[Private] SillyString's Request for Review

In as much as the forum software considers the full text with all the spoilered quotations of the prior decisions involved to be too long, for the moment, I am going to divide those materials into a second post, and we can discuss what to do about that (Link only or post them as an a separately posted appendix.(

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[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 (Ruling Index Number 1)[/i][/center]

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

The Court took into consideration the following:

[Material in Appendix (next post)]

A. Bill of Rights, Clause 9

B. Legal Code, Section 6.7, Clauses 36 to 45, and in particular, Clause 37

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:

(1) Ruling on Residency and Forum Administration as made on 6 August 2010

(2) Ruling Index Number 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) 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, and concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010:

(4) Ruling Index Number 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.)

(5) Ruling Index Number 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.)

(6) 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.)

Opinion of the Court by Justice Grosseschnauzer; Chief Justice Severisen joins Justice Grosseschnauzer as to the holdings of part one of the Opinion, and Justice Kialga would find that the petitioner has failed to allege a sufficient conflict and therefore, does not have proper standing under the prior standard for an "affected party." As to part two of the Opinion, Justice Grosseschnauzer and Chief Justice Severisen concur that Ruling Index Number One is a nonbinding opinion, but differ as to whether Ruling Index Number 1 should be stricken or nullified. Justice Kialga would not reach the issues addressed in Part 2 of the Opinion.

The Court's Opinion and Ruling is as follows:

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 superseded 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.

For the purposes of this Opinion, we organize the questions to be determined into two parts:

1. Does the petitioner have "standing" to bring this request for review as an "affected party" or otherwise?
2. Is the subject matter of the request for review appropriate for consideration of a governmental action in this proceeding?

As will be explained below, the summary of the Court's holding in this proceeding is 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 Clause 37 of Section 6.7 of the Legal Code is facially ambiguous and is unclear as to what standing is conferred on the Attorney General.

* 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 all such terms.[note 1];

* 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 rescinded;

* We find that under the Ex Post Facto provision of Clause 9 of the Bill of Rights ("No governmental authority shall have power to adopt or impose an ex post facto law....") an opinion of the Court cannot be made binding retroactively; and

* We find that having determined that such Ruling Index Number 1 as not having any language consistent with binding effect, the request of the Petitioner is dismissed.

Discussion:

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 37 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 a 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." (Emphasis added.)

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 Documents 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" that has now been adopted by the Regional Assembly would not be inconsistent with the underlying framework of the 2010 Opinion on Residency and Administration and of generally accepted practice within TNP and the official forums prior to enactment of the "Voting Rights Act.")

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 such 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 prior 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 than those who are 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) and 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. (And this is consistent with the provision in Clause 9 of the Bill of Rights that "nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.") (Emphasis added.) 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 announced here is required under Clause 9 of the Bill of Rights and 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 in their nature, 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 17 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.

In addition, the Ex Post Facto provision of Clause 9 of the Bill of Rights ("No governmental authority shall have power to adopt or impose an ex post facto law....") would also point towards a conclusion that an opinion of the Court issued prior to the review opinions of the Court on the topic of the binding effect of its opinions cannot be made binding retroactively.

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 rescinded, and that it is unnecessary for the Court to grant the petitioner's 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 17 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.)

Accordingly, listed opinion number 1 is RESCINDED (either by nullification or by striking its language), and the request to strike Ruling Index Number 1 on the grounds of a conflict is DENIED as moot.

[note 1] -- The Court notes the adoption of the "Voting Rights Act," and that a legislatively adopted definition supersedes a prior judicial definition not founded on a definition in the Governing Documents of TNP.
 
[Appendix]
A. Bill of Rights, Clause 9
9. 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. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

B. Legal Code, Section 6.7, Clauses 36 to 45, and in particular, Clause 37
Section 6.7: The Attorney General
35. The election for the office of Attorney General shall be held during the Judicial Cycle.
36. Any deputy appointed by the Attorney General may not serve concurrently as either a Justice or a Temporary Hearing Officer.
37. The Attorney General shall have standing in all cases of judicial review brought before the Court.
38. Any person ("the complainant") may submit a criminal complaint to the office of the Attorney General, requesting that a criminal case be brought before the Court.
39. The Attorney General may, at their discretion, manage the prosecution of any criminal case requested.
40. In the event that the Attorney General is a defendant, the defence attorney, or a witness in a criminal case, the Delegate shall appoint an existing deputy Attorney General who is not similarly party to that case. The appointed deputy Attorney General may, at their discretion, manage the prosecution of the case.
41. Failing the existence of a deputy Attorney General who is able to manage the prosecution of a case, the Delegate may act as such a deputy Attorney General for the duration of the case. If the Delegate is a defendant, the defence attorney, or a witness in the case, then the Vice Delegate may act as such a deputy Attorney General for the duration of the case.
42. It is the duty of the Attorney General, and their deputies, to see to completion of any case the management of which they have undertaken.
43. If the original Attorney General, and their deputies, are unable to see to completion a pending case before the end of their term, the successor Attorney General will take over the managing of the prosecution.
44. If the Attorney General, and their deputies, decline to manage the prosecution of a requested criminal case, then the complainant may, at their discretion, manage themselves the prosecution of the criminal case. Otherwise, they may withdraw the complaint.
45. If the complainant has not stated their intent to either manage the prosecution of the case or withdraw the complaint within 30 days of the Attorney General and their deputies declining the case, the complaint will be considered withdrawn.
46. For the purposes of this section, "managing the prosecution of a case" includes but is not limited to: submitting an indictment to the Court for the relevant charges; arguing on the acceptance or rejection of the indictment; acting as the prosecutor for the duration of all stages of the criminal trial heard for the case; representing the prosecution in any separate judicial review hearings arising from the criminal trial; and appointing, directing, and removing an attorney to act in the above capacity in their place.

C. Court Rules, Chapter 2
Chapter 2: Requests for Review

1. Anyone may submit a request to the Court for a review of government policy or law.
2. Any Justice may accept or deny a request for review, at their discretion. The Justice who accepts a request for review will become its Moderating Justice.
3. During the five days after a request for review has been accepted, anyone may offer information that is relevant to the case and/or advise the Court on how to rule in the form of a brief.
4. The period for submitting briefs may be altered at the discretion of the Moderating Justice.
5. The Court will endeavor to deliver an opinion answering the request for review within seven days after the end of the period for submitting briefs.

D. Court Rules, Chapter 4
Section 1: Precedent

1. All official Court decisions are legally binding on the Court as a whole as well as each individual Justice.
2. Prior decisions made by the Court, regardless of its composition at the time, must continue to be obeyed by the Court and by each individual Justice until and unless their validity is formally overturned in a new request for review.
3. The Court is a reactive body. Without any such request, the Court may not proactively overturn previous rulings.
4. No Justice may act contrary to the opinions and decisions of the Court as a whole.

Section 2: Appeals

1. The petitioner in a rejected request for review, as well as any of the participating parties in a criminal trial, may appeal a decision made by an individual Justice to the Court as a whole for consideration.
2. The petitioner in an accepted request for review, as well as any of the participating parties in a criminal trial, may file a request asking the Court to order the recusal of any Justice from hearing or ruling on a particular case.
3. During the proceedings of a matter before the Court, substantive appeals and requests which relate to that matter must be addressed before the proceedings can continue.

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:

(1) Ruling on Residency and Forum Administration as made on 6 August 2010
The Court has received the following request for a ruling from Flemingovia, in his capacity as an Admin of the official forum:

I ask for a ruling from the justices of TNP, in respect of an administration decision.

The Bill of Rights is quite clear and specific. It offers protection to Nations of the North Pacific. This is even in the title: The Bill of Rights for all Nations of The North Pacific

I refer to section 8 of the Bill of Rights for all nations of the North Pacific:

8. No Nation shall be ejected from the region, or banned from any forum, except as expressly authorized by this Constitution or the Legal Code. Should any official of a government authority of the region with authority to act, declare that the immediate ejection or banning of a Nation is an urgent matter of regional security, the ejected or banned Nation shall have prompt and immediate recourse to judicial review of the matter. The WA Delegate shall not exercise the power of ejection or banning unless expressly authorized by a specific action of a government authority of the region pursuant to this Constitution or to the Legal Code.
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My question is this: What protection (if any) is offered by our law to nations which are not resident in TNP? Specifically, if I as Admin were to preemptively IP ban a player who has no nation in TNP, and presently no account on this forum, what would be the legality of my actions under TNP law?
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There are two separate issues involved in this request.

First, what is the scope of the protection of The Bill of Rights for those Nations not resident in The North Pacific?

Second, in constitutional terms, what is the scope of authority for the administrators of the official regional forum?

The Bill of Rights, by its terms, protects those who are "resident" in The North Pacific. Not every nation present within TNP at Nationstates is a "resident," and not every "resident" is always within TNP.

Who is a "resident" in terms of TNP law? Primarily those Nations who choose to be here and be a part of the regional society; who conduct their in-game activity as a part of TNP, and who identify with TNP as their home region.

A Nation that is born (or created) in TNP does not automatically have residency. Residency requires both presence and some act consistent with that Nation’s intent to remain and become part of TNP (as opposed to any other region). Thus, acts such as voting or making a proposal in the World Assembly, making or seeking "endorsements" in-game with other Nations within TNP, or modifying their National profile at Nationstates.net while that Nation is within TNP are indications of that intent to be a "resident."[*]

A Nation that enters TNP as a representative or agent of some other region at Nationstates does not become a "resident", because they lack that intention that is necessary for residency. Likewise, a Nation that departs TNP at Nationstates.net with the intention to return and resume residency and is acting for or at the request of TNP authorities retains their residency here, as that Nation has not abandoned its residency.

Absent some legislative action that leads to a broader view of residency, then, a Nation which has not been a "resident" of TNP is not protected under our Bill of Rights until and unless they become a "resident" here. The answer to the first question, therefore, is "None."

Turning to the second issue, that is, the authority of Admins, Global Mods, and mods within the official forums as compared to the authority of government officials, requires one to precisely state what that authority is. The Admin have primary responsibility for enforcement of the "terms of service," [1] the "terms of use," [2] and the supplemental forum rules [3] that govern the forums. The forum moderation team has primary authority to enforce that body of rules, while many government officials have a limited amount of authority as forum moderators to assist in their enforcement.

A forum administrator’s primary obligation is to protect the integrity of the designated official forums on behalf of the regional community. If the constitutional process so permit, the members of the forum administration team not otherwise holding a government office, may exercise a very limited form of government power within the Bill of Rights, the Constitution, and the Legal Code, and subject to the protections and limitations provided by the three central documents of TNP law.

Thus, in response to this question:
Specifically, if I as Admin were to preemptively IP ban a player who has no nation in TNP, and presently no account on this forum, what would be the legality of my actions under TNP law?
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the answer depends on whether the grounds for such an action are based upon a perceived threat of violation of the body of forum rules, or a threat of violation of TNP law. If it is the former, then the Admin is acting within the Admin’s proper authority to protect the forums; if it is the latter, then the Admin should secure from an appropriate government official approval under paragraphs 8, 9, and 11 of the Bill of Rights [4] before imposing such a ban from the forums. Inasmuch as there are distinct review processes for these decisions under the Constitution and Bill of Rights as to government decisions, and by the moderation review process put in place by the forum moderation team for the team’s non-governmental decisions, the requirements of due process are met so long as the review processes are followed in good faith. Thus, where the reason for the imposition of an IP ban is based on protecting the integrity of the forums, then the Admin is exercising their core responsibility to the forums and the community. If the IP ban is to further any other governmental policy or purpose, approval by the appropriate "governmental authorities of the region" under paragraphs 8 and 11 of the Bill of Rights is required.

Notes

[*] To be clear, this phrasing is intended to exclude the out-of-region solicitors posting on the RMB at Nationstates.net from being defined as a resident, as well as those who come to the regional forums and join as representatives of any other region.

[1] – See http://www.zetaboards.com/tos/

[2] – See http://www.zetaboards.com/tou/

[3] – According to the content of the "Board Rules" currently posted within the forums’ Administator Control Panel, the content of the Board Rules are as follows:

HTML: 
<p>Welcome to The North Pacific! We hope you will enjoy your time spent in our region, the largest in NationStates!

<p>While posting here, please make sure you adhere to InvisionFree's Terms of Service. Yes, we all know that nobody actually reads the TOS when you register, regardless of the fact they make you check that little box. But what they want you to do as a forum user is to not post anything profane or illegal. If you've got any questions about what that may entail, check out the Terms of Service by clicking the link at the bottom of the screen, or send a PM to an Administrator (anyone whose name appears in blue on the member list). We'll be happy to answer your questions.

<p>So again, have fun, and thanks for coming to The North Pacific!

<p><b><i> - The North Pacific Administration Team</b></i>

<p><b>Appendix 1: Warning System</b>

<p>When a violation of TOS or other forum rules occurs, a warning may be issued to a member's account. Warnings are set in 20% intervals, and each comes with a pre-determined sentence. Warnings issued will not be removed except by majority vote of the moderation team, or in special circumstances in which case administration reserves the right to change warning levels as needed.

Moderation levels:

20% warning - 5 hour mod preview
40% - 1 day mod preview
60% - 5 hour post suspension, 3 day mod preview
80% - 3 day post suspension, 1 week mod preview
100% - 1 week post suspension, indefinite mod preview

And should, after 100%, TOS or forum rules violations continue, an IP ban will be enforced.

<i>Definitions:

Mod Preview: A mod must review posts before they are publically viewable
Post Suspension: The member cannot post, but can still use other forum services and read topics.
IP Ban: Prevents a single computer or internet connection from accessing the forum. Other ban methods may be used if a single IP proves ineffective.</i>

<p><b>Appendix 2: Signature Image Restrictions</b>

<p>In an effort to ensure that all members can access this forum easily, large images will no longer be allowed in signatures. Large images greatly slow the amount of time it takes for a page to load over a slow connection, and repeated attempts to load such a page may cause further problems. Therefore, we require that images in signatures be no longer than this box:
<a href="http://i2.ifrm.com/5256/179/upload/p500614.jpg"><img src="http://i2.ifrm.com/5256/179/upload/p500614.jpg" alt="Maximum Size of Images in Sigs. Click box to view image."></a>
<p>...and that signatures containing images be no larger than this box:
<a href="http://i2.ifrm.com/5256/179/upload/p876640.jpg"><img src="http://i2.ifrm.com/5256/179/upload/p876640.jpg" alt="Maximum Size of Signatures Containing Images. Click box to view image."></a>

<b>Appendix 3: Personal Messages</b>

In order to respect the privacy of our members, the moderation team has agreed on the following guideline:

"You may not post personal messages in a public area of the forum without the author's permission.

Members of the government, Administrators, and Moderators may post PMs (without prior permission) in secure areas of the forum in order to perform the duties of their office, for matters of regional security, or for moderation evidence."

If a PM is posted and the original author objects to a moderator, the PM will be removed from the post, unless it clearly falls within the exceptions listed. If you believe you are being harassed by the PM system, please forward the PM in question to a moderator and the issue will be dealt with. Thank you.
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[4] The Bill of Rights provide:

The Bill of Rights for all Nations of The North Pacific

1. All Nations of The North Pacific are sovereign. Each Nation has the right of self-determination in that Nation's domestic policies, including, but not limited to, issue selection and WA membership.

2. Each Nation's rights to free speech, free press, and the free expression of religion shall not be infringed, and shall be encouraged, by the governmental authorities of the region. Each Nation has the right to assemble, and to petition the governmental authorities of the region, including the WA Delegate, for the redress of grievances. The governmental authorities of the region shall act only in the best interests of the Region, as permitted and limited under this Constitution.

3. Participation in the governmental authorities of the region is voluntary. Participation in the World Assembly shall not be a condition of participation in the governmental authorities of the region.

4. No Nation of The North Pacific holding WA member status in NationStates shall be obligated to endorse any official of a government authority of the region. The right to add an endorsement or withdraw an endorsement is a sovereign right of that Nation as a WA member.

5. All Nations of The North Pacific have the right to be protected against the abuse of powers by any official of a government authority of the region. Any Nation of The North Pacific has the right to request the recall of any official of a government authority of the region in accordance with this Constitution, that is deemed to have participated in such acts.

6. No Nation shall be held to answer for a crime in a manner not prescribed by this Constitution or the Legal Code. No Nation shall be subjected to being twice put in jeopardy for the same offense. No Nation shall ever be compelled in any criminal case to be a witness against itself.

7. When charged with criminal acts, Nations of The North Pacific shall have a fair, impartial, and public trial before a neutral and impartial judicial officer. In any criminal proceeding, a Nation is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence. A Nation may be represented by any counsel of the Nation's choosing. No Nation convicted of a crime shall be subject to a punishment disproportionate to that crime.

8. No Nation shall be ejected from the region, or banned from any forum, except as expressly authorized by this Constitution or the Legal Code. Should any official of a government authority of the region with authority to act, declare that the immediate ejection or banning of a Nation is an urgent matter of regional security, the ejected or banned Nation shall have prompt and immediate recourse to judicial review of the matter. The WA Delegate shall not exercise the power of ejection or banning unless expressly authorized by a specific action of a government authority of the region pursuant to this Constitution or to the Legal Code.

9. 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 this Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

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

11. No governmental authority of the region has the power to suspend or disregard this Constitution or the Legal Code In the event of an actual emergency, the governmental authorities of the region, with the express consent of the Nations of the region or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of this Constitution.
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(2) Ruling Index Number 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.
Ruling of the Court of the North PacificIn regards to the Judicial Inquiry filed by Tim on the Attorney General Refusing to bring Trials to the Court

The Court took into consideration the Relevant Section of the Legal Code of the North Pacific:
Section 3.1: The Attorney General
2. The Attorney General will be elected during Judicial Elections.
3. The Attorney General must not have been convicted of any crime in the North Pacific.
4. The Attorney General will serve as Chief Prosecutor in all cases brought before the Court of the North Pacific.
5. It is the duty of the Attorney General to see to completion any proceeding they are prosecuting.
6. If the original Attorney General is unable to complete a pending case, the successor Attorney General will take over as prosecutor and complete the pending proceedings.
7. The Attorney General may request expedited judicial review of any executive action by any official.
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The Court took into consideration the Oath of Office for all Government Officials of the North Pacific:
I, [forum username], do hereby solemnly swear that during my term as [government position], I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein.
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The Court opines the following:

As per the Legal Code it is the duty of the Attorney General to serve as the Chief Prosecutor in all cases brought before the Court of the North Pacific. Currently all cases are brought to the Attorney General in order for their office to bring the charges directly to the Court. The refusal of bringing a case to Trial is not a duty given to the Attorney General in any legal document of the North Pacific including but not limited to the Constitution, Legal Code, or Bill of Rights. It is the belief of the Court that there is a fundamental issue with how the process currently works. Currently it is the belief of the Court that the Attorney General in refusing to take a case to trial is acting as a higher authority then what they are. While the Attorney General may not feel there is enough evidence to merit a trial it is still the belief of the Court that the decision on whether there is enough evidence should reside with said Court and not the Office of the Attorney General.

The Court suggests the following procedures be adopted for all trial proceedings:

1. The accuser files a complaint with the Attorney General.
2. The Attorney General Notifies the Defendant that a complaint has been filed against them.
3. Within 72 hours from the time the complaint is filed with the office of the Attorney General the Court shall be notified of the investigation into the matter by the Attorney General.
4. The investigation shall last no more than 5 days in which the Attorney General must ask for an indictment and present all evidence to the Court.
5. Within 72 hours for the request for an indictment the Court will determine if a Trial is merited based on the evidence alone.
6. Normal trial proceedings will begin at this point in time.

(3) 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, and concerning opinion on Ruling on Residency and Forum Administration as made on 6 August 2010:
Ruling of the Court of the North Pacific
In regards to the Judicial Inquiry filed by Unibot on Clause 9 of the Bill of Rights

The Court took into consideration the Inquiry filed here by Unibot.

The Court took into consideration the Relevant sections of the Bill of Rights of the North Pacific:
Clause 9 of the Bill of Rights

9. 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. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.
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The Court took into consideration the following previous rulings of the Court:

Ruling on Residency and Forum Administration as made on 6 August 2010 as found herehttp://forum.thenorthpacific.org/single/?p=8013538&t=6711704.
[Note: Link is reproduced above and text is separately reproduced in spoiler tags as primary quoted material in this opinion, as for technical reasons, double spoiler tags don’t work]

Ruling on World Assembly Voting Policy as adopted by the Council of 5 on 25 September 2012 as found herehttp://forum.thenorthpacific.org/single/?p=8067635&t=6960203
[Note: Link is reproduced above, as for technical reasons, double spoiler tags don't work]


In review of the above the Court has determined the following:

The previous rulings of the Court of the North Pacific are inaccurate. The Courts ruling on Residency and Forum Administration as delivered on 6 August 2010 introduced a definition of "residency" in which no document including the Bill of Rights, Legal Code, or Constitution mentions. After a through review of all the aforementioned documents the Court has no choice but to overturn the previous ruling. The Court also reviewed its most recent decision on World Assembly Voting and has come to a conclusion it is slightly flawed. The Court introduced an incorrect definition of "Government Authorities" in this ruling.

The Court therefore opines the following:

The Court hereby establishes that under the Bill of Rights all nations in the North Pacific with the exception of those who are performing regional recruitment on the regional message board of the North Pacific are afforded protection under said document. The Court reverses the previous ruling of the Court which created a flawed definition of "residency".

The Court in reviewing the term "Government Authorities" hereby establishes a "Government Authority" is any elected or appointed office of the North Pacific and not the individual being elected as the Court eluded to in our first ruling on the matter. The Court in this matter also re-evaluated whether or not the Council of 5 World Assembly Voting Policy was illegal. It is the determination of the Court that the policy does violate part of the Bill of Rights but is not completely illegal.

The Court establishes the following answers to the questions posed by Unibot.

Does this provision require "equal and fair treatment" of Nations in The North Pacific in every government affair?
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The answer would be simply no. This provision requires "equal and fair treatment" to all nations of the North Pacific in relation to the provisions as laid out in the Constitution. This does not include every government affair.

Does this provision require "equal and fair" protection of the provisions of the Constitution for every citizen?
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This provision in Clause 9 does require "equal and fair" protection of the provisions of the Constitution for every citizen as well as all other nations covered under the Bill of Rights.

Therefore after further review the policy regarding World Assembly Voting violates the provision requiring all nations to have the right to be "heard". The Court wants to be clear here that this clause in the Bill of Rights does not set requirements on the Delegate to vote a certain way in the World Assembly. There is also no current provision in the Constitution that sets this requirement.

(4) Ruling Index Number 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.)
Advisory Opinion of the Court of the North PacificIn regards to the events occurring in the course of The North Pacific v. Unibot

Given recent actions taken by the Attorney General, which sought to bypass the judicial fact-finding process and undermine the authority conferred upon this Court by the Constitution and Legal Code, the Justices of the Court feel compelled to issue this Advisory Opinion. It will have three main elements: it will clearly define what the responsibilities of the Attorney General are under the law (as there seems to be some lack of understanding within the current AG's office on this point), it will identify what the Court believes to be the unacceptable actions taken by Attorney General Punk D, and it will convey a strong recommendation to the Delegate for actions to be taken in response.

Looking first to the role of the Attorney General, the Law is quite clear.

Legal Code
3.1
. . .
4. The Attorney General will serve as Chief Prosecutor in all cases brought before the Court of the North Pacific.
5. It is the duty of the Attorney General to see to completion any proceeding they are prosecuting.
. . .
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Oath of Office
in part
I, [forum username], do hereby solemnly swear . . . I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office . . . within the restraints of my legally granted power. . . .
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Bill of Rights
Article 11
11. No governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code.
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These elements of the law quite clearly establish that, in accordance with the decisions of this Court, the Attorney General must bring to before the Court all criminal complaints filed with the AG's office. The Justices then make findings of plausibility based on the evidence associated with the complaint. The basic theory is that, if the evidence contained in the complaint were proven to be true, then the person would be guilty of the charged crime. If it's plausible, the indictment proceeds to court, at which point Legal Code 3.1.4 and 3.1.5 govern the AG's actions. He is to serve as Chief Prosecutor (though he is generally allowed to appoint Deputies and supervise their work), and is to see to completion any proceeding they are doing. It is of note that in all of these proceedings, the AG represents the Region; he effectively represents the region's laws in criminal matters, seeking to enforce them where the justices have seen cause for a trial.

So, the Attorney General must prosecute all criminal trials, and see them through to their completion. But how? Can he simply choose how aggressively or competently, or to what extent, he will prosecute each case? No, he cannot. He is bound by his Oath to do exercise his powers and rights in a way that avoids "misfeasance, malfeasance, or nonfeasance". This requires the Attorney General to execute his duties to the fullest of his abilities, lest he commit nonfeasance. He must do so regardless of his personal opinions, lest he commit misfeasance. And he must do so in accordance, at all times, with the law, lest he commit malfeasance.

One final note, before we move on to a discussion of the current Attorney General's actions. The Constitution expressly reserves for the Courts, the power to decide all questions of law, or questions of fact as examined through legal proceeding. No other governmental entity is granted such power. This express reservation, under current law and Court rulings, does not grant the Attorney General discretion in either which cases he prosecutes, or the degree of professionalism and zeal with which he prosecutes those cases. The Attorney General is an advocate; a Prosecutor. He speaks for the People and the Region of the North Pacific, in defense of their laws and their government's policies. He ought not judge, nor act based on personal opinion; that is not his prerogative.

This brings us to Punk D. It is the opinion of this Court that he has failed to meet these requirements as outlined by law, and by the Oath he willingly took. In TNP v. Unibot, Punk D indicated a clear intention to willfully abstain from submitting any evidence, effectively foregoing his duty to represent The North Pacific, based on his personal opinion. He explicitly stated his intention to exercise discretion he does not lawfully possess, and to purposefully cause the failure of a case which he is duty-bound to see to completion, to the fullest of his abilities. When confronted regarding these issues, the Attorney General remained defiant, and went so far as to submit one piece of evidence. This was done in response to the Court's stated intent to dismiss the case without the attachment of jeopardy. The Attorney General responded by attempting to force the Court to attach jeopardy at the 11th hour. Ironically enough, the Attorney General's attempt to out-maneuver the Court was foiled by a basic arithmetic error, as he failed to take this action until 23 hours after the close of discovery.

The Court is deeply concerned by the Attorney General's actions in this case. He attempted to force the Court to dismiss this case and bar it from ever being brought, based on no finding of fact, and instead his own opinion. This is not permissible under his own Oath, under the Legal Code, or under the Constitution. As a government official, Punk D may not disregard any of those documents; he has quite clearly done so here. It is not within the power of this court to compel action except as a result of a trial proceeding, however. We find no substantive law, however, which bars us from issuing a condemnation of a government official's actions, and strongly urging the Delegate to immediately request the resignation of the Attorney General, in conjunction with launching an investigation into the extent of this type of behavior within the Attorney General's office. The Court's ability to effectively apply the laws of The North Pacific is deeply undermined if the Attorney General cannot be relied upon to steadfastly carry out his duties; this Court has no faith in this Attorney General's ability or willingness to complete said duties.

(5) Ruling Index Number 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.)
Ruling of the Court of the North PacificIn 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

Opinion drafted by Gaspo, joined by Hileville and Sanctaria

The Court took into consideration the Inquiry filed here by r3naissanc3r, and the follow-up posted by Crushing Our Enemies.

The Court took into consideration the following elements of Article 4 of the Constitution of the North Pacific:

1. The Court will try all criminal and civil cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.
. . .
4. The official opinion of the Court in any trial or review will be binding on all Government bodies and officials.
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The Court opines the following:

The Court has before it two issues, tangentially related but submitted loosely together. The Court will first address Crushing Our Enemies' inquiry regarding the ability of this Court to review the policies of other elements of the government.

Crushing Our Enemies

I would ask that the court take into consideration Article 4, clause 1:

1. The Court will try all criminal and civil cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.
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It would be preposterous to opine that the court has the power to "resolve conflicts and ambiguities" and "review the legality" in and of every law or policy except the ones the court itself has created.
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This request has two interpretations: depending upon where one places the emphasis, and whether or not one comprehends sarcasm, it may either be taken on its face, as suggesting that the Court cannot review anything other than its own opinions. We first address this interpretation.

The Court finds no merit in this position as stated. The Court has been specifically charged with reviewing government policies, and no reason has been given in support of the assertion that this Court cannot review other the policies and actions of other elements of the government, upon request. The Courts are granted this power to provide a balance against abuses of power, and to provide recourse to allow citizens to have their grievances addressed by a neutral party.

Under COE's proposed interpretation, the Court would have no purpose, as it would only be permitted to conduct criminal and civil trials, and clarify ambiguity. It would not be able to hold elected officials accountable for their actions, or determine whether or not policies are in accordance with the Constitution; these powers of judicial review are essential to the operation of the court and the balanced structure of democracy within a 3-branch system.

The Court rejects COE's assertion, and maintains that, subject to the request of an affected party, it may review and offer its legal opinion on any action, policy, law, rule, or decision made by any government official.

If, however, the statement is interpreted differently, to point out the inherent contradiction in the Court's power to review all government policies and decisions except its own (despite the Court being itself a part of the government), then we wholeheartedly agree with the stated proposition. The Court believes COE's intent was such, and holds that, as specifically mandated by that Article, the Court is obliged to review its own decisions should the need arise (and a proper request be made - arbitrary requests for review every time a new Court is elected are not permissible), as it is responsible for doing with all governmental policies. If, as we suspect, that was COE's meaning, then this Court wholeheartedly agrees, with some caveats, as discussed below.

Turning to r3naissanc3r's request for review, the Court recognizes that r3n's proposed interpretation is the most literal, most restrictive view which may be taken of this Court's freedom regarding past decisions. While this Court places strong importance on precedent, and is exceedingly hesitant to overturn it even in part, the interests of justice and the evolution of the law require that the Court be able to overturn precedent where appropriate. At one point, for example, FALCONKATS as Special Assistant Attorney General refused to bring any civil case before the Court, asserting (in direct contradiction with the Constitution) that the Court was exclusively able to hear criminal matters. Let's say that were appealed, and the Court erroneously upheld his decision. Under r3n's proposal, that would stand forever. The only means of bypassing it, would be for the Regional Assembly to pass a law saying that the Constitution says something that it already said in the first place. Inescapable binding in Court decisions would not advance the interests of Justice.

Let's look at another example to illustrate this. Suppose a Counsel submits an Affidavit as evidence in a current trial. Affidavits are neither permitted nor barred, currently - they are not discussed in the current Court Rules. Let's say that this Affidavit was submitted, and objected to, and the objection was upheld. It was then appealed, and the Court opined that Affidavits were not permissible. That would be binding forever. Ah, you say, but the legislature could legislate around that, thus restoring balance! You would be wrong. The RA would not be able to change the rules, because evidentiary concerns are addressed in the Court Rules, which only the Court can change. And the Courts would not be able to contradict binding precedent, thus permanently barring Affidavits from ever being used in TNP Courts. The law must be allowed to evolve to match society, and conclusively binding decisions carry with them the potential to greatly restrict the ability of the law, and the Court, to adjust with the times.

The Court does not believe, however, that precedent may be overturned sua sponte (unilaterally, at the Court's discretion, without an action being brought), nor do we believe that precedent may be disregarded unless it is conclusively overturned. We furthermore believe that a heightened standard of review must be followed when reviewing the decisions of a previous Court, out of respect and deference to the law as established by our predecessors. Should it come to pass that precedent must be overturned, this Court believes that that decision must only be made after all legal alternatives have been examined, and must be done in as transparent and explanatory a fashion as possible.

In other words, the Court must explain itself fully when overturning precedent. The Court must try, wherever possible, to act in accordance with precedent, so long as that precedent does not conflict with new law, or the fundamental principles of justice established by the Constitution and Bill of Rights.

To specifically answer r3n's questions, the binding effect prescribed by the Constitution applies to the Court to the extent that it does not bring the Court's precedent into conflict with the Constitution or with subsequent substantive law. The Court may overturn its prior rulings, but must do so in response to a new request as a result of some factual evolution (not simply a request to "look again"), and must do so concurrent with the publication of its reasoning in doing so. The Court must avoid disregarding precedent wherever possible, but cannot, in the interests of justice and fairness, be irrefutably bound by precedent regardless of the consequences.

(6) 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.)
Ruling of the Court of the North PacificIn regards to the Judicial Inquiry filed by flemingovia on the definition of “affected party”

The Court took into consideration the Inquiry filed here by Flemingovia.

Opinion drafted by Abbey Anumia, joined by Sanctaria and punk d

The Court took into consideration the Relevant Law of the North Pacific:

Constitution
1. The Court will try all criminal and civil cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.
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Bill of Rights
5. All Nations of The North Pacific have the right to be protected against the abuse of powers by any official of a government authority of the region. Any Nation of The North Pacific has the right to request the recall of any official of a government authority of the region in accordance with the Constitution, that is deemed to have participated in such acts.
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The Court opines the following:

With regards to “affected party” in general:

The Court opines that an affected party, with respect to one’s the ability to request judicial review, is someone who reasonably perceives that their rights have been infringed through action or inaction undertaken by a governmental body or bodies. An affected party also include those affected, adversely or otherwise, by laws passed by the regional assembly and policies enacted by the executive and judicial branches of government.

The affected party must detail in their review request the rights they perceive have been violated and/or the laws put asunder showing a clear connection between the law and how they are personally affected in the situation.

With regards to flemingovia's specific enquiry:

The Court finds that flemingovia was entitled to request a review of the Election Commisioner's refusal to list Astarial on the ballot. While Flemingovia was not a candidate in the election, the Court is charged with “resolving conflicts or ambiguities” in the law. Flemingovia was unclear how to interpret the law surrounding legal candidates and wanted to ensure that the Elections Commission’s interpretation with respect to Astarial’s candidacy was indeed the correct interpretation. As a voter in the election in question, the choice of candidates directly affected Flemingovia, as well as all voters in the election, and thus Flemingovia met the requirement defined in the Constitution.
 
Severisen:
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.
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First, I want to make aure you understand I was referring to Opinion 17 and not 8, which was a typo and I do not know where it came from as the list of reviewed material at the beginning of the draft did not mention Opinion 8, but mentioned opinion 17.

There are two problems with Opinion Number 1, as it turns out. The first is that Opinion Number One never used language to express an ruling as to the meaning of anything. It was an essay from those justices as to what they thought the role of the Attorney General and the Court should be and listed a set oif recommendations towards that end.

At the time, the Court had rulemaking powers as it does now under the same Constitution as was in effect at the time. They didn't use it, and should have. That would have created a binding effect. Compare the language used in opinion one with that used in Opinion 17. Note the differences in the verbs, in the reasoning, in the conclusion. In reviewing everything the Court has decided in review proceedings under the current Constitution (which are the only ones on that index) I was surprised to find that the only earlier opinion on the actual topic was Opinion number 1, and so one would have expected that, at a minimum, it would have at least specifically referenced it at some point.

Then we have the issue of binding precedent. Notwithstanding the one provision in the Constitution and the prior Court opinions to this point, the Bill of Rights prohibits ex post facto laws in Clause 9, which means Court decisions cannot be made retroactive. By its own language, opinion one bounds no one to anything. How does an opinion that only expresses opinions and recommendations without more bind anyone? And so, the later Court decisions and Court Rules cannot do retroactively what Opinion 1 did not do in the first place, it cannot make a statement of opinion and recommendations binding.

It does not mean mandatory references to every court opinion that may apply, although sound judicial reasoning would lead one to expect pertinent past opinions would be mentioned as a matter of course. But the key here is how opinion one was written, compared with Opinion 17 on the same topic, and the lack of discernible legal decision verbs in Opinion 1. (This is one of those instances where writing style does matter!)

Does that help?

Once I have a clearer picture of where you stand on this second question, Severisen, then I will try to draft something to reflect where there is agreement, concurrence, or dissent among the three of us to go in the summary at the beginning of the opinion, based on what each of you have said at that point.
 
The last post in this thread is the last I have seen. He's been averaging about once a week.

And the first work week of every month is a very busy time for me offline. This month, with the two snowstorms in less than a week (and over a foot of snow) hasn't helped me much, either.

I'll likely be checking in late at night before my bedtime to check on this and to do my daily endotarting as an SC member, and possibly admin stuff, but that's about all I can do until we hear from him so we can move this along.
 
My apologies. I had written a post, and thought I had posted it. I see that didn't happen. This was a busy week so I did not get to check in.

It does seem that the language, specifically "suggests" in opinion 1 makes it non-binding. I would still be in favor of just striking out the opinion, even if it is non-binding.

So to summarize, I'd be in favor of establishing a meaning of Standing to apply to all residents, and I'd grant the request to strike out Ruling Index 1.
 
Let me work up a paragraph for the beginning of the Opinion to summarize both your views as to relates to the most recent draft in this thread, and unless something's terribly off, we have to go with what we've done. (I will be essentially paraphrasing what each of you has said, but cast in a form to show who concurred with what result on each part.) Some people will be confused no matter what, but given what we all inherited from prior terms, it could have been worse.
 
I hope I am fairly noting what each of your positions are.

This would be placed immediately after the listing of the provisions of the Governing Documents, Court Rules and prior opinions, at the beginning of the text of the Opinion.

Opinion of the Court by Justice Grosseschnauzer; Chief Justice Severisen joins Justice Grosseschnauzer as to the holdings of part one of the Opinion, and Justice Kialga would find that the petitioner has failed to allege a sufficient conflict and therefore, does not have proper standing under the prior standard for an “affected party.” As to part two of the Opinion, Justice Grosseschnauzer and Chief Justice Severisen concur that Ruling Index Number One is a nonbinding opinion, but differ as to whether Ruling Index Number 1 should be stricken or nullified. Justice Kialga would not reach the issues addressed in Part 2 of the Opinion.
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Please let me know if this fairly summaries your position(s) on each issue, and if not, give me an equally concise clause to replace what is written as to your position.
 
I realize I had forgotten to reply to Part 2, apologies. I do agree, however, with the Chief Justice, as I had originally stated when we began looking at this request. I do believe the Ruling Index 1 should be struck out.
 
Kialga:
I realize I had forgotten to reply to Part 2, apologies. I do agree, however, with the Chief Justice, as I had originally stated when we began looking at this request. I do believe the Ruling Index 1 should be struck out.
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I'm trying to figure out how to reflect this statement when your position on part 1 means Silly String did not have standing to get to the merits. In judicial terms, the position you take on part 1 made it unnecessary for you to reach the merits in part 2.
Let me think a bit on how to reflect this, given the situation in judicial terms. If you decide to change your comment, just post and I'll get to it later today, my time. At the moment, I'm on my Kindle Fire, and the autofill has a mind of its own.
 
Yea, I realized my statements were a bit off after I left this morning. I believe the wording, as is, will suffice for my opinion. I'll argue the point fully should it ever come to the Court again. If you feel another wording would be better, by all means. However, as it stands, I believe the current statement suffices.
 
I will put the paragraph and a couple of refinements in the summary of our actual holdings into the two part post of the opinion late tonight or first thing tomorrow my local time after I'm up and get online. (I'm -6 UTC time zone wise.) I'll give both of you a chance for any last minute refinements so this can go live no later than 24 hours from now. (That would be about midnight, 0000 GMT/UTC.)
 
Just as a matter of principle here, I'd like to reaffirm that SillyString had standing regardless due to her position, regardless of if she was affected or not.

Also, we can't make a ruling on standing, per se, without it being brought forth in an rfr.
 
Let's leave it as is, as this was a request for review, and we had to deal with standing.

I have problems with that ambiguous clause in the Legal Code, because it is not clear what the R.A. was doing. It makes more sense as to participation than initial standing, which is where Kialga felt Silly String had not shown a conflict so as to require a decision on the merits.

We need to fix the standard for standing. As the opinion is now, that is exactly what we're doing, as we had to reach the question of the scope of past decisions in order to address it. We're there; let's not over think it.
 
I have updated posts 40 and 41 41 and 42 to reflect all of the discussion and to include the summary in post 48.

I've also switched to the use of "rescinded" as to Opinion 1 which I think is a verb that the Chief and I can agree covers both of our positions about Opinion 1 and noting that it means either nullification or striking, or both ( :yes: ); and added that to the summary.

I also added to the summary the point about the Ex Post Facto Clause as to retroactive binding effect of opinions.

I will wait about six hours from now before posting the Opinion. This will give you all a short window to look before we close this proceeding, finally. And Chief Justice Severisen can now start on the Request for Review he accepted, now that the standing issue is clarified for the future.
 
Yes, it's 41 (and 42). I was hardly awake when I typed that earlier. (I was up until 3 am with uploading files and Microsoft choosing then to update Windows (18 of them!).

I'll wait about two more hours, then copy and paste those two posts into the public thread.
 
They look fine to me. Hopefully Severisen will be able to comment before you post.

Dang, 3 AM!? That's nearly the time I wake up in the morning (not to go off topic) (accounting for time zones, myself being in -5).
 
Moved the one note to the end of the opinion, as it just notes we know of the Voting Rights Act as to the definition of citizen and resident, and that supersedes the 2010 opinion. (Just noting that will reduce any more comments on that finding about the 2010 Opinion.) Also fixed a couple of quirky things with quotation marks that happens when drafts are typed in word processing and copy pasted over.

Opinion is posted at of 12 midnight my local time, 0600 GMT/UTC.
 
Mmm. I guess I should have checked in. It was a late night. Again, I said we couldn't issue a ruling on standing without that being part of the request. I said SillyString had standing, by virtue of the office SillyString works for.

I'd like my position to be further clarified. My position is that SillyString has standing, and Ruling Index 1 is stricken from the record as it is contrary to the current laws of the region. Only the second half of Ruling Index 17 was non-binding, which I mentioned as it used the "suggests" language.

In addition, Justice Kialga supports my decision to strike out Ruling Index 1, and this wasn't reflected in the opinion either.
 
That is not what you've said previously. And Justice Kiagla agreed that he really couldn't take a position on part 2 of the opinion given what he.said about part one.

And you leave me totally baffled inasmuch as you said you agreed to part 1. I'm getting really frustrated with y'all's constant flip-flopping. It is no way to run a Court. It's almost as if third parties are learning hard behind the scenes. You have to remember standing was an issue in this proceeding based on the representations Silly String made in the original request. And the opinion was very straightforward about the whole matter of standing, and you signed off on it weeks ago.

Don't forget this thread will be public at some point after this term ends.
 
court-seal.png

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

Opinion drafted by Chief Justice Severisen, joined by Justice Kialga and THO Cormac
​

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 37

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

D. Court Rules, Chapter 2

E. Court Rules, Chapter 4



The Court finds the following:


1. Does the petitioner have "standing" to bring this request for review?

The petitioner bases their right to bring this request for review on the language contained in Clause 37 of Section 6.7 of the Legal Code. ("The Attorney General shall have standing in all cases of judicial review brought before the Court.").

Accordingly, the court holds that the petitioner has standing to bring this request for review.


2. Should Opinion 1 be modified with strikethrough tags as it has been superseded by the current Legal Code Chapter 6, Section 7?

It seems clear to the court that Opinion 1 was written when the law required the Attorney General's Office to bring all cases to trial. The current law is clear in that, in clause 38 of Chapter 6, Section 7 of the Legal Code, "The Attorney General may, at their discretion, manage the prosecution of any criminal case requested." This allows for the Office of AG to decide not to prosecute. As such Opinion 1 is contrary to, and superseded by, the current Legal Code.

The Court, therefore, opines the following:


Opinion Number 1, In regards to the Judicial Inquiry filed by Tim on the Attorney General Refusing to bring Trials to the Court, is hereby modified with strikethrough tags, acknowledging its obsolescence while preserving it for historical purposes. As such, the Court's Ruling issued on September 15, 2012 no longer has the force of law.
Click to expand...


Basically it's straight forward, to me. SillyString, as a member of the AG's office, has standing in all RFR's. The Opinion in question has no legal force as it's been superseded by the current Legal Code, as noted in the original request. Basically the ruling requires the AG to prosecute all cases, the law says they have discretion in the matter.

Does this meet your approvals? I've added your names as concurring. If you see something that needs changing let me know. Thank you.
 
My original thoughts are captured well in this. A lot of my posts were unorganized and flustered. This should be sufficient.
 
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