[R4R] Regarding "On the Permanence of Rejected Applications for the RA"

[TlomzKrano]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Previous court ruling number 36, On the Permanence of Rejected Applications for the RA.

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?

The Regional Assembly may overturn a previous decision to uphold the rejection of an applicant by majority vote.

At the time of ruling, the court was correct in their assessment that the Regional Assembly would have to overturn a previous citizenship rejection for the applicant to be legally granted citizenship.

This was explicitly codified in the passing of the Voting Rights Act a short time after this relevant portion of the ruling was issued. Given this issue has been codified, in line with the court’s wishes given the previous ambiguity of the law, this portion of the ruling can safely be struck out and preserved for historical reference while not serving as active precedent.

A separate issue stemming from this ruling, that violates the same portion of the legal code listed above, is the maintaining of Treize_Dreizehn’s citizenship after discovering its unlawful nature. One can easily understand why the court chose to maintain Treize_Dreizehn’s citizenship status after the error was discovered given the bureaucratic and legal nightmare that would have been created by rendering the citizenship status illegal and removing it. However, in doing this, the court created a quasi-citizen status that was not supported by any existing law at the time of ruling or now.

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Previous court ruling number 41, On the Physical Representation of Outdated Rulings on Requests for Review, establishes the ability for Requests for Review (R4R) rulings to result in the overruling of previous court rulings, as is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.

Previous court ruling number 77, On the Reconsideration of the Time at Which Oaths Become Binding, serves as an example of the court striking down only a portion of a previous ruling.

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 ruling by the Court that was issued during a period of time in which the laws governing citizenship and rejection of citizenship applications were less explicitly defined. This ruling directly affects the citizenship application rejection process and is therefore an important issue for the region to address.

While practicality and the potential disruptive nature of rulings are important and understandable considerations, the court should strive to ensure these rulings do not adversely impact the quality of standing precedent or overstep the court’s legal abilities.

6. Do you have any further information you wish to submit to the Court with your request?
It should be noted that the user known as Treize_Dreizehn is no longer a citizen of this region, therefore striking down a portion of the ruling which affirmed their citizenship status would not create any legal or bureaucratic burden on the Regional Assembly or other relevant parties.

 

[Dreadton]

Accepted, as accepting Justice I will be the moderating Justice.

The briefing period will be open for a period of 5 days. All interested parties are welcomed to submit a brief on the matter.

The Vice Delegate @Chipoli and the Speaker @Cloud are invited to submit briefs on this matter as their respective offices were responsive parties to the original filings.

 

[Zyvetskistaahn]

Brief

If it pleases the Court, I submit the following brief.

This request seeks review of the Official Opinion on the Permanence of Rejected Applications for the RA in two respects: its holding that the Vice Delegate could not overturn a previously upheld decision reject an applicant for (what was then) Regional Assembly membership; and, its holding that for reasons of good faith and the prohibition on retroactive laws the acceptance of Treize Dreizehn was effective and he retained Regional Assembly membership.

In this brief, as to the first issue it will be submitted that the Court should hold that the Official Opinion as to the Vice Delegate's power was correct at the time issued and remains an accurate statement of the law and should not be overturned. As to the second, it will be submitted that, though Trieze Dreizehn's Regional Assembly membership has now lapsed and the portion of the ruling which sustained it no longer effects that issue, it remains a proper statement as to the Court's power to limit retroactive effects of its Official Opinions and should not be overturned.

The Vice Delegate's Power

The petitioner characterises the Court's holding as being that the Regional Assembly would have to overturn rejection of a rejected applicant for them to be later admitted and submits that, as this has been codified, the holding can safely be struck out.

It is plainly the case that the power of the Assembly to overturn rejections has been codified (though this was by a Bill to amend Section 6.1 of the Legal Code and done before the original request for review was determined (as the Official Opinion itself notes "The Court considered a third possible interpretation - that, lacking any assignation of the power to reverse a previous decision, it was held by the Vice Delegate, but that that power was lost once it was assigned to the Regional Assembly by recent legislation, as seen in Chapter 6, Section 1, Clause 8 as it currently stands. However, the Court ultimately rejected this as an option."), rather than being by the Voting Rights Act). However, the codification does not speak as to the other element of the question that the Court in the original request for review had to address: could the Vice Delegate overturn the rejection?

It was that question which had sparked the review as the then Vice Delegate (Democratic Donkeys) had purported to do so and the then Speaker (myself) has purported to accept the application. The codification of the power of the Assembly does not necessarily exclude a power on the part of the Vice Delegate. This point was recognised by the Court in the Official Opinion in addressing the issue of the codification of the Assembly's power during the course of the request for review, as noted in the parentheticals above, and rejected as "[t]he power to alter a previous decision can, in theory, be held by more than one party. It would not be impossible for both the Vice Delegate and the Regional Assembly to have separate legal paths to overturn an applicant's rejection. It is therefore the opinion of the court that the recent amendment to this law does not affect whether or not the Vice Delegate had and holds the power to admit rejected applicants."

It is submitted that this is correct. The scheme as it was created and as it now exists has two actors in relation to the security evaluation, the Vice Delegate and the Assembly (leaving aside the Speaker and the Security Council whose functions are administrative and consultative, respectively, rather than themselves determining the evaluation). The main responsibility of the evaluation falls on the Vice Delegate with the Assembly then serving a confirmatory function. While it is now expressly provided that the Assembly may overturn a prior determination, it is silent on the power of the Vice Delegate, no doubt because the Court determined there was no such power, but the law could easily have been framed to provide that "only the Regional Assembly may overturn a previous decision to uphold the rejection of an applicant [...]". In a number of areas the law rests on implicit provisions, so the absence of a specific power on the part of the Vice Delegate is not itself determinative. The Vice Delegate could arguably be said to have such an implicit power, as the more recent Opinion on the Definition of a Candidate notes implicit provision (such as the ability of office holders to resign) can be important parts of our law. While the holding of the Court, ultimately, was that the Vice Delegate did not have a power to redetermine upheld rejections, both answers could have been open and it is the existence of the Court's determination which has resolved the issue.

As to the holding itself, this too was correct. The Official Opinion's application of constitutional principle, particularly the separation of powers and the need to ensure that the will of the Assembly is respected, to determine the question against the Vice Delegate possessing the power is sound. While not determined by it, that conclusion is bolstered by the fact that the Assembly has chosen to expressly provide for its own power in the Legal Code but not sought to countermand the Court's decision by granting the power to the Vice Delegate. It is also supported by the textual point that the decision is as to the "applicant" and not to each individual application made by them and that the Speaker's obligation is to reject "applicants who fail an evaluation by the Vice Delegate", as the fact of the applicant having failed a past evaluation would remain true even if a fresh evaluation was undertaken.

For the reasons above, it is submitted that the holding of the Court resolved a question that was at the time the original request was made and when the Official Opinion was rendered an open one and that, if the holding was overturned, would be liable to be reopened. The Court should, therefore, determine that there is no illegality in Official Opinion and that it should not be struck.

Retroactivity

The maintenance of Treize Dreizehn's Regional Assembly membership is a separate issue raised by the request.

The Court in its original opinion recognised that the consequence of its holding, on its face, would be that his admission to and continued membership of the Assembly was unlawful. The petitioner characterises this as being a violation of section 6.1, clause 11 of the Legal Code, it is submitted that it would be better characterised as having been a violation of what was then clause 6 and is now clause 8 of that section, the effect of which was and is that the Speaker must reject applicants who failed an evaluation, however, the precise nature of the illegality is not of great relevance.

The Court noted that at the time of the Official Opinion, "over the past four months [Treize Dreizehn] has acted in nothing but good faith. He has been a productive member of the RA, has voted on legislation and run in elections, and has served admirably in the Attorney General's office" and considered the effect of the actions undertaken in that regard being held to be unlawful would not be tolerable. It would be ex post facto law and "neither practical, possible, nor permitted by the Bill of Rights". It is submitted that, in that assessment, the Court was correct and a consequence of the Bill of Rights for all Nations' injunction in section 9 that "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." and the constitutional guarantee of the Bill of Rights in article 1 and the restriction on unconstitional laws in article 7, clause 17.

The Court has applied this holding subsequently. On Alterations to the Citizenship Oath did so, holding:

"In accordance with precedent set on the question of continued citizenship of Treize Dreizehn, we find that the citizenship previously granted to individuals who altered the text of their oaths is valid.

[...]

Those citizens who took an incorrect oath are granted the presumption of having acted in good faith, of having intended to swear the correct oath but making a simple mistake. As such, they will also be presumed to be bound by the correct oath as it stood in the law at the time of the citizen's admittance.

However, the court cannot categorically determine that there are no current citizens who specifically intended to swear an incorrect oath and did not intend to be bound by the correct citizenship oath, but who were nevertheless granted citizenship. Accordingly, the court will allow 60 days for any citizen who swore an incorrect oath to reject the presumption of good faith that has been afforded to them, and to petition the Court to release them from the obligations of the citizenship oath."

So did on the Form of the Delegate's Oath:

"There appears to be no reason to think that McMasterdonia did not intend to be bound by the oath they swore and, in any event, they exercised such considerable government authority for such a long time in reliance on it that the Court must conclude they intended to be bound. Further, others, including the Regional Assembly, parties before this Court, and foreign powers, have relied on the validity of the oath and the authority exercised relying on it.

It would be destructive in the extreme for this Court to take the view, retrospectively, that all of those exercises of authority were invalid. To borrow the words of the Court from on the Permanence of Rejected Applications for the Regional Assembly, such alteration of accepted fact is neither practical, possible, nor permitted by the Bill of Rights.

It is within the power of the Court to remedy this invalidity, as it did in that case and more recently in relation to citizenship oaths. The Court must draw from McMasterdonia’s reliance on the oath the presumption that he took it in good faith and intended to be bound by it, the consequence of that is that he is bound by it. Further, the presumption that the oath was accepted as valid in good faith extends also to other officials and bodies and, indeed, the region at large, with the effect that the authority exercised relying on the oath are valid."

Further, though not applying the power to the case before it, the Court's Opinion on the Ability of the Speaker to Retract Citizenship recognised and agreed with the existence of the power of the Court to avoid retroactive application:

"In the ruling of On the Permanence of Rejected Applications for the Regional Assembly it was decided that despite the granting of membership for Treize_Dreizehn into the Regional Assembly, or becoming a citizen, being unlawful, they could continue to hold membership until such a time as they lost citizenship naturally. The main factor behind this decision was that Treize had been acting as a member of the Regional Assembly in good faith for four months and was heavily involved in the Regional Assembly and the Attorney General's Office. To undo their past actions, along with their citizenship, would require a redo of every vote they ever participated in. Performing this, the Court ruled, was impractical, impossible, and an infringement of the Bill of Rights.

The Court continues to agree with this opinion and makes note of a key difference in this case. That difference being the amount of time The Land of Broken Dreams had been a citizen and the amount of involvement they have in the region so far. As it was argued in a brief, citizenship for The Land of Broken Dreams was accepted on May 19th. There is no evidence in the briefs that support the argument that good faith applies to this case nor does The Land of Broken Dreams in this case find themselves in a similar position to Treize as described in case law."

The necessary existence of the power to avoid retroactive application in cases where required to avoid violation of the Bill of Rights is, therefore, well supported by the caselaw of the Court over many years and different compositions. Leaving aside that the case in favour of the power is persausive as a matter of first principles, it is submitted that truly exceptional reasons would be needed to cast aside the good faith exception and none are advanced.

For those reasons, therefore, it is submitted that the Court should not overturn that part of the decision which concerned retroactivity.

Conclusion

It is submitted that the disposal in line with the above submissions would be for the Court to uphold the Official Opinion in full as a correct statement of the law both as to the Vice Delegate's power and the good faith exception and to make no further order.

Alternatively, should the Court be persauded only as to one or the other of the arguments in this brief, the Court should leave the part of the Official Opinion on which it is persauded intact and strike only that part of the Official Opinion that relates to the respect in which the Court is not persuaded. Should the Court not be persauded as to the good faith exception, it is submitted that the Court would also need to clarify whether that is limited only to the Official Opinion or as to its other applications, bearing in mind the potential effects warned of in each case.

Unless I can be of further assistance, those are my submissions.

 

[Dreadton]

The briefing period is now closed