Public consultation: Code of Judicial Ethics

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Public consultation: Code of Judicial Ethics

Post by Ashcroft Burnham »

As discussed [url=http://forums.neufreistadt.info/viewtop ... 7:2adxotke]here[/url:2adxotke], as the only member of the Board of the Judiciary Commission, it falls upon me to draft a Code of Judicial Ethics, which all judges must obey, and failure to obey which could result in a judge being impeached.

I am currently prioritising drafting a Code of Procedure (under my power as Chief Judge to issue general directions about procedure in Courts of Common Jurisdiction), which takes priority over the Code of Judicial Ethics since, as I understand it, two cases are waiting to be heard, and people need to know how to commence them.

In the meantime, I invite views as to what a Code of Judicial Ethics should contain. Generally, it is about maintaining the independence and impartiality of the judiciary, so its most obvious provisions will include forbidding judges to sit on cases that involve a conflict of interest and related topics. I should be interested in any views on what, if anything, else should be included, and ideas as to how to frame the requirements so that, when I come to write the code, I am able to draw from other people's ideas as well as mine, which should hopefully make my task easier, and, hopefully, the code better.

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Post by Chicago Kipling »

Would it be prudent to wait till we have others on that board before we write such sweeping documents?

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Post by Publius Crabgrass »

Hear, hear, Chicago. See my posts on the Judicial Announcements: Judges needed! http://forums.neufreistadt.info/viewtopic.php?t=496
and in reply to “Management Committe [sic] of the Judiciary Commission” at http://forums.neufreistadt.info/viewtopic.php?t=499

Let's not get too far ahead of ourselves.

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Post by Chicago Kipling »

Your comments in said thread raise even more concerns. It would be wise for concerned citizens to read such things fully.

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Post by Aliasi Stonebender »

Yes. I would, since the treasury is currently an Executive thing, like to note that unless and until the RA passes appropriate legislation, and/or the Chancellor decides it, that any funds raised by the judiciary would very much go into the general fund.

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Post by Ashcroft Burnham »

[quote="Chicago Kipling":3b6zdjsv]Would it be prudent to wait till we have others on that board before we write such sweeping documents?[/quote:3b6zdjsv]

Well, first of all, nobody else [i:3b6zdjsv]can[/i:3b6zdjsv] become a judge until the Board has already published qualification requirements, since, unless there are no Judges of Common Jurisdiction at all, the Board of the Judiciary Commission (consisting of all Judges of Common Jurisdiction if there are fewer than 7, or 7 elected from all if there are more than 7) must qualify candidates for judicial office, and must do so according to published qualification requirements. Secondly, since an important part of those qualification requirements will be, as stated above, knowledge and understanding of the Code of Judicial Ethics, that, too, will have to be written before any further judges are appointed. Finally, the Code of Procedure is a matter for the Chief Judge and not the Board in any event: see Article VII, S. 3(b) of the Constitution.

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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":2tdb3ote]Yes. I would, since the treasury is currently an Executive thing, like to note that unless and until the RA passes appropriate legislation, and/or the Chancellor decides it, that any funds raised by the judiciary would very much go into the general fund.[/quote:2tdb3ote]

Any fines would certainly go to the general fund, but the Judiciary Commission has to have its own fund to pay out expenses (judges' and others' salaries, for instance), which the court costs are supposed (at least partly) to cover. Judicial independence, guarunteed by art. 10 UNHDR, requires that the executive not have full control over the judiciary's purse strings.

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":3b98b127]Hear, hear, Chicago. See my posts on the Judicial Announcements: Judges needed! http://forums.neufreistadt.info/viewtopic.php?t=496
and in reply to “Management Committe [sic] of the Judiciary Commission” at http://forums.neufreistadt.info/viewtopic.php?t=499

Let's not get too far ahead of ourselves.[/quote:3b98b127]

I reply to those posts here because this is the appropriate place to discuss them. First of all, in "Judges needed!", you said:

[quote:3b98b127]The Constitution says I as Judiciary Commission chair should "determine the total number of Judges of Common Jurisdiction who shall hold office at any given time". That number shall be three until further notice.

Until such time as there are qualifications written by the one and only Judge, cannot the RA appoint those whom the SC has qualified?[/quote:3b98b127]

No. The Scientific Council only has the power to qualify judicial candidates when there are no Judges of Common Jurisdiction at all. Article III, section 7, subsection 4 of the constitution provides:

[quote:3b98b127][i:3b98b127]At any time when no Judges of Common Jurisdiction hold office in the Confederation of Democratic Simulators[/i:3b98b127], the Scientific Council may determine and publish who shall be qualified to be a Judge of Common Jurisdiction, and that determination shall be deemed to be a determination in accordance with Article VII, Section 4, paragraphs (d) and (e).[/quote:3b98b127]

(Emphasis mine). Since there now is a Judge of Common Jurisdiction, the Board of the Judiciary Commission is now the only body who may qualify candidates for judicial office.

[quote:3b98b127]I think our desire to have a functioning judiciary in place may have made us get a little ahead of ourselves. The constitutional scheme for the judiciary contemplates that we pick a Chair of the Judiciary Commission, then that person decides how many judges we need, then the judges are selected, then the judges meet to elect (plainly "elect" means a vote by more than just one person) a Chief Judge (a lifetime job!) and adopt whatever procedural codes are needed. Instead we now have only one judge selected (before it was decided how many we need) who intends to write the criteria for the selection of the remaining judges, and intends to NOT do so until AFTER the procedural rules are written (by himself), which could be a VERY long time.[/quote:3b98b127]

Firstly, I most certainly do not intend to take a very long time in writing the rules: I am trying to make as much progress as I can as soon as I can to have a functioning judiciary sooner rather than later. It is very important that the functions and powers of the officials created by the Judiciary Act are respected, and I have no intention of delaying any longer than necessary the procedure for recruiting the two other judges to bring the number of serving judges in line with what you determine that it should be. However, because the constitution (and good practice) imposes formal requirements on how that selection should take place, it cannot be done instantly, and may take a few weeks. Having worked on the judiciary since early August, I am well aware of how frustrating the delays can bem and I am doing all that I can to minimise those for all concerned. The priority at this stage, however, must be minimising delays for litigants, which is why the Code of Procedure comes first.

Secondly, the constitutional scheme is not quite as you outline it above. Firstly, Article VII of the constitution provides, [i:3b98b127]inter alia[/i:3b98b127],

[quote:3b98b127]2. The chair of the Judiciary Commission shall have the power: –

...

(b) to determine the total number of Judges of Common Jurisdiction who shall hold office at any given time [b:3b98b127](which number shall be deemed to be one if no number is determined, or a number less than one is purportedly determined)[/b:3b98b127], who shall each hold office until resignation or successful impeachment, whichever is sooner...[/quote:3b98b127]

(Emphasis mine)

[i:3b98b127](Note: the version on the Wiki omits the passage in question because the incorrect version has been used (the 9th of October revision instead of the 12th of October revision). It also omits the definition of "judicial independence" in the section about impeachment of members of the PJSP (some members of the RA thuoght that the concept could be too broadly interpreted if there was no strict definition, so, after some discussion, one was agreed: see the transcript [url=http://www.aliasi.us/nburgwiki/tiki-ind ... 6:3b98b127]here[/url:3b98b127] for details)).[/i:3b98b127]

Thus, unless and until the Chair of the Judiciary Commission announces the number of judges that there shall be, that number shall be one. As it happened, the Scientific Council qualified, and the Representative Assembly appointed, one judge before you determined that there should be three. Effectively, you increased the quota of judges from one to three, rather than set it where none had been before.

The Board of the Judiciary Commission has the power to determine which judge shall be Chief Judge:

[quote="Article VII":3b98b127]4. There shall be a Board of the Judiciary Commission, which shall consist of seven or fewer Judges of Common Jurisdiction (to be appointed by election amongst all Judges of Common Jurisdiction in accordance with any procedure determined in accordance with Section 2 (a) above if there are more than seven Judges of Common Jurisdiction), and which shall have the power: –

(a) to draft and publish a Code of Judicial Ethics, by which all Judges of Common Jurisdiction must abide;

(b) to determine the procedures by which the Code of Judicial Ethics may be enforced;

(c) (i) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so, and (ii) to appoint a member of the Board of the Judiciary Commission to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(d) (i) to commence impeachment proceedings against any member of the Public Judiciary Scrutiny Panel before the Court of Scientific Council, on the grounds on the grounds of gross incompetence, gross dereliction of duty, corruption, or conduct (arising at any time after the member publicly stated an intention to stand for election to the Public Judiciary Scrutiny Panel) tending to undermine the independence or impartiality of the judiciary of the Confederation of Democratic Simulators, and (ii) to appoint a member of the Board of the Judiciary Commission to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(e) to determine and publish a set of requirements of professional judicial ability that any person must meet before he or she may be appointed as a Judge of Common Jurisdiction;

(f) to determine and administer (or delegate the administration of) procedures whereby whether any applicant for judicial office meets the requirements determined in accordance with paragraph (b) above meets those requirements is determined, and publish the results of such determinations;

(g) to determine which Judge of Common Jurisdiction shall be the Chief Judge of Common Jurisdiction (who, once appointed as Chief Judge, shall remain as Chief Judge until resignation, successful impeachment or a formal declaration that he or she no longer wishes to be the Chief Judge); and

(h) to determine and publish internal procedures for discharging any of its powers.[/quote:3b98b127]

You had written above,

[quote:3b98b127]...then the judges meet to elect (plainly "elect" means a vote by more than just one person) a Chief Judge...[/quote:3b98b127]

Note, however, that the word "elect" is not used for the mechanism of appointing a Chief Judge:

[quote:3b98b127](g) to determine which Judge of Common Jurisdiction shall be the Chief Judge of Common Jurisdiction (who, once appointed as Chief Judge, shall remain as Chief Judge until resignation, successful impeachment or a formal declaration that he or she no longer wishes to be the Chief Judge)[/quote:3b98b127]

and note also:

[quote:3b98b127](h) to determine and publish internal procedures for discharging any of its powers.[/quote:3b98b127]

Furthermore, the Constitution does not have any concept of an "acting Chief Judge": a person is either Chief Judge, or he or she is not. Only the Chief Judge may discharge the powers of the Chief Judge (Article VII, section 3), and those powers are ones that [i:3b98b127]somebody[/i:3b98b127] must exercise for there to be a functioning judiciary at all (determining which judge shall hear which case (Article VII, section 3(a)) and issuing general directions as to procedure (Article VII, section 3(b))).

I had therefore determined that I shall be the Chief Judge of Common Jurisdiction before you announced that you were increasing the default quota of one to three, and am currently working on discharging my power under Article VII, section 3(b) to draft a Code of Procedure so that people are able to use our judiciary.

This point also addresses the point that you raised in your post about our management committee meeting, so I need not repost that here. I do hope that this makes everything clear; careful attention to the constitution is always rewarded, even if the hard-debated compromises on judicial appointment make it a little complex at times :-)

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Post by Fernando Book »

[quote="Ashcroft Burnham":s9l0bm1a] Judicial independence, guarunteed by art. 10 UNHDR, requires that the executive not have full control over the judiciary's purse strings.[/quote:s9l0bm1a]
Budget is, in all modern democracies, approved by the parliament, and, in general, there is only one cashbox receiving all the State incomes.
Our Judiciary should present the draft of its own budget, and the RA should approve it as is, or increase or decrease it, as it occurs in the [url=http://www.uscourts.gov/judiciary2006.html:s9l0bm1a]US Federal Budget[/url:s9l0bm1a].

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Post by Chicago Kipling »

However technically correct, having any board made up of just one individual creating almost any document is distasteful, with due respect for your hard work, a dangerous precedent. That is especially so in the case of the judiciary.

Patience, perhaps even more so than the reading of the constitution, yields many lasting benefits. If we have discovered a gaping whole in our documents, it may be time for the RA to address that error.

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Post by Ashcroft Burnham »

[quote="Chicago Kipling":2889hcar]However technically correct, having any board made up of just one individual creating almost any document is distasteful, with due respect for your hard work, a dangerous precedent. That is especially so in the case of the judiciary.

Patience, perhaps even more so than the reading of the constitution, yields many lasting benefits. If we have discovered a gaping whole in our documents, it may be time for the RA to address that error.[/quote:2889hcar]

There is no "gaping hole". The judiciary is working as intended, and as the RA approved on three separate occasions. It was always an important aspect of the scheme of the Judiciary Act that, unless there are no judges at all, it should be the judges, and nobody else, who determines who is qualified to be a judge.

Nobody envisaged that Publius would increase the quota of judges to 3 so soon. He is entirely entitled to do so, of course, but the result of that is that the Scientific Council and Representative Assembly proceeded on the basis that there would be one judge to start with, and appointed one judge, and the Chair of the JC has decided (as he properly has the power to do) that the number shall be three, only after the one judge was appointed.

If the Scientific Council and Representative Assembly had wanted to start with more than one judge at the very beginning, they could have qualified and appointed respectively multiple judges at once. They chose not to do so, no doubt not imagining that the Chair of the JC would want extra judges so soon. The situation has arisen because of the timing of the Chair of the JC's announcement, combined with the way in which the appointment process of the first judge was undertaken, and not because of any "hole" in the constitution.

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Post by Publius Crabgrass »

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.

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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":3o7u92s6]
Any fines would certainly go to the general fund, but the Judiciary Commission has to have its own fund to pay out expenses (judges' and others' salaries, for instance), which the court costs are supposed (at least partly) to cover. Judicial independence, guarunteed by art. 10 UNHDR, requires that the executive not have full control over the judiciary's purse strings.[/quote:3o7u92s6]

Take it to the Scientific Council if you disagree.

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Post by Beathan »

It is fairly standard for Court rules to be the prerogative of the judges (usually the chief judges or supreme court) of the jurisdiction. Here, this coulds mean Ashcroft as the only official judge, or it could mean the SC). Because Ashcroft has taken the laboring oar, let's see what he comes up with.

I, however, will give his proposal a fly-spect and critical review when I have time. Personally, I have a mediation tomorrow; an appeal brief due Friday; and volunteer work (judging a speech and debate tournament) this weekend. Given that, I would request that we proceed with due deliberation (and a relatively slow pace).

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Post by Claude Desmoulins »

[quote="Aliasi Stonebender":32c758kp][quote="Ashcroft Burnham":32c758kp]
Any fines would certainly go to the general fund, but the Judiciary Commission has to have its own fund to pay out expenses (judges' and others' salaries, for instance), which the court costs are supposed (at least partly) to cover. Judicial independence, guarunteed by art. 10 UNHDR, requires that the executive not have full control over the judiciary's purse strings.[/quote:32c758kp]

Take it to the Scientific Council if you disagree.[/quote:32c758kp]

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.

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