Judicial Review - Term 1 - DGIVJR8

[Cyc]

Judicial Review of an Existing Law

Associate Justice Peri has requested a Judicial Review. It is posted below:

I would like to request a Judicial Review.
Since I cannot in good conscience adjudicate on my own request I recuse myself and ask Cyc to appoint someone in my place for the purpose of this review.

CivGeneral has asked me to represent him. However as a member of the Judiciary there is a clear conflict of interest. Neverheless there is no Article, Law or Standard which prohibits a member of the Judiciary from representing someone in a CC.
________________________________________________

As Peri is a member of the Judiciary and has contacted me about this issue via PM, procedure can still be upheld during this phase of the process even though in posting here Peri did not ask a question or state a law involved. Therefore I shall pose a question for him, that I believe covers all the points he made.

Can a member of the judiciary take an active role in the CC defense or prosecution roles while still holding their office?

In the original acceptance and writng of this JR, I stated that there would be no law quoted with the question above. After a good night's sleep and reviewing my conversations with Peri, I realized that the law we should be focusing on here is CoS Section L. This Section is quite lengthy, so rather than post the entire rule, I will post this link to it.
Section L of the CoS can be found in this post.

Depending on which way the scales fall for this JR, the final decision will either allow Peri to represent CivGeneral or deny him that right. Thus far it is not a Law denying him this, it is only the Chief Justices' Courtroom procedures. Future Law will be written as an amendment to Section L of the CoS, if necessary.
______________________________________________

The following Section of the CoS, Section X.1.III governs this Citizen’s Discussion.

II. Public Discussion
A. The Chief Justice shall create a new thread in the Citizen’s Forum
entitled “Judicial Review – Term <term number> - Request <request number
for that term>”
B. The first post shall contain the formal question and law involved
1. The Chief Justice may rewrite the question so long as the meaning
is not altered. Any changes should be discussed with the requestor.
C. All Citizens are then invited to discuss the question.
D. Justices are to post questions, but not conclusions.
E. Discussion continues until the Chief Justice declares arguments over.
1. The Associate Justices may overrule if they both agree to do so. They
may also declare halt to arguments if they both agree and Chief Justice
is not willing to end the discussions.
_________________________________________

Please abide by the code above and discuss your feelings on the issue at hand.

 

[Cyc]

I'll start off with a question to Peri. Do you personally feel that a Justice can vote unbiased in a Judicial Vote to accept or deny a Fanatican Citizen's Complaint if the are simultaneously trying to supress or promote that Complaint by representing one of the parties involved?

 

[Peri]

I feel that it is perfectly possible. However the Justice is disadvantaged because the Advocate knows how to play him since they are the same person

 

[DaveShack]

I believe it is section L of the link (citizen complaint) rather than section M (judicial review) which applies to the question can a member of the court also be the defense attorney or prosecutor.

There are no statements in the law against a member of the court representing either party in a citizen complaint. In fact, the authors of this law considered this possibility and there is ample evidence that the reason there is no prohibition on a justice being the prosecutor or defense attorney was specifically to allow justices to serve in those capacities. The prior positions of judge advocate and public defender were transformed into associate justice positions to enable other citizens to fulfill those roles, not to eliminate the justices from consideration for those roles.

The law enumerates specific instances where a justice must step aside to handle a complaint. The conditions which prompted this review do not have anything to do with any of the documented reasons to exclude a justice.

 

[Peri]

However under the old system there was 1 judge and 2 advocates but now there are 3 judges. The clear implication here is that no member of the Judiciary is allowed to plea a case to ensure a fair hearing. Also the law provides for the appointment of advocates. Again the implication here is that no member of the Judiciary was expected to fill that role.

 

[Cyc]

Originally posted by DaveShack
I believe it is section L of the link (citizen complaint) rather than section M (judicial review) which applies to the question can a member of the court also be the defense attorney or prosecutor.

Well, you were absolutely right about that, DS. I linked to the right Section, but put the wrong letter in its place. Thanks for the correction. I have replaced the M with an L.

 

[Peri]

However what about a persons right to a fair trial. Shouldn't the accused have the right to pick the best person for the job even if he is on the bench?

Also what about other officials. Should the deputy of a department be allowed to prosecute his boss?

Is it fair also that the President be allowed to plea one side? As leader of the nation should he not be objective in CCs?

 

[Peri]

BUT If we exclude all officials would there be anyone left to advocate?

 

[donsig]

Here are the relevant sections of CoS section L:

c.  The Court appoints a Prosecutor for case.
      1.  The Accuser may represent themselves, arrange for 
          an Advocate, or request the Court to appoint an 
          Advocate.
    d.  Court notifies Accused and determines Defense.
      1.  Accused may represent themselves, arrange for an 
          Advocate, or request Court to appoint an Advocate.
    e.  The Prosecutor and the Defense investigate complaint.
      1.  May interview witnesses, gather evidence, etc.
      2.  If complaint made via PM, the Prosecutor and the 
          Defense shall communicate with Accuser through the 
          person the Complaint was sent to.  The identity of 
          the Accuser should not be revealed unless they 
          choose otherwise.[/i]

c.1 conflicts with d. The former lets the Accused arrange for an advocate while the latter seems to indicate that the Court *determines Defense*. This is a bit ambiguous since it could be construed to mean the Accused *determines Defense*.

No matter which way d is interpreted, there are no restrictions placed on who can be chosen as the Accused's Advocate.

 

[ravensfire]

In previous DG's, the PD acted as the advocate for the accused. They would function as a member of the Judiciary solely to determine if charges should be brought or not. This would happen before any significant persuasive arguements would be made.

The changes we've made for this DG significantly alter the relationship of the Court with the accused and the ideas of justice. The biggest change is, of course, having the Court determine guilt or innocence. While before the Court determined only if the case should proceed to trial, we are now asking members of the court to determine if the event actually happened and broke the law.

While I have the utmost respect for Peri, and am quite confident that he would not act in a biased manner were he to continue as both Defense and as an Associate Justice for this case, the appearance of bias is so strong, such an action should not be permitted.

As as been correctly pointed out, there are no restrictions on who may be either the Prosecutor or Defense. While this has produced some unintended consequences, I feel it should stay. We have a system for Pro-Tem justices, it can handle this situation.

To respond to donsig's comment about L.1.c.1 conflicting with L.1.d - there shouldn't be one - it may be a wording issue. In L.1.c (and L.1.c.1), the court is performing one action - declaring a citizen to be the Prosecutor. L.1.c declares the position, and who determines it, while L.1.c.1 identifies how that happens and in what order.

In L.1.d, two seperate actions are being performed. First, the Court notifies the accused of the CC. Remember, not all complaints will be public. Complaints may be PM'd to the Court or to a Moderator. Second, the Court determines the Defense for the accused. Again, section L.1.d declares the position (Defense) and who determines it, while L.1.d.1 defines how that happens and in what order.

Summary:
If a member of the Court wishes to act as Prosecute or Defense in a Citizen's Complaint, they must request a Pro-Tem replacement for that case.

-- Ravensfire

 

[Peri]

Originally posted by ravensfire


Summary:
If a member of the Court wishes to act as Prosecute or Defense in a Citizen's Complaint, they must request a Pro-Tem replacement for that case.

-- Ravensfire

But surely that allows members of the judiciary to put their own concerns above serving the people?
Also how can the accused get a fair trial if one of the Associate Justices is prosecuting the case?

 

[Cyc]

I see ravensfire's point, but to extend Peri's question, would your summary allow the Citizens who elected that Justice to get a fair shake during the trial?

 

[ravensfire]

Originally posted by Peri


But surely that allows members of the judiciary to put their own concerns above serving the people?
Also how can the accused get a fair trial if one of the Associate Justices is prosecuting the case?

In reverse order - I don't think you can get a fair trial if an AJ is prosecuting the case AND functioning as an AJ for that case - pick one role, not both.

Placing personal concerns over the People's concerns, that's a personal decision that each Justice must make for themselves. In the specific case, you were approached by the citizen, leading to this question. However, it is in the best interests of the People to have skilled and knowledgable citizens in each role.

As a thought exercise, I can think of a scenario where a Justice might feel obligated to function as Prosecutor or Defense to uphold the tenets of Justice. Imagine a case where a citizen cannot be found who is willing to assume either the Prosecutor or Defense role - the citizen involved has a right to such a rep, but what if that citizen feels unable to perform that task, and no other citizen steps forth to take their side? Wouldn't the concepts of Justice mandate that a member of the Court assume that role, so that the process of Justice could proceed?

-- Ravensfire

 

[ravensfire]

Originally posted by Cyc
I see ravensfire's point, but to extend Peri's question, would your summary allow the Citizens who elected that Justice to get a fair shake during the trial?

To be blunt, it's irrelevant.

Harsh language from me, true, but meant to be. When the people have elected a person to an office, they are explicitly giving that person their full and complete trust in performing the duties of that position. If you as a citizen cast a vote in support of a particular candidate, you are saying that you have full and complete faith that the person will uphold the duties and responsibilities of that position.

That means that if a citizen has a CC filed against them, with good evidence, they had better expect to see that CC accepted.

For the Judiciary, Justices have the responsibility to appoint a pro-tem official should one be needed. In this case, should Peri have continued to act as the Defense, a pro-tem would have been needed.

Finally, the acceptance of the election process by the citizens represents an implicit trust of all candidates elected to a position, regardless of the citizen's vote. We have a election process defined that allows us to organize a peaceful transfer of power from one group of citizens to another. By signing up as a Citizen, each person has voluntarily agreed to abide by, and accept, the laws set forth by the People.

In summary - irrelevant!

-- Ravensfire

 

[donsig]

Originally posted by ravensfire
As as been correctly pointed out, there are no restrictions on who may be either the Prosecutor or Defense. While this has produced some unintended consequences, I feel it should stay. We have a system for Pro-Tem justices, it can handle this situation.

Unintended consequences should be rectified by amending our laws and not through JRs. Since there are no restrictions on who can be Prosecutor or Defense then the next question is are there any restrictions on what the members of the judiciary may or may not do?

As for conflicts of interest, well, we had a disputed election for the judiciary and there seemed to be no problem letting those involved in the election make a ruling on the election in a JR. (I know I had a problem with that whole idea but it did not seem to bother anyone else.)

 

[Cyc]

Thank you for talking political rhetoric in ten different directions at once, ravensfire, but my question was not about whether the Citizens put their "full and complete trust " in the Justice's ability to perform. That pretty much goes without saying. The question was if the Justice, after accepting this trust abandons the responsibility of the chair to handle matters on a personal agenda, would the Citizens suffer because of the loss of the Justice.

 

[ravensfire]

Originally posted by Cyc
Thank you for talking political rhetoric in ten different directions at once, ravensfire, but my question was not about whether the Citizens put their "full and complete trust " in the Justice's ability to perform. That pretty much goes without saying. The question was if the Justice, after accepting this trust abandons the responsibility of the chair to handle matters on a personal agenda, would the Citizens suffer because of the loss of the Justice.

Sigh - back to the old tricks again, Cyc. I'll use small words, to help you follow.

It doesn't matter. Why - because there is no loss of Justice. A Justice has withdrawn from the case, a Pro-Tem Justice has been appointed.

That "full and complete trust" stuff that you tossed aside is part of that reasoning. The People have full and complete trust that a member of the Judiciary will act in the best interests of justice and perform their duties accordingly.

You cannot make a personal assumption about the motives of a Justice regarding their personal actions in the broad strokes you tried to frame your question as. Poor arguing tactic there.

Better, non-biased question: Would the People be harmed by a member of the Judiciary recusing themselves from a CC to function as either the Prosecutor or as the Defense?

Answer: No. Reasoning - see above.

-- Ravensfire

 

[donsig]

Unfortunately, this is not about what is good or bad for the people. It is about what the law says not about what the law should say. A JR ruling must conform to what the law says. The JR can highlight areas of the laws that need changing and even suggest a direction for the change. But the main focus of the JR must use the law as written to answer the question at hand - or strike the law down because it conflicts with a higher law.

 

[Peri]

Our ruleset is based on the famous 'Three Books': The Constitution, The Laws and a book of Standards which don't have the force of law but are custom.

We can argue all day as Donsig points out about what may or may not be the intention of the rules or whether the use of a particular word implies more than it should. The fact remains that there is no provision or prohibition anywhere in our ruleset regarding the choice of advocate in CCs.

I would argue that anything contained within the Standards is just custom and does not have force of law. If it did it would be a law or an article of the Constitution. The highest authority regarding this matter is Article F of the Constitution:

Article F
...These three Justices are tasked with upholding the Constitution and its Laws in a fair and impartial manner as prescribed by law. ...

The Justices must act impartially in handling a Citizen Complaint according to this Article and to Code A 4 b of The Laws (Cases will be… judged by the Judiciary…). If a Judge in a Citizen Complaint is also an advocate in the process then that judge has a vested interest in the outcome of the case. Therefore that judge is biased towards the outcome and cannot ensure an impartial approach. That is contrary to Article F and is consequently illegal.

Therefore I contest that this JR should uphold Article F and prohibit a member of the Judiciary from representing a citizen in a Citizen Complaint.

 

[Cyc]

And with that statement from the requestor of this Judicial Review, I will now call Arguements Over. Private Discussion will hopefully take place later today.

CJ Cyc