J.A.I.L. Group Goes After Judges
South Dakota organization will target Nevada if November initiative is successful
February 24, 2006
A group pushing an initiative to strip judges of their immunity in South Dakota has Nevada on its radar.
The group sees Nevada as a next step if the initiative on South Dakota's November ballot is successful.
"We have an interest in taking this to Nevada, where we have no doubts a failure to hold judges accountable is crippling the legal system," said Gary Zerman, an attorney spearheading the South Dakota initiative.
The initiative, called Judicial Accountability Initiative Law or J.A.I.L, would create a 25-member "special grand jury," made up of citizens who would have the power to sanction judges by levying fines and even remove them from the bench.
Under the initiative there would be no judicial immunity shielding a judge who commits "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 Constitution."
Judges are shielded from lawsuits over their judicial actions. Nevada and other states have some sort of panel to handle complaints against judges.
But Zerman said that without an independent way to police the judiciary, the power of the people is neutered.
"If we succeed in taking away the immunity of our judges, it chips away at this growing sense of absolute power in the judiciary," Zerman said. "Without accountability we have a government for the government by the government."
Zerman said subsequent independent movements have already begun in hopes of kick-starting a signature drive for initiatives in future elections in Oregon and Florida. And, depending on the success of the effort in South Dakota, he believes Nevada could be next.
The initiative qualified for the ballot with 10,000 signatures more than required.
Redress Inc., a Nevada nonprofit group that helps people who believe they have been treated unfairly in the legal system, is finalizing a petition for an initiative that would be similar but would broaden the special grand jury's power to include oversight of attorneys and police officers.
Juli Star-Alexander, executive director of Redress, says the South Dakota initiative "just doesn't go far enough."
"If a jury can hold someone accountable all the way to a possible death sentence, we as citizens should also be empowered to hold our police, judges and attorneys accountable," Star-Alexander said.
There is strong opposition to the South Dakota proposal.
Both houses of the South Dakota Legislature unanimously passed a resolution urging voters to reject the measure.
William Dressel, president of the National Judicial College in Reno, classified the goals of the initiative as "erroneous and overkill."
"I'm not sure it's constitutional," Dressel said. "It's really saying for doing your job you're potentially a criminal."
Dressel said the "radical" initiative might create "a gun-shy judiciary who are constantly looking over their shoulders every time they are asked to make a decision from the bench."
Dressel classified most judicial error as amounting to nothing more than "harmless error."
"Maybe a judge shouldn't have allowed someone's testimony in at trial, but that decision didn't necessarily affect the outcome of the trial," Dressel said. "Judges are empowered to interpret the law, determine how it applies in a case and to make findings of fact."
He said the appeals process addresses the majority of judicial error, and for "egregious" cases there is already a mechanism in place: the Nevada Commission on Judicial Discipline.
The seven-member commission is charged with investigating and disciplining judges, but has been criticized because all complaints and investigations are private and by law cannot be disclosed. The process is open to the public only if the commission charges a judge.
David Sarnowski, general counsel and executive director of the commission, said he was aware of the South Dakota initiative and said that in "case-specific situations" the commission is empowered to investigate and proceed with charges against all the actions highlighted in the initiative.
Douglas County District Judge Michael Gibbons, who is currently president of the Nevada District Judges Association, said while he appreciates the need to hold judges accountable, he believes the commission already does.
"No one wants bad judges, because that's bad for everyone," Gibbons said. "We have the commission in place that was adopted by the people of Nevada. You have to trust the people who are on the commission."
Gibbons defended the fact that the commission's investigations and screening process is done privately by saying statistics show that only one out of 100 complaints filed with the commission result in a charge.
He reasoned that if all the investigations were made public, the integrity of the bench could be destroyed and people could perhaps use information from investigations that proved to be fruitless as possible ammunition to have a judge removed from a case.
Gibbons was quick to point out that once a complaint is found to have probable cause, the hearings are held in public.
But Star-Alexander said, "The legal world has totally flip-flopped over the years. The current reality is that you are guilty until proven innocent, and that thinking begins with the police and the prosecutors way before it gets to the courtroom.
"It only makes sense to seek accountability of those entities as well."
Star-Alexander said she is keeping a close eye on the South Dakota initiative because in her mind, "success there means change can happen in Nevada as well."
Copyright 2006, Las Vegas Sun, Inc.
From: The Las Vegas Sun, February 24, 2006, http://www.lasvegassun.com/sunbin/stories/sun/2006/feb/24/566653297.html?Pordum, accessed 09/03/06. Matt Pordum can be reached at firstname.lastname@example.org. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.