First, thank you to everyone for the kind words of support. I really appreciate it, and I only hope to live up to your high expectations.
To avoid the need to invest in a new Assembly Library, I’ve split my judicial application questions / responses up into clickies. That way members of the Assembly can choose which questions they are interested in reading. (As an aside, I thank the PM and current members of the Court for their time and patience in reading through all of this). The moot court prompt questions are sufficiently long that including them would defeat the purpose of the clickies, so I have only included my responses in the next post. I hope that the relevant facts of the cases are sufficiently clear from my mock opinions; if they aren’t, then I have work to do before I write my first real opinion!
I will also note that I submitted this application prior to the passage of the recent Judicial Act overhaul. Thus, some answers may be out of date or no longer reflective of current law.
Finally, @Erstavik, I think my application responses address many of your questions, but I will review them carefully and respond to any that are still pending.
I stand ready to answer any further questions from the Assembly.
Judicial Application Questions & Answers
Why do you wish to serve as an Associate Justice?
Put simply, I believe it is the position in which I could best continue to contribute to the South Pacific. Let me unpack that point a bit.
For starters, my interest in the judiciary is largely what brought me to TSP in the first place. After scrolling around the welcome / information dispatches in most of the big regions, trying to get a sense of their respective cultures, one thing stuck out to me—the Online Ruling Consultation System. As a committed law and legal history nerd, I thought that any group of people that would take the time to assemble a detailed database of case law for an online government was a group that I wanted to join. And so I did.
Over the ensuing years, my interest in and admiration for the Court has only grown. To my mind, an independent judiciary is an essential component of a democratic society committed to the rule of law. But it is hard to maintain such an institution. Indeed, creating a culture in which individuals—even high political leaders—are willing to submit their disputes to a court and be bound by the resulting judgments is a remarkable achievement. In some ways, it is even more remarkable in an online community; disobedience of a real-life court results in real sanctions, but here one risks only social consequences. As I have read through the TSP judiciary’s past decisions and taken part in more recent litigation, I’ve been impressed—even a little amazed—by the degree to which it has fulfilled that role in preserving the rule of law for over two decades. It would be a privilege to play a part in that ongoing effort.
Of course, all that excitement and high-minded theory wouldn’t matter too much if I couldn’t do the job. But I believe I can. For me, a night spent reading case law, drafting an opinion, or plumbing the depths of statute books is an enjoyable evening. I generally approach problems analytically, and I enjoy the careful, methodical, and logical approach to answering questions that characterizes legal reasoning. And I am (or at least try to be) a clear, precise writer (though perhaps not always the most concise).
Do you hold any elected or appointed offices in the South Pacific or abroad? If so, please provide further detail.
In TSP, I currently serve as Chair of the Assembly and as a member of the Foreign Affairs Council. I hold no elected or appointed positions in any other region.
Do you have any judicial, legal, or other experience in the South Pacific or abroad that would qualify you to serve as an Associate Justice? If so, please provide further detail.
Since joining TSP, I have briefed eight cases before the High Court:
- In re Emergency Citizenship Committee Appointments [2302.HQ]
- In re Sub-Cabinet Appointees [2303.HQ]
- Voting Requirements in Multi-Round Elections [2402.HQ]
- Review of the Rejection of Siberian Districts’ Citizenship Application [2403.HR]
- Constitutionality of the Resolution to Restore Regional Accountability [2404.HQ]
- Constitutionality of the Resolution to Restore Regional Accountability 2 [2405.HQ]
- Professor Henn v. Belschaft [2502.HC]
- Retention Votes for Administrators [2503.HQ]
Briefing these cases has given me a depth of experience in both High Court procedures and precedents. On top of that, I have been (slowly) working on a project to compile all the opinions issued by TSP’s judiciary into an easily searchable and citable set of case reports, which has involved reading every thread, argument, and opinion in every case starting from the founding of the region. In addition to (hopefully) producing a useful tool once it is finally finished, this endeavor has exposed me to the region’s judicial history and case law at a relatively granular level. I’m happy to share a draft of the few volumes of reports if it would be helpful in evaluating my application.
Finally, in my capacity as Chair of the Assembly and as a Legislator, I have drafted and introduced nearly a dozen pieces of legislation, including comprehensive reforms of the Citizenship Act, Judicial Act, and World Assembly Act. Much as my experience litigating in the High Court has deepened my knowledge of precedent, my experience as a legislator has done the same for my knowledge of statutory law.
What role should the Court have with respect to the other branches of government?
Generally, an unelected judiciary should play a relatively limited role in a democratic society. Though judges enjoy a measure of democratic legitimacy by virtue of the appointment and confirmation processes, the authority they exercise is different in kind from that of the political branches, which draw support for their decisions directly from the people. In such a system, the legislature is empowered to create generally applicable laws—“to prescrib[e] the rules by which the duties and rights of every citizen are to be regulated”—while the executive, which “holds the sword of the community,” enforces those laws. Federalist No. 78 (Hamilton). The judiciary, on the other hand, is limited to declaring the content of the laws passed by the legislature; its role starts and ends with the power to say what the law is. Unelected judges have no business deciding what the law should be or formulating broad policies to govern the community. Their duty is to resolve individual cases and answer legal questions properly within their jurisdiction, that is, not writing law but merely interpreting it, not making policy but merely implementing it.
In discharging that responsibility, the judiciary plays two narrow but important roles with respect to the other branches, both of which relate to preserving the rule of law. First, it ensures the other branches stay within the limits of their legally assigned powers by interpreting and enforcing the constitution’s structural provisions. For example, were the legislature to pass a general law that is incompatible with constitutional law, it would be the duty of the judiciary to declare it void. In performing this function, however, the Court must be careful not to interfere with decisions in which the political branches have discretion; it’s the Court’s job to ensure the lawfulness of legislative or executive action, not to review its wisdom or desirability. Second, the judiciary protects individual rights from infringement by the other branches. Even where a government official has the legal authority to take a given action, it is the Court’s job to invalidate that action insofar as it infringes upon an individual’s constitutionally protected rights.
Perhaps unsurprisingly, the role assigned to the High Court by TSP law aligns closely with the foregoing general description of judicial power in a democratic society. The Charter vests the Court with “exclusive judicial authority” and the power to “clarify and interpret provisions of law,” Charter VII (1), (6), which the Court has understood to establish it as “the final arbiter over the meaning of the laws,” In re Jurisdiction of the High Court in Election Law, 1801.HQ. It also empowers the Court to “declare any general law, regulation, directive, determination or any other official act of government, in whole or in part, void upon a determination that it violates” constitutional law, Charter VII (4), or “violates any right or freedom found in [the] Charter,” Charter III (5). In other words, the Charter authorizes the Court to ensure the other branches act within the law. But the Judicial Act limits this authority to “rul[ing] upon what is written in law,” Judicial Act 2(1)a., which precludes the Court from exercising a general superintendence over the discretionary decisions of the other branches, cf. In re Assent of the CRS, 2204.HQ (dismissing as nonjusticiable case that sought to have Court control a “matter of internal procedure” entrusted to “the discretion of the Council on Regional Security”). Put simply, the Charter makes the Court the region’s chief law interpreter, not lawmaker. See On Constitutional Laws, 1609.HQ (explaining that the Court’s role in answering legal questions is “not to overwrite laws, but to interpret them.”).
What should a judge consider when deciding the justiciability or probable cause in a case?
I’ve broken my response down into four parts, corresponding to the four types of cases the High Court can hear. In general, I have tried to present my understanding of the law that governs each of these questions, which is what I would follow if appointed an Associate Justice. In a few spots, I’ve added my own views or commentary on the law, just to give anyone who reads this a sense of how I think about these questions. But again, my personal views would play no role in how I decide cases.
Criminal Complaint
Though the term “probable cause” is not expressly defined in TSP’s written law, the judiciary has elaborated its meaning in case law. Determining whether there is sufficient probable cause to indict involves a two-prong inquiry. First, the judge asks if, as a subjective matter, “the charge was being = filed in good faith—that is, whether there was a genuine concern that a crime was committed.” Roavin v. Roavin and Islands of Unity, 1813.HC. If the charge was filed in good faith, the judge then asks if, as an objective matter, “there was a reasonable argument to be made that the actions committed by the defendant “constituted” the crime of which they were accused. Ibid. This second prong requires the judge to compare the conduct in which the defendant allegedly engaged with the criminal prohibitions in the Criminal Code; if no crime matches the defendant’s conduct, then, perhaps self-evidently, no probable cause exists. See North Prarie v. Griffindor, 1805.HQ (dismissing criminal complaint because the alleged conduct “is not a crime recognised by the Criminal Code.”). If the alleged conduct is proscribed by the Criminal Code, then a judge must assess the weight and reliability of evidence presented to determine if there is a “reasonable argument” that the defendant actually engaged in the alleged conduct and did so with the required mens rea. This is a quantum of evidence less than that which is required to convict, but the judge need not believe that the defendant is affirmatively innocent to dismiss for lack of probable cause. See QuietDad v. Belschaft, 1522.HC. Instead, they must determine whether sufficient trustworthy evidence has been presented such that a reasonable person could believe the defendant committed the alleged crime.
Appeal
The Judicial Act expressly provides rules of justiciability in the context of appeals, namely that they must be “submitted on the grounds of process violations, contradictions of law, judicial misconduct,” or “new evidence that a reasonable person considers grounds for reviewing the original opinion.” Judicial Act 7 (3), (4). I read these relatively stringent criteria as evincing a purpose that appeals be granted sparingly. Indeed, in the history of TSP’s judiciary, it appears that the appeal mechanism has been used only six times. That makes sense, as it promotes the values of efficiency, finality, and repose. Appeals should not be opportunities to relitigate each case anew; rather, they are safety valves in case of prejudicial error in the initial proceedings or discovery of substantial new evidence.
Legal Question
Though the legal question is the most frequently invoked portion of the High Court’s jurisdiction, it is also the context in which written law provides the least guidance on the standards for justiciability. Indeed, the Court has acknowledged that the law does not “offer clearly stated reasons why a question could or should be ruled as [nonjusticiable].” In re Appropriate Chair Behavior, 1716.HQ. Nevertheless, what rules the law does enumerate, when read in conjunction with the Court’s case law, provide meaningful guidance for a judge in determining whether a legal question is justiciable. First, the question itself should be specifically framed, that is, asking how the law would apply “to concrete or hypothetical situations,” Judicial Act, 4.(1); vague requests to “interpret” legal provisions in the abstract are nonjusticiable, see In re Rights and Freedoms, 2006.HQ. Second, the question itself must be sufficiently clear and supported by evidence, references, and citations as necessary to enable the Court to understand and respond to it. See In re Dual Membership in Parties, 1703.HQ (dismissing legal question as nonjusticiable “due to its failure to include the relevant sections of law in its question . . . and by extension failing to provide any evidence for which the court may rule on.”); cf. Review of the Ban of New Haudenosaunee Confederacy, 1915.HR (similarly dismissing review request where the petitioner “did not provide a clear question to be addressed.”). Third, the interpretive question presented must be at least arguably uncertain and contestable; the Court will not spend its time answering patently obvious questions. See In re Residency Requirement for Local Council Elections, 2202.HQ. Fourth, the question must be live and not moot. See, e.g., In re Failure to Press Criminal Charges re: SPA, 1710.HQ (dismissing question as moot where underlying law had been amended during case); cf. Review of the Rejection of Siberian Districts’ Citizenship Application, 2403.HR (similar with respect to review request). Finally, the case must present a legal question fit for judicial decision, not a political question the resolution of which is assigned to a coordinate branch of government. See, e.g., In re Appropriate Chair Behavior, 1716.HQ; In re Assent of the CRS, 2204.HQ; In re Conflict of Interest, 1709.HQ. To my mind, this last limitation on justiciability is particularly important, as it restricts the Court to resolving legal issues and prevents it from interfering with the proper functioning of TSP’s democratic institutions in areas where those entities have discretion. See In re Requirement of In Game Consent for A2205.05, 2208.HQ (noting that were the Court to answer political questions over which other branches have authority, it would “usurp the functions of” those branches).
I would also note that some cases have suggested that the difficulty of the legal question itself or the degree of ambiguity in the underlying law is a reason to dismiss a question as nonjusticiable. See, e.g., In re Definition of Security Threat, 1509.HQ; In re Retroactive Crimes, 1508.HQ. I must admit that I find this limitation puzzling; after all, the very purpose of asking a legal question is “to receive clarification on the meaning of existing law.” Judicial Act 4 (1). If substantial ambiguity in the underlying law were sufficient reason to dismiss a legal question, then the mechanism would have little use. Indeed, the Court recently observed as much, noting that “uncertainty or contradictions of law” are “two factors that form the cornerstone of any legal question.” In re Residency Requirement for Local Council Elections, 2202.HQ.
Review Request
As I understand it, the basic justiciability principles that apply to legal questions apply equally to review requests, with a few additional limitations. Specifically, whereas a legal question may address even the hypothetical application of any provision of TSP law, a review request must (1) challenge a concrete governmental action and (2) allege that action “violates the terms of [the] Charter or any other constitutional law” or (somewhat redundantly) “any right or freedom found in [the] Charter.” Charter VII (4); III (5); see also Appeal: Legislator Application, 1807.HR (discussing the jurisdictional limitations placed on review requests). It follows naturally from the limited role of an unelected judiciary in a democratic society that the Court’s jurisdiction over review requests should be more narrowly drawn. Answering a legal question involves the Court opining on the law in a somewhat abstract context, whereas a review request asks the Court to “void” and block the implementation of an act of a coordinate branch. Such significant authority is appropriately reserved for contexts in which violations of constitutional law are alleged.
What should a judge consider when deciding whether to recuse from a case?
As a rule, a judge should recuse themselves from any proceeding in which their impartiality could reasonably be questioned. This would include, of course, cases in which the judge had a substantial personal or political relationship with a party that would bias their judgment in favor or against that party. It would also include situations in which the judge stood to gain materially from the outcome, for example if the judge felt they were in line to be appointed to a Cabinet position currently occupied by a criminal defendant.
There is another criterion for recusal that arises from TSP’s particular government structure, and which I think is worth further explanation. Specifically, I believe a High Court Justice should recuse from any case in which an executive or legislative action that they played a substantial role in formulating or executing is directly implicated. This issue is salient because while the Charter creates a system of separated powers, see Charter IV (1), V (1), VII (1), it requires only partial separation of personnel, see Charter VIII. In the context of the High Court, this means that Associate Justices may simultaneously serve in the executive or legislative branches. In many ways, this seems like a positive innovation from more strictly divided systems; it allows the region to benefit from the Justices’ legislative or executive acumen, which is particularly valuable in a relatively small community like TSP. But it also creates the potential for conflicts of interest that, in my opinion, Justices should carefully self-police via recusal.
To be sure, the Court has acknowledged this concern with respect to executive actions, but not so for legislative involvement. In the case of Appeal: Legislator Application, 1807.HR, the Court indicated that “[t]here is no conflict between justice and legislator, unlike justice and minister, where the balance and separation of powers become an issue with executive authority.” With the deepest respect for jurists of the past, I must admit that I am troubled by that conclusion. As I see it, the separation of the legislative and judicial branches can be just as important to maintaining the rule of law as separating the judicial and executive. See Montesquieu, The Spirit of Law, Book 11, ch. 6 (“Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control”). Judges must decide cases based on the law as written, not as they think it should be or wish it were. But having judges review their own legislative projects risks the latter, even for the most fair-minded jurist. Consider a judge called upon to decide if a major piece of legislation they drafted is consistent with the Charter. One can imagine the inclination to reason, even subconsciously— “well, I wrote this, and I would never do anything unconstitutional!” Something similar could occur in more routine instances of interpretation, where a judge might read a statute that they drafted to say what they really “meant,” rather than what was actually enacted into law. And, as history shows, judges who personally wrote the statute at issue are less likely to keep an open mind to the arguments of litigants about its meaning. See, e.g., Aumeye v. Anon. (English Court of Common Pleas 1305) (rejecting a lawyer’s interpretation of a statute on the grounds that “we understand it better than you do, for we made it.”).
Admittedly, determining if a judge’s involvement in a legislative initiative is sufficiently “substantial” to warrant recusal can be a tough line to draw. But it is one that, if I were appointed to the Court, I believe would be worth trying to draw to ensure my own impartiality and neutrality.
What roles should the letter and the spirit of the law play in judicial interpretation?
A judge’s goal in interpreting statutory text is ultimately to implement the spirit or purpose behind the particular enactment at issue, but that spirit or purpose should be derived primarily—and often exclusively—from the letter of the law. Put differently, while judges must search for the spirit and purpose of the law, the letter of the law is often the most accurate guide to finding it.
The basic rationale behind this approach is that, in a democratic system like TSP, judges must serve as faithful agents of the legislature. It is their job to carry out the Assembly’s policy choices by applying them in particular cases and controversies. It is not the judiciary’s job to alter, amend, improve, second-guess, or otherwise revise the legislature’s work. In a democracy, the people issue instructions, and unelected judges follow them. And the most reliable way for a judge to decode the instructions that the people have given them is by focusing on the text as passed by the legislature. In other words, the judge is looking for something like the “objective” intent or spirit of the law—that which can be derived from the letter of the law read in context—rather than a more nebulous, free-floating spirit.
But why? One might reasonably accept my point about faithful agency yet argue that focusing on a more general spirit behind the law is likely to capture the legislature’s intent most accurately. A few responses. First, in the context of a multi-member body like the Assembly, it is almost incoherent to speak of a unified, subjective intent or spirit behind any enactment. Legislators have various reasons for supporting proposals, and they likewise probably understand them slightly differently. Thus, a judge’s search for such subjective intent is likely to be futile, or, worse yet, could result in their adopting their own idea of what the spirit behind the law should be. Even if a judge were able to accurately divine a prevailing purpose underlying a law, following that purpose might still go beyond their role as faithful agent. After all, no law pursues its ends at all costs, and most pieces of legislation involve compromise. By following the spirit rather than the letter of the law, a judge risks upsetting those compromises. For example, say the Assembly had purpose X, which relates to problems A, B, and C. But because of disagreement within the Assembly, the law ultimately passed addressed only A and B. It would clearly go beyond the judicial role for a judge to read that law to also cover problem C on the grounds that it promotes purpose X. In other words, a judge simply cannot assume that whatever furthers the spirit of the law must actually be the law. On the other hand, a judge can reasonably assume that a “legislator who votes for (or against) a provision . . . does so on the assumption that—to put it crudely—what the words mean to him is identical to what they will mean to those whom they are addressed.” Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 339 (1995).
To be clear, I do not favor a literalist or narrow-minded approach that focuses only on legislative text in total isolation. Sometimes the meaning of the text alone will be sufficiently clear that no further analysis is necessary. See In re Designation of Constitutional Laws, 1819.HQ (holding that “should there be a single literal, common sense meaning then the High Court will establish such as the law.”). But often the proper interpretation of a provision will be reasonably contested, in which case a judge must read the text in context—historical, social, legal, and structural—to elucidate its meaning. This is perhaps unsurprising, as the meaning of all linguistic communication ultimately depends on context. But it bears emphasizing that the judge’s goal in consulting this contextual evidence is to help them interpret the letter of the law, not to divine its subjective spirit. And, of course, other evidence of legal meaning, such as judicial precedent or customary practice, should also guide the judge’s interpretation of ambiguous text. Finally, I recognize the need for a limited number of purpose-focused safety valves that, in extraordinary circumstances such as total absurdity or patent scrivener’s error, would permit judges to look beyond the text to a broader, more subjective spirit.
To conclude this overly long answer, I wanted to emphasize briefly how the interpretive approach I have discussed thus far fits well within TSP’s governmental structure. Not only is TSP a democracy, but also it is one that recognizes partial legislative supremacy, i.e., the Assembly may change even the Charter itself by supermajority. Thus, there is less concern that a text focused approach may prove too sclerotic or resistant to change than there is with respect to some real-life constitutions that make constitutional amendment virtually impossible. In our system, should the Assembly be sufficiently dissatisfied with the High Court’s interpretation of law, it can always pass an amendment to overturn that interpretation going forward.
