[2541.AB] Repeal and Replace of the Judicial Act

[Comfed]

@Welly

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.

I don’t necessarily think anyone would have to be “forced” to serve as counsel–as you say, it would be entirely plausible for the Court to put out a call for volunteers. In the case that no one volunteered, I suppose that is unsolvable, but it doesn’t mean an effort shouldn’t be made.

@Welly

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.

To have the judge in the original case also sit in judgement on the appeal completely violates the principle that cases should be heard by impartial judges. By definition, the justice who made the original decision is not impartial. There is no value to a “dissent” from that justice, because they cannot provide a clear-eyed, independent perspective on the original case. Additionally, even disregarding votes, it is unfair to the appellant to have what amounts to an advocate for the respondent present in the justices’ private deliberations. The proper venue for argumentation between individuals who already have a stake in the case is in the public hearing. The private discussions among the justices should not, in any way, involve individuals who are already partial. In any case, it is the responsibility of the justice in the court of first instance to fully explain their reasoning in the judgement. If they have failed to do so, then they have produced a poor decision; moreover, if the Court can’t understand the presiding justice’s decision and requires the presiding justice to explain it to them again, in all likelihood the decision should be overturned.

There is a clear difference between a panel of three impartial justices, and a panel of two impartial justices and one justice who has already ruled against the appellant. In the latter case, one justice’s vote is effectively closed off. That is effectively the same thing as a case where the unanimous agreement of a two-judge panel is necessary.

@Welly

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 was speaking more of the principle that defendants should have the right to an appeal, rather than what the law is. Why should the presiding justice have the absolute ability to make factual determinations that cannot be appealed? If you are going to have an appeals system, what is the reason for this limitation?

@Pronoun

I’m not sure I agree with this. The Court doesn’t really have power to enforce anything at all except for issue decisions that it hopes people will obey. I think it’s entirely possible to ask a legal question about whether some government conduct (or non-conduct) is lawful. The Court can answer that legal question by saying it’s not lawful but, at the end of the day, if the government official decides to persist in unlawful conduct, it’s not like the Court has a police force to go do anything about it.

On that note, I think it’s useful to have review requests so that the Court can, for example, void a law that it finds unconstitutional. I am not so sure that they couldn’t be better handled, in terms of procedure, as legal questions.

By the logic you are using, the Assembly does not “really” have the power to make laws, and elections do not “really” choose government officials, because these decisions are, in the most essential mechanical sense, enforced by the delegate and the root administrator of the forum. In that sense, the “police force” the Court would employ is the same that is used by every other government institution.

If you are saying that the Court’s power to order government officials to obey laws is contained in article 7.6, then that is a reasonable point, but it is not as direct as the Court having the explicit power to order the government to act in a lawful manner.

@Welly

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.

That is a valid point, which is why I think the ideal solution is likely to amend the Charter to empower the Court to “void an omission.”

@Pronoun

Also, what’s the standard for interpreting that law?

There is no “standard of proof” in interpreting law. That is a misapplication of the concept of the standard of proof, which is about evidence used to determine factual matters.