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


Judicial Accountability Initiative Reaches Voters in South Dakota
April, 2006
“It is dangerous to be right in matters on which the established authorities are wrong.”
-- Voltaire

The grass-roots coalition of judicial reform activists known as J.A.I.L. (Judicial Accountability Initiative Law) [1], have managed against all odds to bring forth their initiative directly to the voters in South Dakota.

The group seeks to pierce the veil of judicial immunity that judges in this country enjoy and often abuse. Such legal immunity shields judges from all civil and most criminal liability stemming from any decision(s) they may have issued pursuant to or in conclusion of legal proceedings before them. For more background, see How the Courts Stole the Right to Petition for Grievance [2].

This self-serving, court-made law was first proclaimed by the courts in 1793 and is unsupported by any text in the Constitution. The rule prevents recovery of damages suffered by litigants proceeding before a judge where the judge violated the law; see Supreme Court's re-affirmation of the rule, Stump v. Sparkman, 435 U.S. 349 (1978) [3] — a case where a judge unilaterally ordered the involuntary sterilization of a 15 year-old girl, without her knowledge or chance to object, solely on the verbal request of her mother who complained that her daughter was dating men too old for her.

In practice, what this means is that the courts and the judges who run them have formed a united cabal that protects itself and its members from ever being liable for decisions and orders they issue, no matter how illegal.

The courts maintain that rule, irrespective of how egregious, or even admitted, the violations of law a judge's actions may have been. It makes no difference whether a judge's actions caused wrongful death, permanent injury, wrongful imprisonment, destruction of property, denial of rights or other offense. It makes no difference whether the judge even had jurisdiction or authorization of any kind under law to do what he did. The rule says they are completely immune from legal redress from the aggrieved parties, and thus preempted from being sued for their otherwise unquestionably tortious acts.

In South Dakota, a private businessman subsidized the J.A.I.L. Initiative, obtaining 46,800 ballot signatures and attaining the right to put forth directly to the SD voters whether to make the initiative effective as state constitutional law. Visit the South Dakota Amendment E website [4] for details and developments.

Such provisions, if they are enacted into law, would act as a people's safety net against judicial malpractice and provide a civil remedy for those aggrieved by a judge's legal negligence. Although considered revolutionary in legal circles, the law would only be effective after standard due process has been given a chance to correct any perceived breaches of judicial discretion.

Under the new law, judges still retain the benefit of the doubt when someone questions their judicial actions. A potential complainant against some judge must first exhaust all judicial remedies available under traditional due process, i.e., working within the court system, motions to reconsider, appeals, certioraris, mandamus', etc. — and giving the system a chance to police itself.

But if after all this, an unsuccessful complainant still feels justice is being subverted, he would have the right to petition a special grand jury, required by the law to be made up of citizens who are not attorneys, judges, police officers or judicially related employees.

The special grand jury would have the power to hear the complaint, review the evidence and the record, have subpoena powers as needed, and upon good faith consideration would also have the power to formally strip the defendant judge of his presumptive entitlement to judicial immunity.

A complainant/plaintiff would then have the right to prosecute a civil suit against the judge for any legally wrongful and civilly-liable acts the judge may have committed while presiding over the subject claimant's case. Such a suit would proceed like any other civil suit, with all other protections and due process' in place.

Legitimate causes of action provided by the new law would be constrained to otherwise uncontroversial breaches of a judge's authority and scope of discretion, specifically:

  • Deliberate violations of statutory law, violation of non-discretionary court rules of procedure, or that of the state or federal constitutions.
  • Fraud or conspiracy.
  • Intentional violations of due process.
  • Deliberate disregard of material facts.
  • Judicial acts without jurisdiction.
  • Acts that impede the lawful conclusion of a case, including unreasonable delay and willful rendering of an unlawful judgment or order.

It is the acknowledged hope and motivation of the initiative's proponents that the mere threat of appeal to such a special grand jury will act as a wake-up call to the judiciary, and without even being invoked, would induce the courts to clean up the judicial sloppiness and abuse that legal immunity allows to go unchecked.

It is expected that the quality of court administration and judicial determinations will increase significantly from the enactment of this law.

Proponents of the initiative hope that if it meets with success in South Dakota, a precedent and example will be set for the rest of the nation, and enthusiasm for the new law will spread to other states. The initiative, having only qualified as an elective choice for SD voters, has already caused major official backlashes from those who stand to gain by maintaining the status quo, as almost all politicians, attorneys, judges and pro-government newsmedia in South Dakota have lambasted the initiative, and implausibly argue that somehow judges should never be legally responsible when they break the law.

Furthermore, instead of clear explanation in defense of judicial immunity, critics of the initiative resort to questioning the reputations and motivations of its proponents, imputing some spurious or nefarious agenda.

The South Dakota legislature as a body even went so far as to pass an official resolution urging the voters to vote against the initiative.

State officials have spent public funds convening hearings, lobbying the public with advertisements and official notices, threatening that anarchy and social chaos will occur if it succeeds at the ballot box. The media and statist pundits regularly misrepresent the terms of the initiative in editorials and articles to the public, claiming that convicted felons will be able to sue judges for the sheer fact they were found guilty. (In fact, under the initiative a judge would still be immune from such suit if he or she administered the proceedings pursuant to law.)

Despite the fact that elected officials have neither the jurisdiction nor authority to take an official stance on such ballot initiatives, they have used their official status and tax payer dollars to oppose this popular grass-roots effort for reform; this is both a conflict of interest, and usurps the public's discretion to make an independent choice.

In November 2006, hysterical South Dakota legislators and the legal community will find out if the voters choose to demand effective accountability from all employees of the government, or if they will let judges continue to proclaim that they can legally "Do No Wrong," a legal principle that they claim as their divine right and legacy, conferred directly from the social class of pre-Magna Carta Kings and Royalty.


  2. John E. Wolfgram, "How the Judiciary Stole the Right to Petition," 31 U. West L.A. L. REV., Summer, 2000, Research/WolfgramJudiciaryStoleRTP.htm (remove space).


Copyright 2006, Libertarian Party of New York

From: Free NY, Vol. 4, Issue 2, April, 2006, p. 21.  Gary Treistman is editor of Free NY, the official newsletter of the Libertarian Party of New York,  Hyperlinks in the original are shown here as references.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.


This Web site is not associated with Tulane University or its affiliates

© 1998-2013 Carl Bernofsky - All rights reserved
Send me an e-mail