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


South Dakota to Vote on Ending Judicial Protections
October 18, 2006

Response to the Above Totenberg Broadcast

South Dakota's Amendment E was designed to create the court of last resort after existing avenues of legal appeal have been exhausted and found wanting. It affects only judges, and only where it can be demonstrated that a judge, who is deemed to know the law, failed to observe the law and issued a tainted ruling that involved one or more of the following specific kinds of improper conduct.

  1. Deliberate violation of law.
  2. Fraud or conspiracy.
  3. Intentional violation of due process.
  4. Deliberate disregard of material facts.
  5. Judicial acts without jurisdiction.
  6. Blocking of a lawful conclusion of a case.
  7. Any deliberate violation of the Constitution of South Dakota or the United States.

Any of the above seven types of judicial misconduct could cause a judge to be stripped of his or her shield of immunity as specified in paragraph 2 of Amendment E, which follows.

2. Immunity. 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, notwithstanding Common Law, or any other contrary statute.

Disregarding the actual wording of Amendment E, Totenberg proceeds to describe it in terms designed by its detractors to disuade voters from approving the measure, stating that it would allow countless state officials, including school board members, to be sued for unpopular decisions they may make. That, of course, is untue.

In defense of immunity Totenberg states: "Judicial immunity dates back to before the U.S. Constitution and is meant to insulate judges and others from being punished for making unpopular decisions." Totenberg is apparently referring to the doctirine of soverign immunity, by means of which "The King can do no wrong." That doctrine was one of the abuses against which our Founding Fathers rebelled and which the U.S. Constitution intended to avoid. As pointed out by Dr. Richard Cordero:

The judicial power of the United States is established by Article III of the U.S. Constitution. That article does not immunize judges for their judicial actions from prosecution under the laws of the United States, or those of any state for that matter. The sole protection that it affords judges is found in Section 1, which provides that they, "during their Continuance in Office shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished."

Neither the Legislative nor the Executive Branches can retaliate against judges by diminishing their salary; otherwise, Article III leaves judges just as exposed to sanctions for their official and personal acts as any other government officer or private person.

Indeed, that same Article III, Section 1 specifically states that, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." To be meaningful, this necessarily implies that they 'can no longer hold their Offices' if they engage in 'bad Behaviour'. Given the fundamental principle of our democracy — that government is by the rule of law — judges engage in 'bad Behaviour' when they, as members of the Third Branch of Government, violate such law [1].

Clearly, the effect of South Dakota's Amendment E is to return to "We the People" the power to hold judges accountable for the unconstitutional acts they may conduct in the performance of their duties, and to deny judges who have engaged in misconduct the unrestricted immunity they have usurped for themselves in violation of the limited authority permitted them by the Constitution.

Totenberg, who has broad experience in reporting on constitutional issues, should have recognized the goals that Amendment E is intended to accomplish. In addition to her misinformed commentary, she revealed her bias by gratuitously pointing out immaterial details (traffic violations, lawsuits filed, unconventional views on unrelated subjects) about the proponents of the Amendment E initiative — which could place them in an unfavorable light and diminish their credibility — while failing to report similar aspects about the personal conduct or motives of the amendment's opponents. For a senior correspondent, Totenberg's coverage was uncharacteristically biased; instead of hitting a home run, this time she fouled out.


  1. The authority cited is the U.S. Constitution.  For further discussion and references, see:

Broadcast copyright 2006, NPR

Nina Totenberg is Legal Affairs Correspondent for National Public Radio.  Her commentary was broadcast on NPR's Morning Edition, October 18, 2006 and is streamed here in mp3 format (about 8 min, 20 sec).  From:, accessed 10/25/06.  Reproduced 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