Assume a scenario with 4 boats overlapped at a leeward rounding A -> D with A inside and D outside. A touches the mark. There is various bumper-boat contacts for all boats.
All 4 boats deliver protests to the Race Office. The PC, seeing that the protests are likely from the same incident, combines the protests into a single hearing. Representatives for all 4 boats are at the hearing.
- A protests B, C & D;
- B protests A & C, and
- C protests only D
Starting with A's protest, since it names all parties, the PC takes evidence that A's protest might be invalid. Next they look at B's and again they take evidence that B's might be invalid as well. When they get to C's, it seems solid and likely valid, but her protest only identifies D.
The PC excuses the parties to discuss validity and finds that only C's protest of D is valid.
Understanding that it is likely that during C's hearing the PC will receive evidence that shows A and B were involved in this incident and may have broken a rule, how do you proceed after you bring the parties back for your validity decision? Does your approach change if this hearing was scheduled days after the race and A and B drove a significant distance to be there?
Then continue.
During the validity part of A and B's .. the information gained cannot be used because those were invalid. During C's validity the only thing learned was that C hailed "protest" and flew the red flag timely.
Do you excuse A and B .. start C v D, start taking evidence and then follow 60.4(c)(2) and 63.2(d) and start over?
The protest committee may also protest if, during the hearing of a valid protest, it learns that another boat (not a party to the original protest) was involved in the incident and may have broken a rule.
In practice, this means that if a protest committee is involved in a hearing (or otherwise informed), and discovers another boat was implicated in the situation, it can close the original hearing, lodge its own protest, and then hear the cases together under Rule 63.2(d).
The boats are all parties then can hear all evidence and ask questions and of course later as a party be disqualified.
.. or ..
Might a PC, seeing this coming, gather some evidence during C's validity .. enough to justify 63.2(d) for efficiency?
Under RRS 61.2(c), a protest “shall identify the incident.” That incident may involve one or more boats. So, a single protest form can validly include multiple boats, provided they were all part of the same incident (e.g., a three-boat mark-room pile-up).
Huh .. sounds interesting .. but in which protest was that evidence gathered if that evidence is gathered prior to validity?
I think the protest committee should advise or request A and B to remain nearby.
There is no way to get around the requirements of RRS 63.4(a)(1).
The protest committee should then hear C's protest against D up until the protest committee 'learns that A and B may have broken a rule'.
The protest committee should then close the hearing of C's protest and protest A and B (including writing protests, informing A and B of the intention to protest, providing them with the protests, and informing them of the time and place of the hearing (which will be about 5 minutes after putting the protests into their hands)).
The protest committee then opens a new hearing to hear PC v A, PC v B, and C v D together.
As long as A and B don't leave (or advised not to leave) the protest hearing venue after initially having their protests declared invalid, there should be no problem
PS: Precisely the dialog i was hoping with this scenario. "Being forewarned is being forearmed" :-)
Then am I right, there is some change in the order you hear evidence due to the invalid protests as compared to if they were valid?
Really happy to see you working through this in your head Niko. That was exactly my hope .. especially for JIT's like yourself.
When looking a combined hearings, 99% of the time I will start validity at the protest that names all the parties directly (if one exists). The reason being that if that protest is clearly valid, there is really no need to spend a lot of time checking validity of the remaining protests.
The other thing I was hoping people would consider is under what umbrella evidence is gathered. 60.4(c)(2) requires the evidence be found in a valid protest. Therefore, logically, I think that evidence can only come after validity has been established or during the validity evidence-gathering for that particular valid protest.
The other thing is that hearing procedures require that witnesses be excused when not giving evidence. So, as John A nicely laid out, being prudent about who is in the room and when is important, in the possible event that the dismissed boats become PC witnesses instead of parties to a PC protest.
1. If the PC doesn't protest A, they aren't a party, and thus can't be penalized in the new hearing. However, they are not privy to the other parties' testimony, nor are they able to question the other parties during the hearing, but can be called as a witness against B, C & D by the PC.
2. It seems redundant for the PC to protest C as well as B since C is already a party and can be penalized by their original valid protest.
3. If during the new hearing one of the parties brings up A hitting the mark or the bumper boat contact - the PC isn't required to make A a party by 60.1, 60.4(c)(2) and 63.2(d) again because the PC is implicitly agreeing that A was exonerated by 43.1.
As witnesses, until they become parties to a valid protest they have to stay out of the protest room.
Actually, I wouldn't mind telling them 'It may be that as a result of the hearing of C's protest the protest committee will proceed to hear the allegations made in your protests'.
Check for cases to be held together
Invalid cases exposed on the papers.
Cases with insufficient parties where witnesses may beed to be parties.
We then in advance protest some extra sailors to ensure a swift resolution of hearings.
A protest committee cannot validity protest a boat based on information from a person with a conflict of interest.
A protestor is a person with a conflict of interest, so a protest committee cannot validly protest a boat based on a written protest
UNTIL
it learns, in a valid hearing that a boat may have broken a rule.
OK .. I hear you Graham. What do people think about this direct approach?
Sometimes it's smart to hear from the party with the biggest story to tell, or the protests against the most boats first.
Sometimes you can start with the party whose evidence you expect to be least contentious, so as to build up some uncontested facts that everyone can work from.
You can protest as a committee who you want, they lie on the file until possibly invalid.
When you hear the valid protest your protests validated. The parties have notice and you can continue without delay on what will be a difficult matter.
While, arguably it's nobody's business how a protest committee learns that a boat may have broken a rule, Personally, I'd be wanting to hear at least one description of incident from a party to a valid protest saying how A and B may have broken a rule, before I delivered a protest committee protest.
I, being subject to appeal, and often serving on PC panels with the members of my local appeals comm, I'd rather not endure those, "Ang, what the $%#! were you thinking" looks (more than I already get!). :-)
Isn't it the business of the boats protested by the PC? On appeal, those boats can argue improper action by the PC and have the protest invalidated if the evidence was gathered outside of a valid protest.
Whenever I've chaired a PC that protested another boat, and I restart the hearing combining the protests, I go though the validity all over again including the validity of the PC protest. During that time, I have re-established the validity of the hearing the evidence was taken in and summarized what/when the PC "learned" leading to the PC protest.
I want to address the last question the OP asked about distance and time. If the participants are traveling significant distances, I would think protest hearings would be scheduled when daily racing is complete. Waiting days after poses risks of failing memory and scheduling conflicts. In the current technological environment, hearings, if not practical to be held in person can use ZOOM for timely hearings regardless of distance.
So No, I don’t think Time and/or distance should affect the hearing procedure.
When I said "significant" I simply meant far enough that it would be a PITA to be sent home only to be asked to return. For me, that's anything over 20 min driving time one-way. So, really we're talking about hearings that, for one reason or another .. or by design in the SI's .. are not heard on the same day as racing.
Here’s what I would suggest if I were on the Protest Committee (though keep in mind I’m a rather newbie here):
Maybe I could have said, more fully:
It's nobody's business by what intellectual process, in a hearing of a valid protest, a protest committee learns that a boat may have broken a rule.
A boat could certainly appeal your process if it was not in a valid hearing, but they would be very hard pressed to defeat your conclusion based on the 'may' condition.
Yup. fixed in my previous post.
2. Note the invalid hearings in 'Procedural Matters'.
3. Continue the hearing on the basis of a single valid hearing request. If, at any time it's found that the incidents were not in fact related, stop the hearing, excuse the non-related parties and continue.
4. Finish hearing. Go home.
The rules allow the hearings to be combined if they are of the same incident. In combining the protests, the PC is essentially locking in the parties as parties. Once this step is taken, it's done and fixed unless it turns out that there were multiple incidents.
"We have at least one valid protest about an incident in which any of you may have broken a rule. It's our job to resolve that. In fact, we could have held that valid protest while you wait outside, and then protested you under 60.4(c)(2) and brought you back in. We would then have had to restart the entire proceeding to ensure your 63.1(a)(4) rights. Instead (to save time), since you have already been given all the rights per 63.1(a)(1-3) and are in here now, we will combine all the protests into one hearing. You are each parties in the 'Grand Unified Hearing'. Stay in, and let's get it over with."
Look. If all the boats who were in that incident are already present at the hearing room, there is no point in inserting the steps of 60.4(c)(2) and 63.2(d), when they have already been afforded all their 63.1 rights. (60.4(c)(2) and 63.2(d) is there to ensure that a new boat, not a party, is given the 63.1 rights.) The fact 60.4(c)(2) is available to the PC is the reason why not to add it.
By all means 'start the hearing with all the parties',
Then, in accordance with RRS 63.4(a) first consider validity.
Then, in accordance with RRS 63.4(a)(1) the hearing shall be closed [if] a protest ... is invalid.
If the protests by A v B and B v A are invalid, the hearings of those protests must be closed.
Once those hearings are closed A and B are no longer parties to any hearing and in accordance with RRS 60.5(b)(1) shall not be penalized.
It's the business of protest committees to decide matters that are validly brought before it.
Validity is an important protection for protestees.
In the case of a protest & counter protest, with 1 invalid, would you apply your same logic?
Boats are parties to hearings, not protests. Also, you seem to be applying the 'validity check' before the combining. I think its the other way around. Or put it this way, 'combining' is an overall action which happens prior to the hearing procedure starting. (Hence, it's in 63.2 and not 63.4.)
To be honest, 70% of me thinks that once the protests are combined, the boats are parties to that hearing, whether or not they were named in a valid or invalid protest. A and B still meet the definition of 'party' to the protest hearing, since they were either a protestor or protestee in the hearing incident. They have been afforded all the rights due so far. So rip up the old forms and start a new form which says, A, B, C & D were all involved in an incident. Was this incident brought to us with any validity? Yes. So, let's find out who done it!
20% of me thinks its moot, since the outcome is the same as sending A and B out, and then bringing them back based on C's valid hearing later under 60.4(c)(2) and 63.2(d).
As you point out, "It's the business of protest committees to decide matters that are validly brought before it.". In this case, the matter (the incident) was validly brought to the room by C. That opens the door for its resolution and anyone involved can be in the firing line (whether by consolidation or joinder) - that would be in line with the Judges Manual's last sentence.
10% of me isn't sure and quite happy to be proven wrong!
I think you've uncovered a inconsistency in the wording of the rules which could (has) caused some confusion.
Here is how I'd break it down. (emphasis added)
First .. 63.2(a) & (b)
It's the hearings that are combined .. not the protests. "Each protest" remains unique in a combined hearing of the individual protests.
Here we have some logic issue with the language.
63.2(b) allows us to combine the incidents into one hearing. Then 63.4(a) says that "the hearing" shall be closed if "a protest" is invalid.
Following that logic, after combining the incidents into one hearing, if any of the protests are invalid, the entire hearing "shall be closed".
This is obviously not what is intended with the language.
The language needs to clearly present the idea that the individual protests are being "heard" simultaneously (simultaneous hearings as one).. so that the hearing of any invalid protest can be closed and valid protests are protected and may proceed.
Maybe a better 63.4 (a) ???
"each protest or request" mirrors the language of 63.2(a). I think the above language fixes the issue.
In that hearing they were not the protestee so by definition they were not a party.
We often cheat and tell them they will be added later if they agree and they usually do.
This tough gives them the right to extra time to prepare as they may want to contact different witnesses.
Having done this, there cannot effectively be redress as they acknowledged, and unlikely to be upset on appeal, but do not let it come to this.
I have only had two in my lifetime and not lost.
I could have, more correctly said 'both are parties to the hearing of a valid protest'.
Not proposing to hear on validity before combining. Administratively we combine protests at the scheduling/notification stage before hearings begin.
In post 18988 I said, quoting from the JM paragraph you provided
And that means that you have to consider the validity of each protest that you have before you.
Once again being very delicate with language, I think you have to find (in the OP, ABCD case)
The protest A v B is invalid and the hearing with respect to that protest is closed.
The protest B v A is invalid and the hearing with respect to that protest is closed.
The protest D v C is valid and the hearing of that protest will continue.
We've talked above about various options for what you then do with A and B.
In my opinion, by necessary inference the definition of party needs to be qualified as
A party to a hearing is ,,, for a protest hearing of a valid protest: a protestor, a protestee;
You just can't continue to hear a protest against a boat that is invalid.
A party is a party to a hearing. A party is not defined as a 'party to an incident'. There can be boats involved in an incident that are not parties.
A boat is protested for breaking a rule, not 'being involved in an incident'.
And it's protests that have the characteristic of validity. There is no such thing as a valid or an invalid 'Incident'.
And an incident is not a 'matter'. It is the dispute or protest that is the matter.
You said
I agree with Mike B's most recent post. New protests by the protest committee are exactly what is required to get a hearing of valid protests against A and B.
But that's nothing like the definition!