[Private] SillyString's Request for Review

Kialga

Kialga

TNPer
TNP Nation
Kialga-Lourti
Discord
Elegante#5102
SillyString's Request for Review

The five days for brief had expired on 24 November. The seven days allowed deliberation would have expired on 1 December. With the DNS issue causing problems, Grosse (on the day a delivery should have happened) put the delivering of the opinion on hold. As of midnight on 2 December (EST), the DNS issue was resolved. Shouldn't we have at least began a discussion on this by now? If I'm out of line, let me know.


(please note that I am attempting to form my opinion togethre from chunks of notes)

Putting aside the movement of the Attorney General's clause, the ruling had become obsolete. As SillyString had stated, when the Legal Code was rewritten, the ruling was made obsolete. The ruling was in place before the section of Legal Code was rewritten, which leads me to believe that the ruling should have been taken into consideration before the Code was rewritten, with the Court's ruling being binding. However, since the Attorney General's section of Code being rewritten, seemingly, without the consideration of the prior ruling, the ruling truly holds no effect any longer. I do believe this review should be granted and the ruling be marked as such.

Opinions of anyone else?
 
I am in agreement on what should be done with this review. I would like to hear from the presiding Justice on this matter so we can have an answer for SS.
 
There are several issues that are not apparent from the wording the request, but which I have found need to be addressed. Among these are whether the AG has "standing" to bring the request for review, given that "standing" is no where defined in the Constitution, the Legal Code, or the Court Rules; whether the opinion that is the subject of the request was properly issued or binding to begin with, and given there is precedent for the Court to nullify an earlier opinion involving a policy not then defined by the laws of the region, whether that is the proper course to this proceeding.
(I have notes for some of this already; but the forum issues delayed things, and I do have RL matters to deal with during the first week or so of every month. Which this is.)
You might want to actually think through the matter and not jump the gun and not assume things are proper, when they are in fact, not. This is what I am having to address.
 
I have thought about it. I am not saying to rush the decision, I was trying to begin discussion. I do still stand by my original opinion.
 
Just to add, having now read all of the Court opinions listed in the rulings page, there are some inherent contradictions in some of the past rulings and opinions that have to be addressed; keep in mind that this particular type of request for review is unprecedented, and the procedural questions need to be sorted out before there are any more similar requests (which apparently the current Attorney General plans to have made.)
 
Grosseschnauzer:
There are several issues that are not apparent from the wording the request, but which I have found need to be addressed. Among these are whether the AG has "standing" to bring the request for review, given that "standing" is no where defined in the Constitution, the Legal Code, or the Court Rules; whether the opinion that is the subject of the request was properly issued or binding to begin with, and given there is precedent for the Court to nullify an earlier opinion involving a policy not then defined by the laws of the region, whether that is the proper course to this proceeding.
(I have notes for some of this already; but the forum issues delayed things, and I do have RL matters to deal with during the first week or so of every month. Which this is.)
You might want to actually think through the matter and not jump the gun and not assume things are proper, when they are in fact, not. This is what I am having to address.
Click to expand...
Standing may not be in the constitution, but affected party is, which is the standard the court has used, and also ruled on previously.

I will point out that a request for review is for a specific issue, and we need to be careful not to consider things too broadly. Conversely, I understand that these issues are interconnected and we should be cognizant of that. However, we should not be attempting to address every conceivable eventuality. Anticipating those eventualities is fine and we can discuss that, but it is separate from the ruling.

I respect your reasoning, but respectfully ask that if you do not have the time available to prepare a ruling in a timely manner, then please remove yourself as moderating Justice. I do not want mission creep to overcome our ability to address a request for review. We are already well past the timelines of the court rules.
 
Grosseschnauzer:
Just to add, having now read all of the Court opinions listed in the rulings page, there are some inherent contradictions in some of the past rulings and opinions that have to be addressed; keep in mind that this particular type of request for review is unprecedented, and the procedural questions need to be sorted out before there are any more similar requests (which apparently the current Attorney General plans to have made.)
Click to expand...
How do you know the intent of the AG's office?
 
Can it at least be asked what you have so far, Grosse? I can understand sickness, I'm in that boat now as well, though likely not as bad from the way you put your description. If need be, back down from moderating Justice so you can focus on getting well.
 
Here is the draft of the opinion. I've not tried to insert all of the links, but if your look at the index of Court decisions in the legal records area, you will see the referred to opinions other than the one from 2010 which predates the start of the listing.

Ruling of the Court of the North Pacific​
In regards to the Request for Review filed by Silly String on behalf of the Attorney General on the Court’s Ruling issued on September 15, 2012​

The Court took into consideration the Request for Review filed here by Silly String.

The Court took into consideration the following:

A. Bill of Rights, Clause 9

A. Legal Code, Section 6.7, Clauses 38 to 45

B. Court Rules, Chapter 2

C. Court Rules, Chapter 4

D. Court Rulings (the numbers refer to the opinion numbers in the list of decisions as maintained in the legal documents area of the official forums, including:

Ruling on Residency and Forum Administration as made on 6 August 2010

1. In regards to the Judicial Inquiry filed by Tim on the Attorney General Refusing to bring Trials to the Court; Ruling delivered on September 15th 2012.

3. In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights, Ruling delivered on October 22nd 2012, and concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010

17. Advisory Opinion of the Court of the North PacificIn regards to the events occurring in the course of The North Pacific v. Unibot; Advisory Opinion delivered on February 12th 2013.) (No reference to opinion of September 15, 2012.)

19. Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by r3naissanc3r regarding whether or not Court decisions are irrefutably binding, as well as an ancillary question put for by Crushing Our Enemies regarding the scope of the Court's review powers (Ruling delivered on February 20th 2013.)

25. Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by flemingovia on the definition of “affected party” (Ruling delivered on April 22nd 2013.)

In this request, the Court is presented with a heretofore unseen type of request for review to strike a prior decision of the Court on the grounds that subsequent legislation has superceded that decision. In order to reach the merits of the request by the petitioner, acting on behalf of th Attorney General, it is necessary to determine several prerequisite questions, and in reaching those determinations, it is necessary that this Court reconcile some of its past decisions and Court Rules with the Governing Documents of TNP (i.e., the Constitution, the Bill of Rights, and the Legal Code) which appear to be in conflict.

1. Does the petitioner have “standing” to bring this request for review as an “affected party” or otherwise?

Petitioner appears to base their right to bring this request for review on the language contained in Clause 36 of Section 6.7 of the Legal Code. (“The Attorney General shall have standing in all cases of judicial review brought before the Court.”) That Clause, however, is ambiguous inasmuch as it refers to “standing” which is not defined in any of the Governing Documents of TNP, nor in the Court Rules, nor in prior decisions of the Court; and further, the Clause is facially ambiguous as to whether the “standing” is in respect of the right to participate in the request for review proceeding, or whether it is in respect of the right to initiate an request for review.

The Court has previously utilized an “affected party” approach to delinate “standing” in a request for review. See Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by flemingovia on the definition of "affected party"; Ruling delivered on April 22nd 2013. This decision is further implemented in a template form to submit Requests for Review to the Court. It is important to note that while precedent is an important and necessary element to the rule of law, it is also important that the Court’s use of precedent be based on the Governing Documents of the Region, and that when the Court fabricates principles and terms of use that are not expressly created and defined in those Governing Documents, it can lead to a more limited approach to the application of those Governing Documents than ought to be intended.

The terms “standing” and “affected party” are both terms of use that are nowhere defined in the Governing Documents of the Region. “Standing,” as noted above is used only once in any of those documents, and the term is not otherwise defined in them. Likewise, the definition of an “Affected Party” is a term of use created by the Court without any definition for that terminology appearing in the Governing Documents of the Region other than a statement in Section 1 of Article 5 of the Constitution. Thus, this places the use of both terms roughly in the same footing that a prior Court found constitutionally deficient as to the term “resident” in its ruling of In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights, Ruling delivered on October 22nd 2012, Concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010.

It has to be noted that Chapter 2 of the Court Rules with respect to Requests for Review, Clause 1, states in pertinent part that “Anyone may submit a request to the Court for a review of government policy or law. It is not limited to any particular set of persons who may be an “affected party.” (Emphasis added.) The above quoted provisions of the Constitution and the Legal Code with respect to request for review proceedings has to be read in the context of Clause 9 of the Bill of Rights which states in pertinent part, “Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.”

Thus, there is a fundamental tension between prior Court decisions, the Governing Documents of the Region, and the current Court Rules as to whether the previously adopted judicial definition of an “affected party” has been too narrowly defined given the language of Chapter 2 of the Court Rules and Clause 9 of the Bill of Rights.

We are faced with two opposing options in order to reconcile these conflicting authorities. If the Court is to provide definitions to terms adopted in the Governing Documents or by the Court, then the action of the Court to nullify the definition of “resident” in the 2010 Opinion was incorrect and needs to be overruled. On the other hand, if that 2010 decision is valid, then it was inappropriate for the Court to fabricate definitions for terms used in the Governing Document that for which the Regional Assembly did not provide a definition, and it should have looked to the Regional Assembly to provide any and all such definitons.

The weight of precedent in the Court’ previous decisions appear to be that the action of the Court to strike the definition of residency was in error. A careful reading of the 2010 decision on Residency and Forum Administration makes clear that the use of “resident” was a label to represent a specifically described set of which nations were and should be considered part of TNP, and the 2010 opinion made that clear. The action of the Court in listed opinion number 3 to the contrary was based upon a misreading of the 2010 opinion, and was erroneous. Accordingly the discussion of which nations are resident in TNP from the 2010 opinion is reinstated, and consistent with the Court’s later practices in discussing “standing” and “affected party.”

We now turn to whether or not the term “affected party’ has been too narrowly defined by the Court in prior decisions, and in deciding whether a party that has filed a request for review has a sufficient level of being “affected” so as to have standing. Based upon those prior actions by the Court, the petitioner here would not have a sufficient neus to claim a status of an “affected party.” However, as noted earlier, the language of Claue 9 of the Bill of Rights, coupled with Chapter 2 of the Court Rules on requests for review proceedings suggest that the standard heretofore used is too narrow, and thus inconsistent with these two authorities as to the scope of who is an affected party. Nowhere in the Governing Documents has an intent been shown to allow a narrow view of an “affected party.” The language of Clause 9 that each Nation in TNP “is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency,” clearly envices an unmistakable intent that the right to seek a review of governmental action is based upon this language of Clause 9. If one labels the standard of “affected party” that the Court has been using as a “directly” affected party, then the scope of who may bring a request for review proceeding as to governmental action not included in that standard as “indirectly affected” parties, who have no less of a right to seek such review as a party that is directly affected. Thus, a request for review by a member of the Regional Assembly who may be seeking such a review with a view towards possible legislation has just as much a right to be treated as an “affected party.” Thus, with this broader standard in mind, the petitioner here, as a representative of the Attorney General, would not only have standing to participate in a review proceeding, the petitioner would have standing to file a request for review even though they are an indirectly affected party.

Accordingly, we conclude that based upon the foregoing, the petitioner has standing to bring this request for review proceeding.

2. Is the subject matter of the request for review appropriate for consideration of a governmental action in this proceeding.

The question here basically comes down to whether a prior court decision was binding upon any party, and whether the effect of such action, if any, has been superceeded by legislation since adopted by the Regional Assembly.

The petitioner seeks to have striken the language of listed opinion number 1 on the grounds that its effect is in conflict with subsequent legislation concerning the duties of the Attorney General as “the chief prosecutor” of the region. At the time of opinion number 1 was issued, there was a lck of clarity as to whether the Attorney General could use discretion in decided what criminal cases would be filed with the Court, and whether the Attorney General could use their own judgment as to the appropriateness of whether a complaint filed with the Attorney General should be presented to the Court in an indictment or could dismiss the case before any filing was made with the Court. It is uncertain to a heightened degree whether the language of that opinion imposed anything binding on the Attorney General; the choice of words use are not binding, and there was nothing in the opinion that showed a basis in the Governing Documents that supported the idea that the Court was basing its opinion on the then existing law, and not a mere expression of belief and recommendation. This can be compared to the way listed Opinion number 8 on essentially the same topic was drafted and the reasoning that was used in that later opinion. The later opinion made reference to specific provisions of the Governing Documents; and most importantly, the Court never made reference to or even cited listed opinion 1 in its decision. That certainly tends to support a conclusion that listed opinion number 1 had and has no binding effect and that there is no conflict for the petitioner in this proceeding between that opinion and the provisions in the Governing Documents as they currently stand enacted by the Regional Assembly. Inasmuch as the Court, in listed opinion number 1, did not purport to base its opinion on the Governing Documents of TNP, and at a minimum did not seek to have the the Regional Assembly enact legislation to clarify what was meant by the term “chief prosecutor” in terms of the duties of the office of the Attorney General at that time, listed opinion number 1 is merely a nonbinding document expressing an opinion of thee Court as to what it thought the duties of the Attorney General and the Court might be, and had and has no binding effect. Accordingly, the Court finds that listed Opinion number 1 should be declared a nullity, and that it is unnecessary for the Court to grant the petitioner’ request to strike the opinion. (We note that we do not decide in this proceeding either the status or the effect of listed opinion number 8; we merely cite to that opinion to show the lack of effect and status that Court showed with respect to listed opinion number 1 and that the failure of that Court to make any reference to listed opinion number 1 underscores that lack of binding effect of that opinion.)

Accordingly, listed opinion number 1 is NULLIFIED, and the request to strike listed opinion number 1 is DENIED.
Click to expand...
 
Based upon an exchange of PM's with Justice Kialga, where he indicated that he felt the opinion was ready for posting, I have cleared up some of the errors in spelling, cleared up some of the discussion, added some references to the new Voting Rights Act for clarity, and performed some coding.

I have posted the final text of the opinion in that thread.
 
I did not expect you to post it, but our exchange did indicate that it could/should be posted. I was waiting for us to pick a THO before any official statement was issued. I should have mentioned that a THO should be picked, but I failed to communicate that.

I will admit my limited activity has been less than ideal, but I have a few things that have been sprung upon me. I apologize for that, but I had no control on it.

Are you planning on keeping the ruling as is? Having a THO selected? Waiting for the new Justice?
 
Kialga, the composition of the Court is no longer an issue. I acted based on what you actually said in your PM, and I took it at face value.

I don't see any reason to change the opinion as it was posted. I think I used the soundest of judicial reason and analysis of a sloppy bed of past precedents that needed to be addressed, and the results will lead to a more consistent and predictable use of precedent by directly addressing all the inconsistencies that I noted. It was also clear that there was a serious, longstanding problem with who could bring a request for review, and what the Bill of Rights demanded as far as a stated, adopted, defensible standard as to who has standing. I think the opinion addresses all the little things that needed attention in order to clear that part of the slate. The fact is by the way that under the Court's prior precedents, Silly String does not have standing to bring the request for review because there is no direct impact on them as to the question presented. And the only way I can interpret the provision in the Constitution is that the AG can participate in a review proceeding, but that is not the same as initiating it. Compare that with the contradictory language of the Court Rules on Review Proceedings, which says that anyone may bring a proceeding. Yes, there is a direct conflict.

The inconsistencies in the Court's past precedents are just maddening. This is why not being involved much with the Court or the RA under the current Constitution gives me an advantage, I can see things as they are, and see the problems that past Courts have created for themselves.

Then comes the inconsistency between listed opinion number 1 and listed opinion number 8 17. And the need to acknowledge that opinion number 1 amounted to nothing that was binding, and therefore could not create a conflict. I am guessing at some point the AG's office may bring opinion number 8 or some other past opinion to the court that they deem is in conflict with the current text of the Governing Documents, and at that point, we can decide whether that is a proper use of the review procedure. There is some other material that I did not need to use because of the nonbinding nature of listed opinion number 1, but as I said, we can get to those when the time is appropriate.

If you haven't you might want to read the completed set of listed opinions, plus the 2010 Opinion on Residency and Forum Administration, which I believe is in the Docks area of the forums. And the Court Rules in their current form, in addition to the Governing Documents. Don't rely on third party briefings from the outside, you really need to read all of it. I came away with a level of bewilderment and frustration at the judicial inconsistencies, and it's no way to run a court.
 
Yes, Severisen, I support the decision as is.

I understand, Grosseschnauzer. When I asked the question, I had not looked at the special election to see when the end date was. Apologies.
 
I still stand by my original stance, and as such withdraw support of the decision. I understand that by doing this, I my seem to flip flop too much, but several reasons stand behind this.

I oppose the decision on several reasons. The first being that taking my statement at face value was not what I had intended. By agreeing that the draft was able to be posted, I was not supporting the draft. I had stated that I would have a full response up later that day, which never got the chance to come to light. The time frame in which the messages were exchanged was hectic, and stated several times that I was not able to read well enough to comprehend fully what I needed to. This point can be challenged by my agreement to Sev earlier.

A point I would like to return to, as it was made earlier in the thread, is the change that had been brought to the Legal Code since the time the ruling was issued. As stated by the petitioner, the Legal Code had changed from the Attorney General's office having to take all cases presented before the Court to allowing the Attorney General's office to pick the cases in which it heard. The ruling, which is, as the petitioner states, is in violation to the current Legal Code, states that the Attorney General takes all cases set before the Court.

The Request is to strike a ruling that no longer has a binding power under the current Legal Code, not to agree the binding power of said ruling. The language of the ruling states the guidelines, which are yes, suggestions, that the Attorney General's office takes when handling a trial.

I stand by my original statement that, since the Legal Code has since changed, the ruling, as it is currently listed, has no effect and conflicts the Legal Code. With the ruling suggesting that the Attorney General's office takes all trial's presented to the Court and decides whether it is merited on evidence alone, and the current Legal Code stating that the Attorney General's office may decide to manage a case based on discretion alone. The Legal Code only states that the Attorney General's office see the completion of any case that the office decides to manage.

Contest as you feel needed, but I stand by this statement. As requested, the ruling has no effect under the current Legal Code, and as such the request should be granted.
 
I stand by my position and will not withdraw it. The problem is that under existing precedent, Silly String does not have standing to being the petition at all. If that ends up being the only point of agreement, then so be it.

I think the problem of who has standing on review requests needs to be addressed, and needs to be addressed first. Without the findings I made in the draft opinion, the only alternative is to dismiss the petition for lack of sufficient standing as a directly affected party.

The changes in the Legal Code mean nothing when the opinion at issue means absolutely nothing, and had no binding effect to begin with. We may have to address the specific question if listed opinion number 8 13 is ever raised in the same way, but listed opinion number one is not that vehicle. It is deficient has no binding weight by the language used, and should be nullified. However, we can't get there without a party with proper standing, and Silly String is not it in this instance.
 
Then perhaps we ought to withdraw the opinion and deal with the issue of standing first.

Though, I should point out that SillyString does have standing because: 37. The Attorney General shall have standing in all cases of judicial review brought before the Court.

Unless we interpret that to mean *only* the AG, and not the office thereof.
 
The first nine paragraphs deal with the issue of standing. Withdrawing anything is meaningless at the moment.

If nothing else it will be the text of my dissent if it comes to that point.

Now, let's take those nine paragraphs and see if we can agree on that part first. If we can't then we'll be in a deadlock.
 
Severisen:
Then perhaps we ought to withdraw the opinion and deal with the issue of standing first.

Though, I should point out that SillyString does have standing because: 37. The Attorney General shall have standing in all cases of judicial review brought before the Court.

Unless we interpret that to mean *only* the AG, and not the office thereof.
Click to expand...
Severisen, you obviously never read the opinion. If you had, you will see I directly addressed the problem that that clause is facially ambiguous and it more likely fairly means to participate in all review proceedings, not to initiate. If the R.A. had meant initiate, it should have clearly said so, which it did not. There is no means of construing the English language to get initiate into that sentence. The other problem is that the R.A. has never defined "standing" in any of their enactments, which is another issue the opinion addressed.

I strongly suggest you re-read what was written and look at the source materials cited while you're at it, and you will see that I have addressed every one of those little quirky issues past Court decisions have created. I'm really not in favor of sweeping all those contradictory precedents under the rug just to be lazy and expedient. I think we need to address them, I think this is the time to address them; the only alternative under current precedents and enactments is to dismiss the review for lack of sufficient standing as a directly affected party. All that will do is delay the inevitable, which is to address these problems.
 
We can begin with the standing issue, yes.

Your ruling states that the petitioner does have the standing to bring the request for review, however you state that you disagree and that SillyString does not have the standing. Although, you state that the petetioner does not have standing in paragraph 8 (counting even 2 line chunks of text as paragraph). I am in agreement with the, seemingly, overall tone of the first section of paragraphs, that SillyString does in fact have standing to bring this request up.

Sev does bring up a good point, however, being that does the piece of Legal Code only mean the AG, or the entire office. I believe it is safe to say that Section 6.7 of the Legal Code includes both the AG and their Deputies, and identifies them as separate entities when need be. Which would mean that, yes, the petitioner would have standing as a member of the Attorney General's office.
 
Kialga, the only way Silly String, the AG, or any other indirectly affected parties can get standing is under the new standard I propose based on Clause 9 of the Bill of Rights and Chapter 2 of the Court Rules. Under the precedents that the Court has been using, Silly String and the AG do not have standing as a directly affected party and as I've pointed out, Clause 37 is too ambiguous to be construed to grant an undefined statutory standing to initiate a request for review, it could only be used under the previous Court precedent to allow the AG and their deputies to participate in a review initiated by others.
 
Grosse, I've had a relatively rough day, so I'm not in a great mood. I'll have the decency and respect for you not to snipe back at you. When I get a chance later on, I'll go through your standing argument. I'd appreciate in the future that you not insinuate that I didn't read something.
 
Grosse: Have you already proposed this standard? Unless I am overlooking it, I fail to see any such proposal.

The Court Rules state anyone may file a Request for Review. The Constitution states that the Court will try all cases, reviews, or conflicts that are asked by an affected party. I'm not sure I'm understanding how SillyString, as a member of the Attorney General's office, is not an affected party in this case. The ambiguity of the clauses can be argued until we all sit red in the face. However, the point stands that, working in the AG's office, and having to follow the Court's opinion, as well as that of the Legal Code's, would lead anyone in the AG's office to being affected by this ruling. The AG's office would not be able to correctly function if it were trying to work from both prior rulings and Legal Code. If the people working under a law, in this case the AG's office, were not affected by a ruling that suggested the steps the AG's office took when a complaint was filled, as well as Legal Code, then who ever really can be classified as an affected party? Forgive me for repeating myself, but the ruling and Legal Code, in direct conflict, affect how the AG's office will function.

Forgive me for rambling, but I'm failing to see how the petitioner, who is a member of the directly affected office, is an indirectly affected party. Or not affected at all.
 
Kialga:
Grosse: Have you already proposed this standard? Unless I am overlooking it, I fail to see any such proposal.
Click to expand...

We now turn to whether or not the term “affected party’ has been too narrowly defined by the Court in prior decisions, and in deciding whether a party that has filed a request for review has a sufficient level of being “affected” so as to have standing. Based upon those prior actions by the Court, the petitioner here would not have a sufficient neus to claim a status of an “affected party.” However, as noted earlier, the language of Claue 9 of the Bill of Rights, coupled with Chapter 2 of the Court Rules on requests for review proceedings suggest that the standard heretofore used is too narrow, and thus inconsistent with these two authorities as to the scope of who is an affected party. Nowhere in the Governing Documents has an intent been shown to allow a narrow view of an “affected party.” The language of Clause 9 that each Nation in TNP “is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency,” clearly envices an unmistakable intent that the right to seek a review of governmental action is based upon this language of Clause 9. If one labels the standard of “affected party” that the Court has been using as a “directly” affected party, then the scope of who may bring a request for review proceeding as to governmental action not included in that standard as “indirectly affected” parties, who have no less of a right to seek such review as a party that is directly affected. Thus, a request for review by a member of the Regional Assembly who may be seeking such a review with a view towards possible legislation has just as much a right to be treated as an “affected party.” Thus, with this broader standard in mind, the petitioner here, as a representative of the Attorney General, would not only have standing to participate in a review proceeding, the petitioner would have standing to file a request for review even though they are an indirectly affected party.
Click to expand...

And prior to that point I addressed the problem with Silly String's status as an affected party:

1. Does the petitioner have “standing” to bring this request for review as an “affected party” or otherwise?

Petitioner appears to base their right to bring this request for review on the language contained in Clause 36 of Section 6.7 of the Legal Code. (“The Attorney General shall have standing in all cases of judicial review brought before the Court.”) That Clause, however, is ambiguous inasmuch as it refers to “standing” which is not defined in any of the Governing Documents of TNP, nor in the Court Rules, nor in prior decisions of the Court; and further, the Clause is facially ambiguous as to whether the “standing” is in respect of the right to participate in the request for review proceeding, or whether it is in respect of the right to initiate an request for review.
Click to expand...

The next few paragraphs analyzes the Court's original precedent that the Court could not define terms of art judicially. It had struck down a Court-created definition of "resident" because it had not been enacted by the Regional Assembly, and then in later opinions, turned around and created judicial definitions for "standing" and "affected party," each of which only appear once in any of the Governing Documents, and is nowhere defined by the Regional Assembly in any of the Governing Documents. In other words, a direct contradiction in prior Court decisions as to whether the Court could or could not create any definitions judicially.

I then conclude that in general the Court can, and then bring in the lack of reference as to
"affected party" to Clause 9 of the Bill of Rights and Chapter 2 of the Court Rules, neither of which had ever been discussed by the Court in an issued opinion with respect to the standing of an affected party. And that discussion which is the first quoted passage above from the opinion determines that the prior definition is too narrow, and inconsistent with Clause 9 of the Bill of Rights, and the Court's adopted Rules.

I should point out that Silly String only relies upon the quoted Clause 39 from the Legal Code as a basis for having standing. (The clause that is ambiguous as to whether it is related to filing a request for review, or for the AG to participate in a request for review once filed.)

What you have to realize is that we're dealing with several layers of contradictory past court opinions that takes a but of effort to lay out and demonstrate why they are inconsistent and why the Court has to decide which line of precedent has to be overruled in order to create a consistent line of decisions going forward. Yes, it is complicated, but it is the only way to honestly address these problems past Courts have left behind. So in that first quote where I underlined, then italicized, then bolded consecutive sentences is where I proposed a broader standard based upon the Bill of Rights and not some court created doctrine that is not based on anything the R.A. ever adopted.
 
I apologize for my absence. Last night my power went out, and evidently this fried my modem. I went and got a replacement, but that's acting up as well. I can only stay connected for a minute at a time. I'll get this resolved as quickly as possible.
 
I really don't agree with the last sentence of what you publicly posted, Severisen. We don't know if there is or there isn't. Or have you decided that any discussion is futile, and you've made up your mind not to support any aspect of the opinion? I suppose if Kialga is going to flip flop back and forth as he has, I shouldn't been surprised at your behavior either.
You want respect? Show me some.
 
It has now been (nearly) a week since I last heard anything substantive from either of you to move the conversation forward.
Seversen, you promised to get back to me about the standing discussion on the 7th, it is now the 14th (GMT). Kialga, I answered your most recent questions on the 8th, fairly soon after you posted it, and yet I hear nothing but the silent wind whistling through the non-existent trees.
 
I understand the silence isn't what we need, but I'm sitting in the middle of a personal situation. I've tried several times to actually type what I'm thinking and it hasn't made sense. I apologize.

I had noted that portion of your draft, Grosse, but it never registered as a proposal. That might have to be taken up by the RA or one of us later down the road. I'm seeing what you're saying, Grosse, just having trouble processing it all in the current moment.

A question, that may be in your draft and I'm not registering it. Do you believe, at the current moment, the petitioner has sufficient standing to bring this request to review?
 
1. Does the petitioner have “standing” to bring this request for review as an “affected party” or otherwise?

Petitioner appears to base their right to bring this request for review on the language contained in Clause 36 of Section 6.7 of the Legal Code. (“The Attorney General shall have standing in all cases of judicial review brought before the Court.”) That Clause, however, is ambiguous inasmuch as it refers to “standing” which is not defined in any of the Governing Documents of TNP, nor in the Court Rules, nor in prior decisions of the Court; and further, the Clause is facially ambiguous as to whether the “standing” is in respect of the right to participate in the request for review proceeding, or whether it is in respect of the right to initiate an request for review.

The Court has previously utilized an “affected party” approach to delinate delineate “standing” in a request for review. See Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by flemingovia on the definition of "affected party"; Ruling delivered on April 22nd 2013. This decision is further implemented in a template form to submit Requests for Review to the Court. It is important to note that while precedent is an important and necessary element to the rule of law, it is also important that the Court’s use of precedent be based on the Governing Documents of the Region, and that when the Court fabricates principles and terms of use that are not expressly created and defined in those Governing Documents, it can lead to a more limited approach to the application of those Governing Documents than ought to be intended.

The terms “standing” and “affected party” are both terms of use that are nowhere defined in the Governing Documents of the Region. “Standing,” as noted above is used only once in any of those documents, and the term is not otherwise defined in them. Likewise, the definition of an “Affected Party” is a term of use created by the Court without any definition for that terminology appearing in the Governing Documents of the Region other than a statement in Section 1 of Article 5 of the Constitution. Thus, this places the use of both terms roughly in the same footing that a prior Court found constitutionally deficient as to the term “resident” in its ruling of In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights, Ruling delivered on October 22nd 2012, Concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010.

It has to be noted that Chapter 2 of the Court Rules with respect to Requests for Review, Clause 1, states in pertinent part that “Anyone may submit a request to the Court for a review of government policy or law. It is not limited to any particular set of persons who may be an “affected party.” (Emphasis added.) The above quoted provisions of the Constitution and the Legal Code with respect to request for review proceedings has to be read in the context of Clause 9 of the Bill of Rights which states in pertinent part, “Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.”

Thus, there is a fundamental tension between prior Court decisions, the Governing Documents of the Region, and the current Court Rules as to whether the previously adopted judicial definition of an “affected party” has been too narrowly defined given the language of Chapter 2 of the Court Rules and Clause 9 of the Bill of Rights.

We are faced with two opposing options in order to reconcile these conflicting authorities. If the Court is to provide definitions to terms adopted in the Governing Documents or by the Court, then the action of the Court to nullify the definition of “resident” in the 2010 Opinion was incorrect and needs to be overruled. On the other hand, if that 2010 decision is valid, then it was inappropriate for the Court to fabricate definitions for terms used in the Governing Document that for which the Regional Assembly did not provide a definition, and it should have looked to the Regional Assembly to provide any and all such definitons.

The weight of precedent in the Court’s previous decisions appear to be that the action of the Court to strike the definition of residency was in error. A careful reading of the 2010 decision on Residency and Forum Administration makes clear that the use of “resident” was a label to represent a specifically described set of which nations were and should be considered part of TNP, and the 2010 opinion made that clear. The action of the Court in listed opinion number 3 to the contrary was based upon a misreading of the 2010 opinion, and was erroneous. Accordingly the discussion of which nations are resident in TNP from the 2010 opinion is reinstated, and consistent with the Court’s later practices in discussing “standing” and “affected party.”
Click to expand...

We can't use that opinion's definition of Resident as the Constitution, adopted after that ruling, states that "1. Resident means any person with a nation in the region of The North Pacific." How do you could take that statement and apply a more narrow definition of resident? Would you care to elaborate there?


We now turn to whether or not the term “affected party’ has been too narrowly defined by the Court in prior decisions, and in deciding whether a party that has filed a request for review has a sufficient level of being “affected” so as to have standing. Based upon those prior actions by the Court, the petitioner here would not have a sufficient neus to claim a status of an “affected party.” However, as noted earlier, the language of Claue 9 of the Bill of Rights, coupled with Chapter 2 of the Court Rules on requests for review proceedings suggest that the standard heretofore used is too narrow, and thus inconsistent with these two authorities as to the scope of who is an affected party. Nowhere in the Governing Documents has an intent been shown to allow a narrow view of an “affected party.” The language of Clause 9 that each Nation in TNP “is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency,” clearly envices an unmistakable intent that the right to seek a review of governmental action is based upon this language of Clause 9. If one labels the standard of “affected party” that the Court has been using as a “directly” affected party, then the scope of who may bring a request for review proceeding as to governmental action not included in that standard as “indirectly affected” parties, who have no less of a right to seek such review as a party that is directly affected. Thus, a request for review by a member of the Regional Assembly who may be seeking such a review with a view towards possible legislation has just as much a right to be treated as an “affected party.” Thus, with this broader standard in mind, the petitioner here, as a representative of the Attorney General, would not only have standing to participate in a review proceeding, the petitioner would have standing to file a request for review even though they are an indirectly affected party.

Accordingly, we conclude that based upon the foregoing, the petitioner has standing to bring this request for review proceeding.
Click to expand...

I would agree with this, in principle. I also fixed a few grammatical errors I saw.
 
I believe you are working on the draft posted in this thread and not what is publicly posted in the official thread. I'm on my Kindle at the moment, which doesn't allow me to copy-paste, so I will have to be on my notebook to respond completely. But FWIW, the 2010 discussion noted that generally residents included all nations in TNP and those who were outside TNP on official government business, such as the NPA, and only excluded those who were representing other regions to post on the RMB a s recruiters, a practice that has become uncommon with the ability of the Delegate to suppress RMB posts. IIRC, I also added a comment in the public draft posted in the official thread noting the citizenship/resident reform. I also made some corrections that aren't reflected in the draft above.

I will clarify my response to both of you when I can bring over that draft into this thread. (I'm on my Kindle in part because my ISP is having really slow upload download speeds at the moment, and they're scheduled to be here first thing Tuesday a.m. to address the problem. If I'm able to get a good connection before then, then I'll do so sooner and give a definite response to both of you and the two posts.)
 
I'm transferring over from the public thread the full text of what I had posted in that thread (not this one), and correcting the reference style to prior Court opinions, and a couple of typos in addition to the one you saw. (Spell checker should have caught that one.)

Code: 
[center][img]http://www.thenorthpacific.org/images/court-seal.png[/img][/center]

[center][b][big][big][u]Ruling of the Court of the North Pacific[/u][/big][/big][/b][/center][center][i]In regards to the Request for Review filed by Silly String on behalf of the Attorney General on the Court’s Ruling issued on September 15, 2012[/i][/center]

The Court took into consideration the Request for Review filed here by Silly String.

The Court took into consideration the following:

A. Bill of Rights, Clause 9

B. Legal Code, Section 6.7, Clauses 38 to 45

C. Court Rules, Chapter 2

D. Court Rules, Chapter 4

E. Court Rulings (the numbers refer to the opinion numbers in the indexed list of decisions as maintained in the legal documents area of the official forums, including:

Ruling on Residency and Forum Administration as made on 6 August 2010

1. In regards to the Judicial Inquiry filed by Tim on the Attorney General Refusing to bring Trials to the Court; Ruling delivered on September 15th 2012.

3. In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights, Ruling delivered on October 22nd 2012, and concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010

17. Advisory Opinion of the Court of the North PacificIn regards to the events occurring in the course of The North Pacific v. Unibot; Advisory Opinion delivered on February 12th 2013.) (No reference to opinion of September 15, 2012.)

19. Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by r3naissanc3r regarding whether or not Court decisions are irrefutably binding, as well as an ancillary question put for by Crushing Our Enemies regarding the scope of the Court's review powers (Ruling delivered on February 20th 2013.)

25. Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by flemingovia on the definition of “affected party” (Ruling delivered on April 22nd 2013.)

In this request, the Court is presented with a heretofore unseen type of request for review to strike a prior decision of the Court on the grounds that subsequent legislation has superceded that decision. In order to reach the merits of the request by the petitioner, acting on behalf of the Attorney General, it is necessary to determine several prerequisite questions, and in reaching those determinations, it is necessary that this Court reconcile some of its past decisions and Court Rules with the Governing Documents of TNP (i.e., the Constitution, the Bill of Rights, and the Legal Code) which appear to be in conflict.

1. Does the petitioner have “standing” to bring this request for review as an “affected party” or otherwise?

Petitioner appears to base their right to bring this request for review on the language contained in Clause 36 of Section 6.7 of the Legal Code. (“The Attorney General shall have standing in all cases of judicial review brought before the Court.”) That Clause, however, is ambiguous inasmuch as it refers to “standing” which is not defined in any of the Governing Documents of TNP, nor in the Court Rules, nor in prior decisions of the Court; and further, the Clause is facially ambiguous as to whether the “standing” is in respect of the right to participate in the request for review proceeding, or whether it is in respect of the right to initiate an request for review.

The Court has previously utilized an “affected party” approach to delineate “standing” in a request for review. (See Ruling Index Number 25; Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by flemingovia on the definition of "affected party"; Ruling delivered on April 22nd 2013.) This decision is further implemented in a template form to submit Requests for Review to the Court. It is important to note that while precedent is an important and necessary element to the rule of law, it is also important that the Court’s use of precedent be based on the Governing Documents of the Region, and that when the Court fabricates principles and terms of use that are not expressly created and defined in those Governing Documents, it can lead to a more limited approach to the application of those Governing Documents than ought to be intended.

The terms “standing” and “affected party” are both terms of use that are nowhere defined in the Governing Documents of the Region. “Standing,” as noted above is used only once in any of those documents, and the term is not otherwise defined in them. Likewise, the definition of an “affected party” is a term of use created by the Court without any definition for that terminology appearing in the Governing Documents of the Region other than a statement in Section 1 of Article 5 of the Constitution. Thus, this places the use of both terms roughly in the same footing that a prior Court found constitutionally deficient as to the term “resident” in its ruling of Ruling Index Number 3; In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights, Ruling delivered on October 22nd 2012, Concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010.)

It has to be noted that Chapter 2 of the Court Rules with respect to Requests for Review, Clause 1, states in pertinent part that “Anyone may submit a request to the Court for a review of government policy or law. It is not limited to any particular set of persons who may be an “affected party.” (Emphasis added.) The above quoted provisions of the Constitution and the Legal Code with respect to request for review proceedings has to be read in the context of Clause 9 of the Bill of Rights which states in pertinent part, “Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.”

Thus, there is a fundamental tension between prior Court decisions, the Governing Documents of the Region, and the current Court Rules as to whether the previously adopted judicial definition of an “affected party” has been too narrowly defined given the language of Chapter 2 of the Court Rules and Clause 9 of the Bill of Rights.

We are faced with two opposing options in order to reconcile these conflicting authorities. If the Court is to provide judicially crafted definitions to terms adopted in the Governing Documents or by the Court, then the action of the Court to nullify the definition of “resident” in the 2010 Opinion was incorrect and needs to be overruled. On the other hand, if that 2010 decision is valid, then it was inappropriate for the Court to fabricate definitions for terms used in the Governing Document that for which the Regional Assembly did not provide a definition, and it should have looked only to the Regional Assembly to provide any and all such definitions.

The weight of precedent in the Court’s previous decisions appear to be that the action of the Court to strike the definition of residency was in error. A careful reading of the 2010 decision on Residency and Forum Administration makes clear that the use of “resident” was a label to represent a specifically described set of factual circumstances of which nations were and should be considered part of TNP, and the 2010 opinion made that clear. (While the use of nations to visit a region to post recruitment advertisements on the in-game regional message boards still remain possible, the advent of the power of message suppression by the Delegate in-game has made that option all but obsolete.) The action of the Court in Ruling Index Number 3 to the contrary was based upon a misreading of the 2010 opinion, and was erroneous. Accordingly the discussion of which nations are resident in TNP from the 2010 opinion is reinstated, and consistent with the Court’s later practices in discussing “standing” and “affected party.” (The Court notes that this conclusion was initially reached in this Opinion before the enactment of the recently adopted “Voting Rights Act,” although the terminology of “resident” and “citizen” would be consistent with the 2010 Opinion on Residency and Administration.)

We now turn to whether or not the term “affected party” has been too narrowly defined by the Court in prior decisions, and in deciding whether a party that has filed a request for review has a sufficient level of being “affected” so as to have standing. Based upon those prior actions by the Court, the petitioner here would not have a sufficient nexus to claim a status of an “affected party.”

However, as noted earlier, the language of Clause 9 of the Bill of Rights, coupled with Chapter 2 of the Court Rules on requests for review proceedings, suggest that the standard previously used by the Court is too narrow, and thus inconsistent with these two authorities as to the scope of who is an “affected party.” Nowhere in the Governing Documents has an intent been shown to allow a narrow view of an “affected party.” The language of Clause 9 that each Nation in TNP “is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency,” clearly evinces an unmistakable intent that the right to seek a review of governmental action is based upon this language of Clause 9.

If one labels the standard of “affected party” that the Court has been using as a “directly” affected party, then the scope of who may bring a request for review proceeding as to governmental action not included in that standard would be as “indirectly” affected parties, who have no less of a right to seek such review as a party that is more directly affected. Thus, a request for review by a member of the Regional Assembly (as it was defined prior to enactment of the Voting Rights Act, which is now a “citizen” who participates in the Regional Assembly) who may be seeking such a review with a view towards possible legislation has just as much a right to be treated as an “affected party” under Clause 9 as a citizen who claims a personal right or interest that is impaired by some governmental act. Therefore, with this broader standard in mind, the petitioner here, as a representative of the Attorney General, would not only have standing to participate in a review proceeding, the petitioner would have standing to file a request for review even though they are an indirectly affected party.

Accordingly, we conclude that based upon the foregoing, the petitioner has standing to bring this request for review proceeding, and that the broader standard required under Clause 9 of the Bill of Rights must prevail in determining who may file a request for review.

2. Is the subject matter of the request for review appropriate for consideration of a governmental action in this proceeding?

The question here basically comes down to whether a prior court decision was binding upon any party, and whether the effect of such action, if any, has been superseded by legislation since adopted by the Regional Assembly.

The petitioner seeks to have stricken the language of Ruling Index Number 1 on the grounds that its effect is in conflict with subsequent legislation concerning the duties of the Attorney General as “the chief prosecutor” of the region. At the time Ruling Index Number 1 was issued, there was a lack of clarity as to whether the Attorney General could use their discretion in deciding what criminal cases would be filed with the Court, and whether the Attorney General could use their own judgment as to the appropriateness of whether a complaint filed with the Attorney General should be presented to the Court in an indictment or could dismiss the case before any filing was made with the Court.

It is uncertain to a heightened degree whether the language of that opinion imposed anything binding on the Attorney General; the choice of words used in Ruling Index Number 1 are not binding, and there was nothing in the opinion that showed a basis in the Governing Documents that supported the idea that the Court was basing its opinion on the then existing law in any of the Governing Documents, and not a mere expression of its belief and recommendation.

This can be compared to the way Ruling Index Number 8 on essentially the same topic was drafted and the reasoning that was used in that later opinion. The later opinion made reference to specific provisions of the Governing Documents; and most importantly, the Court never made reference to or even cited Ruling Index Number 1 in its decision. That certainly tends to support a conclusion that Ruling Index Number 1 had, and has, no binding effect and that there is no conflict for the petitioner in this proceeding between that opinion and the provisions in the Governing Documents as they currently stand enacted by the Regional Assembly.

Inasmuch as the Court, in Ruling Index Number 1, did not purport to base its opinion on the Governing Documents of TNP, and at a minimum did not seek to have the the Regional Assembly enact legislation to clarify what was meant by the term “chief prosecutor” in terms of the duties of the office of the Attorney General at that time. Ruling Index Number 1 is merely a nonbinding document expressing an opinion of the Court as to what it thought the duties of the Attorney General and the Court might be, and had and has no binding effect. Accordingly, the Court finds that Ruling Index Number 1 should be declared a nullity, and that it is unnecessary for the Court to grant the petitioner’ request to strike the opinion.

(We note that we do not decide in this proceeding either the status or the effect of Ruling Index Number 8 or whether the Attorney General may bring requests for review to strike any alleged superseded opinion of this Court; we merely cite to that opinion to show the lack of effect and status that Court showed with respect to Ruling Index Number 1 and that the failure of that Court to make any reference to Ruling Index Number 1 underscores that lack of binding effect of that opinion. Because we do not decide on the purported merits on the Petitioner’s request to strike as presented, we reserve decision on that question to a later time when the issue is directly presented for decision.)

For clarity we summarize the holdings of this Opinion as follows:

We find that a party may have a directly or indirectly affected interest to support their standing to present a request for review based upon Clause 9 of the Bill of Rights, and under this finding, the petitioner has standing to bring this proceeding;

We find that Ruling Index Number 3 was incorrect in overruling the portion of the Court’s 2010 Opinion on Residency and Forum Administration, and reinstate the 2010 opinion on the question of residency, and thereby reconcile Court precedent on providing judicially crafted definition of terms in the absence of legislation, although legislation by the Regional Assembly is the preferred means of defining such terms;

We find that Ruling Index Number 1 had no binding effect by the actual language used in that Opinion and that not having any binding effect, it should be overruled and nullified; and

We find that having determined that such Opinion having been nullified as not having any language consistent with binding effect, the request of the Petitioner is moot.

Accordingly, listed opinion number 1 is NULLIFIED, and the request to strike Ruling Index Number 1 is DENIED as moot.
Click to expand...

Severisen, as you'll see I made a couple of references to the new "Voting Rights Act," and noted that the use of "resident" and "citizen" in that opinion was consistent with the new law. I will include an underscoring of those passages in the quoted textas to those references.

I should also add that both forum administration and the Speaker's office generally followed that definition in placing user accounts in the old "citizen," "former citizen," and "registered citizens" masks over these past five years. In practice, the terminology of the 2010 opinion was being used regardless of Court Index Opinion Number 3 since it was being used as a custom or usage and not as a definition in the law. Now there is a definition, and I would contend it is consistent with that prior practice in forum user account maskings, since a "citizen" had to have had a security check to join the RA or NPA; RA members removed for inactivity were placed in either the citizen or former citizen mask; NPA members who did not join the RA were placed in the citizen mask as they also had a security check; and a group of old time RA members who never reposted an oath some years ago were also eventually placed in the citizen mask (having had a security check way back when.)

So the bottom line is that the 2010 opinion and subsequent practice on the forums is not inconsistent with the new law, and reviving the opinion merely straightens out what in fact was the correct course of events until the new law was passed.

Kialga, in response to your most recent post:

A question, that may be in your draft and I'm not registering it. Do you believe, at the current moment, the petitioner has sufficient standing to bring this request to review?
Click to expand...

Without the change in the standard I propose we adopt in this opinion, I do not believe the petitioner has standing. The Legal Code section they rely on I find is too ambiguous and it is plainly unclear exactly what the RA intended in adopting that clause. Had it meant to grant standing to file a request for review in all instances and be deemed a "directly" affected party, the RA should have simply said that in plain English. It did not.

I do not have an issue with SillyString acting by delegation from the Attorney General when the petition was filed, and SilyString's efforts to allege that they were directed affected by the purported conflict between the opinion and the legal code did not sufficiently allege a direct injury to themselves. The impact of the conflict is of no greater degree than an R A member seeking review of a question that may lead to offering legislation for the R A to debate or adopt.

That is why I concluded SillyString under the current scheme did not have standing.
 
I understand where you are coming from with that Grosse. Not that I'm in agreement with it, I just see where you are coming from.
 
My point was that the 2010 decision defines Residency more narrowly than the Constitution. The constitution is plain when it defines Resident. "1. Resident means any person with a nation in the region of The North Pacific." I'm in favor of opening standing to the way you've defined it.
 
At the time, neither the Constitution nor any other Governing Document defined resident or citizen. The only real difference is that the intent to become a resident did not extend to a nation who only came to post regional solicitation messages on the in game RMB, and those nations who were on TNP official business outside TNP. (I don't think anyone would argue that the two are dissimilar; and the recent amendment only formalized the practice that has developed over the last decade.) That is why I view the 2010 opinion as not inconsistent with the new definition; in any event, it was the realpolitik of the matter in practice, as I noted before.

If we get to the end of this discussion, you may disagree on the record with that aspect of the opinion, while accepting the conclusion(s) about standing and the proper scope that we would adopt.

And now, can we move to part two of the opinion?

To be brief, my position is simple, opinion number one was never binding, and trying to make it so retroactively (although I did not mention this in the opinion, per se) violates the ex post facto provision of the Bill of Rights. Opinion 8 17 was on the same subject and was written in a manner to indicate that it was binding in its conclusion.. The key to me is that the Court that decided Opinion 8 17 never even mentioned Opinion one, and if they did not consider it of precedental value, then it was already not binding on anyone and there is no conflict that required the request for review to be filed. That is why I treat Opinion 1 as a nullity and it makes the petition moot.

Like the question of standing, we are confronting an inconsistent lack of predictability in how the Court in the past has decided issues, when court decision-making requires that the tools in our toolbox be predictable in their use. My resolution of this question is designed to do just that. We can wait until another day to decide if these types of requests for review from the Attorney General are appropriate or not when we have one that does not present these other problems in the process.

Can I at least get agreement about that?
 
If you are looking for agreement, you have one from myself. There is no conflict that required the request to be filled. I do stand by the argument, but I can agree that the timing was off, in the sense that there wasn't a conflict or otherwise that confronted the Attorney General's office.

I will agree that the current situation does not fit the request. Should it come before the court again, during the Winter Term, my opinion prior will be the same. At the current timing, the request is not hindering the Attorney General's office, though it could in the future.
 
I will wait to see what the Chief has to say on the second issue, then, and then I will fashion something that will hopefully paraphrase the result into the final version. We're obviously headed towards a non-unanimous conclusion, but with concurrences as to the results of the two questions addressed (standing on which the Chief and I are in general agreement on a restated standard except for one point, as far as I can tell; and substance of the review, on which you and I agree on the result but for different reasons.)
 
I am in principle in favor of what you said with regards to point one.

On point two, Just so I'm clear, you are referring to this: http://forum.thenorthpacific.org/pages/laws/#.idx_7 as Opinion 8, right?

What this boils down to is the petitioner is looking to reconcile court rulings and governing documents, and, I can see your point on the matter in terms of "If this opinion isn't used as a precedent, it must not be precedential" but, would it be compulsory that all future cases cite all previous cases of precedential importance or stand to lose their value as precedential? That seems dangerous. I am struggling to see the link between Opinion 8 and Opinion 1, but it's admittedly been a long, busy week for me. Perhaps you could indulge me and elucidate the connection?

I apprecate your time on this matter, both of you. If it pleases you, you may summarize what you find, and we'll see where we go from there.
 
Damn typo in my notes. I meant the opinion number 17, where the Court issued a ruling on actions of the then Attorney General, punk d. And never mentioned Opinion one. And in fact, Opinion 17 is referenced in the beginning of this draft and 8 is not.

And to be clear. I increasingly am of the view that opinion one, since certain it was not written so as to show a binding effect, only recommendations, (and didn't even use the Court's rulemaking powers, which were in fact, part of the law at the time,) it could not be made retroactively binding by subsequent decisions under the ex post facto provision of the Bill of Rights.
I'll follow up with a post later today (my time, -6 UTC) as I'm on my Kindle at the moment (and copy paste is difficult on these things) and we have a winter storm moving in by late today and I need to get a couple of things before that starts. And my notes are on my notebook not my Kindle.

Edit: I am going to post a closer to final draft of the opinion; in part to fix the error, and to add in spoiler tags the verbatim opinions we're referencing (the usual pratice in Court Opinions); possibly add in some of the clarifying points from the discussion here, and move the summary to the beginning so it will be easier to add in the breakdown of the vote within the court (and comment/position/statements) to reflect how we're handling the result of the decision. It will also make it easier to respond to your most recent question, Severisen.
 
You must log in or register to reply here.
Back
Top