Public consultation: Code of Judicial Ethics

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

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Diderot Mirabeau
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Post by Diderot Mirabeau »

As much as I would like to I cannot comment on this dispute as I may end up presiding over a settlement as so succinctly pointed out by Aliasi. I would however like to take the opportunity to point out that Claude's bon mot of there being "room for middle ground" is very well placed not only in this debate but in general for our society. And I mean this in a very literal sense also: Try looking up Neufreistadt and Colonia Nova on the map in Second Life. What does the huge gap between the sims signify? A divided community? I beg to differ. I think it is exactly - room for middle ground!

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":2n65iqk8]I am suggesting to the RA that because of these issues, there be further legislation to draw some clearer lines

As I have noted in the forums, I am concerned that about having a one-person Board to draft all of the rules (procedure, judicial ethics, and judicial selection) without any legislative review or help from other judges, and a judiciary to have its own treasury. I believe there is a separate Judiciary Commission Chair in part to act as a check on the potential unbridled exercise of power by the judiciary. These implementation problems cause me to think that we need a "Justice System Technical Corrections Act" to do the following:

1) Allow SC to qualify and RA to appoint the minimum number of judges determined by the Judiciary Chair (yours truly), which I believe to be at least three.

2) Require that a minimum number of Judges (3?) be appointed to constitute the Board of the Judiciary.

3) Require that a minimum number of Judges (3?) be appointed to hold a proper election of a Chief Judge.

4) Require that a minimum number of Judges (3?) be appointed before the adoption of any rules of procedure or judicial ethics.

5) Require that any rules (procedures, ethics, judicial qualifications, etc.) may be rejected or amended by the RA prior to adoption.

6) Require all funds collected by judiciary to go into CDS treasury.

7) Establish a schedule of court costs.[/quote:2n65iqk8]

I am very disturbed that, less than a week after the Judiciary Act has finally been passed, you are already suggesting sweeping changes to the fine balance that has been carefully decided and debated over many months. We have already passed the Judiciary Act as it stands, and it is high time for our legislature to move onto other matters, and permit the judiciary some stability. The way that the judiciary is working is exactly how it is intended to work; that you do not like it that way is not the point; you are in office to serve the judiciary as it currently stands, not propose that it be radically overhauled before it has even got working.

If you read the constitution, you will discover that it is [i:2n65iqk8]not[/i:2n65iqk8] the board of the Judiciary Commission that ever had the power to make general directions about procedure, but the Chief Judge. Furthermore, the Representative Assembly appointed one judge in full knowledge that that one judge would be able to exercise all the powers of the Board of the Judiciary Commission until further judges were appointed.

What you are proposing is not a minor technical amendment, but a sweeping departure from the current scheme as it was carefully designed, and closely and intensely debated and negotiated over many months. This is quite inappropriate: your role is one of managing and operating the judiciary, not lobbying the legislature to make sweeping changes to it less than a week after the appointment of the first judge.

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Claude Desmoulins":1mom4m6v]I think there's room for middle ground here. What I believe is important is that the courts funds not be dependent on the results of its decisions (as would be the case if court operating funds came from fines). Some sort of fixed court costs combined with broad guidelines on judicial spending ought to meet everyone's needs.[/quote:1mom4m6v]

I certainly agree with fixed court costs, and that fines should go to the CDS treasury, not the Judiciary Commission. I am not sure exactly what you had in mind by broad guidelines on judicial spending, but, overall, what you propose seems to be a fair balance.

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Chicago Kipling
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Post by Chicago Kipling »

This definitely addresses one of the concerns raised in this thread at least so far as a group of citizens probably can. My thanks to those who presented practical solutions. I find myself lacking in many areas.

With respect Ashcroft, when it comes to other matters, few of us have the time needed to match your legal experience. We will continue to speak to issues that arise. It is my role as an involved citizen to do so if for no other reason.

It seems the contention of a number of us that the RA made an error in appointing only one judge. You're welcome to disagree with that and campaign against that. Saying it must be so because it was recently passed as a law holds little weight in my mind. I have yet to meet perfect leaders, however much I value our current legislators and officials. I certainly would not make claim to that for myself. If we successfully call for reconsideration of this act it will be equally legal.

I do want to be clear in all of this. I continue to think you'll be a good and honest judge. I simply am encouraging a different course on one matter.

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Post by Ashcroft Burnham »

[quote="Chicago Kipling":wmw1jsyx]It seems the contention of a number of us that the RA made an error in appointing only one judge. You're welcome to disagree with that and campaign against that. Saying it must be so because it was recently passed as a law holds little weight in my mind. I have yet to meet perfect leaders, however much I value our current legislators and officials. I certainly would not make claim to that for myself. If we successfully call for reconsideration of this act it will be equally legal.[/quote:wmw1jsyx]

My point was that the Scientific Council in qualifying, and the Representative Assembly in appointing, a single judge was not an oversight, but what was quite evidently a deliberate decision, made in full knowledge of the consequences, and no doubt taken with those in mind. You might say that you disagree with it, but what you are disagreeing with is not a mindless blunder, but a carefully thought-out scheme that has been unfolding slowly for some time. It was at the very least hugely ignorant of Publius to have claimed that the position arose as a mere oversight, and is a blunder that should be fixed.

It never was the plan to start with more than one judge, nor was there ever a design to have the Board of the Judiciary Commission incapable of being constituted by the one judge that the SC knowingly qualified and the RA knowingly appointed. The position in which we find ourselves is not one of a plan having gone wrong, but of a plan being executed just as it had been designed to be, and then people complaining as it is being executed, but not before, that the plan was wrong all along. My point is that this is not an appropriate time to change so drastically what has only just been implimented: the constitutional structure upon which such a vast amount of time was spent desgning, debating and, eventually, agreeing should be left well alone now for many months, and we should all wait and see whether the system that emerges works or not. It will be up to the Public Judiciary Scrutiny Panel to monitor the judiciary over time and produce reports on whether, as presently constituted, it is working well.

[quote:wmw1jsyx]I do want to be clear in all of this. I continue to think you'll be a good and honest judge. I simply am encouraging a different course on one matter.[/quote:wmw1jsyx]

Thank you for your support in general; I hope that I have articulated clearly above why I do not believe that it is at all appropriate to change the constitutional structure of our judiciary at this juncture.

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Fernando Book
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Post by Fernando Book »

[quote="Ashcfrof Burnham":3lexaavj]It never was the plan to start with more than one judge, nor was there ever a design to have the Board of the Judiciary Commission incapable of being constituted by the one judge that the SC knowingly qualified and the RA knowingly appointed. [/quote:3lexaavj]

Ashcroft, I've reviewed the RA Transcripts and I can't find where the RA discussed and decided to start with one, or with several judges. Can you show us the RA Transcript or the forum thread that made clear there was a plan in one sense or another?

About a Board formed by one person, it goes against the common sense (and against the definition of board in my Webster's dictionary). An army of one can be a nice slogan, but a board of one (to supervise oneself) is a very strange thing.

And third, despite the Judiciary Act states that the Chief of the Common Jurisdiction has the power
[quote:3lexaavj](b) to issue general directions concerning procedure in Courts of Common Jurisdiction; [/quote:3lexaavj]
I think the Code of Procedures, as the point in which citizens get in contact with the judiciary, should be a legislation approved by the RA, as it occurs in every democratic country I've checked.
Paraphrasing a well known joke on the military, justice is a very serious thing to be confided to the judges.

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Post by Publius Crabgrass »

Someone who thinks "pompous rheteric" is an inappropriate [i:20bn60jr]ad hominem [/i:20bn60jr]attack should be more careful about using phrases such as "at the very least hugely ignorant of Publius". Whatever happened to judicial restraint?

I remain your humble and hugely ignorant servant,

Publius

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Fernando Book":i9b1lzo0]Ashcroft, I've reviewed the RA Transcripts and I can't find where the RA discussed and decided to start with one, or with several judges. Can you show us the RA Transcript or the forum thread that made clear there was a plan in one sense or another?[/quote:i9b1lzo0]

Um, the Dean of the Scientifc Council said that the Scientific Council had prequalified one judge. The Representative Assembly then went onto appoint one judge. There was no suggestion of appointing any more at that stage. How much clearer could it be?

[quote:i9b1lzo0]About a Board formed by one person, it goes against the common sense (and against the definition of board in my Webster's dictionary). An army of one can be a nice slogan, but a board of one (to supervise oneself) is a very strange thing.[/quote:i9b1lzo0]

The Board of the Judiciary Commission is not there to [i:i9b1lzo0]supervise[/i:i9b1lzo0] the Judiciary Commission, but to exercise particular powers of the Judiciary Commission. The PJSP is there to supervise the judiciary. "Board" is used in the Constitution as a term of art meaning "seven or fewer Judges of Common Jurisdiction". There is no oddity in "seven or fewer" including one.

[quote:i9b1lzo0]And third, despite the Judiciary Act states that the Chief of the Common Jurisdiction has the power
[quote:i9b1lzo0](b) to issue general directions concerning procedure in Courts of Common Jurisdiction; [/quote:i9b1lzo0]
I think the Code of Procedures, as the point in which citizens get in contact with the judiciary, should be a legislation approved by the RA, as it occurs in every democratic country I've checked.[/quote:i9b1lzo0]

Actually, in most countries, the judiciary can make procedural rules, but the legislature can over-ride them. That is the position here.

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Post by Chicago Kipling »

I think I may see where the misunderstanding is and why your response repeated arguments I said in the quote post held little weight for me. My part in this matter was not necessarily to suggest a constitutional change.

As you know, I have been considered for the citizens review panel and so I feel some duty to point out when even the most carefully thought out laws or judicial decisions lead us to a place that still presents some concerns.

I humbly recommend that you at least choose not to exercise your liberties and seek the appointment of other judges to help you draft the ethics rules. You do not have to do this, but I would suggest that it would make a good first impression on those who are looking to see how to measure you as a judge. (We won't kid ourselves by saying you can't pursue this with a likelihood of success. You've accomplished a great many things due to your power of oratory and your massive set of legal knowledge.)

I'm finished with this thread. I have dispensed with what I perceive as my role. I'm not officially a part of any judicial review yet or a legislator and don't aspire to be the later in the least. You are welcome to the last word.

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Post by Ashcroft Burnham »

[quote="Chicago Kipling":ajljksn1]As you know, I have been considered for the citizens review panel and so I feel some duty to point out when even the most carefully thought out laws or judicial decisions lead us to a place that still presents some concerns.[/quote:ajljksn1]

And I very much hope that you stand for election to the PJSP - it is [i:ajljksn1]very[/i:ajljksn1] important to get this up and running as soon as possible.

[quote:ajljksn1]I humbly recommend that you at least choose not to exercise your liberties and seek the appointment of other judges to help you draft the ethics rules. You do not have to do this, but I would suggest that it would make a good first impression on those who are looking to see how to measure you as a judge. (We won't kid ourselves by saying you can't pursue this with a likelihood of success. You've accomplished a great many things due to your power of oratory and your massive set of legal knowledge.)[/quote:ajljksn1]

Ahh, I am afraid that it does not work like this. As things stand now, whatever I do, the Scientific Council has no power to qualify judges. If any more judges are appointed, they [i:ajljksn1]must[/i:ajljksn1], according to the Constitution, be qualified by the Board of the Judiciary Commission in accordance with qualification requirements drafted by that Board. As the only Judge of Common Jurisdiction, I am the only member of that board. The Constitution therefore requires that, before any other judges are appointed, I have to draft and publish qualification requirements, and then qualify applicants (or not, depending on whether they meet those requirements) according to those requirements. Only then may they be appointed by (hopefully) the PJSP, or the RA if there is no functioning PJSP.

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Post by Publius Crabgrass »

[quote="Ashcroft Burnham":1mc9oq8n]Ahh, I am afraid that it does not work like this. As things stand now, whatever I do, the Scientific Council has no power to qualify judges. If any more judges are appointed, they [i:1mc9oq8n]must[/i:1mc9oq8n], according to the Constitution, be qualified by the Board of the Judiciary Commission in accordance with qualification requirements drafted by that Board. As the only Judge of Common Jurisdiction, I am the only member of that board. The Constitution therefore requires that, before any other judges are appointed, I have to draft and publish qualification requirements, and then qualify applicants (or not, depending on whether they meet those requirements) according to those requirements..[/quote:1mc9oq8n]

Thank you for making the point that this is why the RA should immediately repair this problem, by restoring (giving back to) the SC the judicial qualification power they had prior to your self-appointment as Chief-Judge-for-Life.

I remain,
Your humble and hugely ignorant servant,

/s/ Publiush

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":jygx3tgq]Thank you for making the point that this is why the RA should immediately repair this problem, by restoring (giving back to) the SC the judicial qualification power they had prior to your self-appointment as Chief-Judge-for-Life.[/quote:jygx3tgq]

The power of the Scientific Council was only ever intended as a temporary, if-all-else-fails measure: the principle is that it is always better that judges are qualified by existing judges, but where that is [i:jygx3tgq]impossible[/i:jygx3tgq], because there are no existing judges, then [i:jygx3tgq]somebody[/i:jygx3tgq] has to do it, and the Scientific Council is the most neutral institution available. Now that it is not impossible for judges to be qualified by existing judges, there is no reason not to do it that way, and so the Scientific Council's temporary, emergancy power falls away, only to be revived again if we are ever left with no judges, which I hope will never be the case. That is exactly how the system should and was intended to work.

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