board77

Eru,

We have the provision that members get to vote whether to uphold a jury's recommendation to ban someone.

But that vote is fairly straighforward - yes/no - and the jury will be more restricted in what they can and cannot do because we intend to lay out pretty explicitly what sorts of things a person can be banned for.

Arbitrations are more open-ended. Every case is likely to result in a different kind of decision. If a poster involved in an arbitration has a decision made against them ... as was the case here where one poster's right to access a forum has been disenabled ... it should not be terribly complicated to figure out the circumstances under which they might appeal that decision.

In a regular judicial appeals process, not all decisions can be appealled automatically. There have to be grounds for an appeal, and maybe our resident attorneys can advise us in the regard.

But for the members as a whole to challenge an arbitration decision ... that will be more complicated. I'm not saying it can't be done, but it will be more complicated.

Perhaps we should begin by defining what sorts of decisions legitimately affect the whole board, rather than just the posters involved.

Something that originated in the Bike Racks and moved to an arbitration would probably be excluded, i.e. disputes between individual posters would not likely affect the whole board. But where an arbitration has been requested because a non-bannable offense has been committed (as was the case here) then there is potential for more people to be affected by the decision.

What ideas do you have about this? Like ... categories of offenses where the jury decides a penality for one person but other people are affected tangentially.

Jn

In the one example case that we have, we had an arbitration that was called for by a member who was not involved in the specific dispute, but felt affected by the issues involved. In a case like that I think that it would be appropriate for other posters who equally felt affected by the issues involved would have standing to appeal the decision.

Another difficult question is who to appeal to? Another jury? Some kind of static appellate panel? The owner? The admins? None of these options make much sense to me.

The other difficult question is what standard the appeals would follow. If the appellate court (for lack of a better term) could simply substitute its judgment for the first jury then the process becomes meaningless. Should it be an "abuse of discretion" standard where the jury could only be overturned upon a finding that the jury acted arbitrarily and capriciously?

Difficult questions, all.

Voronwe: The owner? The admins? None of these options make much sense to me.

Not to me either because the whole reason posters wanted an independent process was to restrict the power of admins.

Should it be an "abuse of discretion" standard where the jury could only be overturned upon a finding that the jury acted arbitrarily and capriciously?

It would have to be something like this, I think. Maybe we should have something like a standing appellate court, where elibility requirements were very strict. These would have to be people who knew the red book inside out and had served on juries and served as admins and knew the culture of the board, and they would decide whether a jury decision was not in accordance with the by-laws and could overturn it.

Then we'd need a process to get rid of them if they abused power, and who the heck would do that???

Jn

We simply need to find a panel of people of such flawless rectitude and infinite wisdom that they would never abuse their power and no one would ever dispute their findings.

Let's set a target date of April 15.

Well... perhaps Estel and Eru feel the wrong process was applied? That rather than arbitration, which is really "about" disputes between posters, the process that should have been applied was a hearing on a ban?

I think the problem is that whatever method or structure for dealing with conflicts we use, we are never going to please everybody.

So, I think we should be very careful on how we deal with appeals - when everybody who is unhappy with a decision can overturn it or have the prodedure start again by simply saying they were unhappy with the result, we are never going to be able to resolve any conflict unless by authoritarian measures.

I believe the final judgment was carefully circumscribed to deal with the facts at hand and the extent of "new" law created was quite limited -- that is, whether an imminent (sp?) threat of disclosure should be treated the same way as an actual disclosure of statements in the Invite forum. One can dispute the actual decision made (i.e., the typical argument between strict constructionists vs. organic view of the law), but I for one believe the interpretation taken was fully within the rights of the jurors.

If we really take this process as an arbitration rather than a judicial decision (which I think is the right way to take it), the decision really does not set precedent even as to this interpretation, although of course as a practical matter it would have at least a partial effect as such. I view the jury as having effectively said (if not explicitly) that the written privacy rule should be applied to the facts of this particular dispute in the way the jury decided. If the Board wishes to make this decision the actual "law of the land", that is something that can be decided through the constitutional drafting or other legislative process that the Board may have.

As to process, it is clear that parties should be put on notice that the evidentiary stage of the proceedings is ending so that a full and fair opportunithy to present all relevant facts is given. I believe advanced notice of the decision is appropriate, which seems to be already written into the procedures but was inadvertently missed.

As to appeals, I believe it needs to be limited to a clearly erroneous or abuse of discretion standard (or some such similar standard). Otherwise, it makes the original proceeding largely meaningless. The question then becomes whether the original arbitration process is set up to ensure that all the necessary facts are presented to the arbitration panel. As to private disputes between 2 or a limited number of Board members all of whom are parties to the proceeding, the current process (with the fixes discussed in the previous paragraph) seems to work well.

However, to the extent that a proceeding is in the form of a "private attorney general" type enforcement (i.e., other members of the Board have a material interest in the dispute and simply one member has stepped up to the plate to initiate proceedings), there needs to be an opportunity for broader input on the facts and "legal" theories. Perhaps what is needed is some parallel to the creation of a class in a class-action suit, and the ability of affected members to opt out of the class. Thus, unless someone opts out, the member who initiates the complaint would act on behalf of all interested parties. Those who opt out then should be given an opportunity to enter a statement into the record before a final decision is made. Specific rules and procedures to allow this participation would need to be worked up, of course. Among other things, adequate notice to the Board must be made of a pending proceeding so that those who believe their interests are affected can decide what they want to do. MY PERSONAL PREFERENCE, HOWEVER, WOULD BE NOT TO HAVE THESE CLASS-ACTION TYPE PROCEEDINGS.

As to who can appeal, I would start from the position that only the parties may appeal. The next step would be to determine whether those persons who have opted out of a class and have entered a statement in the proceedings also should have a right to appeal. I would strongly endorse a position that no one should be permitted to enter an appeal without having been involved in the initial proceeding unless that person can show real evidence that his or her specific interests will be affected and that there was a legitimate reason why that person did not join in on the initial proceeding.

There really should be a one-time only appeal process, with the appeal decision being absolutely final. Otherwise, it becomes a never-ending process that creates more problems than it resolves. As to composition of the appeals panel, I generally abhor elected judges but in this case perhaps that is the only reasonable process.

Forgive me if this posted is rambling, disjointed and full of holes, but I am currently dodging large splashes landing ominously close to my laptop as I supervise my daughter's shower.

Wonderful input, TORN.

What caused this case to be a shot from the hip, so the speak, was the fact that we have not yet decided what 'judicial' process follows an offense that carries a weak penalty. It was unarguable that banning was not the appropriate penalty for this offense because another penalty had already been named but its scope had not been determined. Who determines the scope in that case? The only other mechanism in existence was the Arbitration.

Maybe we do need an interim mechanism - something halfway between an arbitration and a ban, with an elected 'judge' ... or we need to refine the penalties so that admins can execute them without reference to a judge or jury - like minimum and maximum sentences. But there will always be novel situations that are going to require human judgment.

Jn

Oh, thank God. I thought I was going to have to kick you.

Posting the month and year is not a bad idea though.

Jn

Primmy wrote:

Oh, thank God. I thought I was going to have to kick you.

I see you possess at least one important copy editing skill!



ps -- don't ask what I mean since I'm not entirely sure myself.

Personally, my preference is that the names not be redacted from the archived decisions and that decisions could be known as "so-and-so v. so-and-so", with a date and some kind of reference number. If cases from murders and sexual harassment cases and the like can be published with the names intact, I don't really understand why its a problem with our little disputes. I think that instances where privacy is really necessary will be rare, and in those instances a "Doe" name could be used. But I guess that's just me.

(And I'm not kidding.)

I come late to this thread, but there's something I don't understand.

Why would someone not involved in an arbitration process want to appeal against it, when it doesn't affect them?

The arbitration decision didn't make a rule, no matter what the perception was. It. Didn't. Create. A. Rule.

So what's the question again?

The perception of the rule wasn't why I started this thread Ber. I didn't start it because I was upset someone didn't get banned or believed the jury made a rule. Just where did I say that in my opening post? Actually where did I try to make this about the recent arbitration? Did anyone notice how I specified that I didn't want this thread to be about the recent arbitration but the possibility of appeals in the future?

Quote:

Why would someone not involved in an arbitration process want to appeal against it, when it doesn't affect them?

Some have felt that all posters on this board were affected by the recent arbitration.

Quote:

So what's the question again?

Ummm...the obvious one: will there be a way to appeal jury decision?

I might as well just come out and say this because many people seem to be assuming wrongly why I started this thread.

I did NOT want a certain poster banned and didn't want to criticize the jury's decision!

So any of you who think that can get that thought out of their head right this instant because it's false. I was worried about a certain poster's thread being moved back into the Turf because even though the posts had occurred in the Turf, invitations had been discussed in that thread and that's exactly the sort of thing we need to keep private. That's all I was ever concerned about. Did I actually try to appeal it? No. The happenings only made me think about the future (as others did as well!) and figured it was something we should think about.

Now that that's cleared up, I respectfully ask that the recent arbitration not be brought up again in this thread because that's not what this thread is about!

Eru, I don't think I misread your first post in the thread:

Quote:

In the arbitration thread Voronwe posted this statement:

Quote:
We should have some kind of provision for appeals if a party is unhappy with a decision


I completely agree with this (but I have a feeling he only meant the parties involved and not outsiders) as there is one small part of the decision that I would have liked to appeal but of course I have no way of doing so. At some point in the Constitution Convention will there be an opportunity to discuss this? Do others think this would be a good idea?

I'll state it again: if you weren't a part of the arbitration, it doesn't affect you so you can't appeal against the decision. You can of course discuss it somewhere else, but the result of an arbitration affects only the people involved in it. It never creates rules.

Quote:

Quote:
Why would someone not involved in an arbitration process want to appeal against it, when it doesn't affect them?


Some have felt that all posters on this board were affected by the recent arbitration.

They were wrong.

Berhael wrote:

Eru, I don't think I misread your first post in the thread:

I'm afraid it seems that you did or you perceived an emphasis on the recent arbitration even though I've been trying to move away from it. The fact is there is no appeals process. What happened with the latest arbitration or who didn't like what or who feels that noone else was involved has absolutely nothing to do with us considering the possibility of an appeals procedure in the future. I felt it was something we should think about as it could pose some problems for the future.

Quote:

It never creates rules.

I had that perception once but I don't hold it now. Please stop attributing that to me.

Quote:

They were wrong.

I'd appreciate it if you wouldn't state that so difinitively because not a single member on this board absolutely knows the answer to this. I respectfully disagree with you and also don't appreciate you telling me I'm wrong about a subjective matter. The latest incident was not just between two people in some's opinion. A poster threatened to reveal what had beeen written on this board, not just reveal what one person had written. That means anyone's posts could have been passed on and that affects everyone. That's my opinion and I'm entitled to it just as you are entitled to your opinion.

Now does anyone have anything to add about the possibility of an appeals process? I'm not quite wise enough to do so ...I just wanted to bring it up and also want to please move past the situations of the recent arbitration. I'm begging!

Eru,

I'm going to try to say this patiently and respectfully because I am sure that you are expressing a considered opinion, but I must stand behind Ber and state in no uncertain terms that you are wrong, and that the members who remain covertly angry about the arbitration do not understand the nature of the decision that was made and they are simply wrong in their conclusions.

The latest incident was not just between two people in some's opinion. A poster threatened to reveal what had beeen written on this board, not just reveal what one person had written. That means anyone's posts could have been passed on and that affects everyone. That's my opinion and I'm entitled to it just as you are entitled to your opinion.

You are entitled to an opinion, but the way you are thinking about this is still wrong. It is simply wrong.

The arbitration jury did not have to decide whether anyone's posts could have been passed on or whether this kind of revelation might affect everyone. They did not have to decide this because the membership had already decided it by telling Wilko that it was alright to pass non-Invite information. I beg you to READ YOUR OWN POST in that thread by Wilko - "My presence on this board." You posted immediately after Wilko asked the question about privacy and after Truehobbit answered his question and after Wilko repeated Truehobbit's answer. You DID NOT DISAGREE that revelation is up to the discretion of the poster.

I am absolutely flummoxed that so many posters on this board have done a 180 degree turn on THEIR OWN OPINION and yet continue to insist that it was the jury who did something new, that the arbitration created a new situation, and that now we have to decide what to do in light of this new situation. I am frankly infuriated at what I consider a juvenile persecution of the jury by people caught smoking in the bathroom during study hall. The situation ON THE BOARD is exactly as it always was. YOU CHANGED YOUR MIND about it because it suddenly occurred to you that your own prior opinion had consequences you did not envision, even though [cough] some of us have been shouting this from the rooftops for months already. And when I say 'you,' I mean 'you plural' - all those who have been running from hysterical thread to hysterical thread whining about this issue.

The arbitration DID NOT AFFECT ALL THE POSTERS. It was the prior behavior of all the posters that affected all the posters. The arbitration affected only those involved. What would be the consequence for Wilko given his inability to comply with the rules of the Invite Forum: this was the only decision that had to be made, based on the way ALL THE POSTERS were already behaving and what they were saying and what rules they had made.

[Just btw, you can thank me that there was any consequence at all that the jury could lay on Wilko because when I said that revelation of Invite info should result in exclusion from the forum people jumped all over me that this was too strict. All of this is in writing; you can read it in the Invite forum.]

I can envision circumstances where an arbitration might have broad implications ... and we may need something like the class action suit that TORN talked about. But, like TORN, I am not thrilled by this kind of process, simply because the members themselves wanted arbitrations and bans used very sparingly. It would be better in my opinion if the convention committee came up with a method for making new rules in the future when these are needed. Then, if an arbitration seems to have far-reaching effects, the jury can give a directive to a legislative body and not to a lynch mob.

This particular arbitration concerned one thing and one thing only and that was the disposition for Wilko. No one on this board has yet been affected by anything Wilko did, nor is anyone else affected by anything the jury did.

What affects us now, and threatens the confidence of some people here, is our own past attitudes and behaviors. We are realizing too late that our idle gossip may have had unpleasant consequences and we are looking for someone to blame. Do not blame the jury or the arbitration process. The process worked beautifully and the jury performed with excellence.

If you don't want people to gossip on the board, then we will build into our front page statement very precise rules of netiquette. If people want to feel free to gossip anyway, then we will build into our front page statement a warning that this is the internet, not a doctor's office. Discretion is expected of everyone, perfect confidentiality is guaranteed to no one. If you want to prosecute gossipers then we will come up with an appropriate punishment in the convention, and future juries that receive complaints will have something that they can enforce, assuming that such things can be proven at all.

Jn

Very, very, very well put, Jnyusa. You can say what I did not think I ought to. I absolutely agree. I don't understand WHY other people can't quite take it in.

However. I don't want to start an argument or a fight, I am out of shape for fighting. Still, I'm *really* good at bitching.

Not at you, though.