[R4R] Regarding "On Delegate Term Limits in Special Elections"

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Previous court ruling number 23, On Delegate Term Limits in Special Elections.

2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

Article 3 - Clause 13 of the Constitution:

The Delegate and Vice Delegate will be elected by the Regional Assembly every four months. No person shall be elected Delegate to a full or partial term in three consecutive election cycles.

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The ruling of the court in 2013 serves to simultaneously establish that a delegate may not serve more than two consecutive terms while also overruling previous court ruling number 9, On Delegate Term Limits, which attempted to define what constituted a ‘term’ as delegate.

The key issue here being the current standing law, quoted above, specifies that a person may not be elected Delegate in three consecutive election cycles. This is in contrast with what the 2013 ruling states, that a delegate may not serve more than two consecutive terms. It should be noted that an ascending Vice Delegate may serve as Delegate without being elected in the case of a Delegate resignation where a following special election (as per Legal Code Section 4.7: Special Elections, Clause 38) “...would be unable to conclude prior to two weeks before the beginning of the next scheduled election cycle for that office.”

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?
Previous court ruling number 41, On the Physical Representation of Outdated Rulings on Requests for Review, establishes the ability for Requests for Review (R4R) rulings to result in the overruling of previous court rulings, as is being proposed in this R4R.

4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated.
Standing derived by my position as Court Examiner, defined in Legal Code Section 3.6, Clause 34: "The Court Examiner will have standing in all cases of judicial review brought before the Court."

5. Is there a compelling regional interest in resolving your request? If so, explain why it is in the interest of the region as whole for your request to be decided now.
This request looks to address a contradiction in a previous court ruling with current law. It is firmly in the interest of the region, inclusive of the Regional Assembly and Judiciary, that existing court rulings are in line with currently existing law. Given the previous court ruling was made with a different set of laws governing delegate term restrictions, the court should revisit this ruling to ensure the accuracy of existing precedent is upheld.

Additionally, the currently serving Delegate, Gorundu, is a product of the exact situation described above in how a Delegate may have the opportunity to serve three terms while only being elected to two of those terms. Should Delegate Gorundu choose to run for reelection in September, the ruling targeted by this R4R (On Delegate Term Limits in Special Elections) would theoretically prevent them from running, despite the constitutional provisions surrounding elected term limits explicitly allowing them to run.

6. Do you have any further information you wish to submit to the Court with your request?
N/A

The Court accepts this request for review, and I will serve as the Moderating Justice. The Court does not recognize any responsible government official to be recognized as respondent, given this is a Court decision under review.

At this time the Court will accept briefs from any interested party, until five days from this post.

Hello,

I would like to submit the following brief for the Court’s consideration in my capacity as a private citizen.

On the “Elected” versus “Serve” Verbiage

As was pointed out by the Court Examiner, current constitutional law stipulates that no person may be elected to serve as Delegate in three consecutive [general] election cycles. Quite plainly, that would mean that a person would be ineligible to seek re-election as Delegate in January if, for example, they were first elected as Delegate in May of the previous year and were then subsequently re-elected as Delegate in September later that year.

Essentially, what the status quo seeks to do is prohibit any one person from being repeatedly elected and therefore occupying the Office of the Delegate for a period greater than eight months (should the Regional Assembly see fit to elect them to a second term, and assuming that the aforementioned person serves out the second term fully). However, whilst the 2013 ruling by the Court in “On Delegate Term Limits in Special Elections” was undoubtedly well-intentioned and appropriate for its time, it does indeed contradict current constitutional law just as Tlomz has suggested.

As such, I would implore the Court of the present day to recognize, emphasize, and consider the difference between a person being elected to serve as Delegate and a person serving as Delegate. It is my belief that they are, theoretically speaking, not the same thing; and to illustrate my lime of argumentation further I’d first like to cite the following:

Article 6 Clause 17 of the Constitution:

17. No law or government policy may contradict this constitution.

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The Constitution’s verbiage is clear. Not only does Article 3 Clause 13 explicitly include the word “elected” as opposed to “serve”, but Article 6 Clause 17 also specifies that any contradiction of the Constitution's contents must be deemed null and void. In my view, such a specification demands that the Court review its previous ruling so as to eliminate any possible contradiction. For that reason, I am in support of the Court Examiner’s baseline argument as to why this review is in the public interest and I thank the Court for accepting this request.

The accuracy and applicability of existing precedents are malleable and can be challenged. Such is the byproduct of a functioning, healthy democracy with continuous legislative activity. Over time, laws become obsolete and past rulings of the Court can become antiquated. This is one such example of a ruling that has failed to stand the test of time and thus, the suggested contradiction must be examined further and decided upon in a way that both observes and preserves existing precedent.

Possible Courses of Action

One way to do that would be for the Court to affirm that a person being elected to serve in the Office of the Delegate and a person simply serving as Delegate are legally distinct, although not mutually exclusive. As recent events have shown us, perhaps now more so than ever before, situations can arise in which someone who was elected to serve as Delegate may not be able to do so for their full term. In such an instance, the Vice Delegate assumes the Office of the Acting Delegate as per Article 3 Clause 12 of the Constitution; and, more recently, pertinent to Chapter 7, Section 7.18 Clause 61 of the Legal Code. Practical examples for these scenarios have already been explored and thus need not be relitigated in this brief.

Moreover, another way to go about this would be for the Court to clarify that serving in an acting capacity as Delegate does not constitute someone having been elected by the Regional Assembly (Article 3 Clause 13 of the Constitution) and thus has no impact on that person’s eligibility to seek the Office of the Delegate later on through a conventional [general] election cycle.

It could, of course, be argued that the Regional Assembly must elect that person, first as Vice Delegate, in order for them to be the first available person in the Line of Succession in the first place. Even so, as I’m sure the Court would agree, the Regional Assembly’s election of the Delegate and its election of the Vice Delegate are two different things. While the possibility of the Vice Delegate succeeding the Delegate as a result of vacancy or absence may be present in the minds of voters during an election cycle, it is nonetheless illogical to suggest that an election of the Vice Delegate is an endorsement for that person to eventually serve in the Office of the Delegate.

Finally, the Court could also look into reconsidering whether or not the opinion of the 2013 ruling when answering the question of “2) Is it legal for a Delegate who just served two consecutive and elected terms as Delegate to run in a special election for the term he/she was legally barred from running for during the General Elections?” was the most resolute decision.

It could, once again, be argued that the inclusion of the word “and” in the above question stands at odds with one of the possible courses of action that I've proposed. This question omits the detail of whether or not those “consecutive” terms were full or partial, as is the language of Article 3 Clause 13 of the Constitution. Certainly, due to the timing of this ruling, the Court was likely referring to former Delegate Eluvatar’s tenure in office. But it is worth noting that the inclusion of the word “elected” indicates that the Regional Assembly affirms a person’s candidacy through an election cycle. This fact supports my logic in pointing out the difference between the “elected” and “serve” verbiage previously and bolsters the need for the Court to (re)define the two terms in accordance with any and all currently applicable laws.

In conclusion, I am advocating for the first course of action that I proposed re: affirming that a person being elected to serve in the Office of the Delegate and a person simply serving as Delegate are legally distinct. As someone who’s served as Delegate in the past, I am of the opinion that being elected to serve with the Regional Assembly’s blessing and simply serving in the office via other means and machinations is, fundamentally, not the same thing and shouldn't be treated as such in the eyes of the law.

In light of this, it would stand to reason that simply serving in the office via other means other than election by the Regional Assembly shouldn’t have a bearing on a person’s eligibility to seek out the office in a future term.

I thank the Court for both its time and consideration.

The time for submitting briefs is over. The Court will now deliberate.

The Court took into consideration the inquiry filed here by TlomzKrano

The Court took into consideration the legal brief filed here by Robespierre

The Court took into consideration the relevant portion of the Constitution of The North Pacific.

Article 3: The Delegate and Vice Delegate
13. The Delegate and Vice Delegate will be elected by the Regional Assembly every four months. No person shall be elected Delegate to a full or partial term in three consecutive election cycles.

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The Court took into consideration the prior rulings by the Court On Delegate Term Limits, On Delegate Term Limits in Special Elections, On Recognizing Outdated Rulings, and On Defunct Rulings

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The Court opines the following:

On Standing
The petitioner is the Court Examiner, and enjoys universal standing for all questions before this Court. There is no question of proper standing in this case.

On the Court’s Prior Ruling
This Court is asked to reconsider one of its prior rulings in light of a change that was made to the Constitution since that opinion was delivered. That ruling, On Delegate Term Limits in Special Elections, was concerned with defining terms and what constituted consecutive terms. In applying the Court's test as outlined in On Defunct Rulings, we conclude that the Court's ruling was correct at the time. In fact, that decision is wholly consistent in result with the current constitutional term limit for the Delegate. However, while one of the original questions the Court considered mentioned consecutive and elected terms, the Court did not generalize based on whether the terms were elected. That aspect could be seen as specific to the example in the question, and the Court did not address elections except to assert that a candidate for Delegate could not participate in any election that took place in a term following their second consecutive term in office. Because of this, we accept that there may be some ambiguity as to whether that decision would prevent an unelected Delegate from running for a second consecutive elected term, and as a result this decision may conflict with the current constitutional language.

On Subsequent Constitutional Amendment
On Delegate Term Limits in Special Elections was concerned with a constitutional provision that specified “No person may serve more than two consecutive terms as Delegate.” Since then, the Constitution was amended so that “No person shall be elected Delegate to a full or partial term in three consecutive election cycles.” The emphasis is now on the elections, not on the terms, and serves as a much clearer standard, considering this Court had two separate decisions on this question previously. This Court concludes that the underlying constitutional language upon which the prior decision relied changed sufficiently for the decision to require revision, and renders part of the ruling defunct.

On Delegate Term Limits in Special Elections
In the interest of resolving other potential ambiguities, the Court now reconsiders the original topic through the lens of current law. It is clear that the Constitution and Legal Code continue to make no distinction between phases of a Delegate’s term and therefore there is no difference as to when a special election takes place as far as the law is concerned: whether a special election is for a partial term lasting the majority of a Delegate’s term, or only a few weeks, the limit applies. The Constitution’s reference to “election cycle” means any of the designated periods in which a Delegate’s term would fall, which is currently the four months between January and May, May and September, and September and January. The limit applies even in the unlikely event that multiple special elections take place in the same term. So, for example, a Delegate could not be elected in January and May and then run for a special election in November of the September cycle, even if that person did not run in the normal September election or a special election that followed it in October, as the candidate would still potentially be elected to a partial term in a third consecutive election cycle. And as for the Court Examiner’s reference to recent events, where an acting delegate served prior to being elected Delegate in the following cycle, such a person could serve as acting delegate in the January cycle and be elected Delegate in the following May and September cycles, as there is a clear difference between an acting or serving delegate and an elected one, and the Constitution specifies a limit on elections and not on terms.

Holding
As the case was properly decided and the Court's consideration of partial term limits, including its overturning of On Delegate Term Limits, is consistent with existing Constitutional language and affirmed again by this decision, we find that the following portion of part 2 of our prior ruling On Delegate Term Limits in Special Elections, is now defunct as precedent:

The Delegate has still served in 2 consecutive terms - it is irrelevant whether they served the whole term, the first half or the second half.

Having established the set terms, the Court believes that it is not legal for a Delegate to contest any Delegate election, be it general or special, in the term immediately following his second consecutive term.

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Therefore, that portion of the ruling will be modified with strikethrough tags, acknowledging its obsolescence while preserving it for historical purposes.