flemingovia v. Grosseschnauzer as filed by Flemingovia here.

Indictment:

Following the recent court ruling, I am resubmitting a civil indictment against grosseschnauzer following comments he made about me on 18th and 20th December 2012.

By this action I am seeking the restoration of my good name and my reputation as a fair and unbiased administrator of this region through:
1. An apology and retraction from Grosseschnauzer.
2. An examination of the facts of the case, and a statement from the court that Grosse’s comments were untrue and unfounded.

The basis of the indictment is simple:

On December 18th and December 20th 2012, in the thread titled "Govindia; didn't listen to Mum", Grosseschnauzer made two posts in which he repeatedly impugned my character, my actions and my impartiality as an Administrator of this forum.

The posts in question are now viewable in the moderator discussion thread "regarding Govindia." Even had they not been released, they were viewable by a large number of influential TNP nations, including the whole cabinet and the moderation/admin team.

In these posts Grosseschnauzer:

1. Accused me of giving biased counsel so as to favour my "political ally", Blue Wolf.
2. Accused me of advising moderator actions in a way that is "blatantly political", in order to "achieve my own aims".
3. Accused me of embarking on a "relentelessly never-ending campiagn", undermining Grosseschnauzer's authority as Root admin by claiming that he ""stole" the root admin account from me (something I have never, to the best of my memory, done).
3, Accused me of "unilateral abuse of my admin powers."

My reputation as a moderator/admin here is important to me, and this attack, coming as it has from the senior admin on this forum, has wounded my reputation. I am aware that this is now in ancient history, but Grosse’s leave of absence and the court delays mean that there has never been resolution of this issue.

I feel the accusations were serious enough to warrant legal challenge. Should Grosseschnauzer seek to prove these accusations in court, I am prepared to counter each of them. However, I would hope that the absurdity of the accusations made against me is apparent to the court.

I am conscious of Grosseschnauzer's fine service to this region, and all I am looking for is a simple retraction and apology - I would not seek any further punishment or damages. For this reason before going to court the first time I contacted Grosseschnauzer by PM privately, seeking a retraction and apology. However, his response was to say "I call them as I see them." I had no desire to go to court, but I now feel I still have no choice; I cannot allow the slanders against my name to stand.

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As per the Adopted Court Rules regarding civil trials, Flemingovia will represent himself.
Grosseschnauzer is currently representing himself, but may name an Attorney to represent him at any time.

I, Crushing Our Enemies, will be the sole decider of fact and procedural moderator. My final ruling may be appealed to the full court solely on the basis of legal reasoning.

Grosseschnauzer is charged with wounding Flemingovia's reputation through making slanderous posts that impugned Flemingovia's character, actions, and impartiality as an administrator of this forum.

No plea process exists for civil cases. Grosseschnauzer may concede this matter at any time by admitting that the comments he made were untrue and unfounded, and issuing an apology and retraction.

Grosseschnauzer has been informed of the charges against him. Pre-trial motions will begin in 24 hours, unless he chooses to concede the matter in that time.

Timetable:

Timetable
Note that all times are displayed in the timezone that you have the board set to.

Pretrial Motions Begin: (time=1390716000)
Evidence Discovery Begins: (time=1390953600)
Argumentation Begins: (time=1391385600)
Deliberation Begins: (time=1391817600)
Verdict Deadline: (time=1391990400)

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Prior to filing an appearance or any answer to the unwarranted complaint, I hereby move to dismiss this proceeding on the clear grounds that nothing in the jurisprudence of The North Pacific authorizes such a claim as a civil cases, and that, in fact, there is no constitutional provision or law enacted by the Regional Assembly authorizing such a claim in any way shape or form.

Further, while the Constitution contemplates a process for civil cases, and the Court's authority as to such procedures, neither it, nor the Legal Code, as it has existed under the current Constitution, authorizes the Court to define the substance or any claim for trial as a civil case.

Further, to define an alleged act, or set of acts, as a civil claim subject to indictment after such act was allegedly committed constitutes a violation of the Bill of Rights as to prior notice of the adoption of the definition of a type of civil claim, as well as the prohibition against ex post facto laws and bills of attainder, imposing penalties for conduct after the fact.

For these reasons, I pray that the Court finds it totally lacks jurisdiction to proceed in this case and dismiss it forthwith. I reserve the right to seek judicial review by the full court as to any of these grounds for this motion.

I further request that any and all further proceedings in this matter be stayed in all respects until the issues raised by this motion have been fully disposed of and if need be reviewed by the full Court.

As a second motion, I further direct the Court's attention to a proposed constitutional amendment that seeks to withdraw the jurisdiction of the Court as to civil cases, and thereupon, until the consideration of such proposal is completed by the Regional Assembly, inasmuch as its adoption would render this proceeding moot.

Grosseschnauzer:

Prior to filing an appearance or any answer to the unwarranted complaint, I hereby move to dismiss this proceeding on the clear grounds that nothing in the jurisprudence of The North Pacific authorizes such a claim as a civil cases, and that, in fact, there is no constitutional provision or law enacted by the Regional Assembly authorizing such a claim in any way shape or form.

Further, while the Constitution contemplates a process for civil cases, and the Court's authority as to such procedures, neither it, nor the Legal Code, as it has existed under the current Constitution, authorizes the Court to define the substance or any claim for trial as a civil case.

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The Constitution authorizes the Court to hear civil cases, and nothing in the legal code restricts that power in any way. Furthermore, the Constitution authorizes the Court to create rules for its own governance, and authorizes the Chief Justice to administer those rules. The Court has created a procedure for civil cases, and have not, as yet, placed restrictions on what sort of civil claims are permitted to be heard. In other words, this claim has been brought to trial by the Court, by the power vested in it by the Constitution of TNP, and nothing in our system of laws prohibit this sort of claim from being tried.

Grosseschnauzer:

Further, to define an alleged act, or set of acts, as a civil claim subject to indictment after such act was allegedly committed constitutes a violation of the Bill of Rights as to prior notice of the adoption of the definition of a type of civil claim, as well as the prohibition against ex post facto laws and bills of attainder, imposing penalties for conduct after the fact.

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It is possible that imposing a penalty for the conduct that you have been indicted for would violate portions of the Bill of Rights. However, even if imposing such a penalty would violate your rights, it does not preclude the possibility of hearing this case to the end and rendering a verdict without imposing a penalty if that verdict is Guilty. Indeed, it appears that no imposed penalty is being sought by the plaintiff. So the question of ex post facto laws or bills of attainder is irrelevant in this instance.

Thus, your motion to dismiss is denied.

Grosseschnauzer:

I further request that any and all further proceedings in this matter be stayed in all respects until the issues raised by this motion have been fully disposed of and if need be reviewed by the full Court.

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The issues raised by your motion have been fully disposed of. Since the need to be reviewed by the full court has not been, as yet, demonstrated, the trial will proceed unless an injunction is ordered by the Court.

Grosseschnauzer:

As a second motion, I further direct the Court's attention to a proposed constitutional amendment that seeks to withdraw the jurisdiction of the Court as to civil cases, and thereupon, until the consideration of such proposal is completed by the Regional Assembly, inasmuch as its adoption would render this proceeding moot.

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The Court's attention is so directed. However, who can say when the consideration of such a proposal is "complete"? Many proposals never reach a vote, and others may be debated for weeks or months before seeing the voting floor. Thus, at the risk of being forced to dismiss should that motion pass mid-trial, this matter will proceed.

The time-table has not been altered. Pre-trial motions will begin on schedule, unless otherwise announced.

I will not participate in a proceeding that is, at its heart unconstitutional. The presiding justice has not shown that the Constitution or the Legal Code authorizes any form of claim as a civil case, much less all substantive claims.

Because the presiding justice's ruling is in violation of the Constitution and Legal Code, and uses an interpretation of its rulemaking power that deals with matters of substance rather than procedure, I request that the justice's ruling be reviewed by the full court, and that this proceeding be stayed before any further action takes place.

I will not file anything further in this case, including an appearance, until that full review by an full and impartial Court has taken place of the motion(s) filed and ruled on above by the Justice.

Civil trials are adjudicated by a single justice. The full court only becomes involved upon the appeal of the moderating justice's final ruling - that is, the verdict. Requests for review remain a valid tool to question government policies.

Your refusal to participate in this trial will affect how it proceeds, but it will not halt the proceedings.

Again, a civil trial is a nullity in that there is nothing in our laws as to what claims are permitted, nor what has to be shown.
There is no way I can prepare a response to a legal nullity, which this presents.
Accordingly, there is nothing for me to participate in, and I will not be participating.
Second, the constitution does not authorize appeals from a judgment. While the idea was raised in the debates leading up to the adoption of the current constitution, it was not included, and the Regional Assembly has never enacted anything that can be called an "appeal."
I will of course consider other non-judicial options. But if the presiding justice insists on a an unnconstitutional and illegal proceeding, that is the justice's choice. It is, however, not mine.
And as to Flem's whiny complaint. I will withdraw the comments he is upset about as a peace offering, but that's it. His behavior towards me over a period of years ever since he supposedly "retired" from TNP and gave up his admin status without notice or warning, more than supports my position that he is not entitled to an apology for something that he started.
That's the bottom line.

If defendants are simply allowed to resist the court and choose not to participate without action from the court, then pretty soon the whole justice system will become a farce.

I do not see the point, really, of continuing without the participation of the defendant. that is what happened the last time this matter was brought before the court.

So either the court admits defeat, or it insists on the defendant's presence in court. Simply ignoring his defiance will make the court a laughingstock.

Edit: on re-reading one of Grosse's posts above I note and appreciate the withdrawal of his comments concerning me. However, I am disappointed that he used that retraction to further insult me and state that I am not entitled to an apology. Grosse here shows an uncharacteristic meanness of spirit. I thought he was bigger than that.

Flemingovia, are you withdrawing your charges?

Why would I do that? I see nothing in Grosse's words that warrant such action.

I misinterpreted your remarks about the futility of continuing without the defendant's participation. I am placing a temporary hold on the proceedings of this trial while I deliberate on how best to continue. This hold will not exceed 24 hours. The timeline will be updated when the trial resumes.

My point was not that the court should stop proceedings. My point was that the court should, as far as it is able, ensure the participation of all parties.

Apologies for the delay. If the defendant chooses to submit no evidence nor make any argument, then I will be forced to consider only the submissions of the plaintiff when I render my verdict.

Pre-trial motions have begun, and will last for three days.

I have no pretrial motions to bring.

Given the defendant's apparent unwillingness to appear, I am ending Pre-Trial Motions on the assumption that there are none from his side either. If I am mistaken, and Grosse did mean to post motions, I will allow them within the first day of Discovery.

Discovery begins now, and lasts for five days. Since it's starting unexpectedly early, I will allow witness lists to be submitted within the first 36 hours, rather than the usual 24.

EDIT: The timeline in the OP has been updated.

As a note to both parties, please remember that depositions are not permitted in civil cases, and that you are limited to only three affidavits, beyond those needed to authenticate documentary evidence.

Just a note -

Since COE has resigned as a Justice and has requested that he continue to moderate this case to a conclusion, I am appointing COE as THO for this case.

The time to submit witness lists has expired. 3 days remain in the Discovery phase.

online I read that "Discovery Phase" is:

Discovery, in the law of the United States, is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

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Could the hearing officer please explain to me how I am able to conduct a discovery phase while Grosseschnauzer continues to take the piss? While the court allows him to defy these proceedings, a discovery phase cannot be conducted, can it?

Discovery is the opportunity for you to provide any evidence that supports your case. This may take the form of documentary evidence, such as IRC chat logs, forum posts, or other documents, or witness testimony, in the form of an affidavit. However, since you have failed to post a witness list within the allotted time, affidavits are not an option for you.

The defendant's role in the discovery phase is to submit his own evidence. His lack of participation is no hindrance to your own collection of evidence.

As a reminder to both parties, Discovery will close in roughly five hours. Argumentation will begin at that time, and last for three days.

It is hard to produce evidence concerning the accusations, since grosse accused me of doing things I have not done. It is hard to produce evidence for an absence. I suggest it is up to Grosse to produce evidence to support the accusations he made against me.

So the only evidence I wish to submit is the thread the accusations were made in, which is entitled Govindia (clicky)

Flemingovia, I know of the thread you are attempting to link, but I cannot access it. If you wish to submit the declassified version of the posts, found in a more public thread, I will accept a late submission.

The extracts from the thread do not give the context, which is important to understanding the absurdity of Grosse's accusations. Would it be acceptable to the court if I moved the thread to the private judicial chambers?

Of course, I think Grosse may need to give permission for this, since it was an admin/moderator thread.

I won't comment on whether or not you are allowed to submit that evidence to me, because that is a moderator/admin issue that I am not qualified to weigh-in on. However, I will point out that I do not have access to the private judicial chambers, but I could arrange to be given access to the special chambers as a THO.

I am not sure how private evidence like that would help your case very much, if you would not be able to appropriately reference it in your arguments, nor would I be able to do so in my verdict.

All documentary evidence must be provided to the opposing party in full, and any party may object to a piece of evidence being submitted.

I will not accept late evidence submissions after the deadline to submit arguments, which has not changed. Fewer than 24 hours remain in argumentation.

Although some of the admin team have given permission for the de-archiving of the thread, others have not responded despite at least one being active elsewhere in the forum. The fact that they are the defendant in this trial is, I am sure, wholly coincidental.

I will have to proceed using the extracts already provided, as your honour suggested. I do so noting that this greatly hampers my case, and could be seen by some as obstruction on the part of the defendant.

I await your submission of those extracts by the end of argumentation. I will consider, upon a request, a short extension of argumentation due to the irregularities in the evidence-gathering process.

Thank you. Even 48 hours would be very useful.

Granted. I will update the timeline presently.

Fewer than 24 hours remain in argumentation. Late evidence submissions must be received by that time.

Before I move to the evidence, I think I need to explain to the court and the wider public why I have brought this action, and why I have pursued it twice through the courts. Every admin knows that their position is entirely dependent on reputation and respect. Although I am an active participant in the gameplay of the region, I have always kept that scrupulously separate from my administration of the forum, refusing to politicise the role. The same is true, actually, of all the admins.

On Old Blue we saw what happens when that reputation and respect is lost. Unable to remove an admin, the whole community moved forums.

On 18th to 20th December 2012, my conduct as an admin, and my character was repeatedly slandered. This happens from time to time in TNP. But on this occasion the slander was made by a root admin of TNP who was, at that time, the senior admin. It was made in a semi-private area of the forum, but it was an area open to all the moderators and admins of the reigon; in other words, all the movers and shakers of TNP. The thread gathered 199 posts and was viewed 1,529 times. This was not an insignificant thread.

I ought to add that a civil case was the only course open to me. I approached Grosse privately by PM asking him to apologise, and was rudely rebuffed. I was advised by the court at that time to bring a civil case, which is what I did. It is unfortunate that Grosse has decided to sulk in a corner rather than engage in the process, but there you go.

Let me give the court the context of Grosse’s accusations against me.

The thread in question was occasioned by the conduct of Govindia and others. Govindia had received a number of informal warnings and advice about his conduct, but on 15th November 2012 Democratic Donkeys raised his warning level, which is generally debated by all the moderators and admins. Hence the thread.

There was no question that the warning increase was appropriate. There was discussion about an outright permanent ban (his warning level was very high, and his conduct was out of control), and some discussion about whether he was entirely to blame, since he was receiving considerable flamebaiting from those who seemed to want to get him banned. GBM posted “One might surmise some are seeking to push Gov off the deep end.”

In the context of this, I brought up the issue of whether, if warn levels can be increased for bad behaviour, whether they should be decreased for showing restraint. On 18th December 2012 I suggested this, since at that time Govindia was being hounded mercilessly but being quite mature and restrained in his response.

Grosse (who has had a longrunning feud with Blue Wolf) supported a warning increase for Blue Wolf, Cham and other flamebaiters.

I did not disagree in principle, but I counselled caution, saying (18th December 2012, 7:52pm) that this could be interpreted as a continuation of Grosse’s feud with Blue Wolf, rather than a legitimate moderation decision. I stated that I wanted to de-escalate the issue, rather than inflame it.

For some reason it was this post that led to Grosse’s outbursts. In my next post I will conside all his accusations against me in detail, and argue why they are unfounded.

In two posts on that thread, grosse made several accusations against me. Let me deal with them in order

grosse:

So you are giving your political ally carte blanche to get away with whatever misbehavior he chooses to engage in on the forums?

Is that the bottom line of your comment, Flem?

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There are two issues here. There is the implied accusation that I was advising restraint because Blue Wolf was my “political ally”, and there is the accusation that I was willing to excuse any and all miusbehaviour on the forums from some people.

The accusation that Blue Wolf is any sort of “ally” of mine is patently absurd. In the Raider/defender spectrum we are oppositely aligned, and I do not think I have ever sided with Blue Wolf in any of the political machinations that have gone on in TNP.

At no point, ever, did I say that anyone should get away with any sort of conduct. As I explained in the context I gave in my last post, my aim was to prevent inflaming what was already a volatile situation. For the record, most of the other moderators disagreed with me!

Grosse is prone to paranoia, assuming that any two people who criticise him are in cahoots. It is a serious character flaw, but unwarranted in this case.

grosse:

Flem, the point of my post is that your objection to issuing any warnings for those who have been flamebaiting Gov came across as being blantantly political and a seeming exercise in being tolerant of anything that has the smell of achieving your own aims.

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Umm… Not sure where to start on this one. I hope I have demonstrated my reasons for not wanting to increase Blue Wolf’s warning level. It was pragmatic, not political.

Grosse never really explained what “achieving my own aims” meant. I was hoping to ask him that on his appearance in court. But he is clearly accusing me of some sort of political manoeuvring in my administration of the region.

And to criticize me about Blue Wolf when his behavior towards me has been even more outrageous than he's been toward Gov does suggest to me that you have taken his side on a lot of things.

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Here we see a clearer reason why Grosse went off the deep end. Anyone who has been around here for a while knows that Grosse despises Blue Wolf. So any occasion where someone suggests restraint in dealing with Blue Wolf is interpreted as “taking Blue Wolf’s side”.
I simply ask the court to judge whether this was the case, or whether it was simply an objective moderation opinion.

You have been on a relently never-ending campaign to punish me for doing the right thing when you quit the region and the forum admin team at the end of your term of Delegate. I'm not going to count the number of times you've expressed, or implied, that I "stole" the root admin account from you.

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Some years ago I needed to take a break from the game, so rather than go on a long leave of absence, I quit and removed my admin mask. I knew that if I had a change of heart my access to the root account meant that I could take the mask back again (as Eluvatar did just recently). While I was away, for some reason, Grosse contacted Hesfold and changed the access to the root admin account. I am not sure why – the only reason could have been to prevent those who formerly had access to the account (ie myself) from logging on. It cemented Grosse’s control of the root administrator account. It was a power play, pure and simple.

I have always been clear about this. Grosse’s actions were NOT illegal. He acted within his powers. I have never accused him (as far as I recall) of “stealing” the root admin account. The root account was not mine to steal. I regarded his actions as untrusting and, perhaps, duplicitous; but not theft.

Grosse:

And we won't get into the unilateral abuse of your admin powers in setting up your temple in the wrong place without even consulting anyone. That was an ego trip on your part that was without parallel here. Had you asked the other admin at the time (me, Elu, and Ator) beforehand at least we could have discussed it and avoid misunderstandings.

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Of course, by saying “we won’t get into…” he was getting into!! But let’s deal with this one once and for all. Back in March 2012 I set up a temple area in Magicality City. Grosse objected and gave me 12 hours to remove the Temple… or else. He also said that any further (unspecified) “abuse” of my admin powers would result in the removal of my admin powers.

I will not defend the accusation of ego trip. That is a given. But what Grosse does not admit now, And did not admit then, was that this was not a “unilateral abuse” by me. That goes beyond slander, and is a barefaced lie. It IS true that I did not go cap in hand to Grosseschnauzer before setting up the Temple. But what he conveniently overlooks is that I consulted with the delegate at the time, and set up the Temple at his request. It was not “without consulting anyone”. Generally speaking, Admins deal with government requests without needing to consult with other admins, or else the work of government would grind to a halt.

Perhaps the court will understand why Grosse’s reaction was so violent if I tell the court that the delegate with whom I consulted and who asked me to set up the Temple,,,,, was Blue Wolf. I think the court will begin to see a pattern emerge here in what triggers some of the excesses of Grosse’s behaviour.

The Temple was a bit of a lark. Grosse’s response was not. It was a real threat to my admin status, and I lived for the next year or so never knowing whether Grosse would decide that I had overstepped the mark and would fire me, as many would confirm.

But setting up the Temple was neither a unilateral or unwarranted action.

Your honour, I think I have now dealt with all of the accusations Grosse made against me and which necessitated this civil complaint. All of them were unfounded and unwarranted, as I hope I have demonstrated.

All I hoped for was a retraction and apology from Grosse. That would have been the honourable course for him, but I have given up hope that Grosse is capable of such a thing.

I do not want, or expect, any punishment of Grosse. As has been stated elsewhere, the Root Administrator is beyond the power of the court to punish, even if you decided there was legal basis for such.

All I would request from the court is vindication, and the confirmation that Grosse’s commetnts about me were untrue and unfounded.

PS I do not know if there is any examination, but I will happily answer any questions or provide any clarification the court may require.

Flemingovia, unless I have overlooked something, you have not submitted any evidence to the court, including the posts that you reference in your argument.

EDIT: The evidence submission process is, in some ways, counter-intuitive. Here is the relevant portion of the court rules regarding submission of documentary evidence (such as forum posts/threads):

Court Rules:

1. Parties are responsible for documenting all forms of electronic evidence, such as forum posts, private messages, NS telegrams, or IRC logs before they are presented at trial.

2. Such material will include the location of the material (with an URL if available), including the poster or sender, the recipient, and the date stamp of the material, and any other objective information that tends to establish that the material is bona fide and not a fabrication.

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In the case of forum posts or threads, much of the information needed to authenticate it is already available in the thread, so URLs are all that is required.

Yes. I tried to keep the evidence etc list short. the only thread I sought to submit was the "govindia" thread. I was unable, in the time frame of the court, to obtain permission to de-archive the thread. I opened a thread in the Admin area on 3 feb asking if it could be de-archived (as soon as I realised CoE could not follow the link I submitted.

To date only GBM, DD and McMasterdonia have responded to my request. So I could not get permission in time.

I was therefore forced to describe the contents of the thread. Where I think I have made a mistake was to assume that the posts made by Grosseschnauzer had been quoted already in full to the court.

If my opponent objects to the use of quotes from that thread, he is of course at liberty to submit his objection.

I said earlier that if you wanted to submit the portions of the thread that *have* been de-classified, I would accept them until the end of the argumentation phase, which is still several hours away. Without evidence, your argument is based on nothing but hearsay.

Look, I am a bit tired of waiting for approval to de-archive the thread, so I will just go ahead and do it, and try to give you a masking that will allow you to see it. Any problem with the masking, get back to me.

I SUBMIT THIS THREAD AS EVIDENCE

Deliberation has begun. A verdict will be posted by the scheduled deadline in the OP.

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After deliberating on the case of Flemingovia v. Grosseschauzer, I rule as follows:

Grosseschauzer is found Not Guilty on the charge of wounding Flemingovia's reputation through making slanderous posts that impugned Flemingovia's character, actions, and impartiality as an administrator of this forum.

Reasoning:
Flemingovia has presented several claims made by Grosseschnauzer, and argued that they are untrue. Grosseschnauzer has declined to defend any of those claims, so I, as the decider of fact, accept Flemingovia's assertions regarding their veracity.

However, Grosseschnauzer is not charged with merely making untrue statements. Rather, he is charged with "wounding Flemingovia's reputation" through those statements. I have seen no evidence of such harm, and therefore cannot rule that harm has occurred. Without demonstrated harm, there can be no guilty verdict in any civil trial.