Jas v. Peter

[Sam Spade]

Masterjedi/Jas:  Please change the title of the other thread to Jas v. InksLWC solely.  Thanks.

Official Atlasia Supreme Court Release

Writ of Certiorari
The Atlasian Supreme Court grants certiorari to hear this case. 

However, the Court has decided that Plaintiff's case should be divided into two separate cases, one against Deputy Secretary of Forum Affairs, InksLWC and one against Attorney General Peter.

The formal title of these two separate matters shall be Jas v. InksLWC and Jas v. Peter.  Briefs will be filed separately, but the Court will hear both matters concurrently (as addressed below).

Relief Requested
The Court, by a 2-0 vote, grants the plaintiff's injunction against InksLWC from exercising his powers utilized through the Secretary of Forum Affairs as Deputy SoFA.  Since the Southeast special election has concluded, our injunction, to the extent needed in that election, extends solely to InksLWC's certification of the election result.  It will be lifted effective immediately at the disposition of the case, unless this Court should decide, pursuant to merits of the case, that the election is null and void.  If Earl AW is confirmed as Secretary of Forum Affairs prior to the conclusion of this case, he shall not be subject to this injunction in exercising his powers as Secretary of Forum Affairs, except to the extent of certifying the election result in the above-cited Southeast special election.

Additionally, the Court, by a 2-0 vote, grants the plaintiff's injunction against Peter from exercising his powers as Attorney General.  If Brandon H is confirmed as Attorney General prior to the conclusion of this case, he shall not be subject to this injunction in exercising his powers as Attorney General.

Schedule
Jas v. InksLWC
Because of the electoral implications of this case, the Court has decided that it should be heard first.

The plaintiff has until Wednesday to file his brief.  It is expected no later than 5:00PM EDT on Wednesday July 16, 2008.

The defendant has an additional twenty-four hours to file his brief.  It is expected no later than 5:00PM EDT on Thursday, July 17, 2008.

Additional time may be granted to either party upon a showing of sufficient need.  However, the Court wishes to proceed as quickly as possible given the electoral implications of this matter.

A possible period of argument (Q&A) may be scheduled after presentation of the briefs in case any member of the Court has any questions for the parties.

So ordered.

Jas v. Peter
The plaintiff has until Saturday to file his brief.  It is expected no later than 5:00PM EDT on Saturday, July 19, 2008.

The defendant has an additional twenty-four hours to file his brief.  It is expected no later than 5:00PM EDT on Sunday, July 20, 2008.

Additional time may be granted to either party upon a showing of sufficient need. 

A possible period of argument (Q&A) may be scheduled after presentation of the briefs in case any member of the Court has any questions for the parties.

So ordered.

Notes

1. We presume that Jas will present his own briefs in support of his cases and that InksLWC and Peter will present briefs respectively in support of each case.  If any party wishes to substitute counsel to argue in either election, please let the Court know by public post on this thread.  As always, amicus briefs are welcome from any citizen or group on this case and will be considered by the Court.

2. Considering the importance of this matter, the Court's grant of certiorari and grant of injunction was made without the input of Brother Opebo, who has been away on vacation to Thailand since the introduction of this case.  I have sent him our disposition of these matters and welcome his public input on this thread as soon as he arrives back.

[bullmoose88]

Bumping this to remind both parties of their deadlines.

[Јas]

Well, this might sound familiar...

Submission of the Plaintiff in the matter of Jas v. Peter

Statement of Facts

30 March 2008: Peter begins term as Attorney General following Senate confirmation.

4 July 2008: New Presidential term begins. Mr. Moderate swears-in.

5 July 2008: Peter announces that he will be staying on as AG until a successor is appointed.

Question Presented

On or after noon, 4 July 2008, was Peter legally entitled to continue as Attorney General?

Argument

If I may, I wish to submit the argument to the Court that the Attorney General (and indeed all cabinet officials) lose their offices automatically when a new executive term begins, in this instance at noon, 4 July 2008, and that any continuance in office requires re-nomination and re-confirmation.

According to Article II, Section 1, Clause 1 of the Constitution, executive power is vested in the President for his term of office. All executive actions are therefore ultimately carried out in his name, including those actions of the various Departments of the Government. I submit that it would be ultra vires the President to authorise any official to carry out executive acts beyond the term of the elected administration and that the power of such officials lapses with the end of the administration; just as the power of the President lapses with the end of his administrative term.

As an executive official carrying out executive acts, I contend that the office of Attorney General is subject to the lapsing of executive power and so after such point the outgoing AG wields no legal authority to maintain acting as AG without being re-nominated and re-confirmed.

References:
Article II, Section 1, Clause 1 of the Constitution:
“The executive power shall be vested in the President of the Republic of Atlasia. He shall be elected with a Vice President for a term of approximately four months.”

Conclusion

For the reasons stated, I submit that Peter has since noon, 4 July lacked standing as Attorney General and that he was not legally empowered to perform any functions associated with the role lest he be reconfirmed by the Senate.

[Peter]

Statement of Facts
I am happy with the factual record submitted by Jas. In addition, I would state that I conversed privately with then President-Elect Moderate who was happy for me to continue as AG on an interim basis.

Questions Presented
On or after noon, 4 July 2008, was Peter legally entitled to continue as Attorney General?

Arguments

I

The case should be dismissed for mootness. I did nothing in my role as Attorney General after 4 July 2008, so Jas cannot be suing to overturn any action I took. Since Brandon has now been confirmed, I no longer hold office per my earlier statements that I would leave upon confirmation of a successor, therefore he cannot be suing to remove me from office. Nothing would have occured differently had I vacated my office on 4 July.

II

There is no language in the Constitution or Statute that barred my continuance in office. The only reference to term of office of the Cabinet officers is this:

The President shall appoint the Principal Officers of the executive departments who shall constitute the Cabinet, with the advice and consent of the Senate, who shall all be registered voters. The President shall have power to dismiss any member of his Cabinet. -- Article II, Section 1, Clause 3.

Article VIII Section 2 firmly establishes the Department of Justice as a Cabinet Office and the Attorney Genearl as its Principal Officer. The argument made by Jas that my term expires with a Presidents is in my view baseless. Once appointed by a President and confirmed by the Senate, I am expected to discharge the statutory duties and whatever other duties the President assigns to me to the best of my ability. Cabinet offices are not political positions, they are much more technocratic, therefore it makes no sense that their positions should have to expire with the political office holders in the Executive branch.

Logically, I do not believe that the Framers would have intended to leave the President/VP without any administrative support in the first few days of their administration until their Cabinet was confirmed, especially as that time has a disproportionately high number of special elections. If a new President has a particular problem with a Cabinet member continuing in post, then he has a clear remedy under the Constitution - he may dismiss them.

III

Historically, some Cabinet officers have gone un-reconfirmed (though I happily concede that permenant appointments have been re-confirmed). An example would be True Democrat in July 2005 who continued as SoFA under the Siege administration without a renewing confirmation. (I both remember this as having happened, and there appears to be no evidence that I can find after a thorough search of a hearing. See also this page which has the other 4 hearings). There have also been numerous examples of examples of Secretaries continuing on an interim basis, see, for example, Ernest continuing in office as SoFA in July 2006.

It has been interesting to have been your Secretary of Forum Affairs, and until Peter Bell is sworn in, I shall continue to serve in a caretaker function [...]

Conclusion
I was the Attorney General until Brandon H was confirmed.

[Sam Spade]

My only question for Jas is simply whether he has any response to Peter's point about mootness of this case and whether any action exists that he is seeking to overturn.

[Јas]

My only question for Jas is simply whether he has any response to Peter's point about mootness of this case and whether any action exists that he is seeking to overturn.

Ah, but he did issue this official notice (!!!) in the name of the Attorney General during the period in question - which i suppose I'm reduced to arguing against the legitimacy of. Nonetheless it is an edict of the Attorney General and in the absence of anything else could be taken as precedent for future occasions that the act in question is legally sound. (Also the notice is on  headed paper (!!!) - which obviously involved significant public expense!!! Think of the poor Atlasian taxpayer!!!)

I'd say also that Peter's argument would infer that my argument when made first and accepted for hearing by the court was not, at least yet, moot. I would ask the court to consider that it is at this point when mootness arises for prime consideration.

I would finally submit that given the possible implications of the case, it is in the interests of public policy that a judgment be issued on this matter to clarify this important point of constitutional law.

[bullmoose88]

My only question for Jas is simply whether he has any response to Peter's point about mootness of this case and whether any action exists that he is seeking to overturn.

Ah, but he did issue this official notice (!!!) in the name of the Attorney General during the period in question - which i suppose I'm reduced to arguing against the legitimacy of. Nonetheless it is an edict of the Attorney General and in the absence of anything else could be taken as precedent for future occasions that the act in question is legally sound. (Also the notice is on  headed paper (!!!) - which obviously involved significant public expense!!! Think of the poor Atlasian taxpayer!!!)

I'd say also that Peter's argument would infer that my argument when made first and accepted for hearing by the court was not, at least yet, moot. I would ask the court to consider that it is at this point when mootness arises for prime consideration.

I would finally submit that given the possible implications of the case, it is in the interests of public policy that a judgment be issued on this matter to clarify this important point of constitutional law.

Does the plaintiff wish to propose his version of a rule as to when this court should or should not rule a case moot?  Should it be based on policy grounds (ie even moot cases have important points of law) or should merely be a temporal rule (if plaintiff files while not moot, the case should be decided no matter how moot it is)?

[Јas]

My only question for Jas is simply whether he has any response to Peter's point about mootness of this case and whether any action exists that he is seeking to overturn.

Ah, but he did issue this official notice (!!!) in the name of the Attorney General during the period in question - which i suppose I'm reduced to arguing against the legitimacy of. Nonetheless it is an edict of the Attorney General and in the absence of anything else could be taken as precedent for future occasions that the act in question is legally sound. (Also the notice is on  headed paper (!!!) - which obviously involved significant public expense!!! Think of the poor Atlasian taxpayer!!!)

I'd say also that Peter's argument would infer that my argument when made first and accepted for hearing by the court was not, at least yet, moot. I would ask the court to consider that it is at this point when mootness arises for prime consideration.

I would finally submit that given the possible implications of the case, it is in the interests of public policy that a judgment be issued on this matter to clarify this important point of constitutional law.

Does the plaintiff wish to propose his version of a rule as to when this court should or should not rule a case moot?  Should it be based on policy grounds (ie even moot cases have important points of law) or should merely be a temporal rule (if plaintiff files while not moot, the case should be decided no matter how moot it is)?

I would submit that the appropriate time for deciding upon mootness should be when the case is filed, and that thereupon it should not be a stringent consideration, primarily because it may encourage a party to stall a case until such time as he wins by running out the clock, and secondly because it favours the development of our jurisprudence (something I feel which should be encouraged generally) without any significant cost or harm to anyone or anything.

Regarding public policy considerations, I would say simply that the court should weigh up the benefits of issuing a judgment where significant public policy considerations exist against the potentially unwarranted or undue harm to those persons who may be negatively affected by the ruling.

[bullmoose88]

Peter,

Where does this court have the power to deny relief based upon mootness?

[Torie]

Isn't that an inherent judicial right?

[bullmoose88]

Isn't that an inherent judicial right?

Please explain.

Some might argue the power to dismiss a case for mootness is contained in the US constitution's cases and controversies clause, a clause not copied over in our constitution.

Does the right to dismiss for being moot, come from that clause?  If so, how could we dismiss for that in that clause's absence, or if not, where does the "right" come from?

[Torie]

Isn't that an inherent judicial right?

Please explain.

Some might argue the power to dismiss a case for mootness is contained in the US constitution's cases and controversies clause, a clause not copied over in our constitution.

Does the right to dismiss for being moot, come from that clause?  If so, how could we dismiss for that in that clause's absence, or if not, where does the "right" come from?

It is an inherent judicial power to not decide a case when there remains no real party in interest, because events have caused any decision to have no impact on the litigants. I am unaware of statute or Constitutional provision in the US dealing with mootness. It is a common law concept.

[Sam Spade]

Isn't that an inherent judicial right?

Please explain.

Some might argue the power to dismiss a case for mootness is contained in the US constitution's cases and controversies clause, a clause not copied over in our constitution.

Does the right to dismiss for being moot, come from that clause?  If so, how could we dismiss for that in that clause's absence, or if not, where does the "right" come from?

It is an inherent judicial power to not decide a case when there remains no real party in interest, because events have caused any decision to have no impact on the litigants. I am unaware of statute or Constitutional provision in the US dealing with mootness. It is a common law concept.

AFAIK, the federal court's mootness requirements derive from the Article III "cases and controversies" requirement.

All state courts have some version of a mootness requirement, but they differ greatly and some are quite lax.

I note that F.L. 4-3 attempts to make applicable the common law of the US on our decisions, but fails to tell us what the "common law" means or how it applies.

I would presume that all parties would agree that the court is allowed to create mootness requirements on its own, as its own version of the "common law".

My question would be the extreme case, does F.L. 4-3 require the court to follow mootness requirements of the "common law", and if so, which "common law"? 

Or can the court use this vagueness to create its own "common law", where mootness requirements do not apply, except if statutorily provided, since the Constitution is silent (as noted above)?

[Torie]

Some google finds FWIW:

http://www.nationmaster.com/encyclopedia/Mootness

And here is some language from Wilson v Los Angeles County Civil Service Com. (1952) 112 Cal App 2d 450, 453:

"The word “moot” is usually defined as “A subject for argument; unsettled; undecided.” (58 C.J.S. 1199.) “Discussion of a hypothetical case by students at the Inns of Court for practice. ... That which can be argued; debatable; not decided, doubtful.” (Oxford English Dict., 1933 ed.) “A discussion of fictitious causes by way of practice. To argue or plead in a supposed case.” (Webster's New Internat. Dict., 2d ed., 1937.) “A moot question is one which has not been decided.” (Bouvier's Law Dict.-Rawle's 3d rev., 1914.) “A subject for argument; undecided; unsettled. A moot point is one not settled by judicial decision. A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.” (Black's Law Dict., 2d ed., 1910.)

"Developing the theme of mootness, it is stated in 1 Corpus Juris Secundum, page 1012, Actions, section 17a: “A judicial *453 tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition. ... [A]s a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition. ... Accordingly, a court ordinarily will not entertain an action or proceeding merely for the purpose of passing on a moot question or abstract proposition, unless ... the determination of such question or proposition is necessary to the disposition of an actually pending controversy or unless some question of general public interest is involved.” Again in section 17d of the same work: “... although a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court."

The federal rule is basically the same, although allegedly abused by some federal courts. The inherent issue is preservation of judicial resources, and creating precedent when none required. The countervailing issue is that the matter is likely to come up again, folks need guidance, so there is a compelling public interest in creating precedent now.

[Peter]

Peter,

Where does this court have the power to deny relief based upon mootness?

The power to dismiss for mootness is inherent in a common law legal system. Also, even if the Court finds that it is not inherently bound by historical legal requirements, it should create an Atlasian common law requirement to dismiss moot cases because if the Court is prepared to issue opinions on what are in effect dead issues, then there is little to stop it being required by its own precedent to consider hypothetical issues, necessitating that it issue advisory opinions.

[Sam Spade]

We are hoping to have a decision on this case fairly shortly.

[Хahar 🤔]

Good. The decision would be entirely academic, methinks.

[bullmoose88]

Oyez Oyez

A decision has been reached.  Justice Sam Spade will deliever it from the bench.

So Ordered.

Bullmoose88, C.J.

[Sam Spade]

Justice Sam Spade delivers the opinion of the Court, in which the Chief Justice Bullmoose88 joins.  Chief Justice Bullmoose88 issues a concurring opinion.

Prologue

Today, the Court address the flip side of the question asked in Jas v. Inks.LWC - whether a cabinet officer, in this case Attorney General Peter, may carry out the duties and responsibilities of an Executive Department after the beginning of a new Presidential term of office.

While we decline, as Respondent urges, to either 1) address the scope and application of the mootness doctrine in Atlasia, or 2) apply it to the facts in this matter, we hold that a cabinet officer may exercise the powers as Secretary of an Executive Department after the beginning of a new Presidential term of office.

PART I

Initially, Respondent asks that this Court dismiss Petitioner’s case on the ground that it is moot.  Specifically, he argues that since he did not act in his role as Attorney General after the new Presidential term of office began on July 4, 2008, Petitioner cannot seek to overturn a hypothetical action.  Respondent further surmises that since Brandon H has been confirmed for the position of Attorney General, this de facto dismissal which removed Peter from his cabinet office means that Petitioner cannot sue to remove him from office again.

While we feel that Respondent’s assertion may have merit in some future action, we believe there is no need to apply it to the facts of this case.  Moreover, we think that the present case provides a poor canvas with which to paint our vision of a mootness doctrine in Atlasian jurisprudence.

Furthermore, the basic question of this case is one that is likely to arise again if the Court chooses to ignore it now.  We believe that the Atlasian government will function more efficiently if we render a decision today, rather than postponing it to some future date, since we think that this decision will give members of the executive branch a clearer understanding as to where their powers lie during a change in administration. 

Most importantly, considering our recent decision in Jas v. Inks.LWC, this case provides the Court the perfect opportunity to fill in some of the gaps of that decision, particularly as it applies to cabinet officers. 

In sum, we decline to address Respondent’s mootness argument, thereby holding that it does not apply to the facts of this case.

PART II

The crux of Petitioner’s argument has already been mostly addressed by our opinion in Jas v. Inks.LWC. 

In that case, we found that the “executive power” vested in the President of the Republic of Atlasia by Article II, Section 1, Clause 1 “adheres to the Presidential office itself.”  We reasoned that, “Since the executive power remains with the Presidential office, rather than the person who inhabits the office, it will continue, without termination, until this Constitution is no longer effective.”  In conclusion, we held that “the power of duly appointed government officials who have sworn the oath of office… to carry out executive actions does not end until the President uses his executive power affirmatively to dismiss said officials.”

As noted above, our decision in Jas v. Inks.LWC only dealt with government officials who serve under the executive departments as designated by the Senate.  We now extend this holding to apply to the “Principal Officers” or cabinet officers of the executive departments as well, as designated under Article II, Section 1, Clause 4 and Article VIII, Section 2, Clause 1. 

Therefore, we must find, as concerns the facts of this case, that Attorney General Peter legally conducted the duties and responsibilities of the Department of Justice after the beginning of a new Mr. Moderate’s presidential term until he was de facto dismissed from his position by the appointment of Brandon H as Attorney General.

In passing, we note three important results of the ruling, as it pertains to future conduct by the executive and legislative branches. 

First, once a cabinet officer is appointed by the President under his Article II, Section 2, Clause 4 powers and approved by the Senate, he may only be removed from office by four methods: 1) voluntary resignation, 2) impeachment by the Senate, or 3) dismissal by the President, or 4) de facto dismissal by the President, which occurs only when the President nominates a new cabinet officer who is approved by the Senate and who takes the oath of office. 

Second, until a cabinet officer is removed from office by one of these four methods, he exercises his power in that position at the pleasure of the President.  In other words, he is not subject at any point during his term to a re-confirmation hearing or examination by the Senate, except as defined by Law or statute or in a valid impeachment hearing.

Third, since Article II, Section 1, Clause 4 mandates the appointment and removal process for cabinet officers of the executive departments, the Senate may not use its legislative powers under Article I, Section 5 to change this process through statute.

Epilogue

By the powers placed in this Court by the Constitution of the Republic of Atlasia, we hereby lift the injunction against (former) Attorney General Peter from exercising his (former) powers as Attorney General.

So ordered.

[Sam Spade]

We have been unable to reach Brother opebo to get his thoughts on this decision.

If he wishes to join in this opinion, join in CJ Bullmoose88's opinion, file a concurrence or a dissent, he may do so in this thread, and I will PM him saying such.

Thanks.

[Хahar 🤔]

opebo's in Hong Kong until Friday or thereabouts.

[bullmoose88]

The CHIEF JUSTICE concurring:

I do not wish for this opinion to be construed in anyway that I disagree from the Court's opinion and ruling in this matter.  I wholeheartedly agree with our main opinion.  I write merely to share my thoughts on the issue of mootness which came up in this matter, but which we could not fully dispose of at this time.

The Respondent in this matter asked this court to dismiss the case for mootness.  Because his term ended between the time the case was filed and its disposition that the remedy the plaintiff sought was no longer available and thus there was no need for this court to unwisely discuss a hypothetical.  This court disagreed.

I believe this court has the power and the right to exercise its discretion in choosing which cases to hear.  That much is obvious through our past actions.  I also believe that this court should not delve into deciding hypotheticals and that it is imprudent to decide a matter when outside forces have rendered any remedy this court could give irrelevant.  We should not be disposing of cases when they have become moot.

That said I think there is great need for a rule that gives the general public some guidance as to when their case may, or may not, be dismissed for mootness.  I do not believe there can be a hard and fast rule, but rather that we must look at the totality of the circumstances when dealing with mootness.  I think relevant factors include, but are not limited to, the substantive questions of law presented in the case, when the plaintiff files, any possible delays and their causes in possibly making a case moot, and the need for some sort of remedy (even if it was not requested at the time of filing).  This court and perhaps this country will have other considerations when it finally adopts a rule on the matter.

One thing is for sure, there is one factor that must be in the calculation in determining whether or not to dismiss for mootness: the likelihood that the case at bar by its very nature is elusive of review because it is likely to arise in a situation where it will be technically moot before its full consideration.  Such cases are likely to reach this court, be accepted and become stillborn for mootness before we could reach a result.  Whatever rule of mootness we accept must yield to the necessity of dealing with the questions of law in such cases so that we are not innundated by similar situations further down the line with no result.

[bullmoose88]

I realize I probably should have been more eloquent (or at least readable from the start) but I'm tired.

But you get the point anyways.

[Torie]

Most excellent point actually.

[Sam Spade]

The decision and concurrence has now been added to the Wiki.