[Private] Request for Review: RA Declared Emergencies (No 2)

28 November 2017

[7:17 PM] Zyvet: It appears that the request is back from the dead, with Raven as the petitioner
[7:19 PM] Scorch: I believe that he has solved our standing problem since the motion does directly affect him.
[7:20 PM] Zyvet: So it would seem
[7:20 PM] Scorch: As a government official
[7:22 PM] Zyvet: There is a specific request for an interim injunction against the motion which I would be disinclined to grant, in that I think the Court ought be quite slow to prevent emergency action, lest it in fact be an emergency
[7:23 PM] Zyvet: (leaving aside the question of whether this particular emergency is an actual emergency, given that is essentially the question we have to answer)
[7:27 PM] Zyvet: Certainly, if we were to make some injunctive order I would not make it in the terms requested (preventing there being a vote). I would prefer an order preventing the counting of the vote.
[7:28 PM] Zyvet: (though, to be clear, I am against either order)
[7:32 PM] Scorch: I agree that we should not stop the vote but I am not opposed to preventing the counting until we address the request.
[7:35 PM] Zyvet: @Bootsie view as to accepting/dismissing the request; and as to whether to make an order preventing a vote/counting the vote?
[7:37 PM] Bootsie: I'm in favor of accepting the request, but have to agree with Scorch on this one concerning the order to prevent the counting. Considering Raven's concerns are about the effects of the laws, it'd be easier to prevent the mess than to have to clean up the mess. I agree though, the vote should not be stopped.
[7:39 PM] Zyvet: The issue with preventing counting, to me, is that it seems proper for the Court to, essentially, presume that an emergency declaration is legitimate in the first case, so as to not prevent it being adequately addressed; ie, injunctions may lead to emergencies getting worse. I don't want to encourage injunctions against emergency matters on that basis. Further, it seems to me that there is relatively little risk of permanent harm if the motion is allowed to go into effect, whereas other injunctions have generally been in situations where someone would have been elected/appointed and could have made permanent decisions or gained information they ought not have had
[7:50 PM] Scorch: Well that is why I thought maybe ordering to not count instead of ordering to have no vote would be better. It would allow the RA to vote on the motion while we determine it's legality.
[7:51 PM] Zyvet: I suspect that we'll take substantially longer than four days, particularly if we have briefs
[7:52 PM] Zyvet: (four days as the vote can only last for three and it is scheduled to begin tomorrow)
[7:54 PM] Zyvet: But in any event, if you both would make the order, then it shall be made, would "Until such time as the Court has reached a final determination in relation to this request for review, the Court instructs the Speaker and his Deputies not to count any vote held on the motion impugned by the request. " fit?
[7:55 PM] Bootsie: Yes, that works.
[7:55 PM] Zyvet: Though, actually, I suspect Mall might try to get around that by making a new motion
[7:55 PM] Zyvet: <.<
[7:57 PM] Bootsie: Would adding "and all related motions" to the end not tie that up?
[7:57 PM] Bootsie: Or is that giving the Speaker too much discretion?
[7:57 PM] Scorch: Are you going to be the moderating justice @Zyvet ?
[8:00 PM] Zyvet: Probably? If either of you would particularly wish to be the moderating justice then I wouldn't mind not being.

Re: the form of the order, I feel like "and all related motions" could risk to the order being used to interfere with other Assembly business (again, particularly, with Mall's involvement)
[8:04 PM] Scorch: I am interested in doing it but I don't want to take it if you are too.
[8:12 PM] Bootsie: Then I think the original form is fine. Hopefully Mall can contain himself and not continue twisting the order's of the Court. I'm fine with not serving as moderating justice on this, so either of you may take that duty.
[8:13 PM] Scorch: You mind if I take it @Zyvet ?
[8:13 PM] Bootsie: (I'd rather leave myself out of being the main target of Mall on this one. :stuck_out_tongue: )(edited)
[8:17 PM] Zyvet: Go ahead @Scorch. Have you used the (time=) code on the forum before?(edited)
[8:22 PM] Scorch: I have not.
[8:25 PM] Scorch: Is there something unique about [time=]?
[8:27 PM] Zyvet: It is circle brackets, so it has to be (time=) after the = you enter the a unix timestamp and then it will display the time adjusted to whatever a user's forum settings are
[8:28 PM] Zyvet: so (time =1511902800)[note]An alteration is made to the log here, in the form of a space being added after "time", in order to prevent the code from displaying as is described in the log[/note] is 9pm GMT today but will display adjusted for different timezones for other users
[8:29 PM] Bootsie: Go to timestampgenerator.com to get a time stamp.
[8:29 PM] Bootsie: Or I can do it for you.
[8:30 PM] Scorch: Either is fine.
[8:45 PM] Zyvet: Also, I should think it appropriate to nudge Elu and Mall by DM or PM, given that they have expressed an interest in submitting briefs on this subject, though I suspect that the new request won't escape their attention for long, so if you want to do that once you accept the review
[8:45 PM] Scorch: Okay.
[9:27 PM] Scorch: Brief submission period would end on December 3 (or December 4 depending on where you lived) right?
[9:27 PM] Zyvet: Yes
[9:27 PM] Scorch: :thumbsup:
[9:32 PM] Scorch: If I do it right it should show up my time when I preview it right?
[9:34 PM] Zyvet: Yes
[9:35 PM] Scorch: Ok. Sorry about all the questions. I just don't want to mess it up.
[9:35 PM] Zyvet: It's fine
[9:36 PM] Zyvet: Mall has, indeed, noticed, so it probably isn't necessary to DM/PM him (unless you've done so and that is what attracted his attention)
[9:37 PM] Scorch: Posted.
[9:38 PM] Scorch: Okay. I'll just DM elu.
[9:41 PM] Scorch: Done.
[10:03 PM] Zyvet: Oh, probably wise to DM/PM Darc, if you haven't, to be sure he's aware of the order
[10:04 PM] Scorch: I'll do that right now.
[10:08 PM] Scorch: Done.
[10:08 PM] Zyvet: Wonderful
[10:11 PM] Zyvet: I think, depending on whether we get briefs quite early in the period for submissions, this might be an occasion where it would be wise to reduce the submission period. I'd think we ought to wait for Mall and Elu, given that they've indicated an intent to make submissions, but once we've got theirs, perhaps announcing a reduction of the period?

It is a decision for you as moderating justice, in any event, but I think it is something that ought to be considered.
[10:14 PM] Scorch: I think that's fine.
[10:14 PM] Scorch: Does three days sound good?
[10:15 PM] Scorch: Instead of five.
[10:19 PM] Zyvet: I think waiting 'til we've got submissions in and then reducing it is the way to go about it, if we get Mall and Elu's today or tomorrow then I think reducing to three would be fine. I don't particularly want to hurry anyone who has indicated they're going to make submissions, but I also don't want to waste time waiting for submissions that mightn't be coming
[10:20 PM] Scorch: Definitely. I wasn't going to reduce the submission period until we had at least both of their briefs.
[11:02 PM] Scorch: And it begins.:stuck_out_tongue:
[11:40 PM] Scorch: Does a vote end when the speaker counts the votes or when the time to vote has concluded?
[11:45 PM] Bootsie: You can only vote up to the time it closes. During my term, I locked the thread at the time, and then counted the votes.

29 November 2017

[12:07 AM] Scorch: So you're saying that voting ends when the voting period is over, not when the speaker counts the votes.
[12:11 AM] Scorch: Mall seems to be hinting that our order will cause the vote to last more than three days.
[12:13 AM] Bootsie: It's like the elections. The election ends when the voting does.
[12:14 AM] Scorch: That's what I thought but I wanted to make sure.
[12:15 AM] Bootsie: It clearly uses the word "votes".(edited)
[12:18 AM] Bootsie: I never have seen that interpretation of voting, ever.
[12:19 AM] Scorch: Yeah.
[12:26 AM] Scorch: I'm trying to figure out how to respond without just repeating the order.
[12:28 AM] Zyvet: Voting ends when it is stated to end, not when counted, that's why you sometimes see people having their votes discounted for being out of time despite the count having been after their vote
[12:28 AM] Zyvet: <.<
[12:28 AM] Zyvet: >.>
[12:28 AM] Scorch: I was pretty sure that was the case but I wanted to double check.
[12:28 AM] Zyvet: Mall isn't strictly correct though, the decision is only necessarily delayed by one day, as the vote will only end in four(edited)
[12:29 AM] Zyvet: (though the delay may be longer due to deliberations)
[12:31 AM] Scorch: Yes but the voting period is not extended.
[12:35 AM] Zyvet: No
[12:41 AM] Zyvet: I wouldn't spend too much time responding to Mall though, something to the effect that the court has ordered what it has ordered and a brief explanation of the reasons why
[12:59 AM] Scorch: Something like this? "The Court has ordered that the Speaker and his Deputies not count any votes held on the motion impugned by the request. This allows the Regional Assembly to vote on the motion as it normally would while the Court determines whether the motion infringes on the rights of the petitioner."
[2:19 AM] Scorch: "The Court has ordered the Speaker and his Deputies not to count any vote held on the motion impugned by the request. The order allows the Regional Assembly to vote on the motion as it normally would while the Court evaluates the motion and determines whether it infringes on the rights of the petitioner."(edited)
[3:10 AM] Scorch: I think I like the second one better.
[4:30 AM] Bootsie: Sorry for the lack of response. Either sounded fine.
[4:47 AM] Scorch: :thumbsup:

November 30, 2017

[1:31 AM] Scorch: SillyString has asked that we review the validity of the r4r.
[1:42 PM] Zyvet: My view is that, first, the officialdom or lack thereof of the proposer is irrelevant: if adopted the proposal would be a law (though not one as ordinarily understood, it would be of similar effect) or a government policy ("government" in the general sense rather than the more UK based sense of being the executive).

Second, I do not think it is the case that the Court must permit a breach to occur in order to review, it is, to my mind, open to the court to review imminent actions as well. The fact that a breach is only prospective may well lead to the conclusion that there is no standing for want of a clear connection, but it does not necessarily do so.

Third, even if it were the case that the Court had to wait for there to be a breach, the review also raises ancillary matters relating to the constitutionality of s9.1 and as to potential conflict between it and the Bill of Rights, that section is in force currently and it consequently cannot be premature to review it.
[2:10 PM] Scorch: I agree.
[3:04 PM] Zyvet: So, the long and short of what ought to be said, I would say, is that the Court has determined that it this is a proper matter for judicial review; and that the matter does not relate solely to the motion but also raises questions as to s9.1 itself which is already in force and which the petitioner enjoys standing in relation to as there is a clear connection between the prospective breach of his rights and the provisions of s9.1
[7:49 PM] Scorch: "The Court has determined that the review is a proper matter for judicial review as it does not relate solely to the motion in the Regional Assembly, but also raises questions as to the constitutionality of Section 9.1 of the Legal Code which is already in force. The petitioner enjoys standing in relation to the review as there is a connection between the prospective breach of his rights and the provisions of Section 9.1 of the Legal Code."(edited)
[7:54 PM] Scorch: Look good?
[7:55 PM] Zyvet: I'd say so
[7:55 PM] Scorch: Ok.
[11:27 PM] Scorch: I disagree with Mall's interpretation of our statement.
[11:33 PM] Scorch: We are not randomly review a part of the Legal Code. We have been asked to review a motion declaring an emergency situation per Section 9.1 of the Legal Code.
[11:36 PM] Zyvet: I should imagine that Mall is quite aware of what we are and are not doing.
[11:37 PM] Scorch: Probably. I think he just likes making it difficult for us.:stuck_out_tongue:
[11:37 PM] Zyvet: I know he does
[11:45 PM] Zyvet: We could declare him to be in contempt :stuck_out_tongue: Not that it would do anything, the contempt provision in the Rules seems mostly aimed at criminal proceedings
[11:46 PM] Zyvet: (also he is nowhere near the standard of poor behavior I would expect for a contempt finding)
[11:46 PM] Zyvet: But we can dream
[11:56 PM] Scorch: Lol.

December 1, 2017

[6:50 PM] Scorch: Do I really have to respond to Mall.:stuck_out_tongue:
[6:51 PM] Scorch: I don't want to give him more to work with.:stuck_out_tongue:
[6:57 PM] Zyvet: I mean, you could not elaborate any further and just say that the Court has decided what it has stated, or something to that effect. To be honest I don't really think there is much need to respond, certainly there is no need to argue with him over what we have and have not done
[6:59 PM] Scorch: Yeah. That is probably best.
[7:05 PM] Zyvet: Regretting being moderating justice? :stuck_out_tongue:
[7:11 PM] Scorch: No.:stuck_out_tongue:
[7:14 PM] Scorch: I was thinking of decreasing the brief submission period by a day. We already have a couple briefs and it still gives one more day for anyone else wanting to submit a brief.(edited)
[7:24 PM] Zyvet: I'm not sure there's much point in shortening it only by a day, plus I do want to see what Mall has to say (particularly because I believe that he will be seeking to address the point with respect to majorities, which is one I would like to see some more on) and would hate to rush him, but it is your decision.
[7:37 PM] Scorch: I just wish he would write a brief instead of commenting on every action taken.:stuck_out_tongue:
[11:17 PM] Scorch: Seems SillyString was not satisfied with how we responded to her earlier question.
[11:17 PM] Zyvet: Indeed
[11:20 PM] Zyvet: I suspect that we'll see another r4r soon, which will be interesting.
[11:20 PM] Scorch: Yeah.
[11:23 PM] Zyvet: If you want to respond, my view is that: 1) the Court, in determining whether a motion is within the scope of a law must necessarily consider whether the scope of the law is limited by the Constitution; and 2) that it is irrelevant whether the motion is proposed by a government official or not, as it is the proposed action of the Assembly in adopting the motion that is being reviewed, not the act of introducing the motion
[11:28 PM] Scorch: My response will be along those lines but something tells me she won't be satisfied with it.
[11:50 PM] Bootsie: Man, you guys talk a lot.
[11:50 PM] Bootsie: :stuck_out_tongue:
[11:51 PM] Bootsie: Sorry I’ve been quiet, I have been reading all this though.
[11:51 PM] Scorch: It's all good.
[11:52 PM] Scorch: What do you think of SillyString's most recent post?
[11:53 PM] Bootsie: Oh, she’s getting pissed.
[11:53 PM] Bootsie: I can hear it in her tone.
[11:53 PM] Bootsie: Yeah, a R4R or something is on the way.
[11:54 PM] Scorch: Yeah
[11:55 PM] Scorch: What do you think about her question in general?(edited)
[11:56 PM] Bootsie: Her quote by Raven literally mentions the law we need to be looking at, and by extension, that proposal.(edited)

December 2, 2017

[12:55 AM] Zyvet: It is to be noted also, later in the request, Raven does bring up the argument of constitutionality in terms of the majority required
[12:56 AM] Scorch: Indeed he does.
[1:13 AM] Scorch: It has arrived.
[3:14 AM] Bootsie: I find it weird she’s accusing us of violating the BoR.
[3:47 AM] Scorch: ¯\_(?)_/¯
[4:30 AM] Scorch: Well, it will be interesting.:stuck_out_tongue:
[3:08 PM] Zyvet: @Scorch, you'll need to note that the request for review is suspended, pending the completion of this new request; I think that there is a day or so left in brief submissions, which we'll need to account for when/if this review recommences
[3:11 PM] Scorch: Alright.

December 24, 2017

[8:46 PM] Scorch: So should I reopen the brief submission period?
[8:49 PM] Zyvet: I would say so.
[8:49 PM] Zyvet: I anticipate Mall will raise the point about the proposal seemingly having been voted against
[8:50 PM] Zyvet: So we may need to give some thought to that
[3:05 PM] Scorch: I will be around some today and tomorrow but after tomorrow I should be more available.

December 26, 2017

[8:00 PM] Zyvet: You'll ( @Scorch) need to note your recusal and also further suspension
[8:00 PM] Scorch: Ok.
[8:06 PM] Scorch: I will wait to suspend the other r4r until this one is actually accepted.
[8:51 PM] Zyvet: On the subject of the original r4r. The long and short of my view, is thus:

The review is decided by two (or maybe three) questions;

Does "actual emergency" have an objective meaning or does it mean whatever a governmental authority decides it to;

Can the Court interfere with decisions of the RA (this is distinct from interfering with decisions of the Speaker) and, if so, to what extent can it do so;

To my mind, "actual emergency" must have some definite objective meaning and is not wholly open to whatever a governmental authority wishes, it is "actual" in the sense of "real" and calling something emergency does not make it a real or "actual" one;

Then, the question becomes whether the Court can interfere with RA decisions, on which I'm a little more conflicted, but certainly I think that any interference must be limited to only occasions where the RA in declaring an emergency is clearly wrong and not to occasions where something may be an "actual emergency" but the Court has came down on the other side;

With that in mind, my view on the conclusion of this would be either a) we can't review an RA decision at this stage or b) we can and this is an occasion where the RA is clearly wrong.

There may be implications for this if the newest r4r decides that the Court is, for some reason, barred from deciding jurisdictional questions except when explicitly asked. It that is decided then I don't think we would be able to hold review of the RA at this stage to be barred

December 29, 2017

[11:20 PM] Zyvet: @Scorch it appears that the fresh r4r has been accepted

December 30, 2017

[12:26 AM] Scorch: Just posted the suspension.