Ah, I see your point now. That implication was not intentional. The purpose of those sections is to clarify what parties are permitted to file each type of civil case, not to make the Court’s civil jurisdiction wholly discretionary. I will resolve this in the next round of edits.
Again, while I see the concern with such cases, I just don’t think there is any purpose to making an unenforceable provision regarding public defenders. The Court can’t force any TSP resident to serve as defense counsel, whether for a defendant within the region or without.
In the situation that you outline, there would be two Justices voting to overturn the decision of one Justice. Under the current system, there would be two Justices voting to overturn the decision of two Justices. I maintain that is a meaningful practical difference.
I considered that, but I actually prefer to keep that Justice on the panel for a number of reasons. First, it maintains a full en banc panel of the Court deciding appeals, which is one goal of this reform. Second, I think it is helpful to have the Presiding Justice participate in the Court’s discussions and, if reversed, file a dissent defending their opinion below. The reality is that in systems of discretionary appellate review, the appellate court most often grants an appeal in order to reverse the lower court’s judgement. In general, it strikes me that the Court is more likely to produce a stronger work product and adequately consider all counterarguments if the Presiding Justice whose opinion they are considering reversing is able to participate in the deliberations and, if necessary, publicly critique their decision via dissent.
Definitionally, no. As far as I am aware, a defendant does not have any “right” to appeal beyond that which is provided for by the Judicial Act. So the contours of that right are defined by the procedures and limitations set forth in this statute. So if the statute creating the right provides that it does not extend to de novo review of factual findings, then it doesn’t. That is not a denial of the right, it’s simply a limitation on the content of the right itself.
I disagree with that reading, but I see your point. Where the real issue arises, to my mind, is the use of the word “void.” Even assuming that failing to perform a legally required act is an act of omission, there is no way that the Court can “void” an omission. It is too much verbal and logical gymnastics for me to read that as some sort of double negative–that voiding an omission means ordering affirmative action.
I actually think that the current Judicial Act has it just right. Interpreting the relevant law and then applying that law to the facts of a given case are the two fundamental elements of a legal case–a single case. That is what happens in every review request–the Court determines the meaning of the applicable constitutional provisions governing the challenged government action, then applies that interpretation to the facts of the challenged action to determine if the action was lawful. That is what happens in every criminal case–the Court interprets the provision of the Criminal Code that was allegedly violated and applies that interpretation to the facts of defendant’s conduct to determine if the defendant committed the crime of which they are accused. Indeed, it is what happens in every legal question based on a “concrete” situation. The only instance in which the Court resolves a truly abstract question of law divorced from any real world facts is in its “hypothetical scenario” legal question jurisdiction. Put differently, a legal question can be (often is) part of a criminal case, but is not an entirely separate case.
Nor do I see any real reason to create an entirely separate legal question case in response to every criminal complaint. Instead, the Presiding Justice will interpret relevant law, apply it to the facts, and resolve the case. If the defendant believes that an error of law was made–for example, that the Presiding Justice misinterpreted the Criminal Code to apply to the defendant’s conduct when it does not–then the defendant can appeal. If the en banc Court agrees with the defendant, then the Court will reverse and find the defendant not guilty; as a matter of law, the Criminal Code did not criminalize the defendant’s conduct. If, on the other hand, the defendant seeks to bring forward new evidence or alleged a procedural violation on appeal, then–should the full Court agree–it can reverse and remand for a new trial that will allow the evidence to be presented and / or follow proper procedure.
I don’t see a huge distinction, but I’m fine doing this.