Civil Case 002: Tims v. Feirmont

[Rogamark]

Thanks to both parties. As was briefly discussed on Discord, for the record, the material facts of this case do not seem in dispute. The question is whether Defendant's conduct was permitted under the Regional Flag Act or not. I will now summarize what I believe has been established by the opening arguments and submitted evidence. Once I have done so, both parties will please let me know whether they agree, or wish to raise any exceptions to anything in the summary. If neither party objects to the facts laid out therein, they will be the basis for the later decision, and not open to further challenge later on. I will simplify proceedings by also summarizing the relevant portions of the Regional Flag Act and parties' legal arguments in this manner, even though they are not strictly speaking "facts". This is not to be construed as an expression of opinion; rather, the Court simply intends to ensure that everybody understands what the parties are arguing about.

1. The official regional flag of Spiritus is the one so declared in section 2 of the Regional Flag Act ("Section 2 flag").

2. Section 3 of the Regional Flag Act provides that this official flag shall be flown on the region's page.

3. Section 5 of the Regional Flag Act authorizes the Chief Executive to "temporarily change the regional flag for up to 7 days".

4. At least in the four (4) weeks preceding the filing of this action, the Chief Executive had changed the flag twice weekly.

5. One of the weekly flag changes was to the section 2 flag, the second to different flags, so that the section 2 flag was flown at least for a brief period of time.

6. The flags otherwise flown during this period of time were not the section 2 flag, nor any other official or legislatively authorized flag of Spiritus.

7. Plaintiff argues that the legislative intent here was to ensure that the section 2 flag is ordinarily flown on the region's page. Section 5 cannot be fairly read as a blanket authorization to change the flag nearly at will so long as the section 2 flag is briefly flown in between to "reset" the provision's seven-day "timer". The RFA at least implicitly provides that the section 2 flag should be flown most of the time. The flag changes were thus unlawful.

8. Defendant contends that the plain text of section 5 permits the changes. He points out that the non-section 2 flags were always different, and that Spiritus imagery was always featured prominently in those flags. This shows lack of intent on his part to subvert the Flag Act by de facto permanently substituting a different flag for the section 2 flag. Further, any change back to the section 2 flag mooted challenges to the preceding change. His conduct conformed to the provisions of the RFA at all times. 

[TimS]

I agree with this summary.

[Feirmont]

I also agree with the summary.

[Rogamark]

Both parties have agreed with the summary, this pleases me. Now that we have formally agreed on the facts I will now give the parties the opportunity to summarize their case and directly address/rebut the other side's arguments. After this I may ask questions directly to the parties if I feel something important has gone unaddressed. When we're done I'll allow 14 days for amicus briefs, then render my judgment.

Mr. Oms, your turn. You have five days (plus change to account for the time difference and avoid deadlines expiring at an ungodly hour), until Monday 24, 10:00 EST.

[TimS]

Thank you, your honor, and may it please the Court:

I will use this time to briefly address two points raised by the Defendant. First, I contend that it is irrelevant whether the flag was changed to a different flag each time or the same flag. If we are relying on the plain text of the act alone, no distinction is ever made between changing temporarily to different flags or the same flag each time. Even after reading further into the intent and purpose of the act, clearly no distinction between the two situations can be found. The act would not prevent the Chief Executive from changing the flag to the same temporary flag once every year in order to celebrate an annual festival any more than it would allow the Chief Executive to change the flag to read "Chickens are the Best" and simply changing the font slightly every week in order to make it technically "different." Distinguishing between changing to a different "temporary" flag each time as opposed to the same "temporary" flag could defeat the purpose of the act, without providing furthering the purpose of the act in any way, so such a distinction should not be read into the act.

Second, while there has been no evidence presented to suggest that any or even most of the flag changes were because of a special event, even if they were that would not change anything. The seven day temporary change exception was created in order to allow for the occasional, temporary changing of the flag, but the core goal is to preserve the flag as the symbol of the region, with occasional and temporary alterations made in the name of a special event, treaty, agreement, fun, or another reason. Abusing this exception to keep the flag as something other than what is required by law the vast majority of the time goes totally in the face of why the act was created. It does not matter whether the flag is briefly changed back to attempt to comply with the strict letter of the law, nor does it matter whether the temporary flags contain symbology related to Spiritus. The act codifies the one and only flag that is used to represent Spiritus to the world, and expanding a small exception to such a large extent that it completely goes against what the act was meant to do cannot be allowed.

I thank the Court for its time.

[Rogamark]

Thank you very much! Mr. Mont, you have five (5) days as well, until Thursday 27, 10pm EST.

[Feirmont]

Your Honour,

First, the Plaintiff is correct in stating that the purpose of the Regional Flag Act codifies the Spiritus Flag. It explicitly lays out the image that is the flag, and that it is the flag of Spiritus. It does accord certain freedoms on changing the flag on the regional Nationstates page, but having a temporary flag in its place does not infringe on that meaning: the temporary flag is not the flag of Spiritus, the linked image is the flag of Spiritus. Flying a temporary flag does not mean that is the new flag of Spiritus, and so long as the true flag of Spiritus flies over the region, then no wording or purpose of the Act has been infringed.

The Flag Act, much like any other law, is codified specifically to permanently cement an aspect of Spiritus (in this case, the flag). If the law states that the flag can temporarily be changed for 7 days, then so be it, but that doesn't change, or infringe, on any worded part of that law. The case is about whether the Chief Executive violated the length of time that a temporary flag can be flown. He has not, following diligently the word of the law. The Plaintiff claims the Chief Executive infringed on his "[...] right to have a government that complies with the laws of the region.", but the Chief Executive did comply with the law, and no missteps were made. Thus, no laws were broken or ignored, and no rights were infringed upon.

Thank you.

[Rogamark]

Thank you both for your closing arguments. I have a few questions before we move on:

For the plaintiff: You correctly point out that the plain text of the RFA makes no distinction between repeatedly changing to one and the same flag, and changing to different flags every time. But the defense has used that line of argument to make a different point: that it shows the Chief Executive never intended to permanently replace the flag with a new one, which, in his opinion, is what the RFA is supposed to prevent. Do you believe the Chief Executive's intent behind a flag change is at all relevant to this case? If so, how much weight should it be given?

For the defendant: The plaintiff has claimed implicitly on more than one occasion that the very literal reading of the RFA yields a result so far-fetched that no one could have possibly intended it. Under the absurdity doctrine, a court should avoid a reading that leads to outlandish outcomes if there are other possible interpretations that do not. However, the bar for applying this doctrine is an enormously high one, and it does not protect legislatures from merely unintended or unforeseen outcomes. Can you make a case for why the reading you suggest yields an interpretation that is merely unintended or unforeseen, not outright absurd?

Also, even if I so find, that only means I have the discretion to judicially correct the provision in question, I'm not required to do so. And only if the correction is a simple one that doesn't amount to a substantial amendment - which, of course, is the sole prerogative of the Legislature. Do you believe, should I side with the plaintiff on this question, that the RFA is ill-suited to judicial correction? If so, why?

I'm giving both parties another five (5) days for this, until Tuesday June 1, 08:00 EST. You are not required to answer those questions, but it is generally considered a good idea to do so. 

[TimS]

I believe the intent of the Chief Executive is relevant only as one of several factors that the Court could consider in determining whether changes to the flag are in violation of the Act. Other factors to be considered include the amount of time the real flag is used in between temporary changes, the amount of time that these temporary changes have been occurring, and whether there is any reason or indication of a reason for why the changes were made. The intent is useful only to the extent in helping to determine whether, for example, two temporary changes were made within the span of a few weeks because of two events that happen to be close together, or because the Chief Executive has decided they now want to see the real flag as little as possible and are only trying to conform to a strict interpretation of the law. It does not matter whether the intent was or was not to essentially create a new permanent flag, only whether the temporary flag exception is being abused to prevent the real flag from being flown most of the time, as is required. Intent can help in making that determination, but it is far from the only factor.

[Feirmont]

First, the interpretation of the act in question is unintended because in the entire time the act has been around this has not happened. The Regional Flag Act has roots all the way back to the Discworld theme of the region, and was passed into law by the old Regional Assembly on September 30th, 2016 and signed by then President Blitze on October 12th, 2016 (https://www.tapatalk.com/groups/spiritus/regional-flag-act-t1351.html). In the 4-ish years since the dissolution of that constitution and the subsequent current constitution and Legislative Assembly, the core of the older Flag Act remained the same since this was not a perceived consequence. In fact, the Flag Act came to debate in the modern version of the Legislature, where legislators then did not foresee this reading of the legislature to be a problem. The current actions of the Chief Executive were thusly unforseen by both the previous Regional Assembly and the current Legislature since this simply has not happened before in the long tenue of the Act (and its predecessor).

The judiciary is indeed ill-suited for judicial correction in this case. To start, the Court would need to find a way of 'correcting' the Flag Act without "a substantial amendment". I would argue that, in this case, the changes would have to be related to setting a time constraint between temporary flag changes, setting a minimum amount of time that the flag must be flown during a period of time (say, three days of the flag defined in the Flag Act flown for every 7 days of a temporary flag), and/or simply limiting the ability to change the flag shown on the regional message boards to a temporary flag. As far as I can tell, all of these would either 1) change any amount of time as defined in the Act and 2) Limit the powers of the Chief Executive OR/AND the Delegate. I would argue that these changes are substantial in that they directly affect different branches of government and other elected officials. With all due respect to the courts and the members therein, this could set a precedent in the courts that could have unforeseen effects down the line. The current (very) respectable Chief Justice aside, the worry from the Defense is the possibility and ability of abuse of the precedent that may arise from such a ruling.

[Rogamark]

I thank both parties for their answers. I'll take the case now under advisement; amicus briefs will be accepted until Saturday June 12, 18:00 EST.

[Rogamark]

Rogamark, Chief Justice

This case comes before the Court - the Chief Justice sitting as single judge pursuant to sections 6f. of the Judiciary Act - through a lawsuit by Toms against Feirmont in his capacity as Chief Executive. Plaintiff alleges that the Chief Executive's recent flag changes violate sections 3 and 5 of the Regional Flag Act. The parties disagree on the interpretation of the latter section, which allows "temporary" changes for up to seven (7) days. Resident Astartus has filed an amicus brief regarding the symbolism of the regional flag.

I.

Parties have stipulated that, at least in the four (4) weeks prior to the filing of the lawsuit, the flag displayed on the regional page was ordinarily not the official regional flag per section 2 of the RFA ("section 2 flag"). Every time the 7-day period for allowed temporary changes expired, Defendant changed the flag briefly to the section 2 flag, which in his opinion sufficed to trigger a new 7-day period. The different flags otherwise flown during that time were not the section 2 flag, though they featured Spiritus imagery such as the distinctive tree of the section 2 flag.

Plaintiff argues that the command in section 3, that the section 2 flag "shall be flown on the region's page", implies that this is the flag that must be flown at least most of the time. A chain of section 5 changes undermines both section 3 and the legislative purpose of the RFA, despite the admittedly vague language. Defendant contends that "temporariness" is achieved by two (2) factors, the regular changes back to the section 2 flag, as well as the fact that no two other flags were the same, proving that it had not been his intent to de facto replace the section 2 flag. Further, there is nothing to suggest that the changes were not in connection with a special event, indeed the changing of the flag in itself might be construed as a special event. Further hereto, that there is no definition of "special event", and thus the definition is entirely within the discretion of the Chief Executive.

Upon questions from the Court, Plaintiff explains that in his view, the intent behind a flag change is relevant only to the extent that it provides determinative context, such as when the changes are due to special events that occur back to back. Intent by itself cannot justify or excuse a flag change or, for that matter, render it unlawful. Defendant submits that while his reading of the RFA may be unintended and even entirely unforeseen by the Legislature, it does not rise to the level of absurdity, and even if it did, the RFA is not suitable for judicial correction as that would amount to a substantive amendment, which is the prerogative of the Legislature.

II.

I begin, as courts do, with the language of the statute. The section 3 "must be flown" command seems clear, and shows that the Legislature intended to occupy the decision which flag should be flown, curtailing the discretion of the Chief Executive - and also of the Delegate, for that matter, for without the RFA the authority over the flag would lie with the Delegate. Section 5 is trickier. It reads "The Chief Executive or Delegate may temporarily change the regional flag for up to 7 days.".

This brief provision does indeed not expressly set a limit as to the number or frequency of changes. Nor does it tie flag changes to a particular reason, "may" suggests the Chief Executive enjoys unfettered discretion. The language is also content-neutral and does not concern itself with what flag may be temporarily flown. Only section 6 limits the duration for which certain flags may be flown, a special provision not relevant to the current case.

The most important word seems to be the word "temporarily". Dictionaries tell us that it means "lasting for a limited time" (Merriam-Webster, 2021) or "not lasting or permanent" (Cambridge International Dictionary of English, 2003). The "temporariness" prescribed by section 5 means therefore that a flag change shall be lasting only for a limited time, and not be permanent.

III.

Looking only at the plain text, I find that the Chief Executive does not need any reason at all to change the flag. Intent may be helpful in determining why a flag change was necessary, but standing alone it is irrelevant. Further, I find that, strictly construed, section 5 would indeed support successive section 5 changes. But mindful of Justice Scalia's exhortation that "no one ought to be" a strict constructionist (Scalia, A. (1995) "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws", p.98), and the fact that courts must read provisions in the context of the entire statute, I further find that in light of section 3, "temporariness" is not achieved by only paying perfunctory service to its "must be flown" command. When a flag other than the section 2 flag is flown most of the time, this is not a "temporary" situation, but it indeed becomes the new normal - and this is precisely what the Legislature intended to prevent. I must therefore reject the plain text defense.

The Chief Executive, however, does not need any particular reason for a flag change, nor is he limited in what he is allowed to change the flag to, as long as it is not what I will call a "restricted flag" under section 6. Giving due weight to the discretion the Legislature accorded the Chief Executive, each flag change by itself enjoys the presumption of lawfulness. The questions that now remain is whether a sufficient defense was raised to overcome the lack of temporariness, and if not, whether the Court can remedy it without overstepping its boundaries.

IV.

No evidence has been presented to support the contention that the flag changes were connected to special events, and this defense was eventually abandoned. Since special events may provide a sufficient foundation for the lack of temporariness, I now look at the definition of "event". Spiritus law provides no such definition; however, I believe that it is a term that is commonly understood in context, so a formal definition is not necessary here. I observe that "special events" as understood in the NS context usually involve at least one of the following factors: activities out of the ordinary, a formal announcement, changes in ingame mechanics. No evidence is before the Court that anything that fits the bill has occurred in connection with the flag changes. I thus have to reject this defense as well.

That the flag was different every time, and that it bore Spiritus imagery, is not relevant either. The Legislature clearly prescribed a certain flag. Had it wanted to limit its command to Spiritus imagery, it could have done so. The Court is bound to assume that the Legislature actually means what it says, and it said it wants a particular flag. Close enough is not enough.

V.

In conclusion: Each and every flag change, taken by themselves, passes legal muster. That the Legislature may have thought Chief Executives would use their flag change authority only for special occasions does not mean the Chief Executive cannot rely on the plain text, which gives him unbridled discretion there. The amount and frequency of flag changes, however, add up to a situation that is no longer covered by "temporary".

I must side with Defendant, however, on the question whether the Court can permanently remedy the issue. Any tenable solution, such as allowing only a limited amount of discretionary flag change days in a period of time unless special events justify otherwise, can only be put in place by the Legislature. What I can and will do is give the Legislature some time to address the situation, if it so chooses, by enjoining further flag changes for a time at least. If the Legislature chooses not to amend the RFA before the expiration of the injunction, the Court will have to decide on a case-by-case basis how much is too much. In this case here, the relation between changes and cooldown periods constitutes too much.


Judgment for the PLAINTIFF to the extent that the flag changes in question are no longer "temporary". Judgment for the DEFENDANT on the ancillary questions.

Defendant is ORDERED to change the regional flag to the flag specified in section 2 of the Regional Flag Act, and is ENJOINED from changing it under section 5 for more than seven (7) days within any one calendar month. This injunction shall expire after 90 days. Should the Legislature amend the Regional Flag Act prior to the expiration of this injunction, it shall terminate upon the amendment being signed into law. The foregoing order and injunction is STAYED for 72 hours from the publication of this judgment. Should neither party file a notice of appeal until then, it shall become effective and the 90-days period will begin to run.

[Rogamark]

72 hours having passed without a notice of appeal, the order and injunction is now in force. It will expire on October 2.