A Judiciary Process Act
Here is the most recent law we passed on the functions of the Judiciary. I would be interested in hearing if you think we need this law, what changes you would make, or what additions you suggest. The Organisation of the bill may also be changed.
An act for ensuring fair, just and speedy adjudication of legal matters.
Original proposed by the Graz, 28 Dec 11
- 1. The High Court shall consist of one Chief Justice, selected from the membership of the General Assembly every 4 months. This Chief Justice shall have authority to set rules of procedure not contrary to this or any statute governing court procedure.
- 2. The Court shall review the legality of law, and resolve civil and criminal disputes as petitioned by the general citizenry or the Kodiak Republic.
- 3. Where possible, a criminal defendant is entitled to a fact-finder separate from the Chief Justice.
- 4. In making legal rulings, the Court is bound by the letter of the Constitution, and the letter of any written statute should it not conflict with the letter or spirit of the Constitution.
- 5. The common law of the Fourth Kodiak Republic is accepted as the governing law of the Kodiak Republic, and will bind the Court absent a conflict with the letter or spirit of the Constitution, the letter of any written statute, or a severe dysfunction brought by changed circumstances. Should the Court use the latter to exempt a proceeding from otherwise binding precedent, the reasons for so doing must be stated with particularity.
- 6. Any citizen may bring a civil action against another, or the government, for violations of the Kodiak Law of Conduct, any applicable statutes, or the Constitution. Noncitizens shall have no right of action unless specified by statute.
- 7. The Court shall first review the sufficiency of the complaint and, if it is found appropriate, it will initiate any necessary fact-finding.
- 8. Should the Court find the complaint not to be sufficient under law, it may dismiss the claim, or it may treat it as sufficient and thereby create a new cause of action. If the Court takes the latter option, it must state its reasons for so doing with particularity. The Court may not create a cause of action that is contrary to law.
- 9. When fact-finding is complete, the Court will apply the law to the facts as found and enter judgment according to its terms. The party having issued the complaint, or the plaintiff, shall bear burden of proof on all facts. When applying law, the letter and spirit of the Constitution, the letter of any statute, and the common law shall apply in decreasing order of significance.
- 10. The Court shall issue an order that its judgment be executed by the Executive Branch, and may issue a writ of mandamus should the order not be executed within fifteen (15) days, not excluding holidays.
- 11. The Court may grant a rehearing of the facts only if it deems there to have been inadequate process.
- 12. The Kodiak Republic may bring action against a citizen or noncitizen for breach a legal duty considered criminal. The Court shall rule whether a breach is criminal in nature should there be a concern in this regard.
- 13. The Kodiak Republic will present all charges to the Court in a Preliminary Hearing, to be conducted in a private subforum where only those determined by the Court to have access shall have access, and if the Court determines there to be probable cause to charge the accused, the Court will allow the case to proceed.
- 14. In extraordinary cases where the Court deems the accused to more likely than not be a threat to the public peace, the Court may order the accused incarcerated pending trial, but must order the accused to be released if charges are not filed under (15) within six (6) days, excluding holidays.
- 15. All charges against an accused must be laid out with particularity with reference to the statutes the accused is said to have violated. An accused who has formal charges filed against him shall be the defendant.
- 16. A citizen defendant shall have the right to legal counsel. If no counselor is available to advise the defendant, the Court shall advise the defendant on matters of law alone, and shall do so via personal message if possible.
- 17. A defendant shall, if possible, have the right to an independent fact-finder as per (23-7).
- 18. Once charges are filed, the Kodiak Republic shall bear the burden of proof beyond reasonable doubt for all facts in fact-finding.
- 19. Once fact-finding is complete, the Court shall enter judgment according to the facts as found, finding the defendant guilty or not guilty. If at any time the Court determines independently that the Kodiak Republic cannot prevail on proving the facts, it must dismiss charges. The Court may grant a rehearing of the facts only if it deems there to have been inadequate process.
- 20. If the Court finds the defendant guilty, it shall enter a sentence as governed by any applicable statute and the principles of punishment and fairness, applying in that order of significance, limited by any Constitutional concerns. Punishment must be proportionate to the crime.
- 21. Banishment shall not be entered as a sentence unless authorized by statute.
- 22. If the Court finds the defendant not guilty, all proceedings against the defendant shall be archived, accessible only to the Court, the Kodiak Republic's attorneys, and any defense counselor.
- 23. If the Court is required to or determines that it is proper to appoint independent fact-finding, it shall utilize one of two options: special master, or jury.
- 24. A special master is an impartial citizen appointed by the Court who will make findings of fact.
- 25. A jury is a panel of three impartial citizens appointed by the Court who will make findings of fact.
- 26. The Court shall keep a list of those willing to serve as special masters or jurymen, and will choose from that list when making an appointment.
- 27. The Court may require citizens to serve as special master, should there be no willing volunteer, in criminal cases.
- 28. Should the Court determine no need or ability to appoint independent fact-finding, the Court will find facts.
- 29. The Court shall keep a list of those willing to serve as counsel, and shall make reasonable effort to ensure they are knowledgeable about the law.
- 30. The Court shall have authority to perform legal education.
- 31. The Court shall advise criminal defendants, and civil defendants it determines to be in great need, of matters of law only, when there is no available counsel.
- 32. The Court shall not have authority to require a citizen serve as counsel.
- 33. The Court may order a convicted criminal to serve time in jail.
- 34. The Court may also order an accused confined under the terms of (14).
- 35. The Court must grant a writ of habeas corpus for any citizen in jail who shall properly petition for one. Grounds, among others, shall include improper trial proceedings, lack of process, improbability of the verdict, bias of the factfinder, and improper ruling of law. A granted writ of habeas corpus is a civil action against the Kodiak Republic for the release of the confined citizen. A citizen may only litigate one writ of habeas corpus, but may petition indefinitely to have one granted.
- 36. The Court must state with particularity reasons for not granting a writ of habeas corpus for each first petition from the same citizen, and for any subsequent petitions that raise new questions.
- 37. There shall be an archive for legal proceedings with appropriate masking.
- 38. There shall be a subforum for Preliminary Hearings as per (13) with appropriate masking.
- Initial thoughts:
- Unsure about the need for a 'fact-finder'. This seems like the realm of either the Justices, plaintiff, and/or defendant to 'fact-find' if we don't add legal representation to the system. On that note, we probably should add legal representation as an option for those that would prefer to not argue their cases themselves (as its own section).
- We can probably get rid of the Jail part, and something I never quite got in NS is how can we better define what constitutes a Civil vs Criminal case. Finally, the idea of a jury is good of course - however I am unsure how sustainable that is in NS since the idea of a jury will always be impartiality and judgement by your peers. I find it difficult to believe a jury can be impartial in NS unless the region was sizeable and the active citizen base is quite large.