J.A.I.L. News Journal
Los Angeles, California                                            December 24, 2005

The Inherent Right of ALL People to Alter or Reform Their Government
The Right Upon Which All Other Rights Depend
South Dakota Judges Referring Questions Re: J.A.I.L. To State Bar
(By Ron Branson - National J.A.I.L. CIC)
As has already been announced by the S.D. Secretary of State, and by us, J.A.I.L. has officially qualified for the Nov. 2006 ballot as Amendment E. This announcement has caused J.A.I.L.'s opponents to shift into high gear, knowing that they are now facing their last chance to convince the People not to vote for Amendment E.  At stake here is not only South Dakota, but the entire nation.
The very contemplation of the passage of this measure has thrown fear into the establishment, and the judges of South Dakota are already referring questions about this measure to the State Bar for answers. Needless to say, as the author of the measure, and one who has learned by many years of experience with the judges, and who has prosecuted fourteen cases to the United States Supreme Court, I can answer any of the questions these judges care to ask, and I dare say, much better than can the State Bar of South Dakota.
Below is an article published in today's Rapid City Journal. Personally, I think our opposition such as below are making fools of themselves, but I realize they just can't help themselves because they are addicted to their zeal to attack J.A.I.L. even though their opposition is bringing more and more People into our fold. I'm already making plans for our Victory Celebration on the state Supreme Courthouse steps next year, which event will include presenting an AWARD PLAQUE to Mr. Tom Barnett of the South Dakota State Bar, mentioned below, for the excellent job he is doing in spreading the word about J.A.I.L. to the South Dakotans. Great work, Mr. Barnett, keep it up!
I will be entering footnote numbers into the below article to comment on the various points following the article.   -Ron Branson

December 24, 2005

Vote on judicial immunity weighed

By Kevin Woster, Journal Staff Writer

A measure headed for the 2006 general-election ballot that would make judges vulnerable to lawsuits stemming from their court decisions is a threat to the foundation of the judicial process, critics said Friday.

But supporters said it would simply hold judges accountable for improper decisions and prevent them from "legislating from the bench."

Proponents of the Judicial Accountability Initiative Law, or JAIL, which would strip judges of immunity from lawsuits and create a citizen's board to review court decisions, collected about 47,000 petition signatures. That was 13,000 more than needed to put the issue on the 2006 general election ballot. South Dakota Secretary of State Chris Nelson confirmed Thursday that there were enough valid signatures to put the issue on the ballot.

But that doesn't mean the amendment to the state constitution makes sense or could ever withstand a legal challenge, Rapid City trial lawyer Patrick Duffy said Friday.

"It is the single most insane piece of legislation ever proposed by the people of South Dakota," Duffy said. 1  "This contemplates some system with a self-proclaimed grand jury of lunatics 2 that will, apparently based on nothing more than a whim and a will, drag a judge in to answer about something of which they disapprove."

Duffy said there are clear problems in the existing legal system, which is too heavily weighted toward incarceration. But the JAIL amendment is an unworkable solution that almost certainly would be struck down immediately in a court challenge, 3 he said.

"I'm one who happens to think that we hit injustice more than justice in this country," Duffy said. "But this isn't the answer. This isn't the answer by a long shot."

Supporters of the amendment argue that judicial immunity creates an environment where judges rule like courtroom kings, giving citizens few options except the self-protective appeals process that involves other judges. The amendment would create a special grand jury of citizens who would review complaints of judicial misconduct. Members of the legal community or officers in other branches of government could not serve on the grand jury.

Sioux Falls chiropractor Allen Unruh said the proposal comes at a time when citizens throughout the nation are rebelling against activist judges.

"I think there is a great uproar in this country against judges who are usurping legislative authority and legislating from the bench," Unruh said. "I think this is an idea whose time has come."

It makes sense that the battle would come to South Dakota, where citizens embrace traditional American values and are likely to believe that judges should be held accountable for their actions, Unruh said. If successful here, it will spread to other states, he said.

"They're men. They're human beings. They're not infallible," Unruh said of judges. "Just like we impeach presidents when they violate their oath, nobody should be above the law, including judges."

John Egger of Sturgis, who was sheriff of Meade County for 31 years, said he would vote for the amendment. Eggers, 85, said it would improve the legal system, not destroy it.

"They (judges) should be respected. But they ought to be treated like the rest of us if they make a decision that was unreasonable," he said. "There ought to be something in there so the people can do something about that."

7th Circuit Court Judge Jack Delaney said Friday that judges were referring questions about the amendment to the State Bar in Pierre. Bar Secretary-Treasurer Tom Barnett said the issue goes beyond a threat to judges and the courts. It also could include city councils, school boards, county commissioners and other public bodies that serve in quasi-judicial roles, he said.

"I think this is a huge issue for all the people of South Dakota," Barnett said. "I'm talking about all the elected boards that would be subject to being sued. Who's going to be willing to serve if they can be sued for simply doing their jobs?" 4

Barnett said the amendment could create more legal work - and more financial gains - for lawyers 5 because cases that are now dismissed as frivolous or unjustified could be revived through the citizens' grand jury and move back into court.

"Lawyers would make a lot more money, but it would be horrible for the system and horrible for the state," he said.

Contact Kevin Woster at 394-8413 or kevin.woster@rapidcityjournal.com  

1.  " 'It is the single most insane piece of legislation ever proposed by the people of South Dakota," Duffy said.'  The fact is, Duffy, you are playing in the little league. Let's hear how "insane" the professionals think J.A.I.L. is. I refer to the Legislative Analyst of the Legislature of California in a letter to our current State Attorney General Bill Lockyer Re: J.A.I.L. dated March 30, 2000. We are told;
"Limitations on Judicial Immunity. Current law provides that judges are completely immune from civil claims based on actions taken within the scope of their judicial performance. As a result, perceived abuses by a judge within the scope of his or her judicial performance can only be remedied by appealing the action in question to obtain a reversal, filing a complaint with the Commission on Judicial Performance, or petitioning the Legislature to impeach the judge. None of these remedies allow the complaint to seek civil damages. Judges are currently subject to criminal prosecution for criminal acts taken within the scope of their judicial duties (for example taking a bribe). The 'victim' of such an offense, however, cannot seek a civil remedy against a judge for any negative consequences of the criminal action.
This measure would provide a mechanism for plaintiffs to overcome this immunity in certain cases by filing a claim with the newly created special grand juries who would have jurisdiction to determine whether a civil suit fell within certain immunity exclusions set forth in the initiative. Judges would no longer be immune from civil liability in cases in which they intentionally violate due process of law, deliberately disregard material facts, block the lawful conclusion of a case, or deliberately violate the U.S. or California Constitutions. In any case in which the special grand jury finds that a suit would fall within these exclusions, its finding acts as a bar against the judge raising the defense of judicial immunity in any future proceeding involving that claim."
Now Mr. Duffy the above is from the highest legal source within the State of California. It is clearly seen that J.A.I.L. is considered a remedy in California in which none currently exists. Hardly such words can be considered "an insane piece of legislation." These words are a matter of record, and express the official position of California. While I realize that this officially expressed position of California is not the officially expressed position of the South Dakota Legislature, but do you still wish to declare J.A.I.L. "insane"?
2. Now Mr. Duffy you refer to the Special Grand Jury as a "self-proclaimed grand jury of lunatics."  This is an interesting descript since this jury is drawn by the  Secretary of State. Paragraph 13. says, "Selection of Jurors. The Jurors shall serve without compulsion and their names shall be publicly drawn at random by the Secretary of State from the list of registered voters and any citizen submitting his/her name to the Secretary of State for such drawing." Further, these Jurors are seated by the S.D. Legislature, paragraph 5, hardy a "self-appointed" position. Or is it that you believe that all officials in South Dakota are "self-appointed?" You further call these Jurors "lunatics." Do you realize what you are saying? You are calling every citizen in South Dakota a potential lunatic. Do you not know that these citizens you are calling "lunatics" are the voters of South Dakota, and make up the civilization of your state? or do you really care? Have you not proclaimed yourself at war with the voters of South Dakota by calling them all lunatics? Are you insane?
3.  You say, Duffy, that J.A.I.L. is an "unworkable solution that almost certainly would be struck down immediately in a court challenge"  I am ahead of you, Duffy, of this one. Yes, when I wrote J.A.I.L. I knew it would be the chief enemy of most judges within the system, and whose greatest desire would be to strike down J.A.I.L. just as the courts have done with so many other initiatives passed by the People. This is precisely the very reason you find the words in paragraph 22 of the South Dakota Initiative, "Challenges. No judge under the jurisdiction of the Special Grand Jury, or potentially affected by the outcome of a challenge hereto, shall have any jurisdiction to sit in judgment of such challenge. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class action, or by any adversely affected person."
Now let me give you a little lesson in law. The jurisdiction of every court is established by law. Where the law limits the jurisdiction of a court, that court has no jurisdiction to rule there upon. This principle is true even of the Constitution as it affects the United States Supreme Court. Article III, Sec. 1 creates the Supreme Court, but Sec. 2, Clause 3 establishes the power of Congress to create limitations and exceptions upon the Supreme Court.
Just so, by the People of South Dakota Amending their Constitution through the passage of J.A.I.L. as provided for in their Constitution, they thereby draw a very specific limitation upon the jurisdiction of the courts of South Dakota which they cannot trespass without falling under the sword of the provisions of that Amendment. No court may create or define its own jurisdiction that contravenes legislation that forbids its assertion of such jurisdiction. 
Congress has the power to limit the jurisdiction of every federal court in this nation to the sidewalk around the building if they so chose to do so. Just so, the People of South Dakota have the power to limit the jurisdiction of the S.D. courts accordingly, and they will have so done by passing J.A.I.L. into law as a constitutional amendment.
4.  Barnett says, "I think this is a huge issue for all the people of South Dakota," Barnett said. "I'm talking about all the elected boards that would be subject to being sued. Who's going to be willing to serve if they can be sued for simply doing their jobs?"  What the Director of the S.D. Bar Association Tom Barnett fails to realize is that it is only until all judicial remedies are exhausted can one invoke the jurisdiction of the J.A.I.L. Special Grand Jury as set forth in paragraph 11, "...no complaint of misconduct shall be considered by the Special Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in this state..."
I realize you are an attorney, Mr. Barnett, so I will explain this to you again very carefully so you can understand it. Every matter involving boards, etc. of which you refer, have their right to due process. This means they, or their opponent, has access to the courts in which to adjudicate their dispute. Therein they can argue to the judge what is right and proper under applicable law. If the judge willfully refuses to apply the appropriate law, either side may appeal, and then they may take the matter up to the State Supreme Court and argue the applicable law to the facts.
Here is a truth that has failed to dawn upon all of J.A.I.L's critics, including you, Barnett. All power is within the courts at every level to prevent every case from going before the Special Grand Jury. How so, you ask? Let me explain. When a trial judge does that which is beyond his jurisdiction under law, or fails to faithfully apply the proper law, the appeals court, as a master tennis-player, can hit the ball back over the net to the trial judge who did the  wrong, and tell him or her to make the proper ruling. Should the appellate court fail to do their job, the ball the lands in front of the Supreme Court Justices. They can lobby the ball back into the Appellate Court and tell them to do their job.
In effect, the ball could be lobbied back and forth between the trial judge, the appellate judges and justices until the cows come home. As long as the ball is in action, and there is no conclusion, and therefore no case in action can go before the Special Grand Jury, because the outcome of the case is still pending, and will continue in that state until the Supreme Court reaches its final judgment with nothing more pending.
Now you ask me, Barnett, what keeps the courts from just volleying back and forth the ball forever to keep it away from the Special Grand Jury?  Good question, Mr. Barnett, I'm very proud of you for thinking of this. I give you five brownie points for this great question. The answer is found in paragraph 1 of the S.D. Initiative, to wit, " a. Blocking: Any act that impedes the lawful conclusion of a case. to include unreasonable delay..." And in paragraph 2, "...no immunity shall extend to any judge ... blocking ...a lawful conclusion of a case..." At some point the lobbying back and forth of the ball between the upper and lower courts to keep it away from the Special Grand Jury becomes an "unreasonable delay," and the appealing party may gain access to the Special Grand Jury because of the courts unreasonable delay as provided for in paragraph 11. So, you see, Barnett, except for blocking and unreasonable delay, the operational functions of J.A.I.L. are entirely in the hands of all judges at every level at all times, and without the final approval of all these judges, J.A.I.L. simply cannot operate, having no final exhaustion of the case.
5.  Barnett, you say that J.A.I.L. could create greater financial gains and more business for you lawyers. My goodness, have you forgotten the Sixth Amendment of the U.S. Constitution? It says we are entitled to the assistance of counsel. Assistance of counsel is not necessarily a "lawyer." Gee, with the reputation you lawyers have, I am sure that most people, if not all, would be willing rather to hire a paralegal to give them assist of counsel rather than one of you "lawyers" to "represent" them. The way I see it, it won't take long before the People of South Dakota will see a lot of you lawyers in the unemployment line. I concede that perhaps a number of you  will drastically lower your legal fees so far down so as to keep up with the paralegals swiping all your legal business which would otherwise land you in the unemployment line. I am of the impression that the only reason people even hire you at all is because they have to according to your fellow comrades, to wit, judges. But when these judges can no longer sustain the argument that "assistance of counsel" and "representation by a lawyer" are identical, things will change.
Say, all you lawyer guys are so fun to play around with in these so-called debates. But can't you guys come up with something that is a little more challenging?    - Ron Branson


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