and the
Judicial Accountability Initiative Law (J.A.I.L.)


September 25, 2006
Amendment E is on the South Dakota ballot for the Nov. 7 election. The initiative calls for the formation of a citizen's grand jury to review judicial decisions. Here are two perspectives on the issue.
Amendment E about protecting rights, not going after activist judges

As coordinator of Citizens United to Rehabilitate S.D., I feel I must respond to a recent column by David Kranz. Mr. Kranz printed part of an article from a judge from Marshall, Minn., that evidently came out in a paper in Hendricks, Minn. (Pioneer), about Amendment E, "Judicial Accountability."

According to Kranz, Judge George Harrelson, a district judge from Marshall, says, in part, of activist judges: "I must be one of those activist judges. In the 23 years that I have been a judge, the caseload has more than doubled, and at the end of a lot of days, I feel like I have been rode hard and put up wet. Of course, when you hear about the activist judges, someone is usually complaining about rulings of a Supreme Court (often in Massachusetts or California) that they don't agree with. Problem is, trial judges, such as myself, are required to follow laws or prior court rulings even if they are not popular."

How about if they are wrong, judge?

"In the past, when citizens or groups of citizens were unhappy with a law or court ruling, they would pressure their legislators to pass a different law or a constitutional amendment. Recently, a new technique has emerged — intimidate the judge. People are being urged to 'hold the judge accountable.' If you don't like what the judge did, get rid of the judge," Harrelson says.

That may be in Minnesota, but not in South Dakota. That is not what Amendment E is about. Amendment E is talking about judges who have voted themselves immunity. Judges who have violated a person's rights in the course of the proceedings and expect to get away with it.

Kranz is blowing smoke like the Legislature did and as others are doing. One person wrote that his take on the proposal is that the pro-E folks think that it is a good idea to put everyday citizens in charge of determining whether or not a judge, city council or local school board has made a mistake and then gives them the authority to put them in jail or bankrupt them if they think that they did.

Bill Stegmeier said, "Everyday citizens" are "the government." Then Bill said, "Does 'We the People' ring a bell?"

The special grand jury created by the amendment would hear complaints concerning alleged violations of people's rights, not the decisions of judges. The special grand jury can't put anyone in jail or bankrupt them.

An example of a bad decision was the overturning of Judge Lawrence Piersol's ruling that the juvenile detention center's policy to strip search all juveniles, even those accused of nonfelony offenses, violated the Fourth Amendment. This decision was made by the 8th U.S. Circuit Court of Appeals. They were wrong.

Just because a county lawyer, Gary Thimsen, used an analogy that he had used before — that the young girl only stripped down to what would typically be worn while swimming — and the 8th Circuit bought it, means nothing — except they were wrong, as was Thimsen.

I wonder how many of these judges, along with Thimsen, have daughters or granddaughters who they would let go swimming with a bra and panties, or force them to. I hope this young girl appeals this decision.

In the Aug. 14 Argus Leader, an article said, "Way back in 1898, South Dakota became the first state in the nation to give residents the right to initiate laws and to refer laws to the public. In 1972, residents were given the right to amend the Constitution in the same way."

Why should we be concerned about South Dakota being first again when it comes to Amendment E? Amendment E has nothing to do with California or Hollywood or Massachusetts. It has to do with judicial accountability. Don't they preach that we all have to be held accountable for our actions?

* * * * *
If initiative is approved, judges will rule to pacify public opinion

The J.A.I.L. amendment that will be on South Dakota's ballot this fall seeks to create a citizens' grand jury to review decisions made by judges in South Dakota. The petitions for this initiative were circulated by people who told potential signers that "no one is above the law."

Of course, that's a wonderful sentiment. The problem is, the solution by the sponsors of the J.A.I.L. amendment is first to remove immunity that judges now have from prosecution, then to create grand juries made up of lay people who will have the power to decide whether a sitting judge has been bad in deciding a case. And in the event of a judge's "misbehavior," a criminal case can be brought against the judge should the special jury indict him or her.

The people sponsoring this amendment are based in California and have tried the same thing there, without luck. So they want to bring their foolishness to South Dakota so they can point to success somewhere, then take it to other states.

First of all, there is a system already in place to review decisions made by judges. It is called an appeal. If our Supreme Court finds that the judge made a bad decision, the court has the power to reverse the judge's decision and send it back for a new trial, or the court can outright order relief for the party asking for relief.

It will be hard to describe the anarchy that would take place if the J.A.I.L. amendment passes.

Judges in the state would be looking over their shoulders when they make decisions in court. As a lawyer, I can personally attest to the fact that some judges — not many, though — are bad enough without putting this kind of pressure on them. But under our current system, we can always appeal decisions made by judges who are bad.

Under the J.A.I.L. amendment, instead of making decisions based on the law, the presiding judge would spend his or her time trying to figure out which way the public's wind is blowing on any given issue before making a decision. That would mean, of course, that trying to decide a case based on the law would never happen again. It would be figuring out which decision would be more popular at that moment in time. And popularity of issues changes daily, as we know.

For example, if gun owners somehow became the minority in this state, under this new system a judge would most probably decide that guns should be outlawed, because that would be the most popular decision — at that moment. The judge would make that decision for fear of being called before the special jury set up by the J.A.I.L. amendment.

That's not the kind of law I would like to live under. Even though under our current system we sometimes get bad rulings by bad judges, at least we know that the law is consistent and not subject to the whim of the moment.

I would hope that the people of South Dakota would use the common sense that they usually possess and make certain that this amendment is defeated. We can look to the anarchy in Iraq as a demonstration of what happens when the rule of law is broken down. That's something we do not need here.

Copyright 2006, Argus Leader

Lawrence C. Schroeder, 71, of Sioux Falls is the coordinator of Citizens United to Rehabilitate S.D.  James G. Abourezk, 75, of Sioux Falls, is a lawyer and former U.S. senator.  From: Argus Leader, Sioux Falls, South Dakota, September 25, 2006, p. 3-B.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.


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