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P.O. Box 412, Tea, S.D. 57064 - (605)
231-1418
Understanding The Term
"Judge"
(By Ron Branson - J.A.I.L. Author)
There has arisen within the national movement
to acquire judicial accountability, known as
J.A.I.L. (Judicial Accountability Initiative Law),
a concern as to the precise definition
and meaning of the term "judge." This treatise is written to
establish the official position of J.A.I.L. that may be relied upon
and applied to as the ultimate and final authority upon this
subject.
The phrase in question, as will be found
in Amendment E scheduled for the November 7th South
Dakota ballot states: "(b) Definitions. ... the
following terms shall mean: ... 2. Judge: Justice, judge,
magistrate judge, judge pro tem, and all other persons claiming to
be shielded by judicial immunity."
Inquiries from the media are asking for
an explanation of the definition of the term
"judge" particularly as to the words, "... and all other
persons claiming to be shielded by judicial immunity." This
concern brings to light that since I am the author of this
verbiage, and penned these words, I am the final authority
by operation of law as to what these words mean, and that all
courts throughout the future must look to the
author's definition.
The words, "...and all other persons claiming
to be shielded by judicial immunity," are penned to prevent
titles from being altered or changed to elude the provisions of paragraph (c), to
wit, "(c) 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." [Italics bold
emphasis added]. That phrase funnels everyone, whomever that
might be, down to the subject of "judicial immunity," which is
the crux of the J.A.I.L. Amendment (designated "Amendment E" in
South Dakota). In the final analysis, it isn't
who, but
what with which J.A.I.L. is
concerned.
These words, "...and all other persons
claiming to be shielded by judicial immunity," thus cover such other persons should the State
Legislature expand or add newly
named judicial offices in the future. For example, in
California the Legislature failed to provide for
future positions within the judicial branch, and they did
indeed add the position of "Commissioner." The practical
result was that there existed no disciplinary body, board
or entity to hold "Commissioners" accountable because
they were not recognized as "judges." It was at first
established that "Commissioners" were to be subordinate
judicial officers accountable to the judges that
appointed them. However, as a practical matter, Commissioners
were regarded by those judges not as "subordinate judicial
officers" but as independent adjudicators of the
matters before them; and said judges declined to
override or reverse Commissioners' decisions because it placed
the appointing judges in an appellate capacity.
In an actual case regarding the
jurisdictional conduct of a Commissioner in California
directed to the supervising judge, that judge ruled he
could not interfere with, or override, the
Commissioner's independent decisions
because the Commissioner was free to exercise his
own discretion. Hence, as a practical
matter, there existed no forum in which a citizen could
possibly complain about a Commissioner's conduct. What's more,
everyone who submitted a complaint to the Commission on Judicial
Performance was informed "We have no jurisdiction because
a Commissioner is not a judge."
The Legislature thereafter had to provide
that Commissioners, in their own right, are now subject to the
Commission on Judicial Performance.
Additionally, "private judges," theretofore
unknown, came into existence from among retired judges, and began
to adjudicate cases independently from
the judicial branch of government. Again, there was no
provision that applied to accountability of these
"private judges." This was cause for concern of the
California Chief Justice, Ronald George, who acknowledged the
problem and criticized the current system of non-accountability. To
date, I am unaware of any resolution of that problem which J.A.I.L.
would resolve by its definition of judges, to wit, "all other
persons claiming to be shielded by judicial immunity."
Amendment E will prevent these problems
in California from coming to South Dakota.
Obviously if a measure, such
as Amendment E in South Dakota, required an amendment every
time new legislation was passed, or practices changed, it
would require repeated future Initiatives to correct it, which
would be impractical. Thus, it is best to prevent
this potential problem by including in the definition of
judge, "and all other persons claiming to be shielded by judicial
immunity." Instead of referring to titles of judicial
officers, the Amendment focuses upon their claimed immunity.
By way of another actual example, statute
provides that default clerks are required to enter a default
after a process server files a sworn declaration of service
upon a defendant, and the requisite number of days have expired
without a response filed in the action. The County of Los Angeles,
who was also a named defendant in the same case, and was also
the employer of the default clerk, directed the
clerk not to enter the default
because "the defendant was not served." The default clerk's duty,
under law, was to enter the default and have the dispute of
service adjudicated by the judge in the case.
However, what happened was the default clerk,
in following the directive of her employer County,
effectually adjudicated the matter in favor of her employer,
and refused to carry out her duty under law. She was therefore
sued for refusal to perform her duty as prescribed by law. Her
employer County, a co-defendant in the case, argued
before the judge that she was immune from lawsuit because she
worked for the judicial department. The judge granted the
County's argument, and the default clerk was immediately dismissed
stating that she was covered by judicial
immunity. All appeals on this clear violation of law
provided no remedy.
Applying J.A.I.L. to this actual scenario,
the judge granting the clerk judicial
immunity and appellate judges upholding the act would be subject to
J.A.I.L. scrutiny should this issue not be reversed on
appeal.
J.A.I.L. would not deal with the clerk. The
clerk would be independently liable because she refused
to perform her duties required by law, and
not because she claimed to be covered by
judicial immunity and thus made a "judge" under
J.A.I.L.'s definition, to wit, "all other persons..."
Only the Legislature can establish the office of judges, which
positions are determined either by appointment or by election,
not by judicial declaration. By granting the default clerk judicial
immunity, the judge thereby "legislated"
a new "judge" into existence without the
benefit of either an appointment by law or an election.
One
newspaper reports a senator as having said, "It
[Amendment E in South Dakota] would subject county
commissions, school boards, city councils, township boards and a
host of others to frivolous legal action if the supporters of
J.A.I.L. did not like a decision that is contrary to their
belief."
The above application regarding the default
clerk would also apply to these administrative agencies, such as
boards, commissions, and councils. J.A.I.L. deals only with the
judge(s) granting or upholding the
grant of judicial immunity to a party, whether an agency,
employee, or official. These examples of liability
are not intended to be exhaustive.
This senator fails to understand "lesson 101"
in law. Anyone can look in the register of actions of any city in
the United States and find a long list of lawsuits that have been
filed over the years against these prescribed entities, and
Amendment E had nothing to do with these lawsuits. The basics of
law is "Sue and be sued." That's life. Somehow, the senator is
delivering the impression that Amendment E, if passed in South
Dakota, will open up a Pandora's box of lawsuits against these
entities, never before done.
All of these entities, at best, are
but administrative agencies. "Administrative Law" is but a
euphemism for "Contract Agreement." These administrative
agencies can adjudicate only on subjects of contracts, not
law. There are none of the trappings of law. For
instance, there are no magisterial proceedings, no
determination of Probable Cause, you have no right to counsel, and
never a right to a jury trial. So what gives? If
administrative agencies were dealing in law, instead of contract,
every decision of an administrative agency could be overturned on
appeal for lack of constitutional due process. But the Constitution
has no bearing over contracts. The issue is only, did you abide by
the contract, or did you not? And after the administrative process
is exhausted, you may go to court. However, even in court the only
issue is whether the administrative agency followed all the
procedures established in the contract (administrative procedures)
--no constitutional challenges, again because the Constitution does
not apply to contract agreements.
Only judges
operating at law, can hear and adjudicate constitutional challenges
and questions wherein administrative hearing boards and officers
lack such jurisdiction. So the above senator totally
shows his ignorance regarding administrative agencies in
asserting that Amendment E will make these entities "judges" or
"courts" that are liable under J.A.I.L. Despite his raving to the
contrary, administrative hearing officers are neither judges,
nor can they be jurisdictionally.
Should the Legislature declare
administrative hearing officers to now be judges having
jurisdiction to adjudicate constitutional issues under law, then of
course, they would no longer be administrative hearing officers but
"judges" for purposes of Amendment E. But no
judge can "legislate" them to be judges,
giving them jurisdiction wherein there is none. Further, there
cannot possibly be a mixing of the two jurisdictions, for if it be
contract, the Constitution cannot apply; and if the
Constitution controls, then the contract is overcome by the
Constitution and is null and void. Indeed, our Constitution
recognizes the inherent right to contract, "No state shall...make
any...law impairing the obligation of contracts." Article I, Sec.
10, Clause 1. So if the controlling document is made by reason of
contract agreement, which all men my freely exercise, then
government can make no law that impairs that
contract!
The words "...and all other persons claiming
to be shielded by judicial immunity" are very simple, and can only
constitutionally apply to judges in the
conventional sense. There are no secret or esoteric meanings.
J.A.I.L. means what it says, and says what it means. As Bill
Stegmeier said in his speech before the South Dakota Senate
2/10/06, "Is" means "is."
-Ron Branson
Author of J.A.I.L. (Amendment E in South
Dakota)