South Dakota Heads for "J.A.I.L."
S. BROOKE TAYLOR
South Dakota is headed for "J.A.I.L." this fall, as in the "Judicial Accountability Initiative Law" that will appear on the general election ballot. The title is a bit of a stretch, but does yield a rather catchy acronym. This is an initiative by the people to amend South Dakota's constitution. The full ballot title is "South Dakota Proposed Constitutional Amendment E."
A sense of what lies ahead appears in the preamble: "We, the People of South Dakota, find that the doctrine of judicial immunity has the potential of being greatly abused; that when judges do abuse their power, the People are obliged it is their duty to correct that injury, for the benefit of themselves and their posterity. In order to insure judicial accountability and domestic tranquility, we hereby amend our Constitution by adding these provisions as §28 to Article VI, which shall be known as 'The J.A.I.L. Amendment.'"
The proposed constitutional amendment would eliminate judicial immunity as a defense in suits against judges (and arguably other decision-makers) by disgruntled litigants, including convicted felons, if certain transgressions are found by a "Special Grand Jury." Those areas of transgression are defined in Section 2 as 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 statue.
Emphasis is added above for two categories that would seem to grant almost limitless avoidance of judicial immunity. Any "disregard of material facts" is presumably "deliberate," and can be alleged in almost every case by the losing party. The term "blocking of a lawful conclusion of a case" is generally interpreted to be synonymous with the granting of a motion for summary judgment, or any order that terminates a claim or eliminates a defense without a trial.
The determination of whether a complaint against a judge is entitled to a defense of judicial immunity will be made by a 13-member Special Grand Jury, ". . . with statewide jurisdiction having power to judge both law and fact." The responsibility of the Special Grand Jury is defined in Section 3 of the initiative as follows: "Their responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions of immunity as set forth in paragraph 2, and whether there is probable cause of criminal conduct by the judge complained against."
The proposed amendment has 23 separate sections, many of which deal with funding, structure, and process. Here is a summary of some of the more provocative provisions:
Members of the Special Grand Jury will be paid a salary commensurate to that of South Dakota's Circuit Court judges, which has been computed to be $387 per day of service. See Section 9.
Funding for the process will be extracted from the judges themselves by a deduction of 1.9 percent "from the gross judicial salary of all judges." See Section 6.
To qualify for service on the Special Grand Jury one must be 35 years of age, have been a citizen of the United States for nine years and an inhabitant of South Dakota for two years. One cannot be an elected or appointed official, a lawyer or judge, a judicial, prosecutorial, or law enforcement employee, or a person convicted of a felony or determined to be mentally incapacitated. See Section 12.
Jurors will be drawn out of the hat from the list of registered voters and any citizen who submits his or her name for such drawing, apparently whether they are a voter or not. See Section 13.
Burdens of proof heavily favor the complaining litigant, including the following rule: "All allegations in the complaint shall be liberally construed in favor of the complainant. The jurors shall keep in mind, in making their decisions, that they are entrusted by the People of this State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge."
This curious provision found in Section 15 is augmented by a later provision in Section 19 which provides that judges complained against must provide their own defense, and pay any judgment rendered against them out of their own pockets.
The Special Grand Jury also has the power to indict a judge if it finds "probable cause of criminal conduct," and the indictment is then handled by a "non-governmental special prosecutor and a judge with no more than four years on the bench from a county other than that of the defendant judge," and if convicted, sentencing is done by the "special trial jury" that hears the case, not by the judge. See Section 16.
The proposed amendment defines a "strike" as "an adverse immunity decision or a criminal conviction against a judge," and after three such strikes, the judge loses his job forever, together with half of his pension. See Sections 1 and 18.
The question that immediately comes to mind is: Why is this happening, and why in South Dakota? Curiously, there is nothing of note going on in South Dakota judicially or politically that would encourage this effort. There have been no incidents of conspicuous judicial misconduct, nor any decisions that have sparked public outcry. The author and sponsor of the initiative is North Hollywood, California, resident Ron Branson, a disgruntled litigant who has a beef with the judicial branch in general, and was unable to get this matter on the California ballot. The plain fact of the matter is that South Dakota is a relatively easy place to get such an initiative on the ballot, requiring only 32,000 signatures. Paid signature gatherers told South Dakota citizens that the initiative would make judges more accountable, and they signed up in droves. The effort cost Mr. Branson and his supporters an estimated $100,000 as opposed to the cost of a similar effort in California, which would exceed $1,000,000.
The measure is so extreme, and so conspicuously vindictive, that it would be humorous if it were not so serious. Unfortunately, the proponents are dead serious, and initial polling in South Dakota showed voters favoring the ballot measure at a rate of 3 to 1! This measure is clearly a stalking horse for a larger effort, and Mr. Branson claims to have organizations in all 50 states ready to march ahead. The potential destruction of the doctrine of judicial immunity has caused so much concern in legal and political circles in South Dakota, that the South Dakota Legislature took the extraordinary step of passing a resolution unanimously imploring its citizens to oppose the ballot measure. This is the same body that recently passed a law banning abortion in South Dakota, and presumably unanimity on any subject is rare.
The most obvious and immediate result of the passage of this initiative would be a challenge to its validity on constitutional grounds, which, if successful, simply replaces the initiative with a direct confrontation between its proponents and the courts, which the proponents would no doubt relish, contending that it simply proves their point. If a court were to uphold the initiative, or enough of it for it to function, then the second most obvious impact would be to give new meaning to the term "clearing the bench." What judge in his or her right mind would stay on to the bench in a system where unhappy litigants have such a remedy at their disposal? The only effective remedy is for the measure to be turned back at the polls, "by the people," in order to take the steam out of this movement. Many South Dakotans are joining with the legal community to oppose this measure, and an expensive and bitter campaign is anticipated.
At the Washington State Bar Association, volunteer lawyers and judges from around the state and all levels of court are working hard on the President's Initiative Advisory Committee to develop and launch the "Foundations of Freedom Project." One of the long-range goals of this "initiative" is to ensure that Washington is never fertile ground for anything like South Dakota's J.A.I.L.
From the Washington State Bar Association "President's Corner," http://www.wsba.org/media/publications/ barnews/june06-taylor.htm (remove space), accessed 09/24/06. S. Brooke Taylor is President, Washington State Bar Association, and may be contacted 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.