By Matt Pordum <firstname.lastname@example.org>
Las Vegas Sun
A group pushing an initiative to strip judges of their immunity in South Dakota has Nevada on its radar.
The group sees Nevada as a next step if the initiative on South Dakota's November ballot is successful.
"We have an interest in taking this to Nevada, where we have no doubts a failure to hold judges accountable is crippling the legal system," said Gary Zerman, an attorney spearheading the South Dakota initiative.
The initiative, called Judicial Accountability Initiative Law or J.A.I.L, would create a 25-member "special grand jury," made up of citizens who would have the power to sanction judges by levying fines and even remove them from the bench.
Under the initiative there would be no judicial immunity shielding a judge who commits "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 Constitution."
Judges are shielded from lawsuits over their judicial actions. Nevada and other states have some sort of panel to handle complaints against judges.
But Zerman said that without an independent way to police the judiciary, the power of the people is neutered.
"If we succeed in taking away the immunity of our judges, it chips away at this growing sense of absolute power in the judiciary," Zerman said. "Without accountability we have a government for the government by the government."
Zerman said subsequent independent movements have already begun in hopes of kick-starting a signature drive for initiatives in future elections in Oregon and Florida. And, depending on the success of the effort in South Dakota, he believes Nevada could be next.
The initiative qualified for the ballot with 10,000 signatures more than required.
Redress Inc., a Nevada nonprofit group that helps people who believe they have been treated unfairly in the legal system, is finalizing a petition for an initiative that would be similar but would broaden the special grand jury's power to include oversight of attorneys and police officers.
Juli Star-Alexander, executive director of Redress, says the South Dakota initiative "just doesn't go far enough."
Juli Star-Alexander and I are acquaintances and have sat at the same table together in discussion about J.A.I.L. She is an independent thinker, but my comment is that independent thinking must be based upon knowledge, or it is likely to get one in trouble. Many have presumed to "improve" J.A.I.L. by "expending" its focus. Not only is this unwise, but it is actually forbidden by the initiative process.
It is unwise because neither attorney's nor police officers are covered by the immunities claimed by judges. In theory at least, one can still sue their attorney or a police officer. I've done both. Every action that can possibly brought against a police officer can Constitutionally be brought in a court before a jury, and therefore, it falls under the provisions afforded by J.A.I.L., which also protects against intentional violations of due process of law.
Hence, any "expanded" version would be duplicative. It is very difficult for me to get through to some People that J.A.I.L. is all one needs. If the People hold accountability of the judges, they also hold indirectly accountability over the other two branches of government, all the way down to the janitor. Put another way, apart from eternity, J.A.I.L. provides the beginning and the end of all matters as it pertains to justice.
The second, and even more serious reason that J.A.I.L. cannot be "expanded" is that to include attorneys and police officers to the list violates the one subject mandate of initiatives. The subject of J.A.I.L. is strictly "judicial accountability." When you add in other body-politics, or pet projects to the batter, you violate the single-subject doctrine of initiatives.
One must understand that initiatives are not like legislation, in which legislators through in the kitchen sink as a tag-on to any bill. Personally, I think legislators should also be limited to single-subject legislation to avoid pork belly riders which cost the tax-payers mucho $$$. It works like blackmail, you can have what you want if you will take along with it the $billion Pork Bill, which I call "the hook."
"If a jury can hold someone accountable all the way to a possible death sentence, we as citizens should also be empowered to hold our police, judges and attorneys accountable," Star-Alexander said.
There is strong opposition to the South Dakota proposal.
Both houses of the South Dakota Legislature unanimously passed a resolution urging voters to reject the measure.
William Dressel, president of the National Judicial College in Reno, classified the goals of the initiative as "erroneous and overkill."
"I'm not sure it's constitutional," Dressel said. "It's really saying for doing your job you're potentially a criminal."
Time and time again the establishment, in criticizing J.A.I.L., flees to the phrase "harmless error." Early on in J.A.I.L. an attorney from the California Courts of Appeal contacted me criticizing me, telling me he had just read the entire J.A.I.L. Initiative, saying, "Why is it you want to go after judges for merely making a simple error? Since he said that he read the entire Initiative, I took him to task and asked him to show me what part of the J.A.I.L. Initiative he was referring to that implied judges could be held liable for merely making a simple error. I read to him where it applied only to the seven provisions set forth in the fifth paragraph cite above. Then I told him that he was just like the judges he was defending, who avoid the real issue, and formulate their own issue. He proved the need for J.A.I.L.
Dressel said the "radical" initiative might create "a gun-shy judiciary who are constantly looking over their shoulders every time they are asked to make a decision from the bench."
Dressel classified most judicial error as amounting to nothing more than "harmless error."
"Maybe a judge shouldn't have allowed someone's testimony in at trial, but that decision didn't necessarily affect the outcome of the trial," Dressel said. "Judges are empowered to interpret the law, determine how it applies in a case and to make findings of fact."
I have repeatedly said in public speeches that under J.A.I.L., judges may make unwise decisions, bad decisions, and even decisions that are cruel and malicious, and if they think they can get away with it, even willful decisions that deliberately violate the law. However, as to this last act, J.A.I.L. opens a door of opportunity to go to the Special Grand Jury for a remedy should the appellate, Supreme Court, or judicial commission fail to rectify the situation.
He said the appeals process addresses the majority of judicial error, and for "egregious" cases there is already a mechanism in place: the Nevada Commission on Judicial Discipline.
The seven-member commission is charged with investigating and disciplining judges, but has been criticized because all complaints and investigations are private and by law cannot be disclosed. The process is open to the public only if the commission charges a judge.
David Sarnowski, general counsel and executive director of the commission, said he was aware of the South Dakota initiative and said that in "case-specific situations" the commission is empowered to investigate and proceed with charges against all the actions highlighted in the initiative.
J.A.I.L. actually hopes that the existing processes of appeals and commissions do work, for in such case, J.A.I.L. will never kick-in to provide a remedy. One might compare J.A.I.L. to a fire-escape down the outside of a high building. Inside the building is an alarm system, a sprinkler system, and a fire hose. But it is nice to know that if none of these remedies are effective against the fire, and the fire starts to consume the building, you have your last and final avenue of escape outside the building by way of fire escape.
Douglas County District Judge Michael Gibbons, who is currently president of the Nevada District Judges Association, said while he appreciates the need to hold judges accountable, he believes the commission already does.
"No one wants bad judges, because that's bad for everyone," Gibbons said. "We have the commission in place that was adopted by the people of Nevada. You have to trust the people who are on the commission."
Please note, "You have to trust the people who are on the commission." I don't know about you, but I don't trust these men. Nonetheless, we are told to blindly trust unknown politicians holding political appointments to secretly protect our interests behind closed doors having absolutely no obligation to reveal anything they do.
Even the President of the United States is called to account for secret actions behind closed doors. So why not a lowly commissioner in a traffic court? Everything is totally hidden from us, their masters, who pay their salaries. It just does not make common sense!
We are told, "Both oligarch and tyrant mistrust the people" --Aristotle, "Politics." So we ask, if tyrants cannot trust us, the People, they why, pray tell, should We The People, trust tyrants?
"... it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others?
Gibbons defended the fact that the commission's investigations and screening process is done privately by saying statistics show that only one out of 100 complaints filed with the commission result in a charge.
He reasoned that if all the investigations were made public, the integrity of the bench could be destroyed and people could perhaps use information from investigations that proved to be fruitless as possible ammunition to have a judge removed from a case.
Here, we have a confession. Out of every 100 People complaining against a judge, 99 of those complaints by the People are thrown out. Why the secrecy? Are they afraid of what the public may see if these judges were exposed to the open sunlight? "For everyone that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved. But he that doeth truth cometh to the light..." Jn. 3:20, 21.
There is a word for these commissions nationwide. It is called, "cover-up." Keep it hidden from the public, lest the People discover the truth! J.A.I.L. will end these days! The statistics sited by Gibbons of only 1 out of a hundred to justify the reason for secrecy is not a reason to maintain secrecy, but a reason to bring it out in the open. When you smell a rat, find it, don't cover-up for it.
Gibbons was quick to point out that once a complaint is found to have probable cause, the hearings are held in public.
But Star-Alexander said, "The legal world has totally flip-flopped over the years. The current reality is that you are guilty until proven innocent, and that thinking begins with the police and the prosecutors way before it gets to the courtroom.
"It only makes sense to seek accountability of those entities as well."
Star-Alexander said she is keeping a close eye on the South Dakota initiative because in her mind "success there means change can happen in Nevada as well."
Matt Pordum can be reached at (702) 474-7406 or at email@example.com