[PRIVATE] R4R Ban Appeal of Rome

I have accepted this request for review. I have set the period for brief submissions at five days, though I will likely extend it if asked, given the timing of the review relative to Christmas and New Year. I have also requested briefs from the Attorney General and Nessuno in the thread, by forum PM and by discord DM.

I include below the logs discussing this matter prior to the acceptance.

December 17, 2019

[7:30 PM] Lady Raven Wing: We got another thing @Court, this time a R4R appealing a ban
https://forum.thenorthpacific.org/topic/9191448/
The North Pacific
[R4R] Appeal my Ban
1. What law, government policy, or action (taken by a government official) do you request that the Court review? Section 1.4. Crashing, Phishing, or...
[8:12 PM] Lady Raven Wing: Leaving it to one of you two to accept (or not) since I have the trial :yum:

December 18, 2019

[1:17 AM] Zyvet: I'm struggling even to discern meaning in most of the post. I may, depending on views, ask for elaboration. I think I am tempted to dismiss as it seems that there is a concession the petitioner was engaged in recruitment, which arguably takes one out of the scope of the BoR (given the decision in Re: Scope of Clause 9 of the Bill of Rights), but I think that I want to consider the implications of article 8 of the BoR in that regard before doing so.
[1:24 AM] Zyvet: Also, it appears not to have actually been filed? That is, it has been presented to the AG
[1:24 AM] Zyvet: Rather than us
[1:24 AM] Zyvet: In line with their First Stop programme
[1:25 AM] Lady Raven Wing: So I see, I didn't notice that before
[1:26 AM] Lady Raven Wing: Looks like Goy declined to pursue at any rate, so I guess we'll need to wait and see if they file it with us
[1:26 AM] Zyvet: I think ignore for now, then, though I am probably going to think on it a bit
[1:26 AM] Lady Raven Wing: K
[7:52 PM] The Bestest of Persons: I would say that we can't accept it if he comes to the court with that same thing. Mainly because he never actually produced any proof that he has been banned. We can't really review an action that is not being told to us.
[8:10 PM] The Bestest of Persons: Didnt see it. but he did finally post it in the court. I requested that he clarify what nation was banned. If he was really banned and removed for Spamming, AdSpam and Flamming/Flamebaiting. Then it falls perfectly in Section 7.3. 11 Onsight Authority "11. Violators of NationStates rules, or residents banned offsite by forum administration, may be subject to summary ejection or banning."

As per NationStates's FAQ and One Stop Rule Shop.
[9:21 PM] The Bestest of Persons: I was bored and decided to go out of my way to find his nation and read through the history. It all takes place between pages 50,025 and 50,030. He swears over and over on the RMB about 7 times in total mostly in a derogatory manner towards other people and regions. And he outright told people to join another region and create new nations to do so twice hours apart. https://forum.thenorthpacific.org/topic/634763/page-13#post-10293630 Gameside advocate under the authority of the Delegate definitely had the authority under 7.3.11 to ban them in my opinion.
The North Pacific
Currently Banned
https://www.nationstates.net/nation=peppapeepoop has been banned from the region for evading a previous ban...
[9:40 PM] Zyvet: Whether the ejection was lawful or not isn't the test for accepting the r4r, though. The question for acceptance is whether he was affected by the act, which it seems he plainly was, and in any event, having thought further, it does seem to me that the article 8 right to review would avail him
[9:42 PM] Zyvet: That being said, I do struggle with the way the review is formed, in that it is not immediately clear to me how he is affected by the things he is asking us to review, ie the criminal offence and trial procedure
[9:42 PM] The Bestest of Persons: He is asking us to review the wrong thing though. This isn't a judge of Section 1.4 because that didn't come into play
[9:42 PM] The Bestest of Persons: The government is acting under Section 7.3 so we can't review their use of Section 1.4
[9:46 PM] Zyvet: It rather depends if one takes the review as being a request about the ban or section 1.4, if it is the former and the argument is he cannot be banned because he is not guilty of an offence under section 1.4, that does not go to standing, only the merits. I would be reluctant to say that the request must fail solely for being badly formed, when in substance the challenge is to the ban. I do think that it requires elaboration or clarification though
[9:49 PM] The Bestest of Persons: I really don't like the idea of accepting a R4R that has blatant lies in it without those lies being removed. He said that there were no reasons but there very clearly are. The Government is not hiding it or anything, clearly stating the reason in the public disclosure Currently Banned thread.
[9:55 PM] Zyvet: That may be so and he may well, therefore, fail on the merits, but the standard is whether he was affected and the Bill of Rights and the Legal Code, in guaranteeing judicial review for those ejected and banned seem to me to lead to the inevitable conclusion that an ejected or banned nation must be deemed to be affected by the ejection or ban. The issue, to my mind, is whether his request adequately identifies the ban as the subject of the challenge.
[9:55 PM] The Bestest of Persons: Or at the very least that it is taken into account because the reasoning extends beyond the reason given.

December 19, 2019

[5:54 AM] The Bestest of Persons: https://forum.thenorthpacific.org/topic/9191457/#post-10294652 Welp we now have confirmation that he is actually a person who has been banned by the Gameside Advocate. Just need to decide on a way forward.
The North Pacific
[R4R] Appeal My Ban
1. What law, government policy, or action (taken by a government official) do you request that the Court review? Section 1.4. Crashing, Phishing, or...
[1:45 PM] Zyvet: Leaving aside the question of whether his challenge is, really, to the ban in general, which I am leaning to thinking it is, looking at it further, I do wonder if there is something in the point about s1.4, in that spamming and adspam are, for the purposes of the law, different matters, the former being an offence and the latter not being but instead warranting summary ejection... given a reason for the ban is spamming, it is perhaps arguable he was affected by s1.4. Of course, it is probably open to the contention that the ban was for breaking the NS rule against spam not the criminal prohibition
[5:11 PM] The Bestest of Persons: Its one of those things where its technically two layers of rules. both of which apply. But it wasn't just Spamming though it was also flaming which as it isn't in our laws is just a clear violation of on-site rules.
[5:16 PM] The Bestest of Persons: Technically he was also ejected under 1.6 AdSpam since one of the reasons was more then once mentioning another region in a recruitment manner. which begs the question of what a "Delegate Decree" is
[6:34 PM] Lady Raven Wing: Apologies, I'm a bit tired from a long drive yesterday, I'll get back with thoughts probably not today
[...]
December 20, 2019
[...]
[3:00 AM] Zyvet: RE: the r4r, I think I have came to the view that it should be accepted. While the petitioner has not done a good job at utilising the parts of the form for what they are actually for, from the whole of the form it seems clear enough to me that he is challenging the ban (given that he refers to matters not subsumed within s1.4). He is plainly affected by the ban and, in any event, the BoR guarantees review, whether he is wrong or not about it is not really the point, an r4r can conclude an action is lawful just as it can conclude it is unlawful.
[4:34 AM] The Bestest of Persons: [...]

Regarding the R4R, I agree with accepting it as long as its on the basis of if he was banned lawfully in itself and not on what he has pointed out as his reasoning or the mechanism he feels applies to the ban.
[...]
[10:13 PM] Zyvet: @Lady Raven Wing do you have a view on the r4r?
[10:14 PM] Lady Raven Wing: Yea, hold on a minute
[10:31 PM] Lady Raven Wing: I agree in general that we should accept it, but I do also agree that 1.4 by itself isn't the way to do it
[10:33 PM] Lady Raven Wing: In that mind, I'm inclined to suggest it be rejected unless & until it names the appropriate sections to request a review on given the situation (1.6 and 7.3).
[10:36 PM] Lady Raven Wing: Going by Nessie in the banned thread, none of the reasons for the ban are covered by 1.4
[10:37 PM] Lady Raven Wing: While it can be accepted despite that (least going by Court Rules), it'd be pointless given that such a review would have no relevance to their actual ban
[10:59 PM] Zyvet: While it plainly only names s1.4, the further information and other questions do, I think, clearly show it to be a challenge to the ban in general and effectively covers those bases. I would not want to refuse on the basis of the form being poorly completed, given that it seems plain the petitioner does not know the law enough to complete it and that it would, effectively, deny the article 8 right to them because they are ignorant of the law (and it is such nations that, to my mind, most require the protection of the right)
[10:59 PM] Lady Raven Wing: Hmm
[11:00 PM] Lady Raven Wing: I can accept that, to an extent
[11:00 PM] Zyvet: I agree it is not the most satisfactory situation
[11:00 PM] Zyvet: <.<
[11:01 PM] Zyvet: Given we all seem agreed on acceptance, I think I will accept it now. I am minded to specifically request a brief from the AG and from Nessie, are there views on that @Court ?
[11:01 PM] Lady Raven Wing: My preference was to reject it & have them rewrite to include such (and recommend doing so), but I recognize that's rather pedantic
[11:02 PM] Lady Raven Wing: That would be fine to my mind Zyv, preferably with a notice to them to look at 1.6 & 7.3
(NB: The Bestest of Persons is Lord Lore; omissions are made from the above log in relation to discussion of the trial TNP v Whole India)
 
It seems to me that the request asks about a number of points, I think it would be helpful to try and distill them down into actual answerable questions.

First, there is the issue about section 1.4. I think here the questions are:
  1. Was the petitioner actually banned on the basis of section 1.4?
  2. If so, was the petitioner afforded due process as required by section 3.3 and the Constibillocode more generally?
To my mind, if the answer to section 1.4 is no, then I think it is clear that there is no basis on which to consider any further matter relating to it. I should also say, it seems clear from what has been said by Nessuno in their brief (and also in their announcement of the ban) that they never purported to ban the petitioner due to any violation of section 1.4.

Second, there is reasons not being given for the ban. I think here the questions are:

  1. Is there any requirement for reasons to be given for a ban, in general?
  2. If so, was there any requirement for reasons to be given for this ban to this petitioner?
  3. If the answer to both the above are in the affirmative, what is the requirement as to the form and substance of the reasons?
  4. If reasons were required, were these reasons given in a satisfactory form and with satisfactory substance?
To my mind, being banned necessarily would create standing for a challenge based on there being or not being reasons given for the ban, so I don't think there is any real standing question here. I should note the reason for the inclusion of question 2, in essence, this is because the petitioner is said to have been recruiting (and, in fact, accepts recruiting), which the Court has held previously places a nation without the protection of the Bill of Rights ("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." Re: the Scope of Clause 9 of the Bill of Rights), such that it would seem to me that a recruiter probably would not be entitled to reasons even if other banned nations were (though I do think there must be some limit on the holding, even if only extending to such protections as would be necessary to allow the Court to determine a nation actually to be a recruiter).

Third, there is recruiting. Here there is essentially one question with three sub-questions:
  1. Was the petitioner recruiting in a way that renders them liable to banning (whether due to surrendering the Bill of Rights protection against banning, due to violating a decreed prohibition on adspam, or under the power to summarily ban recruiters)
Fourth, there is flaming and similar conduct. Here there seem to be a few questions:
  1. Where a nation is banned on the basis of a violation of NationStates rules, what is the approach the Court should take to review?
  2. Has the petitioner flamed or engaged in other similar conduct in violation of the rules?
In relation to this, I do wonder whether it should simply be addressed on the violation of NS rules power or whether it also engages the RMB regulation power, but there does not seem to be all that much distinction in this case where the regulation power has been used to create a regulation that effectively mirrors the NS rule, so I do not think there is much point.

Bringing all that together, it seems to me, on the face of what has been presented so far: that there is no standing in relation to the s1.4 matters; on reasons, there is a requirement to do so under the Legal Code by reporting to the region and I think it is maybe arguable that a nation banned other than for recruitment could be entitled to reasons due to BoR protections, but in this case the petitioner is a recruiter and lacks right to reasons; on recruitment, the petitioner is a recruiter and has admitted such, the attitude of the law on the point is plain as to the prejudice with which recruiters can be treated and it matters not for whom the recruitment was undertaken or whether it was once or more frequent, and I would be minded to say the petitioner could have been banned on any of the three bases set out; on flaming, I think the proper approach is that the Court should leave an area of judgement to the banning official and should not interfere unless the view that there was rulebreaking is unreasonable and I think that on that standard the petitioner has broken the rules (alternatively, I am of the view that, even if the Court were to leave no area of judgement and decide for itself whether the posts in question were rulebreaking, they were).
 
This matter was withdrawn. Below are the remaining discussions of the Court in relation to it:

22 December 2019

[5:48 PM] Zyvet: https://forum.thenorthpacific.org/topic/9191457/#post-10295013

Do we think this should be taken as a brief?
Should I make clear to the petitioner they can submit a brief as well as the request itself (though, I suspect it will shed little light on the subject)?
The North Pacific
[R4R] Appeal My Ban
1. What law, government policy, or action (taken by a government official) do you request that the Court review? Section 1.4. Crashing, Phishing, or...
[6:58 PM] The Bestest of Persons: I say no @Zyvet unless we believe that Nesse is lying in his brief? Instead of putting forth his own perspective he is coming a shay behind just calling Nesse a liar with no evidence.
[6:59 PM] The Bestest of Persons: I also dont understand where Dreadton is coming from. He effectively just filed a brief for a completely different R4R because he is talking about suppressed posts for some reason.....
[7:03 PM] The Bestest of Persons:
His basis is entirely on the criminal code as well so the argument is "You can be charged with a crime therefor he can be banned"
[9:04 PM] Zyvet: No to taking it as a brief seems fair to me, given it does not add anything.

I think Dreadton's essential argument is that the posts were contrary to the NS rules and banning was permitted on that basis because those rules are superior to the rules of the region... I do not think that is, in fact, established by the decision he refers to (which has, in any event been overturned) and I don't think it follows that, even if there are NS rules against particular conduct, NS rules compel a regional officer to enforce them and, even if they did, I do not know that that leads to any conclusion as to what TNP's laws allow an officer to do (though I can see the argument as to why it may). In any event, I do not think the review calls for answers to these questions given that the law does in fact expressly allow for the government to enforce NS rules, so there is no issue of one having superiority over the other.

24 December 2019

[9:49 PM] Justice Death: https://forum.thenorthpacific.org/topic/9191457/#post-10295544
The North Pacific
[R4R] Appeal My Ban
1. What law, government policy, or action (taken by a government official) do you request that the Court review? Section 1.4. Crashing, Phishing, or...
[9:49 PM] Justice Death: Rome appears to be trying to withdraw their R4R

26 December 2019

[3:07 AM] The Bestest of Persons: The question becomes, an impropriety of a government official has been alleged. Should the court demise the issue after it has been raised. And honestly I think that the court should not close a case involving improper actions by officials after it has been alleged.
[5:46 PM] Zyvet: I am of the view that when the affected party has withdrawn their request the Court cannot constitutionally sustain a review, so to my mind this matter must be discontinued

27 December 2019

[3:39 AM] The Bestest of Persons: Whereas i see it that the court must continue when impropriety is involved because otherwise the court encourages government officially to pressure people to drop their requests
[4:14 AM] Zyvet: But, without a party requesting a review of an action affecting them (or a nation exercising their right for a ban to be reviewed, if one thinks it a different standard), from where does the Court’s power to review derive?

The Court has in reviews of late taken a stringent view of the standing requirement (indeed, a view that I did not agree with in certain of them) when it comes to the subject of the review, I see no reason why it should be less stringent on there being a party requesting a review; the bulk of reviews turn on claims of improper action by officials, few are claims that do not impugn official conduct but only a rule, policy or law, so I cannot see how that distinguishes the point from any number of requests.
[8:22 PM] Justice Death: I would agree moreso with Zyvet I think
[8:43 PM] Zyvet: Given that, I am minded to announce the review as being closed
[10:38 PM] Zyvet: (Should perhaps have made clear, the above was inviting views on so doing)

28 December 2019

[4:11 PM] Zyvet: @Court
[8:13 PM] Justice Death: Fine by me
[11:46 PM] Zyvet: Done.

[...]

5 January 2020

[6:31 AM] The Bestest of Persons: So now he wants to know how long his ban is? Why he is asking the court i will never know
[1:44 PM] Zyvet: <.<
Will post and say that it seems to me to be, in the first instance, a matter for the Delegate or Nessie. Not sure I understand why it is of significance if he no longer desires to be in the region, but there we are.
(NB: The Bestest of Persons is Lord Lore; omissions are made from the above log in relation to the matter of TNP v Whole India)
 
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