How to Judge a Judge
February 1, 2006
A constitutional amendment on the November ballot in South Dakota threatens to make state judges there more vulnerable to civil lawsuits and criminal prosecutions.
The Judicial Accountability Initiative Law, which needs a simple majority to pass this fall, would create a special grand jury with the power to criminally indict a judge, or to bar him from using the judicial immunity defense in a civil suit.
No one could lodge a criminal accusation with the special jury unless a prosecutor had declined to file charges. And no one could bring a civil accusation without having exhausted state court remedies.
After receiving the judge's response to civil allegations, the 13-member special jury would decide by majority vote whether the judge could claim judicial immunity if the accuser were to sue in civil court. The amendment specifies that immunity should not be allowed for any deliberate violation of the law or the state or federal constitution; fraud or conspiracy; intentional violation of due process; deliberate disregard of material facts; actions without jurisdiction; or the blocking of the lawful conclusion of a case.
Judges amassing three adverse immunity decisions or criminal convictions would be kicked off the bench, with their retirement benefits cut by at least half.
Critics say the proposal is unworkable, and a threat to judicial independence.
"Every time there's a dissatisfied person there'd be a lawsuit," says James Heiting, president of the State Bar of California.
Larry Mann, a South Dakota political consultant working against the amendment, also argues that it would only serve to shift immunity. "It's so broadly written that it creates this special grand jury [with] almost unrestrained authority to do almost whatever they want, without any accountability."
But proponents who have long hoped for such a law in California counter that the current checks on judges aren't enough.
"Until a judge has become an open embarrassment to the system, they just won't be prosecuted," said Californian Ronald Branson, who drafted the template for the JAIL amendment about 10 years ago.
Gary Zerman, a Valencia solo practitioner who's worked with Branson to promote such initiatives, likewise expresses disappointment in the Commission on Judicial Performance. "The CJP just gives them a public censure and lets them go on like nothing happened."
Copyright 2006, ALM Properties, Inc.
From: The Recorder, February 1, 2006, CAL LAW, http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1138701916061, accessed 02/04/06. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.