2015 Cjantscheir et al vs Itravilatx et al (UC)

  

Din el Cort Pü Inalt
DAME LITZ CJANTSCHEIR, NICHOLAS HAYES
Plaintiff
v.
BRENEIR ITRAVILATX, M.T. PATRITZ De BONDIEU
Defendant
Decided
25 November 2015/XXXVI
Brief of the ruling
Case Dismissed. The Cort issued an injunction against the results of the 22 October 2015 Tuischac'h election.
Opinion of the Court delivered by
Justice dal Nordselvă

NOTE: Nicholas Hayes was dismissed as a plaintiff after losing his seats in the Cosa due to inactivity.

Plaintiff Statement

We, the Plaintiffs, do hereby present to this august Court a challenge to the election of el Túischac'h held from October 2nd 2015 to October 22nd 2015 and ask for a number of orders be made thereof:-

Background:

On the 2nd October 2015, the defendant, S:reu Breneir Itravilatx, MC started a vote to elect el Túischac'h (http://talossa.proboards.com/thread/11002/tuischach-vote) which was exclusively held on Wittenberg, a privately owned online messaging board. On the 22nd October 2015, voting for el Túischac'h, was without prior notice closed and S:reu M.T. Patritz de Bondieu, MC was declared elected as el Túischac'h

The Facts & The Law:

We, the Plaintiffs, do hereby contend that the election for el Túischac'h, held between the 2nd and 22nd of October 2015 is invalid, unlawful and should be declared null and void based upon the following:

1) All MCs were not informed

i. In order for a vote/election to be valid all those eligible to vote in the election/vote must be notified of the upcoming vote and afforded every opportunity to vote in said. The defendants failed to take all reasonable measures and steps to conduct the election for el Túischac'h in a fair and open manner, but not notifying all MCs of the vote.

ii. S:reu Itravilatx failed to notify in good time all Members of the Cosa (MCs) of this vote in accordance with long standing precedence and tradition. Therefore, the plaintiffs were unaware that a vote for el Túischac'h was taking place and thus through the inaction(s) of the defendants, who failed to take all reasonable measures to adequately notify all members of the vote (e.g. send an email etc…) and to follow due process, denied the plaintiffs and other MCs the opportunity to vote in the Cosa.

iii. It has been a long standing tradition, given the busy and sometimes unpredictable lives of MCs that MCs be notified of all Cosa votes by email. This is further cemented by the fact that the Clark is emailed to all MCs and not merely posted to the Kingdom’s website or on Witt. Thus, MCs have a legitimate expectation that they be notified in good time of any Cosa vote (in Clark cycle or out) by email to their registered email address. The defendants failed to notify MCs in accordance to these well established precedence.

iv. There is no lawful obligation placed upon MCs to check a privately owned messaging board (Wittenberg) for Cosa votes, whilst it forms a place of convenience to which MCs to gather it holds no lawful status and notice placed solely upon it cannot lawful be interpreted as notice to all MCs.

v. It has been an accepted and long standing practice and precedence in the Kingdom of Talossa that the onus is on the person(s) conducting the vote notify all those eligible to vote in the election that an election is taking place, this is clearly demonstrated in General Elections, Provincial Elections, Senatorial Elections etc... This Cort cannot allow a precedence of notice on a private message board to be classed as notice as this will unlawfully and unduly disenfranchise a vast number of citizens of the Kingdom and deny them their lawful vote. The Kingdom is by the OrgLaw not an online messaging board and the Cort cannot allow it to inorganically become one.

vi. We, the Plaintiffs, therefore contend that vote is unjust, unlawful and invalid and sets a deadly precedence wherein the vote conductor does not need to notify MCs of a vote and a simple post on Wittenberg constitutes notice, therefore disenfranchising MCs who are not regular nor lawfully obliged visitors to Wiitenberg.

2) There was no deadline given on the vote nor notice given that the vote was going to close

i. The defendants gave no deadline for the closing of the vote for the election of el Túischac'h

ii. Furthermore before the defendants closed the voting on the 22nd October 2015 he gave no prior notice or warning that the vote was coming to a close.

iii. By not giving a deadline in his initial post and leaving the vote open, S:reu Itravilatx by his actions implied that the vote must be kept open till all MCs had voted or indicated their intention not to vote ,e.g. abstain.

iv. If S:reu Itravilatx made a genuine error in omitting the deadline in the initial post opening the vote, he made no effort to correct this and give notice to MCs who were still trying to make up their minds and weighing up their options to vote before the closing of the vote. By doing so, he intentionally or unintentionally disenfranchised MCs who were unaware of the imminent closing of the polls.

v. The plaintiffs contend that in order for a vote to be valid it must have a clearly defined deadline date and time, as is a long standing requirement of all votes held in the Kingdom of Talossa. If a deadline is omitted by genuine human error or otherwise, then the vote conductor must correct this at the earliest opportunity or give adequate notice, via established means, to all voters that the vote is about to close to give them the opportunity to vote on time and before the deadline.

vi. We, further contend that a vote given closed before all MCs could vote, without a deadline or adequate notice that the vote is about to close is unjust, unlawful and invalid and sets a deadly precedence wherein a vote conductor can at whim and unilaterally close polls when the results suit him/her.

Defendant Statement

May it please the Cort, as Avocat-Xhenerál and thus an ex officio member of the Royal Talossan Bar, I am happy to appear for respondent Itravilátx, and also for respondent da Biondeu if he so requests.

Your Honor, Organic Law XII.9 states as follows, with emphasis added:

"The King shall appoint a Member of the Cosa to serve as Speaker of the Cosa (Talossan: el Túischac'h), on the advice of a simple majority vote in the Cosa for the upcoming term. The Speaker shall preside, direct and maintain order during Living Cosas, in an unbiased fashion. Otherwise, his function will be to advise Members of Cosa of appropriate decorum. He is considered the honourable President of the Cosâ and shall be awarded all due veneration when serving as such."

The plain meaning of this section, as far as I can see, is that no appointment of the Túischac'h of the Cosâ has yet taken place. The King has remained silent on the issue up until now. Therefore, the question of whether MC da Biondeu has properly been endorsed by "a simple majority vote in the Cosâ" is in the discretion of the King, and it would be incorrect for this Cort to attempt to anticipate such a decision. A vote has taken place, but this vote has had no legal effect so far; nor will it until the King "makes his call". I move therefore that this petition be dismissed without prejudice as premature, pending a decision from the King as to whether to go ahead with the nomination of MC da Biondeu.

Respondent da Biondeu indicates that he is happy to comply with conditions 1 and 2 set out above.

However, the "strict condition" given subsequent to that by the plaintiffs is, in my opinion, unenforceable on either Respondent. Neither of them has any ability to control the other members of the Cosa or the next steps in trying to produce a majority decision on a Túischac'h nominee as set out in OrgLaw XII.9. So I don't know whether counsel for the plaintiffs is happy to simply accept MC da Biondeu's renunciation of his nomination of Túischac'h, or whether we have to continue with this case - but if we do I think the statement of claim needs another revision.

Opinion

In the most recent statement, Plaintiff's counsel stated "Given that there is a broad consensus between both parties with the matters at the crux of this case, the plaintiffs are happy that if S:reu de Bondieu gives undertakings not to seek or accept appointment to the office of el Túischac'h based upon this election/election result, then we would be happy to withdraw this case. We attach no other conditions or require any other action from the respondents."

In an earlier statement before this Cort, Respondent da Biondeu stated " I'd be glad to issue a statement that i know the election was botched and that i formally announce i will not take the position based on this election." The Cort believes this statement should satisfy the Plaintiff.

This Cort has also issued a preliminary injunction against the results of this election from taking place, quoting: "the Cort issues a temporary injunction against The Crown or its agents from appointing a Tuischach based upon the proceedings at issue in this case. The injunction will be lifted either at the conclusion of this matter or later in the proceedings based on how the matter proceeds. "

Ruling

In the matter of Cjantscheir et al vs Itravilatx et al, this Cort dismisses the case in its entirety. Furthermore, the injunction previously placed shall remain in effect until the end of the 48th Cosa when the order shall be dissolved.