1100

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                               CFJ 1100

  Player Swann committed the crime of Contempt by Action.

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Judge (2nd assigned):  Blob

Judgement:             FALSE

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Initial selection

Eligible:     Antimatter, Blob, Chuck, Crito, General Chaos,
              Harlequin, Kolja A., lee, Macross, Michael, Morendil,
              Murphy, Oerjan, Steve

(* note an error was made in selecting the initial judge; Antimatter
   and Harlequin were not given a chance of being selected. *)

Not eligible:
Caller:       Swann
Barred:       -
Disqualified: -
On hold:      elJefe, Swann

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Selection of Judge for reassignment (13 August 1998)
  On Hold:                elJefe, Oerjan, Swann
  Original Judge:         lee

Eligible: Antimatter, Blob, Chuck, Crito, General Chaos, Harlequin,
          Kolja A., Macross, Morendil, Michael, Murphy, Steve

(Rolled a 1 on a 0-11 sided dice; Blob is selected)

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History:
  Called by Swann, Fri, 22 May 1998 11:57:05 -0400
  Assigned to lee, Mon, 27 Jul 1998 09:45:07 +0100
  Judged FALSE, Thu, 30 Jul 1998 23:00:34 -0500
  Published, Sat, 1 Aug 1998 16:01:06 +0100
  Appealed by Oerjan, Sat, 1 Aug 1998 18:08:40 +0200
  Appealed by General Chaos, Sat, 01 Aug 1998 17:43:32 -0500
  Appealed by Morendil, Sun, 2 Aug 1998 01:45:02 +0100
  Appealed by Macross, Sat, 1 Aug 1998 19:50:51 -0400
  Appealed by Crito, Mon, 03 Aug 1998 10:02:34 -0400
  Appeal begins, Wed, 5 Aug 1998 09:21:27 +0100
  (Board is Steve, Michael, Morendil)
  Morendil OVERTURNS the judgement, Wed, 12 Aug 1998 05:11:08 +0100
  Michael OVERTURNS the judgement, Wed, 12 Aug 1998 09:20:57 +0100
  Steve SUSTAINS the judgement, Wed 12 Aug 1998 09:21:27 +0100
  (Course of action:  reversal     - Michael
                      reassignment - Morendil, Steve
   CFJ is reassigned)
  Assigned to Blob, Thu, 13 Aug 1998 11:00:58 +0100
  Judged FALSE, Mon, 17 Aug 1998 18:11:42 +1000
  Published, Wed, 19 Aug 1998 10:20:00 +0100

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Judgement (Blob):  FALSE

Reasons and arguments:

I concur with with the original judge, lee, in saying that Macross'
Order were never executed, because they were not submitted directly
to Swann. I argue that sending something via the Public Forum is not
the same as sending it directly. Intuitively, the Public Forum is
an "intermediate step" which makes the submission indirect.

Justice Michael, while acknowledging this difference, argues that
Rule 478 establishes the legal fiction that the two are indeed
equivalent (an argument that wouldn't be necessary if the intuitive
distinction didn't exist). The relevant part of R478, I think, is:

      Sending a message, by any medium or combination of media, to
      every Active Player, is equivalent to sending it to the Public
      Forum, provided that the message bears a clear indication that
      it is intended to be a message to the Public Forum, and it is
      verifiable that the message was in fact sent to every Active
      Player.

While a strictly logical reading of this rule might take "is equivalent
to" to mean that the two methods of submission are interchangeable, I
would argue that this is not the natural meaning of this rule. Rather
this rule seeks to allow sending directly to all players as an
alternative to sending to the PF. It is, in the opinion of this judge,
a misapplication of this rule to reverse this, and claim that sending
to the Public Forum is an acceptable means of sending something
directly to a Player.

I do not believe that it is within the jurisdiction of this judge to
define in any positive sense what "submitting directly" is, only what
it isn't. I will leave it to another judge to determine the matter in
greater detail, as becomes necessary.

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Appelate decisions
----------------------------------------------------------------------
Justiciar Morendil:

I am in agreement with fellow Justice Steve about the substance of
lee's Judgement, that is, to interpret "direct submission" as required
by Rule 1808 to exclude the Public Forum as a valid means of
submission.

I further agree that the fact that the Judgement would invalidate a
number of Private Orders, mostly Transfer Orders, previously thought
to have been valid should not be a primary factor in the Board's
decision. (I do not agree, however, that we might just take these
erroneous transfers to have taken place and agree to 'ignore the
errors' as has been suggested, as this would represent a radical and
unwarranted departure from Agoran tradition in taking judicial
findings into account; rather; I would hope to see most recent
Official reports Ratified so as to correct for all such errors).

I also agree that supposed conflicts with prior Judgements are not a
major issue. Not only does Steve offer some arguments to the effect
that these prior Judgements can be seen as not conflicting; I also
believe that the requirement to consider 'past Judgements' in Rule 217
must be interpreted according to the literal meaning of 'past', i.e.
'past Judgements' delivered in the recent past are by necessity of
more dubious value in guiding further Jugdgements that those delivered
several weeks, months, or years ago and which have demonstrated their
usefulness.

Where I differ with Justice Steve is in his assessment of Rule 1808 as
being, so to speak, unclear in such a way that the Judge was justified
in interpreting it as clearly having a different meaning than it was
previously thought to have. But in the discussion that has developed
since the original Judgement we have come to regard the meaning of the
Rules and its wording to have quite different meanings to different
Players.

In this instance I believe this Board is justified in examining lee's
Judgement in the light of all factors mentioned in Rule 217, and
overturning it if overall the evidence and arguments against overweigh
the evidence and arguments for.

A crucial point offered by Judge lee in eir defense of the Judgement
(and not, as Steve note, in the Judgement proper) concerned the
wording of other Rules that might have been relevant to the
interpretation of Rule 1808, and in particular the uniqueness of Rule
1808 in including the phrase "directly to".

lee cited several Rules which require a given body of text to be
submitted to a particular Player and which have been in the past
interpreted as being satisfied by a post to the Public Forum. Judge
lee cited Calls for Appeal - not a particularly good example, as Rule
1564 explicitly require such submissions to be to the Public Forum.
Other Rules which require a given text to be "submitted to" a
particular Player are 1789, 1792, 1726, 991, 1826...

In contrast, Rule 1808 is unique in requiring a given submission to be
made "directly to" a given Player. But for this argument to be
complete, we should also turn to other Rules which are known to
require a submission to be made to a given Player, *and* prohibit such
submissions to the Public Forum. There is one instance, Rule 1859
(Secret Voting), which calls for messages to be sent to "the Vote
Collector of the Proposal, Election, or Referendum _only_." (My
italics.)

I contend that "directly to X" strongly differs in meaning from "to X
only". The former relates to the means of sending a message, while the
latter relates to the intended effects. I believe it would be proper
for a Judge to offer an interpretation of the "directly to X"
constrution, whether this interpretation is such as to include Public
Forum postings or not, but I am loath to sustain a Judgement the text
of which does not allude to an issue which later emerges as being
central to the decision.

I therefore see no option but to call for reassignment.

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Clerk of the Courts Michael:

I hereby OVERTURN the decision above.  The Judge relies on Rule 1808
specifying that Private Orders be made directly to the recipient
Player.  However, we know from the higher precedence Rule 478 that
sending something to the Public Forum is equivalent to sending it to
every player (directly).  Therefore, though sending things via a
mailing list might seem to be indirect, the legal fiction of R478
makes us conclude otherwise.

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Speaker Steve:

I hereby SUSTAIN lee's Judgement that the Statement is FALSE.

This Judgement is in three sections. In the first section, I explain
the substance of lee's Judgement; in the second, I consider three
arguments against the Judgement, and reject them all; in the third, I
consider the role of the Board of Appeals.

1. The substance of lee's Judgement.

Let us begin by examining lee's Judgement itself. On the key question
on which the Appeal turns, Judge lee was in his actual Judgement
almost telescopically brief. The Order issued by Macross being Private
Orders (which no-one denies), Judge lee argued that:

      Since they were Private Orders, they are executed by submission
      directly to the Player to be commanded, as per Rule 1808/0.
      Since these were submitted to the Public Forum rather than
      directly to Player Swann, these orders were never executed and
      never took effect.

Thus Judge lee interpreted the phrase "submitting them directly" in
R1808 as requiring that Private Orders be submitted directly to the
subject of the Order, as opposed to being communicated via the Public
Forum. From this follows the obvious conclusion that Macross never
Ordered Swann to do anything, and so that Swann could not have
committed the Crime of Contempt by Action. This act of interpretation
was merely implicit in his Judgement. But it was explicit in a defence
of his Judgement lee posted to the business list the following day, in
which he said:

      In particular, i looked at the way the word directly is used in
      Rule 1808/0. In other many places in the Rules, there are
      specifications about Nomic Entity being submitted to another
      Nomic Entity, such as a Player or an Officer.  Only in this Rule
      does it specify that something a Nomic Entity is to be submitted
      directly.  The phrase is unique. However i did not find it
      ambiguous.

      I reasoned that if posting a statement to the Public Forum
      saying it was an Order to a Player were sufficient to execute an
      order, then the language of Rule 1080/0 would be more like the
      language that specifies how Appeals are submitted to the CotC,
      or more like the language in many other Rules. In addition, if
      there were no other more direct way to contact a Player, then
      the language in Rule 1080/0 would be ambiguous.

      In an Official report, the Registrars Report, the email address
      of each Player is given.  Thus, in an official document, a way
      to directly contact a Player, other than a message to their
      attention in the Public Forum, is given.

      To me it was unambiguous that according to Rule 1080/0 that
      Private orders had to be submitted not simply to the Public
      Forum, but rather to that Player in a more direct fashion.
      Since the Rule seemed clear to me, i could not even consider
      game custom. I knew my ruling would be inconvenient, but i felt
      compelled by the Rules to judge the way that I did.  I gave this
      more consideration than some Players would have, and for that I
      have been insulted in the Public forum.


2. Arguments against the Judgement considered, and rejected.

This reasoning, and the Judgement more generally, has been attacked on
three separate grounds. I propose to deal with these in order from the
least serious to the most serious grounds.

Firstly, it has been argued that if the Judgement is allowed to stand,
then a great many Private Orders, including a very large number of
Transfer Orders, will turn out to have been invalid, with consequences
for the game state that will at the very least be difficult and at
worst impossible to calculate. This is true, but it is not an argument
for overturning the Judgement. Agora has suffered crises of this kind
before and survived them. We do not yet know how much work
recalculating the game state will be. Perhaps it will turn out to be
achievable after all, and we might decide to attempt it. Or we might
decide not to attempt it, or discover that the task is impossible,
(for example, because we have no records of whether certain messages
were sent to the PF or privately to Recordkeepors), in which case we
might be forced to Ratify portions of the game state using the
Ratification (or some other) mechanism.  We've done it before, and if
necessary we can do it again. And in any case, some Players have
recently been arguing that we don't have to correct mistakes made in
the past but can just let them be and move on (compare the response to
Kolja's Judgement of CFJ 1101).

Secondly, it has been argued that lee's Judgement conflicts with prior
Judgements, in particular with the Judgements returned in CFJs 1094,
1095, and 1097, all of which confirmed that the various Orders issued
in connection with the Coup d'Étât were legal and valid
Orders. However, none of the Judges in those CFJs considered the
question of the correct interpretation of R1808 which lee raises in
his Judgement. One way of seeing this situation would be to say that
since those Judgements address different questions, the question of
conflict between the Judgements simply does not arise. A different way
of seeing the situation would be to say that if the point lee is
making is correct, then the prior Judges were simply in error in
finding those Orders to be legal and valid. But on either way of
seeing it, lee's Judgement deserves to be considered on it's own
merits.

But what are those merits? The third and most serious challenge to the
validity of lee's Judgement alleges that lee did in fact err in law,
in that he ignored the requirement placed on Judges by R217 to
consider game custom. The argument runs that since the meaning of
R1808 is unclear, game custom should have led the Judge to conclude
that Private Orders can be legally executed by submitting them to the
Public Forum since this has been our common practice. This argument
can only be as compelling as is its premise that R1808 is
unclear. Judge lee considered this question in the defense of his
Judgement, quoted above. He said that the wording of the Rule appeared
to him to be unambiguous, and hence that game custom did not enter
into the question. He is certainly correct in his understanding of
R217: if the wording of R1808 is clear, then not only did lee not have
to consider game custom, he was not permitted by the Rules to do so,
and was in fact compelled, as he claimed to be, to Judge according to
the clear meaning of the text of R1808, game custom to the contrary
notwithstanding.

But is the meaning of R1808 clear? A definitive answer to that
question is probably impossible. Judgements of clarity are a vague and
subjective matter, about which rational people may disagree. But even
judgements about matters of taste can be more or less arbitrary. It is
proper for the Board of Appeals to ask: was lee's judgement that R1808
is clear a judgement that a reasonable person was entitled to make? My
view as a Justice is that Judge lee was entitled to take the view of
R1808 that he did. The construal he gave of the word "directly" as it
appears in that Rule is in my view by far the most natural of the
interpretations that were available to him. No other candidate
interpretation comes close enough to this one to being reasonable to
make the Rule ambiguous.  Therefore, lee was within his rights as
Judge to view R1808 as being clear, and hence to ignore game custom.


3. The role of the Board of Appeals.

This Appeal affords me a welcome opportunity to expand upon views I
have already stated elsewhere about the proper role of the Board of
Appeals.  As is probably well known by now, I have often stated (as I
did, for example, in my Judgement of the Appeal of CFJ 921) that one
should be reluctant to overturn Judgements unless they are mistaken in
law or set a bad precedent. In this Judgement we have another
application of that principle. My own views on the clarity or
unclarity of R1808, whether they are in agreement with lee's or not,
are not to the point. What is important is whether lee's view was one
that a reasonable person was entitled to take of the situation. In
making his Judgement, what lee has really done is contribute a
creative act to the game, a considered act borne out of his own
particular set of aesthetic responses to the situation. In my view the
proper role of the Board of Appeals is to encourage such creative
contributions to the game by respecting them as much as possible.

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Original Judgement: FALSE

Reaons and arguments:

The orders that Swann believes e disobeyed were issued by Player
Macross in the same message as e registered as a Player. I believe
that Player Macross did not hold office and e was not a Judge, and was
not on the board of appeals at the time e issued the Orders. Since
Macross did not hold office and e was not a Judge, and was not the
Board of Appeals, eir Orders were private as per Rule 1794/0.  Since
they were Private Orders, they are executed by submission directly to
the Player to be commanded, as per Rule 1808/0.  Since these were
submitted to the Public Forum rather than directly to Player Swann,
these orders were never executed and never took effect.  It is not
required that Players obey Orders not in effect, therefore Player
Swann could not have disobeyed orders.  Therefore e never committed
the crime of Contempt by Action as defined in Rule 1811/0.

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(Caller's) Arguments:

I believe that Macross' Orders were valid, and when I published the
message entitled "No New Player Tyranny"-- either through accident or
excessive enthusiasm-- I violated Rule 1811 and committed a Class C
Crime.  I plead no contest and will not appeal the Judge's verdict on
the matter. I only hope is that the Agora public will recognize this as
a genuine accident and not a willful and hypocritical flouting of the
principles I've been wont to expouse.

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