Proposed temporal residency requirements for judges

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michelmanen
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Temporal requirements for public positions

Post by michelmanen »

I disagree. We are dealing here with contracts of employment. CDS makes the following offer once the application form is published: anyone who completes this application and is deemed qualified will have a chance to be selected as judge by the PJSP. The offer must include all essental terms of the contract, including any possible disqualification grounds. Few - if any- individuals would go to the trouble of completing an application if he/she knew that at any time after that, he/she could be disqualified by a new contractual term not included in the original offer.

Completing the application by the applicant constitutes acceptance of the offer. In return for completing the application, the applicant is assured that he/she, if deemed qualified, will be considered by the PJSP fo a judgeship position, based on current, not future rules and requirements. No legislation can be applied retroactively in this case without violating the terms of this contract -not to mention basic principles of justice, fairness, the rule of law and equal respect and consideration owed to all citizens by CDS and its organs.

In any case, this is probably a moot question for now. Unless you and other continue with your blocking and stalling tactics, at least two individuals are most likely to apply for judgeship positions by the December 8th deadline; and their selection process will probably have concluded by the time the legislature agrees what do do (or not to do) in this matter.

Be that as it may, imposing such a selection criterion without having it democratically legitimated by a proper RA vote after reasoned and reasonable debate - and retroactively at that! - vould constitute a violation of the exisiting citizenship rights of the applicants and, as such, unconstitutional.

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Re: Temporal requirements for public positions

Post by Publius Crabgrass »

[quote="michelmanen":kp3q6l8q]I disagree. We are dealing here with contracts of employment. CDS makes the following offer once the application form is published: anyone who completes this application and is deemed qualified will have a chance to be selected as judge by the PJSP. [/quote:kp3q6l8q]

The way things stand right now, in the absence of a functioning PJSP it is the RA that will select from among those who Ashcroft deems "qualified".

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Judgeship applicants' selection

Post by michelmanen »

You are absolutely correct. I entirely agree with your statement of fact.

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Post by Beathan »

How is this any different than interviewing job applicants and failing to hire them based on their answers to questions in the interview. Surely an employer does not have to publish, in advance, a script of questions which will be asked at the interview and then read from the script regardless of how the interview proceeds. That would be silly.

As I see it, the issue is fairness. A standard is arbitrary if similarly situated people are treated differently. A standard is not arbitrary (although it may not be sound) if similarly situated people are treated the same, even if differently situated people (people with relevant differences) are treated differently.

Here we have two possible relevant differences among potential applicants for the judge positions:

1. time as a CDS citizen;
2. time of submission of the application.

Are either or both of these "relevant differences" that should inform our decision on who to hire as a judge.

It has been argued (and in my own decision not to apply for judge I accepted this point, among others) that we want our judges to be familiar with CDS culture, which is distinct and valuable in its own right. Enculturation is a process that occurs from experiencing a culture. Therefore, if we want our judges to be enculturated, we need them to have been here long enough to have become enculturated. Surely this requires that they be here at least long enough to have earned a right to vote under the Constitution. Therefore, unless we reject the notion that enculturation is important, time as a CDS citizen is a relevant difference.

Time of application is different. Say two equally qualified people become citizens on the same day. Say they submitted identical applications. Is it fair to hire the person who submitted the application first just because they won the application race? What if the second person was actually more qualified, but was disqualified by a standard that was not applied to the earlier applicant. Is this fair? I think not. Time of application is not a relevant difference.

With regard to your argument that completing the application is an "acceptance" of an "offer" -- you are just wrong as a matter of contract law. That would imply that anyone who completes the application would have to be hired as a judge for that reason. The application process invites people to make an offer the CDS to hire them as a judge. It is the CDS's acceptance of this offer that makes a contract. No such offers have been accepted based on any application -- although, for better or worse, the CDS has already accepted Ashcroft's offer and given him the office. Ashcroft, and Ashcroft only, has the right to serve as a judge -- and even that right is subject to the democratic judgment on the judicial system as an institution.

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Time of application

Post by michelmanen »

Beathan,

Please check [u:3ukuupap]Ardito[/u:3ukuupap] v. [u:3ukuupap]City of Providence[/u:3ukuupap], United States District Court, District of Rhode Island, 2003, 263 F.Supp.2d 358.

In 2001, the City of Providence, Rhode Island, decided to begin hiring police officers to fill vacancies in its police department. Because only individuals who had graduated from the Providence Police Academy were eligible, the city also decide to conduct two training sessions, the "60th and 61st Police Academies". To be admitted, an applicant had to pass a series of tests and be deemeed qualified by members of the department after an interview. The applicants judged most qualified were sent a letter informing them that they had been selected to attend the academy if they successfully completed a medical checkup and a psychological examination. The letter to the applicants to the 61st Academy, dated October 15, stated that it was "a conditional offer of employment". Meanwhile, a new Chief of Police, Dean Esserman, decided to revise the selection process, which caused some of those who had received the letter to be rejected. Derek Ardito and thirteen other newly rejected applicants -who had all completed the examinations- filed a suit in a federal district court against the city, seeking a halt to the 61st Academy unless hey were allowed to attend. They alleged in part that the city as in breach of contract.

Ernest C. Torres, Chief District Judge, stated as follows:

"The city argues that there is no contract b etween the parties because the plaintiffs have no legally enforceable right to employment. The city correctly points out that, even if the plaintiffs graduate from the Academy and there are existing vacancies in the department, they would be required to serve a one-year probationary period during which they could be terminated without cause... "

E.C. Torres, CDJ, held that:

"That argument misses the point. The contract that the plaintiffs seek to enforce is not contract that they will be appointed as permanent Providence police officers; rather, it is a contract that they would be admitted to the Academy if they passed the medical and psychological examinations".

The court issued an injunction to prohibit the city from conducting the 61st Police Academy unless the plaintiffs were included. The October 15 letter was a unilateral offer that the plaintiffs had accepted by passing the required medical and psychological examinations.

In our case, the Judicial Application Questionnaire is preceded by a header stating as follows:

"Questionnaire to be completed by applicants for qualification as a Judge of Common Jurisdiction in the Confederation of Democratic Simulators." In the section entitled "Guidance on completing this questionnaire" the application further states that:

"The deadline for applications is the 29th of November 2006".

As we know, the deadline was duly extended to the 8th of December 2006.

Just as for the applicants who, in [u:3ukuupap]Ardito[/u:3ukuupap] v. [u:3ukuupap]City of Providence[/u:3ukuupap] ("[u:3ukuupap]Ardito[/u:3ukuupap]), were sent the October 15th letter, were in effect made an unilateral offer they accepted by passing the required medical and psychological examinations, so in our case the application questionnaire is a unilateral offer that, as long as submitted within the appropriate time-frame, would have to be considered for their suitabilty to become Judges of Common Jurisdiction and, if so deemed suitable, have a chance to be selected as Judges of Common Jurisdiction by the PJSP or, in its absence, the RA.

Just as the new Chief of Police breached the terms of this contract by revising the selection process after the applicants received the October 15 letter and so disqualified 14 applicants previously qualified to attend the 61st Police Academy as long as they passed their medical and psychological tests, in the same way the RA would be in breach of its contract with all applicants who, having submitted their completed applications by the 8th of December 2006 deadline, would be disqualified from being considered as suitable to become Judges of Common Jurisdiction and deprived of their right, if so selected, to be considered to be chosen for the position above by the PJSP or, if neccessary, the RA.

It is important to note that, whilst all individuals in [u:3ukuupap]Alito[/u:3ukuupap] received a letter dated October 15, each of them could have taken their medical and psychological tests both before and after the Chief of Police's decision to revise the selection process. This fact was irrelevant to the decision in this case, since all applicants who had received the October 15 letter and passed their tests but were disqualified due to the change mentioned above were ordered to be included in the 61st Police Academy.

In our case, the date when two or more applicants become CDS citizens is irrelevant as long as they submit their application for qualification as Judges of Common Jurisdiction in the CDS by the required deadline. Once they do so, CDS is contractually obliged to submit their applications to the PJSP (or, if required, the RA) irrespective of the time when the RA may revise the criteria of the selection process -as long as they pass the intial, suitability test required for the position. To do otherwise, and distinguish between similarly qualified applicants based not on the date of submission of the application, but on the date of selection by the PJSP (or thr RA, as may be) would constitute a similar breach off contract by the CDS as that of the Police Department in [u:3ukuupap]Alito[/u:3ukuupap].

Alternatively, I submit that the latest possible date after which CDS can no longer reject suitable applicants for consideration by the PJSP (or the RA, as may be) is the date on which they are deemed to be suitable to become Judges of Common Jurisdiction and are sent written confirmation thereof by the Chief Justice. In no case whatsoever can the date of the final selection for the position of Judge of Common Jurisdiction by the PJSP (or the RA, as may be) can be considered the moment until which the RA is capable of revising the criteria of the selection process without breaching its contract with the applicants who qualified before such revisions, but not after them, to have their applications submitted for consideration to the PJSP (or the RA, as may be).

Beathan, I have justified my position at length in order to make it clear what the legal requirements are in this situation from a purely contractual point of view (and withhold for later, if necessary, the constitutional and human rights arguments). You may well disagree with me, but you will not be able to persuade me that my analysis is flawes unless you provide me with admissible, relevant and higher authority on the issues addressed above.

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Post by Beathan »

But this is not a "conditional offer of employment." This is an "invitation for offers to become employed." Case distinguished. There is no expectation, from anything said or done by anyone, that the PSJP function is a rubber stamp -- or that anyone is guaranteed a judgeship under any circumstances. All applicants might be disqualified -- and on grounds not included in the application, such as character and temperament.

Beathan

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Time of application

Post by michelmanen »

Please read the decision carefully. You have entirely missed the ratio of the case. I do not propose to take you to it step by step once again. Be it as it may, I am confident, whatever your opinon may be, that [u:36n321uq]Alito[/u:36n321uq] entirely supports my argument.

My submission is ready. I disclosed it openly and publicly. It is up to you to prepare yours as you see fit, if and when required.

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Post by Beathan »

The critical holding in the case you analyse is that the original process that brought in the applicants was a "conditional offer of employment" and that the applicants satisfied the conditions of the offer. There is nothing in the current process that makes the invitation to apply for a judgeship an "offer of employment" conditional or otherwise. Interested people are invited to convince the CDS to hire them -- nothing more or less. The CDS can undertake any assessment it wishes of candidates on whatever rules it wants -- known or unknown, old or new. The ruling in the case relies on this characterisation of the process that sought police applicants -- and that process was entirely unlike our process for seeking judges in critical ways.

Ash has been very clear that his exam application is a "prequalification of applicants" that in no way restricts the ability of the PJSP to select judges, on its own standards and after its own process. Further, the requirements of the office are subject to legislative control and clarification and revision at any time. These are important protections for the CDS, which will be seriously harmed by bad judges.

In fact, while I have called the process an "invitation for offers" -- it may be more like a job fair. Potential applicants can request consideration by the CDS. After consideration, and only after whatever consideration the CDS brings to bear, would an offer be made. On this account -- no offer has been made, by the CDS or the applicant.

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Temporal requirements for public positions

Post by michelmanen »

Bethan,

Start from here and try again:

[quote:2wtdsjoj]E.C. Torres, CDJ, held that:

"That argument misses the point. The contract that the plaintiffs seek to enforce is not contract that they will be appointed as permanent Providence police officers; rather, it is a contract that they would be admitted to the Academy if they passed the medical and psychological examinations". [/quote:2wtdsjoj]

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Post by Ashcroft Burnham »

The fastest growing thread in CDS history appears to have turned into a debate about the US law of contract, and therefore also be the fastest-digressing thread in CDS history.

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Post by Beathan »

Right --

And no one says that you can't submit an application. No one says that you can't be approved by the PJSP for a judgeship (although I would rather recommend that applications such as yours be "tabled" until you qualify for the post and taken up and considered then). Rather, the requirement is that you cannot take office until you have lived here long enough.

Thus, you are not being denied the right you were promised -- the right to submit an application. You are being denied a certain result flowing from that submission, but no one has ever promised you that result.

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Post by Justice Soothsayer »

[quote="Beathan":3avyq59w]And no one says that you can't submit an application. No one says that you can't be approved by the PJSP for a judgeship (although I would rather recommend that applications such as yours be "tabled" until you qualify for the post and taken up and considered then). Rather, the requirement is that you cannot take office until you have lived here long enough.[/quote:3avyq59w]

Now I'm lost - there is no such requirement at present, is there? Though the RA in considering those possible applicants who may be qualified by Ashcroft might decide not to appoint (or to delay appointing) a candidate who only recently joined CDS, right?

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Post by Beathan »

Justice -- you are right; there is no such written requirement. However, Claude proposed it, and gave good reasons for it. I think it is a fair for the PJSP, when assessing the intangible things of the applicants, to assess "enculturation" even without a written rule. I also think it is fair for the RA to pass such a specific rule if it wishes to.

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Post by Justice Soothsayer »

[quote="Beathan":3l4vfamc]Justice -- you are right; there is no such written requirement. However, Claude proposed it, and gave good reasons for it. I think it is a fair for the PJSP, when assessing the intangible things of the applicants, to assess "enculturation" even without a written rule. I also think it is fair for the RA to pass such a specific rule if it wishes to.

Beathan[/quote:3l4vfamc]

I was confused by your use of the present tense "the requirement is" rather than "the requirement may become".

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Time of application

Post by michelmanen »

Beathan,

Yet another creative personal proposal regarding the criteria to be taken into account by the PJSP in its deliberations. If at first you don't succeed, try and try again!

"By all means necessary" indeed....

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