Several people have observed (including Claude and Ashcroft) that one critical reason why the Judiciary Act passed in its current form was because no other proposal was made at the time. I think that this justification is inadequate and unfortunate. I have reviewed the Act in comparison with the system that existed prior to it. Based on this review, I have concluded that, while the prior system needing tinkering, it did not need to be replaced. In fact, in almost every respect, the prior sstem was preferable (in principle if not in practice) to the current one.
The prior system created a well-thought-out and carefully measured balance of power and allowed for deep enfranchisement of all citizens in the process. The current system, in the name of "judicial independence," has created an anti-democratic institution that is insulated from democratic scrutiny and control, and has then placed that invidious institution in the center of our state and has given it a very real ability to destroy or damage our state. This is unwise and dangerous.
I have argued, in other posts, that every proposal for action is actually two proposals -- do what is proposed or do nothing (wu wei). The CDS sould have been wiser to have done nothing rather than pass the Judiciary Act. The more I review the Judiciary Act, the more dangerous, cumbersome, and illegitimate it seems to me.
In FL, one of my clients is a newly recognized (or rerecognized) Native American Tribe. As part of my work for the Tribe, I was asked to assist in drafting and reviewing the Tribal Court System. The Tribe has several thousand members, including several prominent clans or families with a history of mutual hostility. The court system woul dhave to handle cases ranging from tribal membership based on ancestry and "blood quantum," to tribal government disputes (including disputes between clans), to cases involving real property, trusts, and contracts, to criminal prosecution for some crimes (although criminal jurisdiction is concurrent with or partly displaced by out state, just as our jurisdiction is limited and informed by LL). The FL justice system my committee implemented was simpler in form and substance than the current CDS system -- and that system has worked well for the lasy several years.
Based on this, I propose the following act to reform and simplify the administration of justice in the CDS and to restore the balance of power and to preserve and protect democracy in this, the only democratic state in SL. I am inviting comments prior to formal submission to the RA.
Restoration of Justice Act
1. The Judiciary Act is repealed.
2. The portions of the Constitution that were repealed by the Judiciary Act are restored.
3. The Scientific Council is recognized as the source and seat of all judicial authority in the CDS.
4. Paragraph 1 of Section 6 of Article III of the Constitution, as restored, is amended as follows:
The Chairs of the SC will ratify bills passed by the Representative Assembly by simple majority vote and may resubmit the bill with modifications for revote. Hearings and trials not proceeding through a formal impeachment process shall be tried and judged by a single member of the SC, appointed as trial judge by the Dean. Any party to the trial may request an appeal folowing judgment, which shall be heard by a panel of three memebers of the SC, appointed as an appellate panel by the Dean, which panel shall not include the person who heard the trial. Appellate panels shall publish, in journal or memoranda form, a statement explaining its decision, and these statements shall bind future trial courts as binding precedent. In the event an appellate panel published a statement that appears to contradict a previous statement of another appellate panel, the SC, sitting as a whole, shall hold a formal hearing on the issue about which there is disagreement or apparent contradiction and shall clarify and harmonize the rules. However, this full S.C. consideration shall be limited to the formal poin of law only and shall not change or modify the decision in any case.
5. A new second paragraph shall be added to Section 6, Article III, as follows:
No specific Code of Procedure need be developed, published or followed. However, the SC, in its own discretion, may propose such mandatory trial procedures, which shall be considered and passed as acts of the RA. In every case, whether or not the SC has published and he RA has passed a formal procedure, the SC member appointed to serve as trial judge shall, within one week of appointment, hold a procedural and scheduling hearing. At that hearing, the judge, parties, and counsel (if any) shall work out the procedures and schedule for the case. This procedural and scheduling order shall state, at a minimum:
A. Whether pretrial discover is allowed and how, when and under what terms it is allowed;
B. Whether witnesses will testify in person or by written statement, and when such testimony will be taken or when such statements will be submitted;
C. How cross-examination will occur;
D. Whether arguments of law or policy will be presented in person or by written statement and when such argument will be heard or submitted.
Further, the scheduling order can provide for any other matter required for the fair and expeditious administration of justice in the case. The judge shall endeavor to obtain the consent and agreement of the parties to an order. If the parties fail to agree to a procedural order or if a procedural hearing cannot be heard within one week of judge appointment, the judge shall draft and distribute to the parties a procedural and scheduling order. The parties shall have one week following receipt of such order to object to the order, suggest revision of the order, or accept the order. If a party objects to the order, that party may request an immediate appeal limited to the content and requirements of the procedural and scheduling order only. A party who fails to object to, suggest revision to, or formally accept a procedural and scheduling order is subject to defaut (automatic loss) of its position in the case. If a party fails to comply with a procedural and scheduling order to which the party has not objected, or which was imposed by an appellate panel hearing review on the objection, that party shall be subject to default.
6. Section 10 shall be addedd to Article III as follows:
The SC shall consist of no fewer than four members. If the SC includes fewer than four members, additional members shall be actively recruited and presented for confirmation as required by this Constitution. In the interim, the members of the RA shall serve on the SC in order of RA seniority. However, any appellate decision issued by a panel that includes an interim member of the SC shall have no precedental value.
End proposal.
I see at least nine unique and discrete benefits from this proposal over the current Judiciary Act.
1. It restores the proper balance of power between branches of government.
2. It provides protection and respect for democratic institutions and processes and prevents Krytocracy.
3. It is simple and straightforward.
4. It does not unnecessarily professionalize the administration of justice in the CDS.
5. It does not impose strict procedures or judicial authority, but works by consent rather than coercion. This should have enforcement benefits. Further, this will allow for procedural flexibility so that the procedures and schedule can be tailored to the needs of a specific case and the specific parties in the case. In addition to enforcement benefits, this flexibility will allow for greater procedural experimentation in case management so that we can feel out and discover what procedures work best in the SL setting.
6. It avoids the technical and tedious debate we have had about hightly technical issues.
7. It encourages participation of citizens in the traditional branches of the CDS government by requiring that judges serve more generally through the SC.
8. It gives the SC the benefit of trained professionals with experience in FL administration of justice by channelling such people into the SC.
9. It could be immediately implemented and would move on a fast schedule to resolve the backlog of current legal disputes in the CDS.
Beathan