[Private] Court Rules Amendments

[Zyvetskistaahn]

This thread is for discussions and drafting in relation to a number of amendments to the Court Rules.

There are two areas which have came up in the course of the term (initial mentions of which can be found below):

• Altering the rule requiring ongoing proceedings to be suspended if they become subject to an appeal or review, so as to limit the risk of abuse of process
• Introducing provisions dealing with the withdrawal of requests for review

There are also a number of areas which I identified in my platform when seeking election which I would like to be considered. Namely:

• Adding the process for mandatory disclosure in criminal proceedings to the rules
• Adding provisions to identify "respondents" to requests for review and seek submissions from them
• Adding a process for reviews under the Freedom of Information Act

Spoiler: Discord Logs (times are GMT (UTC))

January 5, 2018

[6:55 PM] Zyvet: So, in connection with all that has went on, I've been thinking about the idea of amendments to the Court Rules and I think one thing I would like to amend slightly, is the rule dealing with halting proceedings when an appeal or review is made. Long and short, I think it would be wise to make it so that the rule isn't an absolute one, so either the appellate/reviewing panel can direct proceedings to be halted or they can allow proceedings to continue. The idea being to prevent the notional risk of frivolous reviews being filed in order, for instance, to disrupt criminal proceedings (something I am surprised has not been done given TNP's record with defence counsel)
[11:37 PM] Scorch: Sounds good to me.

January 14, 2018

[9:00 PM] Scorch: Maybe we should add something about withdrawals to our rules and procedures.
[9:02 PM] Zyvet: Yes, that might be the thing to do.
[9:14 PM] Zyvet: I'll actually make a thread on the subject of court rules amendments, now
[9:15 PM] Scorch: Great

The rule in relation to suspending proceedings currently reads:

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.

In the logs above, I expressed my concern about the possibility that this provision could be used to disrupt proceedings (particularly, criminal proceedings) by raising frivolous appeals or reviews. I think that the rule could be altered so as to reduce the risk of such a possibility. There seem to be two broad ways of doing this: either it can be made so that suspension is the starting position but is open to disapplication; or it can be made so that proceedings continue unless suspension is ordered. The first might result in a rule which reads:

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. The Court determining an appeal or review may, by unanimous vote, decide to suspend this rule, if it determines that the appeal or review are being made frivolously or solely for the purpose of delaying the matter being considered.

The second might result in a rule reading:

If, during the proceedings of a matter before the Court, a substantive appeal or request which relates to that matter is made and the Court determining that appeal or request directs, the proceedings must not continue until the substantive appeal or request is resolved.

I am unsure which of these types of approach I would prefer. The first, I think, has a benefit in that it makes clear that there should be a presumption that appeals and reviews are permissible and that not suspending should be an extraordinary measure (I should say, in relation to the second, that my expectation would be that the power to direct a suspension would be used as a matter of course in most cases). My initial considerations, however, do lead me to think also that it would be easier to draft a clear rule in relation to the second.

For withdrawal of requests I am not so far along in my thinking. However, I think that it should, certainly, be possible to withdraw a request prior to it being accepted or rejected by the Court (indeed, it would be quite difficult to avoid this with the present permissions in use in the court forum, as a petitioner can edit out their request, thereby preventing us from seeing it); I also think that it should be possible to withdraw a request before the Court begins its deliberations. I am less sure on whether it should be possible for a request to be withdrawn once deliberations have started, but I am not sure if there are particularly strong reasons why it should not be possible.

In relation to mandatory disclosure in criminal trials, the Court has decided, in many ways, what the process ought to be here and here and it is not open to us to set that aside.

• The process begins with a request made by the defence to a governmental authority;
• that authority may then release or withhold the information (or parts thereof), provided that the information withheld falls into one of the three categories which is outlined in the FOIA;
• the Court may then review a decision to withhold information, on the request of either the prosecution or defence;
• when the Court conducts such a review, the Court must be provided with a copy of the evidence, however matters falling into the first two categories may be withheld even from this copy (why this is so is not explained in the ruling, given that the FOIA clearly contemplates such information being provided to the Court, however, we are where we are);
• the Court may choose to release the copy it has been provided with to either the prosecution or defence (or both);
• the Court may then, on the request, overturn the withholding of information (in whole or in part) which is within the third category (presumably, the Court may also do so in relation to information withheld on that basis but which is not actually in the category)

It is important to note the ways in which this differs from the FOIA. First, as noted, information in the first two categories is not provided to the Court; the Court cannot, therefore, release that information (whether or not it is actually in the category, as the Court will be unable to know if an assertion that it is actually is true). Second, information in the third category can be released even if it is actually within the category. It is also important to note that the Court cannot consider withheld information that incriminates a defendant; and the Court, also, cannot permit a trial to continue where there is exculpatory information which is withheld.

In relation to identifying respondents, it seems to me that this is useful in that it may help to encourage a respondent to submit a brief in order to justify their actions. In my experience, this can be helpful even where the respondent is incorrect, as it can provide more framing for the context of the actions and enable more analysis (particularly where a petitioner has been sparse in their own) and can encourage third parties to submit briefs also. The way to go about this, I think, would be to start with a rule identifying respondents and then to have a second rule requiring respondents to be contacted and invited to make submissions. The first of these might be either a general rule, to the effect of:

The Moderating Justice will identify the government officials whose actions or policies are impugned by a request, or, in relation to a government body, the government official ultimately responsible for leading that body. Those identified, in relation to a request, will be respondents to it.

Alternatively, it could be a more specific rule, listing all those who could be respondents in relation to a request for review. The second rule would, in essence, state:

The Moderating Justice will contact the respondents to a request for review, inform them of the review, and invite them to make submissions to the Court in relation to it.

Finally, on the Freedom of Information Act, I barely know where to start. I think what might be wise is to go through the archives and see what has been done historically and whether there is anyone who has conducted such a review still around who can offer their views on whether what was done historically worked.

 

[Scorch]

On the rule in relation to suspending proceedings, I am fine with either change you suggested. I think either route could work. If you think that the second way you suggested is easier to draft then we can go that route.

On the rule for withdrawals, I agree that the petitioner should be able to withdraw a request before we accept and they should be able to withdraw it before deliberations. On whether or not they should be able to withdraw their request after deliberations have started, I am leaning towards no. I just feel at that point they have already had plenty of time to withdraw the request and I think that there is not as much justification for withdrawing the request at that point.

Do not really have anything to say on mandatory disclosure at the moment.

I like the route you are going with identifying respondents. I am not really sure that you need an extremely specific rule. I think keeping it general like you have in your draft is fine.

I similarly have nothing on the Freedom of Information Act. I will do some research and post a response when I am done.

 

[Zyvetskistaahn]

Below is discord discussion which has happened since the previous logs.

Spoiler: Discord Logs (times are GMT (UTC))

January 14, 2018

[10:46 PM] Zyvet: Done: http://forum.thenorthpacific.org/topic/9106681/1/
[10:56 PM] Scorch: Should discussion be done here or on the forum?
[11:10 PM] Zyvet: Either, so long as any done here is eventually posted to the forum. The forum would probably be better for any drafts of rules, as it tends to be easier to keep track of, and also for long contributions given discord's character limit being lower than the forum's
[11:21 PM] Scorch: Ok

January 16, 2018

[2:22 AM] Scorch: I posted a response in the thread.
[2:22 AM] Scorch: Might be easier to have small discussion on here but it's up to you guys.
[2:22 AM] Scorch: I'm fine either way.
[5:50 PM] Zyvet: So, in connection with suspending proceedings, the drafting issue I referred to is that I'm struggling to think of a way to have a concise, clear rule (or rules), which: allow for the rule to be suspended in relation to all reviews and appeals relating to a matter; but also allow for the rule to be brought back into effect, if necessary, for meritorious reviews or appeals on that matter; and which don't risk conflicts between different THO panels
[5:54 PM] Zyvet: The rule which allows for suspension when directed does, kind of, meet these intentions, but I am concerned that there may be THO panels that don't give directions when they ought to be given, thinking that the default should be no suspension, when in my view, the opposite ought to be so.
[5:57 PM] Zyvet: The rule which allows for exceptions to suspension doesn't meet the first of these intentions, as it is drafted at the moment, and altering it do so would mean further changes may need to be made to meet the other intentions. I'll think more on it and see if I can come up with a version which does do this, but, as I say, I think that the other rule is likely to be clearer and shorter.
[5:58 PM] Zyvet: (also, @Bootsie http://forum.thenorthpacific.org/single/?p=10111809&t=9106409 )
[11:03 PM] Scorch: Any thoughts on the rule amendments @Bootsie?(edited)
[11:51 PM] Scorch: I see what you are saying now Zyvet.
[11:52 PM] Scorch: :thinking:

January 17, 2018

[12:17 AM] Scorch: Right now, does the rule which allows for exceptions to suspensionn only affect one appeal or review at a time?
[12:18 AM] Scorch: *suspension
[8:42 AM] Zyvet: As it is drafted at the moment it does. I wasn't sure how to redraft so as to make it general but also meet the other aims I would have for the rule
[8:44 AM] Zyvet: Actually, the more I look at it, the more I feel like it could be either general or specific
[8:44 AM] Zyvet: <.<
[1:41 PM] Scorch: I was thinking, if you only made it only affect one review or appeal at a time and only made the suspension last either the durattion of that review or until another review is filed.
[1:49 PM] Scorch: *what if
[1:56 PM] Scorch: Make it in a way where the rule applies everytime there is an appeal or review. So a scenario would be if a trial was underway and someone filed an r4r relating to the trial. The Court finds that it is only meant to delay proceedings and unanimously decides to suspend the rule. Someone else then files an r4r relating to the original trial is filed. The rule automatically goes back into effect and then the Court makes the decision of whether to suspend the rule for the duration of that review.
[1:56 PM] Scorch: Now that I post that it looks kind of ridiculous. :stuck_out_tongue:
[1:57 PM] Scorch: I'm not even sure if you could draft it in a way where it could work like that.
[1:58 PM] Scorch: But I figure it can't hurt to spout out ideas. :stuck_out_tongue:
[11:30 PM] Scorch: Has there been any luck finding a FoIA review?
[11:42 PM] Zyvet: There is this: http://forum.thenorthpacific.org/topic/7190847/

But that is a strange one because it was for SC information and was, consequently, interrupted by an r4r which found the SC to be exempt from the FOIA provisions.

There's another thread that I can faintly recall also, but I've not yet found it. As I recall Elu was the justice dealing with it and it was quite early on under the current constitution 2012/3 ish
[11:44 PM] Zyvet: (the then private discussion of the above: http://forum.thenorthpacific.org/topic/7194280/ )
[11:45 PM] Zyvet: I should note, both the Court Rules and the FOIA were fairly different to how they are now(edited)
[11:46 PM] Zyvet: But the rules did not make provision for FOIA reviews then either
[11:47 PM] Scorch: OK.

Below is a redraft of the rule dealing with suspension along the lines I indicated I was aiming for. This redraft makes it so that the default position is for suspension but allows, if a review or appeal is determined to have been brought frivolously or is dilatory (and nothing else), the review/appellate panel to (by unanimity) let the original proceeding carry on. It also makes it so that, where a review/appellate panel does this, the default position is reversed so that future reviews and appeals do not suspended the original proceeding, unless the future review/appellate panel decides that they should be suspended.

3. During the proceedings ofn a matter before the Court, substantive appeals and requests which relate to that matter must be addressedresolved before the proceedings can continue, unless contrary provision is made.

4. The Court determining an appeal or review may, if it determines that the appeal or review are being made frivolously or solely for the purpose of delaying the proceedings to which the appeal or review relates, may, by unanimous vote, allow the proceedings to which the appeal or review relates to continue before the appeal or review is resolved.

5. A decision to allow proceedings to continue despite an appeal or review not yet being resolved will apply to all appeals or reviews relating to those proceedings unless the Court determining an appeal or review decides to the contrary, in which case the proceedings must not continue until that appeal or review is resolved.

I think that this would be my preference for a change to the rule over suspending proceedings, but I am aware that the redraft is quite verbose, if there are views as to how to go about shortening it, I would gladly entertain them.

In relation to withdrawing requests for review I would add a new rule to Chapter 2, reading either:

5. A petitioner in a request for review may withdraw the request for review by a post in the thread for the review at any time before the end of the period for submitting briefs.

or

6. A petitioner in a request for review may withdraw the request for review by a post in the thread for the review at any time before the Court delivers its opinion.

(the difference in number is deliberate, reflecting where I would think it appropriate to add the new rule in the chapter, the current rules 5 & 6 would be renumbered as 6 & 7 in the case of the first variant; the current rule 6 would be renumbered as 7 in the second.)

In relation to mandatory criminal disclosure, I have drafted the following:

Section 4: Mandatory Disclosure

1. Where a request has been made to a governmental authority for the release of information and that authority has either made a decision in relation to that request, the Court may hear motions to overturn that decision in whole or in part. The Court may also hear motions to decide a request for the release of information if a request for its release has not been decided in a timely manner.
2. Where a motion under this section is made, the Moderating Justice will order the governmental authority to provide a copy of the information to the Court.
3. A copy provided under the above rule:

• May omit any withheld private information;
• Must include any withheld sensitive information; and
• Must note all withheld information.

4. The Moderating Justice, in determining a motion under this section, may provide a copy of the information it is provided with to either party or both, unless the Court considers:

• That doing so would lead to the release of sensitive information without the leave of the Court; or
• That the copy includes private information

5. The Moderating Justice may, on a motion under this section, order the release of information which is withheld if:

• The information is not private or sensitive;
• The information is sensitive but is of an exculpatory nature; or
• The information is sensitive but ought to be disclosed for some other compelling reason

6. The Moderating Justice must not order the release of private information.
7. Where the Moderating Justice considers that information is of an exculpatory nature but that information is not released, the trial will conclude immediately and the Court will render a verdict of Not Guilty.
8. Information is private if it is:

• Real life information about any NationStates player from which there is a risk of inferring that player's real life identity and which has not willingly been disclosed to the public, including, but not limited to, an individual's name, IP address, physical address or location, phone number, place of employment or education, appearance, social media accounts, and other knowledge about a player, unless the player in question provides explicit consent for this information not to be considered private; or
• Real life information about any NationStates player for which there exists a reasonable real life expectation of privacy or discretion, including, but not limited to, health status, both mental and physical; financial status; personal tragedies; changes in personal status such as marriage, divorce, pregnancy, birth, or death; and other similar information, unless the player in question provides explicit consent for this information not to be considered private.

9. Information is sensitive if it is information that, upon being made public, would jeopardize any ongoing military or intelligence operations; or jeopardize the security of units and agents participating in them, or be harmful to the diplomatic interests, military interests, or security of The North Pacific.

As drafted, I believe this meets the features identified in my post above. I should note, as I have been considering this, it has occurred to me that it seems as though the decision of the Court on the process was relating to occasions where the governmental authority has made a decision to withhold evidence and not to where the authority has failed to make a decision in a timely manner. I am unsure as to whether failures to make a decision require a difference in the process and I have not included any differences in the draft.

I've not yet tried to draft FOIA request rules, however, I have found a few more substantial past requests (both predate the current Constitution but do not predate the Legal Code). They are: here and here. The request made Blue Wolf is the one I recalled, Eluvatar was the Delegate subject to the request rather than the Justice dealing with the request. I am not sure whether either of these requests are particularly helpful, especially given that I cannot find the private discussions of them (as yet). In relation to the request by Haor Chall, none of the Justices are citizens anymore and two of them (Hileville and Earth) have left the game, so I do not think that much is to be gained from seeking out the Justices there, though Blue Wolf appears to be a resident. In relation to the request by Blue Wolf, Flem is, of course, still a citizen, so it may be worthwhile to seek his opinion on the process he used there.

In relation to seeking opinions beyond the Court, in the past I am aware that the Court has consulted when it has made its rule changes. I would like to do so in relation to these proposed changes, when we have reasonably fulsome drafts (except, potentially, in relation to Blue Wolf and Flem, who I think we may benefit from consulting with in relation to the FOIA before drafting). I would propose to consult, firstly, in private with certain officials and individuals, and secondly, publicly thorough a thread in the RA (because I think that the Election Commission doing so was a good thing and I want to encourage it).

For officials and individuals, I would think it appropriate to consult with:

• The Attorney General and, through them, their Deputies;
• The Delegate, in relation to the FOIA rules and mandatory criminal disclosure;
• The Vice Delegate and, though them, the Security Council, in relation to mandatory criminal disclosure;
• All government officials, in relation to identifying respondents; and
• Individuals who have demonstrated particular interest and expertise in TNP's judicial proceedings (at present, I would think it appropriate to include a number of former Justices (and THOs), Attorneys General, and, perhaps, individuals who have been particularly prolific in criminal defence and/or brief submission).

I think also, that it may be worth considering, in relation to mandatory criminal disclosure, consulting with all government officials, given that all of them may be subject to it. However, at the moment, I think that, given most of them will not hold information in need of being classified, there isn't much need to do so.

 

[Zyvetskistaahn]

Spoiler: Discord Logs (times are GMT (UTC))

25 January, 2018

[6:38 PM] Zyvet: Another thing with respect to the Rules that I've noticed is this "8. In the case of indictments seeking to impose penalties on a Defendant prior to the conclusion of a trial, including their removal from the region or expulsion from the Regional Assembly, the procedures established by the Legal Code must be followed as stated and will override any conflicting adopted rules and procedures of the Court."

Pre-trial removal from the Assembly is no longer provided for by law, so we ought to delete that when we make other changes(edited)
[6:39 PM] Scorch: Ok

7 February, 2018

[12:39 AM] Zyvet: I should note, I've used the CJ appointment method for determining the Moderating Justice for FOI reviews. I'm not adverse to changing it to the accepting Justice is Moderating Justice method, however, I do think that while we're looking at the Rules we might want to change to just having the one or the other method for all purposes.

I have finally gotten around to drafting FOI rules, they can be found below. They borrow parts from the Criminal Trial Procedure and the R4R procedure (such as timeframes); otherwise it is mostly just my sense of what is expected from the FOI law. Two things which do not strictly derive from the law are included: first, there is a means for deferring a decision to accept or deny a review, so that a person cannot FOI request some information then immediately come to the Court; and second, there is opportunity for the resident to make arguments to the Court, which is not clearly available within the framework in the Legal Code. I have also included a requirement for the Court to order release where it is not presented with evidence, this is because, to my mind, the Court would seem to be incapable of properly concluding information to be within the criteria for classification if it does not have evidence; it does, however, have some coercive effect (ie, it forces the government to provide evidence) which may be incongruous with the provisions of the Legal Code which are a bit more permissive in addressing the government giving evidence (ie, they use "may").

Chapter 3: Freedom of Information Reviews

1. Where an initial request has been made to the government for the release of information under the Legal Code and the resident making the initial request has not received the requested information, that resident may file a request for the information.
2. Any Justice may accept or deny a request.
3. A request for information may be denied only on the basis that it relates to information which is not owned by the government as defined by the Legal Code.
4. Where it appears to the Court that the request has been filed without giving the government a reasonable opportunity to respond to the initial request, the Court may defer accepting or denying the request until the government has had such an opportunity. A deferral will last for a definite period of time of no more than seven days.
5. When a request is accepted, the Chief Justice will promptly appoint a Moderating Justice.
6. The Moderating Justice will promptly open a thread for the review and will notify the government of the review via private message on the forum.
7. During the five days after a thread has been opened, the government may make arguments and present evidence to the Court demonstrating that one or more of the criteria for classification are met. Evidence may be presented privately where presenting it publicly would risk the release of classified information.
8. The resident making the initial request may make arguments concerning whether the requested information meets the criteria for classification.
9. The Court will endeavour to deliver a decision on the request within seven days of the conclusion of the period during which the government may present evidence. The decision of the Court must be accompanied with reasons for the decision.
10. In all cases where the government does not present evidence to the Court, the Court willorder the release of the information.
11. In all other cases, the Court may order the release of all of the information or part of it or may determine that all of it or some of it meets the criteria for classification.
12. For the purposes of this chapter, the definitions in the Legal Code in relation to requests for information from the Delegate and Executive Officers will apply.