JOHN: Mark: It seems that your understanding of the
Dakota initiative is that it is aimed at "insist[ing] that judges
the law." That certainly seems laudable since there is no reason
judges (or any other government employees) should be "above the law."
judges commit crimes they ought to be prosecuted and, where
tried, convicted and sentenced. I don't quite understand why
to be a special grand jury empaneled for such a purpose (why
the regular grand jury suffice?), but that is beside the point.
MARK: There are several sites for Amendment E. The
"official" site is
southdakotajudicialaccountability.com, which contains answers
of your questions. The reason that Amendment E is on the
South Dakota and will spread to other states is because judges
being held accountable for their lawbreaking. Two
Amendment E explain what it is for:
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,
Law, or any other contrary statute.
3. Special Grand Jury.
For the purpose of returning power to the People,
there is hereby created
within this State a thirteen-member Special Grand
Jury with statewide
jurisdiction having power to judge both law and fact.
This body shall exist
independent of statutes governing county Grand Juries.
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
JOHN: My central question concerns the scope of what
to "obey the law." If all you mean is that judges should be subject
criminal and civil actions if they murder, rape, breach a contract
defraud someone then I'm with you all the way. But when I went to
jail 4 judges web site I learned that they mean to imprison judges
"misapplication of laws" or "ignor[ing] laws [or] evidence." As a
judge I make literally thousands of decisions a year concerning
application of laws and ruling on whether to "ignore" a law cited by
side or the other, because it does not apply or is being misread
counsel, and whether to exclude or allow evidence under the rules
evidence. Not surprisingly, I am in error in some (hopefully)
number of those rulings. Sometimes I catch the error myself and
my ruling. Sometimes the parties point out the error and I
and change my ruling. Sometimes the Court of Appeals catches the
and reverses my decision. But nobody ever indicts me and sends me
prison when I'm in error. If we focus only on reversed cases in
alone I would guess there are ten or so reversals a month. Would
mean ten judges a month go to jail? Who will replace those judges?
judges afraid to rule because they are risking imprisonment? How
that improve matters for the litigants?
MARK: I expect that
this grand jury will rarely be pressed into service,
not because they are not needed but because they serve as a
deterrent to law-breaking judges and all who have thus far
discipline or remove corrupt judges.
This is a jury of last resort and not intended for small,
that are likely to be corrected on appeal. Such cases
will not reach the
special grand jury.
I've mentioned District Court judge Kent Dawson as one example
corrupt judge. District Court judge John McBryde is
another good example.
for important details. Innocent defendants received
what may well be life
sentences from these two judges. This is extreme,
illegal abuse for which
these two judges will not be held accountable absent such an
JOHN: And what happens when the Court of Appeals
the trial court judge rule in accord with the law and the grand
disagrees? I assume the judge is indicted anyway. Is the appellate
affirmance admissable at trial? What about the reverse situation
the Court of Appeals reverses but the grand jury refuses to indict?
the judge who has been judicially determined to have "misappli[ed]
laws" walk free to err another day? And in both those cases does
grand jury then indict the Court of Appeals itself for failing to
things its way?
MARK: To answer these questions I would refer you to the
itself, and I would affirm my faith in those who sit on a
grand jury to be
good and reasonable people who are extremely resistant to
law. A mere difference of opinion is unlikely to
violation of law, fraud or conspiracy, intentional violation
of due process
of law, deliberate disregard of material facts, judicial acts
jurisdiction, blocking of a lawful conclusion of a case, or
violation of the Constitutions of South Dakota or the United
JOHN: Where we have corrupt and criminal actions taken by
am all for taking swift action to boot them out and prosecute
MARK: We agree. And when it has been made
impossible by his
brothers of the holy robe, then what? What is the
for the judge to die? Shorten his life by encouraging
should we be reasonable and just remove his judicial
JOHN: But setting up a grand jury to review decisions
and set criminal
proceedings in motion based on the jury's view that the judge
the law is a potentially dangerous undermining of the proper
MARK: A misapplication of the law is unlikely to be
Since this grand jury has no jurisdiction in most cases
until all other
lawful remedies have been exhausted, the jury is not likely to
blindly. After passage of Amendment E, I
expect the jury will indict rarely.