Lewis Trondheim vs. Secretary of Forum Affairs

[Torie]

We are working on a decision.  Discussion between the justices has been interesting...

Well if you go nutter and invalidate/change the playing field of elections in midstream, it will require emergency rectifying  legislation, and given the pace around here, it might come up for a vote in about two years.   Fun, fun, fun.

[Sam Spade]

We are working on a decision.  Discussion between the justices has been interesting...

Well if you go nutter and invalidate/change the playing field of elections in midstream, it will require emergency rectifying  legislation, and given the pace around here, it might come up for a vote in about two years.   Fun, fun, fun.

From what I hear, the decision should be coming down the pike any moment.

[Torie]

Off topic, but the California supreme court decision in Edwards v Arthur Andersen is being published tomorrow morning. The issue is whether California's stature striking down  non compete clauses vis a vis employees will be gutted, and legal associates and junior bean counters will become chattel or not (because contracts not allowing these professional sans culotte to take clients with them, or for clients to choose to go with them, will become enforceable, or enforceable in the sense that one must share the fees). I have a client who is tenterhooks on this one. We won the arbitration, but the arbitrator refused to make his decision final pending this case. We have been waiting for about a year. It's a BIG case.

[Sam Spade]

Off topic, but the California supreme court decision in Edwards v Arthur Andersen is being published tomorrow morning. The issue is whether California's stature striking down  non compete clauses vis a vis employees will be gutted, and legal associates and junior bean counters will become chattel or not (because contracts not allowing these professional sans culotte to take clients with them, or for clients to choose to go with them, will become enforceable, or enforceable in the sense that one must share the fees). I have a client who is tenterhooks on this one. We won the arbitration, but the arbitrator refused to make his decision final pending this case. We have been waiting for about a year. It's a BIG case.

Ya, that sounds like quite a major case.  You say the CA statute forbids contracts not to compete between employers and "vacating" employees - what is the basis being used to say that this statute should be struck down?  Is it on a constitutional basis, such that the statute could not be rewritten to get around the ruling, or will it just affect that particular statute, so that a new law could be written that's ok.

[Torie]

It's all statutory. The issue is whether a reasonable standard should be read into the state statute that invalidates non compete clauses (not involving theft of trade secrets of course) where a sale of a business is not involved. Some rogue federal courts interpreting the state statute  (diversity cases mostly which is why they were in the federal court) read a reasonable standard into the state statute out of thin air, while the state courts hewed to the per se standard which is how the statute literally reads. The federal courts viewed clauses that reasonably restricted competition, as clauses that did not restrict competition because they were reasonable. Are you with me?  The disturbing thing is that the lower court hewed to the per se standard, yet the Supremes granted the petition for review. Why did it do that? Was it to make the bean counters and lawyers into chattel, and insurance agents, or was it to strike a stake into the heart of the federal court decisions that the state courts assiduously ignored anyway? Stay tuned.

I should add that the clause in question, required the bean counter to pay 25% of fees collected, or some such percentage, to Andersen with respect to any client of Andersen's for a period of two or three years after employment termination. The argument is that the clause was reasonable because hey, the bean counter could earn a living by getting new clients, or working for clients of his or her new firm, and thus there was no need to poach clients for whom the bean counter was working for at Andersen.

Of course in the real world, that would leave many legal associates and junior partners in a rather desperate condition, and effectively preclude pre-existing clients from choosing the services of the professional of their choice.

[Sam Spade]

Interesting...  I've forgotten about the first-year Ks course that dealt with this issue, but I think it was only part of one day, anyways. 

So, instead of the stark black-and-white line, the CA courts may impose the vacuous reasonableness standard.  That would also translate into a lot more litigation because, after all, what is a reasonable non-competition clause (outside the already accepted exceptions you mention)?

[bullmoose88]

A decision has been reached.  The Chief Justice will deliver the opinion of the court.


Sincerely,
Ray S. Judicata
Clerk

[bullmoose88]

(ahem)

The CHIEF JUSTICE delivered the opinion of a unanimous court.  Sam Spade, JJ, also filed a concurrence.


Today we decide a simple question:  whether a second individual was elected in the contest to fill the vacancy created by our current Secretary of Forum Affairs EarlAW.  We hold that only one person, the eventual victor AndrewCT, was elected in that race. 

We must also decide ancillary questions to the main matter. 

First, when does an election begin?  We hold that it begins at the opening, that is when votes are allowed to be cast, of the GENERAL election booth. 

Second, is a voter who casts his or her vote before the opening of the general election, by absentee ballot, entitled to have the rules governing the election they cast their ballot in remain the same through the full conclusion of that contest?  We hold that our constitution affords them that protection.

I

Two Class B Senate seats became vacant within a week of each other.  On 17 July, EarlAW resigned his seat, a Class B seat, to become the current Secretary of Forum Affairs (SoFA).  Later that day a special election announcement for Earl's seat was posted.  At noon 22 July, the absentee voting booth opened as the deadline to declare for the open seat had been reached.  Nearly six hours later, Conor Flynn officially resigned his Class B senate seat.  At the time of Mr. Flynn's resignation, eight absentee ballots had been cast.  At noon on the 24th of July, the SoFA opened the election booth, and about one hour later posted the Special Election Announcement to fill the seat vacated by Conor Flynn's resignation.

II

When does an Election Begin?

We dispense of this minor question first.  It is clear to us that the commencement of the election under the Proportional Representation Act is the opening of the general, and not absentee, voting booth.  Here we agree with the Petitioner in this regard that our constitution means the general election booth when it uses terminology such as "the election", "beginning of the election", "commencement of the election", etc. (A I, S4, C3; A II, S2, C1; A V, S2, C4 & 8  ).  To interpret otherwise, as the Petitioner aptly reminds us, would "make the holding of legally correct elections in Atlasia impossible." 

For example, to construe that the election begins with the opening of absentee balloting would create a scenario under Sections 6 and 8 of the CESRA where a string of absentee booths be opened to infinity.  Each booth would be opened a week after the other as Article V, Section 2, Clause 8 mandates:

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As the petitioner reminds us, to treat the absentee booth as the start of the election, would require another absentee booth to serve it, which starts an infinite cycle of absentee booths which surely cannot have been the purpose when the laws pertaining to these institutions were enacted.

At first glance, determining when an election actually begins would seem to solve this issue and compel us to rule in favor of the petitioner because the PR Act (FL 21-2 [Vacancies, 3-Amended]) demands that:

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Upon our further constitutional inquiry, we cannot enforce this quoted section of the PR Act as it runs afoul of our constitution.

III

Is Section 2 [Titled Vacancies] Clause 3 of the Proportional Representation Act [FL-21.2] as amended unconstitutional?

We find that S2, C3 of the PR-Act to be unconstitutional.

A

Amicus, filed by one of our esteemed former brothers, argues that the clause in question violates of Article 1, Section 4, Clause 5 of the Constitution, which reads:

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Amicus argues, and we agree, that our constitution speaks in the singular, not plural, in this section.  Amicus further contends that while the PR act compels the SoFA to hold a national vote for a vacant Class B seat and that the clause of the PR Act creates a contradiction with our constitution as to how to treat multiple, but not quite simultaneous class B vacancies.  We agree that a conflict exists.

Petitioner relies upon our recent decision in BrandonH vs Department of Forum Affairs where we stated that our constitution "requires that vacancies to Class B Senate seats be filled by special election held for a specific time period, said time period later altered to that specified by the Eleventh Amendment" (2008).  But that case dealt with the unconstitutional retroactive application of a new law AND the party list appointment to fill a vacancy which our constitution demands be filled by election.  We do not find the petitioner's argument here compelling.

B

Amicus also asserts that our Bill of Rights, Article VI, Section 2, demands the invalidation of the questioned part of the PR Act on Equal protection grounds.  That part of our constitution reads as follows:

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Amicus relies upon the fact that eight voters cast their absentee ballots prior the second vacancy and the fact that if the second vacancy were to be lumped into the initial election, those voters would have been denied equal protection of our laws. 

Petitioner, on the other hand, argues that we could infer voter intent by looking at who each voter placed second in their order and thus interpreting that to be who they would have voted for if a second seat was at stake.  However reasonable this may or may not be in practice (we note that one of the eight voters cast a single preference only), our equal protection clause rightfully entitles those absentee voters to cast their ballots under the same rules as every other person voting in the election, by absentee or general ballot.

While the petitioner is correct that absentee voters aren't necessarily entitled to the same amount of information as general voters due to the fact they cast their ballots early and are often away from the polls during the election (candidates change, information about candidates change), we believe that they are entitled to have the same legal information as every other voter especially when it comes to a fundamental question such as "how many seats am I voting for?"

We think there should be some sort of dividing line between material or fundamental legal information like knowing how many seats one is voting for in an election, and non fundamental or nonmaterial information like write-in acceptances. 

We believe that two factors generally distinguish the former category from the latter.  The first factor is the nature of the information. Information such as an administrative or agency created condition, or law, is so fundamental for these purposes that it demands equal protection, whereas information relating to an additional person one can vote for has little to do with our equal protection clause as it is not the action of the government. 

The second factor concerns foreseeability.  Nonmaterial information often is foreseeable or the person claiming equal protection has notice or constructive notice.  For instance, voters are aware, by the mere fact laws are on the books on the matter, that write in candidacies can occur at anytime during the election.  They are aware of the possibility that an additional candidacy may occur.  On the other hand, it is not foreseeable that an agency regulation or decree will be changed especially after the period where one can edit their votes.  Such a situation demands the equal protection of our laws.

Therefore we find that S2, C3 of the PR-Act is unconstitutional on both grounds and that the SoFA acted properly with his administration over the election concerning the first Class B seat.

IV

We hereby deny the Petitioner's claim for relief, lift the injunction against the Respondent (the SoFA) holding the election for the Class B seat formerly held by Conor Flynn.

[Torie]

Well done. It was rather imperative that the ultimate holding be reached, and the tools used to reach it, were handled with skilled massaging of the texts. The prose style fell a bit short of the John Harlan standard, but give it time.

[TomC]

Excellent ruling. It was certainly fun debating the formidible Mr. Trondheim.

[Sam Spade]

The concurrence will probably be released this evening - maybe tomorrow.

[minionofmidas]

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Amicus argues, and we agree, that our constitution speaks in the singular, not plural, in this section.  Amicus further contends that while the PR act compels the SoFA to hold a national vote for a vacant Class B seat and that the clause of the PR Act creates a contradiction with our constitution as to how to treat multiple, but not quite simultaneous class B vacancies.

Actually... by that reading, the conflict exists even when the two vacancies are exactly simultaneous.

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Uh...

Oh well. No point rehashing the argument again, is there? I'll just do it in three sentences anyways because I'll have to scream loudly out of the window otherwise:
It's not called a SINGLE transferable vote for nothing. Voters would not have had an additional vote. The effect of the number of vacancies on voters' ballots is in almost all circumstances ZERO.

Sadly, that also seems to go for the court's comprehension of the PR Act.

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And they are (well. Should have been. Will be in the future) aware, by the mere fact laws are on the books on the matter, that additional vacancies can occur.
The reasoning here is sound, actually... but only as to the remedy I sought in this particular situation. As to the Act itself, I'm trying really hard to refrain from really strong language here.

Meh. Oh well.

[Хahar 🤔]

Well, Senator, remember that you're a Senator.

[minionofmidas]

Well, Senator, remember that you're a Senator.

I'm not a Class B Senator. I can't resign the minute one of my colleagues does. And I don't suppose an Amendment to remove the offending lines from IV 1 5 (which IMHO is actually the bit about "shall be called" - no new election for the extra vacancy was to be called according to the By Elections Act. If I'd struck down my law it'd have been based on that bit. ) will pass the Senate... I seem to have been pretty alone in this battle.

No, the only logical thing to do is to give up on the battle to keep a minimum of democracy in the filling of PR by-elections. It's not THAT big an issue really - how often are such simultaneous vacancies about to reoccur anyways?

[Хahar 🤔]

Well, all these problems would be fixed if we simply abandoned Class B by-elections. The countback method would be much easier.

[minionofmidas]

Well, all these problems would be fixed if we simply abandoned Class B by-elections. The countback method would be much easier.

No. No, it wouldn't...

Besides, it would also take an amendment.

[Torie]

The California Supreme Court unanimously upheld the per se rule on covenants not to compete, and smote the rogue federal courts, so all is right with the world.

[Хahar 🤔]

Well, all these problems would be fixed if we simply abandoned Class B by-elections. The countback method would be much easier.

No. No, it wouldn't...

Besides, it would also take an amendment.

Yes, of course it would, but it'd fix a lot of litigation.

[Sam Spade]

The California Supreme Court unanimously upheld the per se rule on covenants not to compete, and smote the rogue federal courts, so all is right with the world.

Excellent.

[Brandon H]

Well, all these problems would be fixed if we simply abandoned Class B by-elections. The countback method would be much easier.

No. No, it wouldn't...

Besides, it would also take an amendment.

Yes, of course it would, but it'd fix a lot of litigation.

Wow. I'm agreeing with Xahar on this one.

[minionofmidas]

Alright, so I thought countback was more complex than it really is. It could work.

I'll probably calculate later tonight who would have filled these vacancies under countback.

[minionofmidas]

It's still horridly complex. One would first have to do a redistribution of Afleitch and Colin's mini surpluses, as these aren't represented at equal value yet.

Vote pool for the Earl vacancy:
-Earl's eight original votes, at 9/10th value (remainder redistributed, and thus still represented)
-Sensei's two votes, both of which transferred to Earl, electing him, at 9/10th value
-Scrap that: Six of the ten Earl and Sensei votes - the ones that ended up with Lewis either directly or via Happy Warrior - are actually to be included at full value (9/10th of their value because they elected Earl, the remaining tenth because it didn't elect anybody).
-Lewis' original six votes, and the vote I picked up from Jake (full value - these didn't elect anybody)
-From the Rocky surplus, Lewis received 0.3/9.3 of 2 of Rocky's votes (which might have travelled to Rocky from elsewhere, I didn't check yet) and also 0.3/9.3 of the 1/10th of a vote among the three Rocky had picked up from the Earl surplus that travels on to him.
For sanity preservation's sake, I will round to three digits behind the point at almost every step of the way, and thus treat 0.3/9.3 as 0.032, and 0.3*0.1/9.3 as .003. Error corrected.
-The Colin surplus is ~.197/9.197, or approximately .021 per whole vote involved (9 of those), .002 for the 1/10 vote Colin got from Earl's surplus, and .001 for the three votes Colin got from Rocky's surplus.
The Afleitch surplus is ~.135/9.135, or approximately .015 per whole vote involved (again 9 of those). The value of the four votes Afleitch got from the Rocky surplus, nevermind the two tenth of votes that travelled to Afleitch via Earl and Rocky, is below .0005. They will be ignored.
Note that part of these surpluses will flow to CK, not Lewis, thus be represented already and not be involved in the actual countback. Those that exhaust (list neither JCP candidate) will be included, though.

Next step: Locating which votes these are, exactly.

[minionofmidas]

Full strength votes (Lewis): 7
Franzl, Jas, Al, BRTD, Brandon H, Lewis, Verin
Full strength votes (Earl, surplus to Lewis): 6
Earl, benconstine, Old Europe, Lief, Evilmex, Smash
.903 votes (Earl, surplus to Rocky, thence to Lewis): 1
Sensei
.902 votes (Earl, surplus to Colin, thence exhausted): 1
TCash
.9 votes (Earl, surplus to Rocky, thence to Afleitch): 2
Happy Warrior, Meeker
.032 votes (Rocky, surplus to Lewis): 2 Error corrected.
Speedy, Xahar
.021 votes (Colin, surplus to Lewis or in Phil's case exhausted): 8
Verily, Colin, MAS, Phil, Bacon King, Pete, TD, Jake
.015 votes (Afleitch, surplus to Lewis): 3
Conor, SPC, Mr Moderate
.001 votes (Rocky, surplus to Colin, thence to Lewis): 2
Jedi, AndrewCT

Sum: 16.886

Quota: 9

[minionofmidas]

Vote count (Earl, Rocky, Colin, Afleitch, Culture King treated as if they don't exist, remember)

Round 1:Sensei 7.704 (Earl, benconstine, Lief, Evilmex, Smash 1, Sensei .903, Happy, Meeker .9, AndrewCT .001)
Lewis 7.074 (Franzl, Jas, Al, BRTD, Old Europe, Lewis, Verin 1, Speedy .032, MAS, Pete .021)
SPC 1.015 (Brandon 1, SPC .015)
Bacon King .981 (TCash .902, Verily, Colin, Bacon King .021, Moderate .015, Jedi .001)
Happy .032 (Xahar .032)
Jake .042 (Phil, Jake .021)
Hashemite .036 (TD .021, Conor .015)

Hashemite, Jake, Happy, Bacon King, and SPC may be eliminated in a single turn.

Round 2:
Sensei 8.732 (Earl, benconstine, Lief, Evilmex, Smash 1, Sensei .903, TCash .902, Happy, Meeker .9, Xahar .032, Verily, Colin, TD .021, Conor, Moderate .015, AndrewCT, Jedi .001)
Lewis 8.131 (Franzl, Jas, Al, BRTD, Old Europe, Lewis, Verin, Brandon 1, Speedy .032, MAS, Pete, Bacon, Jake .021, SPC .015)
exhausted .021 (Phil .021)

Sensei elected without a quota (sparing the countback method some embarassment - there would probably need to be some provision to eliminate candidates elected in the other Class as well.)

For the Rocky vacancy, I assume the changes due to the Earl countback would also have to be taken into account, so the votes involved are now Rocky's final count votes (amended for redistribution of slight surplus), plus the Lewis votes from the Earl countback, and the exhausted Phil thingy.

Another minor tripup I noticed: STV produces ballots that are invalid in the lower part (although some voting systems consider them wholly invalid, avoiding the problem) due to numbering errors, ie if a voter used pref. 8 twice. This happened three times in the April elections. With countback, because some preferences are ignored, these lower pref.s may as it were spring back to life (didn't happen in this countback, but still an amusing possibility. )

[minionofmidas]

Rocky redistribution...

9 Rocky votes at .968: Speedy, Jedi, Inks, AndrewCT, Hashemite, Matchu, Polnut, Xahar, PBrunsel
3 Earl to Rocky votes at .097: Happy, Meeker, Sensei

plus
8 Lewis votes at 1: Franzl, Jas, Al, BRTD, Old Europe, Lewis, Verin, Brandon
1 missing .032 of a Rocky vote, lifting it to 1: Speedy
5 Colin votes at .021: MAS, Pete, Bacon, Jake, Phil
1 Afleitch vote at .015: SPC

total of 17.155
Quota of 9 (thank god there was no further Sensei surplus to redistribute. )

Vote counte (Rocky, Colin, Afleitch, CK, Earl, Sensei treated as if they don't exist):

Round 1:Lewis 8.042 (Franzl, Speedy, Jas, Al, BRTD, Old Europe, Lewis, Verin 1, MAS, Pete .021)
Happy 3.195 (Matchu, Polnut, Xahar .968, Sensei, Happy, Meeker .097)
Hashemite 2.904 (Inks, AndrewCT, Hash .968)
SPC 1.983 (Brandon 1, PBrunsel .968, SPC .015)
Bacon King .989 (Jedi .968, Bacon King .021)
Jake .042 (Phil, Jake .021)

Jake and Bacon King may be eliminated in a single turn.

Round 2:Lewis 8.084 (Franzl, Speedy, Jas, Al, BRTD, Old Europe, Lewis, Verin 1, MAS, Pete, Bacon, Jake .021)
Happy 4.163 (Matchu, Polnut, Xahar, Jedi .968, Sensei, Happy, Meeker .097)
Hashemite 2.904 (Inks, AndrewCT, Hash .968)
SPC 1.983 (Brandon 1, PBrunsel .968, SPC .015)
exhausted .021 (Phil .021)

SPC eliminated.

Round 3:Lewis 9.099 (Franzl, Speedy, Jas, Al, BRTD, Old Europe, Lewis, Verin, Brandon 1, MAS, Pete, Bacon, Jake .021, SPC .015)
Happy 5.131 (Matchu, Polnut, Xahar, Jedi, PBrunsel .968, Sensei, Happy, Meeker .097)
Hashemite 2.904 (Inks, AndrewCT, Hash .968)
exhausted .021 (Phil .021)

Lewis elected. Of course, there's the slight matter of me being in the Senate already, but creating a rule for that would change the previous countback so I'm leaving that to one of you. Ignoring that for a moment, should another vacancy arise then my surplus would have to be redistributed first.