(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
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 [email protected]
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