tack50 v. Lincoln Speaker Wulfric

[Oakvale]

Justice Bacon King, as noted above I have been retained as defense counsel in this case and make this submission on behalf of my client, the Speaker.

I will, in my brief, first address the four questions posed by the Court.

1. Is a second to a motion valid if it occurs in a venue other than the legislature itself?

I am in full agreement with the petitioner on this issue. I do not believe there is any scenario in which a second to a motion is valid if it occurs outside the boards proper, any more than would be a vote on legislation. I am in further agreement with the petitioner that the premise that the activity of policy makers could in any sense be moved to an external forum would be a dangerous precedent to set.

However,  I do not believe the question arises in this instance and as such it is irrelevant to the validity of the motion as passed.

2. When a motion requires a second to proceed, can the motion proceed chronologically before the second is made?

I find myself again in full agreement with the petitioner. I believe any fair reading of the passage -

12. The Council shall have the power to declare no confidence in the chancellor’s government. A motion of no confidence shall require a sufficient second to be voted on by the Council, and if this is achieved, a majority of the membership of the Council voting Aye or Nay is sufficient to declare non-confidence in the government. If a loss of confidence occurs in the government, the governor must call a snap election or appoint a new candidate for chancellor.

- requires a sufficient second prior to the vote taking place.

Again, nonetheless, I will demonstrate that the passage of this motion was in fact carried out as prescribed by the Constitution of Lincoln.

3. How broadly is "legislation" defined within the Rules of the Lincoln Council? Namely, if all legislation requires the governor's signature, what is the purpose of Rule 9.B?

I frankly think this question is rather simple. A motion does not create, amend or repeal law. If it did so, it would not be a motion.

It is thus, by definition, not legislation and is entirely exempt from the relevant provisions of the standing orders. It may be that the drafters of the regional Constitution intended for this passage to apply to all business of the legislature, but that is not what the text says. There is zero ambiguity in this instance.

4. Can a suspension of the rules by the presiding officer be implicit, or must it be announced as such?

With reference to the above response to the Court's third question, I would simply note that the standing orders in question do not apply and thus do not require suspension. I argue that it is therefore entirely immaterial to the case at hand when and whether the presiding officer can suspend the rules which govern the debate on legislation, as this was not legislation.


Why the motion was valid:


My position therefore is that I disagree with many of my client's initial arguments on this matter - I believe that a motion does, indeed, require a valid second before it can proceed. I reject the notion that this can be received in external fora.

But the motion of no confidence in the then-Chancellor was nonetheless valid and must be upheld.

The Constitution of Lincoln in Art. 1, §5 as cited above, states that:

12. The Council shall have the power to declare no confidence in the chancellor’s government. A motion of no confidence shall require a sufficient second to be voted on by the Council, and if this is achieved, a majority of the membership of the Council voting Aye or Nay is sufficient to declare non-confidence in the government. If a loss of confidence occurs in the government, the governor must call a snap election or appoint a new candidate for chancellor.

Let us first consider the question of a sufficient second, which I agree must take place prior to a vote of the Council.

The Lincoln Council consists of five members. The order of events in this instance was as such:

1. The motion of no confidence was introduced, with the Speaker introducing the motion and simultaneously posting "Aye".

2. A second Councilor, AGA, then announced his support for the motion, by likewise posting "Aye".

3. The remaining three Councilors voted.

I argue that the events detailed in points 1. and 2. should not be considered as valid votes - the vote having not yet begun - but instead as the simple submission of a motion and then a second, provided by Councilor AGA.

Under the Constitution, the practical effect of this was that, the motion having been introduced and seconded as proper, three Councilors voted. This, alone, constituted a majority of the membership of the Council voting Aye or Nay as prescribed by the Constitution and the motion therefore passed.

Clearly the Speaker and the de facto seconder believed they were simply voting "Aye" on the motion, rather than properly introducing and seconding as required. What they believe, however, is immaterial to the constitutional facts. It is irrelevant that the Speaker added a superfluous "Aye" to his introduction, and likewise that he did not vote subsequently. It is similarly irrelevant that Councilor AGA that seconded the motion with a generic "Aye" of support instead of writing "I second the motion" or some such construction, or that he likewise did not subsequently vote.

Let us again return to the facts:

The motion was introduced.

The motion was supported by a seconder.

The motion was, subsequent to this, voted upon by a three fifths majority of the membership of the Council.

Ergo, the motion was valid under any reasonable interpretation of the Constitution.

I will fully concede that the Council would be advised to take far more care with such important business in the future to avoid raising the kind of Constitutional questions we face today. Indeed, if a lone member of the Council had not voted, falling below the crucial three-fifths membership threshold, I accept that the motion would have indeed been invalid.

But, fortuitously, this did not happen, and a bare majority of the membership of the Council voted following the introduction and seconding of the motion of no confidence. The Council therefore narrowly avoided a fiasco in which the democratic will of the people of Lincoln would be overturned by the judiciary because of an overly hasty process.

I submit that a ruling that the passage of this motion - not legislation - was invalid would have only the obscure technical effect of declaring that a valid second must be submitted in a very specific form of words, even though it is apparent to any reasonable person that Councilor AGA's support was the functional equivalent thereof.

I would further note that, given the democratic decision of the people of Lincoln, the only other practical impact would be to temporarily delay, for at most a matter of hours, a repeat of the motion with, one must assume, an entirely identical result. There can therefore be no compelling public interest in such a ruling.

I ask the honorable Justice to reject the notion that the seconding of a valid motion in the legislature requires a specific form of words, something not prescribed anywhere in the region's Constitution. I ask that he simply advises the legislature instead to instead strive to avoid such constitutional speculation in the future and upholds the legitimacy of the motion, which, fundamentally, represented nothing less than the confirmation of the result of the recent democratic election.

I thank the Court.

[Oakvale]

A question for the respondent's counsel:

Your argument, while broadly compelling, appears to rely on the assumption that the motion is not considered legislation. Otherwise, the issue of seconding (and all points thereafter) would be moot due to the fact that debate was not open for the 72 hours required by Section 3.A. How do you reconcile your definition with the following portion of Section 6?

C. The Chancellor shall introduce a piece of legislation to nominate a candidate for Speaker, who will then face a vote before the Council, requiring a majority support to assume office.

D. The Chancellor shall certify the results following the election, and the Speaker shall immediately assume office.

E. The Council may, at any time, remove the Speaker by making introducing repeal legislation to the introductory legislation of Section V, Part C. The motion shall take precedence over all other motions and bills before the Council, and shall be conducted in the manner outlined in the section entitled legislative debates and voting. The Chancellor will designate a Councillor to preside in the place of the Speaker.

The Standing Orders explicitly define as "legislation" the motions used for both nominating/electing and removing an individual from the office of Speaker. By what rationale do you consider the removal of a Chancellor to be otherwise?

(edit: I split the remainder of this post into a second post for ease of reading)

The present standing orders were adopted in August 2020. Prior to the contested motion at question in this case, the relevant motions were carried out once flowing the implementation of the standing orders.

In October last year, Councilor SO19 declared a vote of confidence in his nomination to form a government.

Without any 72-hour waiting period, the Council immediately voted on the motion and SO19 was ratified as Chancellor of Lincoln.

Subsequent to this, and without any similar waiting period, SO19 then nominated a candidate for Speaker, and voting immediately commenced.

Both candidates were duly elected with no apparent objections.

Let us consider the implications of treating a motion as legislation under the standing rules. §3, c.A of the standing orders states, as noted by the petitioner in his complaint:

Section 3: Legislative Debates and Voting
A. All proposed legislation shall be open for debate for no less than 72 hours after the Speaker places it on the floor

Clearly this did not happen in the above instance, nor in the current matter. I submit that this is right and proper - a motion is not legislation and, as set in precedent by the legislature, including the former Chancellor himself, is not treated as such. The reference to motions as a 'piece of legislation' must simply be considered an inconsistency in the drafting which is effectively unenforceable.

If the Court were to hold that motions should be treated identically to legislation, then we must assume that Chancellor SO19's appointment was invalid, and Lincoln had no legitimate Chancellor in this period. I do not believe this is the case.

To strengthen the point, if a motion is to be treated identically to legislation, then there are other provisions of the standing orders that should apply:

D. Each piece of legislation on the floor shall receive its own thread. Threads shall be titled as follows:

L 1.1: The BLANK Act, where L acknowledges the legislation is in the Council of Lincoln, 1 indicating that the legislation is in the first meeting of the Council of Lincoln, 1 indicating that the legislation was the first piece of legislation introduced in the Legislation Introduction Thread, and BLANK being replaced with the name of the piece of legislation.

Clearly this is nonsensical - a motion is not an Act, and does enter the statute. What law has been made? The "Appointment of SO19 as Chancellor" Act does not, as far as I'm aware, have any legal basis. Nor did any of the Council at the time make any pretense that the motion was an Act of law.

Additionally:

F. Each thread shall remain open until the bill either (a) becomes law via the Governor's signature, lack of Gubernatorial action, or referendum override, (b) fails to receive majority support from Council, (c) is sent to the public for a referendum, pursuant to Article I, Section 6 of the Comprehensive Constitutional Amendment, or (d) the Chancellor moves to revoke it from the floor, subject to a majority vote.

From my reading of the standing orders, legislation must either ultimately a) become law via gubernatorial signature or lack of action b) fail a vote of the council c) be sent for public referendum or d) be revoked.

At least two of these provisions - a) and b) - seem incomptabile with both a common sense understanding of a motion of confidence/no confidence and, indeed, the principles of parliamentary democracy upon which Lincoln's system of government is based.

Since, as we have established, a motion of confidence/no confidence is not an "Act", a precedent set by prior Councils, it can, by definition, not "become law". Likewise the idea that the Governor could submit a Chancellor-candidate to a presidential-style election by way of submitting a motion to public referendum seems incompatible with the Constitution, which states in Art. 1, §5:

10. The Council, on the first day after the governor’s appointment of a chancellor, the Speaker or any member of the Council shall introduce a motion, “that this Council has confidence in His (or Her) Excellency’s government”. A simple majority of councilors voting Aye or Nay shall be sufficient to establish confidence. If the new government should fail to gain the confidence of the Council, the appointed chancellor shall be dismissed and the governor shall advance the appointment of a new chancellor whom he shall submit to the judgement of the Council. This vote of confidence in the Chancellor may also take the form of a vote in a thread opened by the Governor about the State Opening of the Council of Lincoln

And in Art. 1, §14:

14. Early elections for the Council may be called by the governor as long as the snap election does not occur less than a month before a regular election if he determines that no government can be formed, following the failure of a confidence vote at the beginning of a new parliamentary term or the failure of any councilor to produce a government as described in Section 6 of Article II or following a successful vote of non-confidence in the government and failure of the successive confidence vote to produce a government. In addition, the Governor may call a snap election at the request of the Chancellor, be it that the snap election does not occur less than a month before or after a regularly scheduled election.

Clearly there is no provision in the Constitution for a Governor to hold a de facto referendum by submitting a single candidate to a vote of the people. Instead his only option is to dissolve the Council and call a snap election. This is not functionally equivalent to a public referendum on legislation, which may be called by the Governor should he disapprove of a bill passed by the legislature.

Thus, it is not possible to treat motions as legislation without creating a barrage of unworkable procedural inconsistencies. The Lincoln Council themselves have recognized this in the past and set a common sense precedent which the incumbent Council followed.

I would finally argue that, even if the Court were to hold that the motion - and thus subsequent similar motions passed in an equivalent manner - were invalid under the standing orders, then the standing orders themselves would be in conflict with the Constitution of Lincoln, which, of course, overrides any provisions of procedural rules set by the legislature. In the key clause at question:

2. The Council shall have the power to declare no confidence in the chancellor’s government. A motion of no confidence shall require a sufficient second to be voted on by the Council, and if this is achieved, a majority of the membership of the Council voting Aye or Nay is sufficient to declare non-confidence in the government. If a loss of confidence occurs in the government, the governor must call a snap election or appoint a new candidate for chancellor.

The Constitution grants the Council the right to declare no confidence in the Chancellor with only the requirement of both a sufficient second and then a majority vote.

While it is true that the Constitution also grants the Council the power to set its own rules of procedure, surely the imposition of a series of contradictory and impractical rules that would result from assuming that all motions must be dealt with as legislation would be in violation of the constitutional guarantee of the Council's power to remove a Chancellor upon satisfaction of the two requirements set out in the text. As an illustration, to choose just one of the above examples, nowhere in the Constitution does it suggest that a Governor can refer a motion of no confidence in the government to a referendum - indeed, the suggestion would be in obvious conflict with the constitutional provisions at hand.

Ergo, whatever the text of the standing orders - and while I agree they are in many places contradictory and misleading, the Council has wisely chosen to set practical precedent on their approach - the right of the Council to remove a Chancellor, dependent upon two criteria, which were both fulfilled, must surely take precedence.

[Oakvale]

I ask that he simply advises the legislature instead to instead strive to avoid such constitutional speculation in the future and upholds the legitimacy of the motion

this is a point I had not considered and it raises several important questions. Must the court necessarily adjudicate the outcome of the current dispute alongside its decision "dictating the proper interpretation" of the Council Rules? If so, must the two necessarily be consistent? In fact, does this court even have the authority to actually tell the council how it must resolve the dispute at hand? Or does the court merely have the authority to provide the council with its judgement, and leave the council free to apply it as it deems appropriate?

Gentlemen, as far as I am aware, this is the first Section 7.C hearing in the history of the Lincoln. I am cognizant of the significance of the precedent we will be establishing in this case. How far does the authority delegated to me by 7.C extend? I would very much appreciate the opinions of both the petitioner and respondent on this matter, as well as any friends of the court who happen to be following these proceedings.

I hesitate to unduly interfere with the internal affairs of the legislative branch, and if Section 7.C did not exist, I doubt I would have the authority to hear this case in the first place, considering the broad deference the Atlasian (and American) judicial branch must grant the legislative branch when it comes to the manner in which the latter handles its own internal affairs. Section 7.C is essentially a standing invitation granted by Lincoln's Council to this Court, to intervene and rule on matters of parliamentary procedure when and where it is necessary. How far does the invitation extend?

On this topic, I have a question for the petitioner: if this court rules in your favor, is it sufficient to provide Lincoln's Council with the correct interpretation of its rules? If not, what additional steps must the court take (e.g. explicitly countermanding S019's removal as Chancellor?), and where does the Court derive its authority to take these additional steps?

As I note in my response above, the standing orders would seem to be in many places internally contradictory and, indeed, potentially, in contradiction of the Constitution. The Council has previously wisely proceeded on a path that avoids these questions by taking a pragmatic approach to the implementations of motions vs. legislation.

I am happy to see the petitioner would be comfortable with the Court issuing advice while upholding the motion, although I disagree with the petitioner's statement that the Court is unable to issue an advisory ruling. Certainly in my own tenure on the Supreme Court the Court issued multiple advisories, albeit, granted, often in the context of a ruling proper in which the constitutionality of a matter was adjudicated - I do not believe there is anything preventing the Court from upholding the legality of motion with a caution to the legislature that such ambiguities could cause hypothetical issues and would be best remedied.

I'd further note that it is not entirely clear that the provision of the standing orders that allows for a judicial ruling even applies in this instance:

3. If the Council cannot resolve a rules dispute, Lincoln's chief judicial office may issue a binding decision dictating the proper interpretation.

There is, after all, in fact, no dispute on the rules within the Council, and thus nothing to resolve. The sufficient condition would not seem to exist.

The petitioner is not a member of the Council, or indeed a citizen of Lincoln (to be clear: I have no issue with this - the Court has long held that 'standing' in an obsolete concept in Atlasia and I welcome the intervention of public-minded citizens on these matters).

The Council is therefore not in a situation whereby it 'cannot resolve a rules dispute'.  I am therefore unclear on whether the Court can in fact issue a binding ruling on the interpretation of the standing orders, but, in any event, as I have stated, my argument is fundamentally that the motion was carried out as per the Constitution and was hence valid.

[Oakvale]

I thank the Court for its decision and, in particular, for a fascinating and comprehensive opinion, which I hope will guide the Council in avoiding these unfortunate situations in the future.