Critiquing South Dakota J.A.I.L.
A Response to David Kranz
August 29, 2005
I have had many years of experience in dealing with the courts prior to writing the J.A.I.L. Initiative. That experience encompassed eighteen years and fourteen cases before the United States Supreme Court. Relatively few attorneys can make such an claim. One judge commended me, "Mr. Branson, in all my twenty years on the bench, I have never once found anybody like you." Another judge in the Ninth Circuit Court of Appeals has come to know me personally and recuses himself every time I come before him. I am referenced in both state and federal law books.
I did not for trivial reasons write the J.A.I.L. Initiative. Each one of its provisions has a real, live experience behind it.
For example, the law in California, which is not dissimilar to South Dakota's, gives a judge 90 days to decide a matter submitted to him, and "[t]he judge shall hear and shall render judgment in plaintiff's favor." The Chief Counsel of the Legislature recognizes that the law is good, but that it cannot be enforced. He admitted, "This is a real head-scratcher," in reference to one case that has been without a decision for more than twelve years. For non-compliance with this law, the judge forfeits his salary and commits felony perjury every month for twelve years for swearing he has complied with the law by rendering a decision within 90 days.
Now, Mr. Kranz, your first point is, "A judge could go to jail for handing down a court ruling in that someone disagreed with if an effort is successful to put the Judicial Accountability Initiative Law (J.A.I.L.) on the ballot." Around 1999, an attorney for the appellate judges here in California wrote to me with a similar argument. He stated: "I have read your entire Initiative, and I ask you why is you wish to take down a judge merely because he makes a mistake?" Just as with your point, I loved his criticism. I told him it was indicative of the very reason we need the passage of J.A.I.L.
I asked him why, if he had truly read the entire Initiative, then how is it he missed paragraph 2 which in the South Dakota Initiative says: "No immunity shall extend to any judge of this State for any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of South Dakota or the United States..." I asked him to point out the phrase he referred to when stating I was going after judges for "merely making a mistake."
As far as the need for J.A.I.L. in dealing with judicial corruption in South Dakota, I was one of the people in South Dakota collecting signatures. I talked with a retired South Dakota sheriff who had served for 31-years. He told me he was well aquainted with the corruption of South Dakota judges and that J.A.I.L. was greatly needed here. This is not hearsay. He told me this to my face, and we will be placing his testimony on our South Dakota website. Another signer told me he was not afraid to sign because he knew of two judges who belonged in prison, not on the bench. I asked to be sure he was talking about South Dakota judges, and he said, "Absolutely, I am talking about right here in Deadwood."
Mr. Kranz, on the subject of judicial immunity, you display a lack of knowledge when you say, "what the backers call a self-made doctrine of judicial immunity." Anyone with a basic knowledge of law knows this has nothing to do with "the backers of J.A.I.L," for the doctrine of judicial immunity goes back to before the 1800s, and you can read about it in every law library in the country. During my door-to-door signature gathering, I met a courthouse janitor just leaving home to go to work. She knew that judges are covered by judicial immunity. To imply that the doctrine of judicial immunity is a term invented by "the J.A.I.L. backers," is misleading.
Now that you know judges have immunity, you need to what that means. It means that no matter how willful or malicious a judge is, or how disrespectful he is to the law or to the Constitution which he has sworn to uphold, he is immune and not accountable to anyone for his or her actions. The judge can do whatever he chooses and never has to be concerned that he will have to be accountable to the law that otherwise would call him to account. He can even pass laws from the bench despite being forbidden from doing so. He can ignore all laws and still be protected by judicial immunity. Is this what you perceive as the American way?
If a judge can disrespect the law, does it not cause disrespect for the law by everyone else? I brought up this point face-to-face with the attorney for the Governor of California and I received this response, "Okay, I've got your point." But do they do anything about my point? No, because judges have judicial immunity! They just cannot be held accountable.
You quote from former Justice George Wuest, "That is one of the nuttiest things I have ever heard," says George Wuest, a retired Supreme Court justice from Mitchell." This is an expected response from one who is a member of the bench. All he has ever experienced is judges covering for other judges. But judges judging judges has never worked. Wrongs in any other profession can be redressed in court, but to whom does one go when seeking redress of wrongdoing by a judge? The answer is, another judge who is likewise unaccountable.
Mr. Kranz, do you find something wrong with "government of the People, by the People, and for the People," that makes you want to cast that principle aside in favor of government by an unaccountable judiciary? And do you really think a retired State Supreme Court Justice would admit he should be held accountable for his conduct to a body of the People? I am convinced you know better than that.
Excerpted from: J.A.I.L. News Journal, Los Angeles, August 29, 2005, http://www.jail4judges.org/JNJ_Library/2005.htm, accessed August 29, 2005. Ron Branson may be reached at: email@example.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.