Index ← 2450 CFJ 2451a 2451 → text
============================  Appeal 2451a  ============================


Panelist:                               BobTHJ
Decision:                               AFFIRM


Panelist:                               Rodlen
Decision:                               AFFIRM


Panelist:                               root
Decision:                               AFFIRM

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History:

Appeal initiated:                       26 Apr 2009 19:46:26 GMT
Assigned to BobTHJ (panelist):          26 Apr 2009 21:29:32 GMT
Assigned to Rodlen (panelist):          26 Apr 2009 21:29:32 GMT
Assigned to root (panelist):            26 Apr 2009 21:29:32 GMT
root moves to AFFIRM:                   28 Apr 2009 23:08:49 GMT
Rodlen moves to AFFIRM:                 29 Apr 2009 14:25:17 GMT
BobTHJ moves to AFFIRM:                 03 May 2009 21:29:32 GMT
Final decision (AFFIRM):                03 May 2009 21:29:32 GMT

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Panelist root's Arguments:

On Tue, Apr 28, 2009 at 4:25 PM, Kerim Aydin  wrote:
>
> On Tue, 28 Apr 2009, Ian Kelly wrote:
>> On Tue, Apr 28, 2009 at 3:40 PM, comex  wrote:
>>> I closed a different NoV, which alleged the breach of a Power=1 rule.
>>> I was then judged GUILTY on a separate case alleging the breach of a
>>> Power=3 rule for the same action.
>>
>> Thanks, I didn't realize there were two separate NoVs involved.  Now,
>> why did you close the 1-rest NoV, when you knew there was also a
>> 3-rest NoV for the same action?  It appears to me that you may have
>> deliberately tried to use R101 to avoid the potential 3-rest penalty,
>> and I'm tempted to opine that by trying to abuse the judicial system
>> in this manner, you have implicitly waived your R101 right not to be
>> penalized twice for this action.
>
> I think I'd appeal that right-waiving.  You could, however, note that
> (using ability to sentence SILENCE flexibly given these circumstances and
> specifically the R1504 language on obstructing justice) you could add
> 2 rests for the same net effect, e.g. "a total equal to the highest
> single punishment in the rules for the single act" or even go up to 5
> noting that the net effect of 6 rests is within the guidance for a
> single doubled SILENCE punishment for breaking a power=3 rule.

Good point.  I opine AFFIRM in in CFJ 2451a.  While the defendant has
a right not to be penalized twice for the same act, penalties should
be counted according to the appropriateness to the severity of the
violation, not the literal number of times a penalty was applied.  In
this case, the total penalty that has been dealt comes to four rests,
which is within the 2-6 rests that R1504 allows for the offense, and
so it is reasonable to aggregately view it as a single penalty.

On the other hand, if this penalty were to be overturned and replaced
with DISCHARGE, then the defendant would effectively be receiving only
1 rest for breaking a power-3 rule, which is not within the prescribed
range.  It is true that e would be receiving that rest for a power-1
violation instead of the power-3 violation, but where a defendant has
committed multiple violations by the same action, I hold that e should
be penalized according to the most severe violation, not the least.

In closing, I'll note that even without the above legal theorizing,
this sentence does not violate the defendant's right not to be
penalized twice for the same action, because there were in fact six
such actions.  According to this alternative reasoning, the first rest
stems from the first violation, the three from CFJ 2451 are for the
second violation, and the final four violations remain unprosecuted.

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Panelist Rodlen's Arguments:

Recognizing that there were six violations of the rule, therefore allowing a
punishment for each, I opine AFFIRM.

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Panelist BobTHJ's Arguments:

[no opinion given]

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