Below are the charges made by the South Dakota Legislature against Amendment E, which they have posted without authority upon the official S.D. website, http://legis.state.sd.us/sessions/2006/bills/HCR1004p.htm

 

Counter-charges are hereby made that it is grossly unethical, immoral, and criminal for the Legislators to use South Dakota taxpayer dollars to pass a "Resolution," and to influence a popular vote at said taxpayers' expense. It is further unethical and immoral to use a taxpayer-financed website to spread their propaganda in a vendetta against the People's right to propose Initiatives, to wit, "All political power is inherent in the People, .... [T]hey have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper." Art. VI, Sec. 26. The People have the absolute right to exercise their inherent power to affect matters regarding their government without being attacked by that same government, or being blasted by their own website at their expense.  

 

While it is acceptable for legislators in their private and individual capacity to vote at the polls on November 7th, it is totally unacceptable for these same Legislators to betray the public trust by turning the Capitol Building into a massive campaign headquarters, and using the auspices of their official offices to campaign against the People's Amendment E. Because the Legislature has not only presumed to "pass" that which is immoral, but also that which they have absolutely no jurisdiction to do, such so-called "Resolution" is null and void for all purposes, and is as if it had never existed. It has absolutely no force or effect of law. It is designed merely for the purpose of deceiving and defraud the voters of South Dakota into not voting in favor of Amendment E.

 

Such action makes a total mockery of the election process, and reduces the election process down to the level of a Banana Republic, wherein  People are afraid to appear at the polls and vote. What's more, it calls into suspect the after-results of the voting, to wit, was it an honest election? It serves merely to deteriorate People's faith in all government processes, which breaks down sound government and lends to confusion and eventual open anarchy. When the People cannot trust their government with the voting process to be honest, what do we have left?

 

This principle against altering, influencing, or tampering with the outcome of elections is so strong that not even the Governor of South Dakota can veto the People's Initiative process. "The veto power of the Executive shall not be exercised as to measures referred to a vote of the People." Art. III, Sec. 1, South Dakota Constitution. Further, the same Constitution also forbids the Legislature from tampering with the election process, to wit, "Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage [votes]." Art. VII, Sec. 1 Re: Elections.

 

Response is hereby made to the charges issued by the Legislature of South Dakota against Amendment E.  For purposes of an orderly response, we assign a maroon colored Roman Numeral to each and every charge responded to:

 

State of South Dakota

EIGHTY-FIRST SESSION LEGISLATIVE ASSEMBLY,  2006

229M0660

HOUSE CONCURRENT RESOLUTION   NO.     1004

Introduced by:     Representatives Hennies, Boomgarden, Brunner, Buckingham, Cutler, Davis, Deadrick, Dykstra, Elliott, Faehn, Frost, Fryslie, Garnos, Gassman, Gillespie, Glenski, Glover, Hackl, Haley, Halverson, Hanks, Hargens, Haverly, Heineman, Hills, Howie, Hunhoff, Hunt, Jensen, Jerke, Koistinen, Kraus, Krebs, Kroger, Lange, McCoy, McLaughlin, Michels, Miles, Murschel, Nelson, Novstrup, O'Brien, Pederson (Gordon), Peters, Putnam, Rausch, Rave, Rhoden, Roberts, Rounds, Schafer, Sebert, Sigdestad, Street, Thompson, Tidemann, Tornow, Turbiville, Valandra, Van Etten, Van Norman, Vehle, Weems, Wick, and Willadsen and Senators Koskan, Abdallah, Adelstein, Bartling, Bogue, Broderick, Dempster, Duenwald, Duniphan, Earley, Gant, Gray, Greenfield, Hansen (Tom), Hanson (Gary), Hundstad, Kelly, Knudson, Koetzle, Kooistra, Lintz, McCracken, McNenny, Moore, Napoli, Olson (Ed), Peterson (Jim), Schoenbeck, Smidt, Sutton (Dan), Sutton (Duane), and Two Bulls

         A CONCURRENT RESOLUTION,  Urging the voters of South Dakota to reject the Judicial Accountability Initiated Law (J.A.I.L.), which will be submitted to South Dakota voters in November 2006, designated Amendment E.

 

I.       WHEREAS,  Amendment E was drafted by a resident of California and the petitions were circulated by paid out-of-state persons; and

 

II.     WHEREAS,  the Amendment E petition failed to get more than a few thousand signatures in California, and thus was never submitted to California voters; and

 

III.    WHEREAS,  South Dakota voters were told that Amendment E simply provided for a remedy for intentional judicial misconduct; and

 

IV.    WHEREAS,  if approved by the voters, Amendment E would actually allow lawsuits against all South Dakota citizen boards, including county commissioners, school board members, city council members, planning and zoning board members, township board members, public utilities commissioners, professional licensing board members, jurors, judges, prosecutors, and all other citizen boards; and

 

V.     WHEREAS,  Amendment E would authorize and encourage jury nullification in South Dakota, which was previously rejected overwhelmingly by South Dakota voters in 2002; and

 

VI.    WHEREAS,  Amendment E would prohibit summary judgment, a legal remedy currently available and used to quickly and inexpensively rid our courts of frivolous lawsuits; and

 

VII.   WHEREAS,  Amendment E would permit convicted felons, whose convictions have been affirmed by our Supreme Court, to sue the prosecutors who prosecuted the felons, the jurors who voted to convict the felons, and the judges who sentenced the felons, thus burdening our courts and citizens with countless expensive and needless lawsuits; and

 

VIII.   WHEREAS,  the author of Amendment E has publicly stated that with the passage of Amendment E, Judicial Accountability Initiated Law members from across the country will "purposely drive to South Dakota...just for the privilege of getting a traffic ticket so you can demand a jury trial. I anticipate traffic courts to be among the first courts to all but totally close...," thus depriving South Dakota citizens of their constitutional right of access to our courts and making it clear that Amendment E is not intended to help cure any alleged problems with South Dakota courts; and

 

IX.   WHEREAS,  if approved, Amendment E would establish a new entity to investigate complaints with an initial budget of two million six hundred fifty thousand dollars, plus the cost of a facility, with authority to hire as many employees as it deemed appropriate without legislative appropriation, consultation, review, or approval; and

 

X.   WHEREAS,  the South Dakota Constitution already provides for the Judicial Qualifications Commission, which hears complaints and investigates allegations of judicial misconduct, and operates very economically, with an average annual expenditure of eleven thousand five hundred fifty-nine dollars over the past ten years; and

 

XI.   WHEREAS,  if approved, Amendment E would violate the federal Constitution, thereby subjecting South Dakota taxpayers to millions of dollars in damages and attorney fees; and

 

XII.    WHEREAS,  Amendment E would be devastating to the South Dakota economy, harming economic development and driving existing businesses from South Dakota:

 

XIII.   NOW, THEREFORE, BE IT RESOLVED,  by the House of Representatives of the Eighty- first Legislature of the State of South Dakota, the Senate concurring therein, that the South Dakota Legislature strongly urges all South Dakota voters to protect our citizen boards, to protect our system of justice, to protect economic development, to protect all our citizens from frivolous lawsuits that would be authorized by the Judicial Accountability Initiated Law, and to vote against Amendment E.

 

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I.    The J.A.I.L. Amendment was originally drafted in California for the  State of California under its initiative process. People from all fifty states (including South Dakota) independently, of their own volition, contacted its author, and requested to advance the cause of J.A.I.L. in their own respective states, such being an inherent right of the People pursuant to the First Amendment of the U.S. Constitution under freedom of association -- a right which every government official in South Dakota has sworn with an oath to defend and protect. What's more, these same officials are subject to the South Dakota Constitution, which states, "To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." Art. VI, Sec. 1. 

 

As to the charge, "[T]he petitions were circulated by paid out-of-state persons;" that is incorrect. The truth is that Amendment E was adapted in South Dakota for South Dakotans, and the vast majority of the petition circulators were South Dakotans. What's more, this charge by the Legislature is moot, for if its collection of signatures were performed illegally, then why is Amendment E officially on this November's ballot? Please explain. You have all the petitions containing the signatures of the circulators before you. Prove your accusation, or admit your falsehood!

 

 

II.  The Amendment E petition is a South Dakota measure and does not apply to California.

 

The People of California were not able to gather sufficient signatures for the California J.A.I.L. amendment by volunteers (requiring almost 700,000 valid signatures to qualify for the ballot), nor were they able to raise the necessary funds of about one million dollars to finance the California  amendment. (California J.A.I.L. has been informed by professional signature-gathering companies that never in the history of California has any proposed constitutional amendment reached the ballot by volunteers).

 

III.  True. No rebuttal.

 

 

IV.  Our Founding Fathers wisely established our system of three distinct, separate, and independent branches of government. This principle is preserved in the South Dakota Constitution, "The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution." Art. II. No powers of one branch shall function within that of another.

Amendment E specifies its application as exclusively to the judicial branch of government, and no other. By definition (�1b) it applies only to "justices, judges, magistrate judges, judges pro tem, and all other persons claiming to be shielded by judicial immunity;" and by definition (�2) it applies only to "deliberate violations of law, fraud or conspiracy, intentional violations 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 violations of the Constitutions of South Dakota or the United States."

 

By the same definition, Amendment E cannot apply to administrative agencies, such as boards, councils, commissions, etc., since they are limited in jurisdiction and cannot adjudicate with finality the violations specified in �2.

 

The requirement in �11 that "the complainant shall have first attempted to exhaust all judicial remedies available in this State" carries with it, by operation of law, the requirement that all administrative remedies be exhausted before petitioning for judicial remedies. The laws of the State of South Dakota recognizes the differences between exhaustion of administrative remedies and exhaustion of judicial remedies. Amendment E likewise recognizes that distinction in law that administrative forums are not of the judicial branch of government, nor can they be "judges." Nor can "judges" apply to prosecutors, and certainly not jurors, who are not an office of government, nor any part of the three branches of government, but is the People, who do not take an oath of office. Therefore, all final dispositions regarding the above violations rest only with the judiciary, contrary to your charges made against Amendment E.

 

 

V.  Our Founding Fathers designed our government to be fully accountable directly to the People through the jurors. We leave to them the decisions of life and death of matters regarding serious offenders. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury..." Amendment V, U.S. Constitution. In other words, there is no government powers that can cause a person accused of murder to answer, much less face a trial, unless there is a presentment or indictment of a Grand Jury. Now is that power, or what? Absolutely. It is a power that all government in all its majesty and power, cannot exercise. 

 

Thomas Jefferson accordingly wrote: "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its Constitution." And, in 1794, in the first jury trial held before the U.S. Supreme Court, John Jay, the first Chief Justice instructed jurors thusly: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your power of decision. The jury has a right to judge both the law as well as the fact in controversy." [Georgia v. Brailsford, 3 U.S. 1 (1794)]. Oliver Wendell Holmes, Supreme Court Justice, ruled in 1920 "The jury has the power to bring a verdict in the teeth of both law and fact." (Horning v. District of Columbia, 254 U.S. 135). This principle has never been reversed by any court in this country, nor can it be.

 

Your argument that "Amendment E would authorize and encourage jury nullification in South Dakota, which was previously rejected overwhelmingly by South Dakota voters in 2002;" is bogus for the following reason. Jurors have always from the beginning retained this power. The fact is that the Amendment to which you refer was off point, failing to present the proper question whether the jurors should be informed of their powers. Judges have never denied the powers of the jury, but have ruled instead that the jurors may not be informed of their power. Your charge presents an example of why we do need Amendment E to hold judges accountable, not why we do not need Amendment E. Judges have deceived the People by not allowing them to be informed of their rights.

Under Amendment E it assures judges shall receive this right in a criminal trial. To deny judges this right before a jury would be to deny them due process, and provide grounds for reversal on appeal. Common sense dictates that we, as Americans, cling fast to the historical heritage of our jury system, and never depart from it as instructed by Thomas Jefferson.

 

                                                                                                                                       

VI.  Amendment E says nothing about summary judgment. Any judge in South Dakota may issue summary judgment, or any other disposition, according to law. Only if he willfully violates the law under �2. can a judge be liable under Amendment E.

 

You mention getting rid of cases "Quickly and inexpensively." Nothing wrong with that, provided that "Quickly and inexpensively" is not to the exclusion of obedience the law. "Justice" must be the primary objective of South Dakota courts, not rushes to judgment. Are we in agreement on that?

 

 

VII.  As stated in IV, above, Amendment E, by definition (�1b) applies only to "justices, judges, magistrate judges, judges pro tem, and all other persons claiming to be shielded by judicial immunity;" and further, by definition (�2) it applies only to "deliberate violations of law, fraud or conspiracy, intentional violations 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 violations of the Constitutions of South Dakota or the United States." 

 

Amendment E  specifically maintains security by precluding those people within "imprisonment, or parole from a conviction of a felonious crime..." See Paragraph 12. Amendment E will actually decrease the number of expensive and needless lawsuits by enforcing the proper adjudication of cases by honest judges. Honesty, that's what you seek, is it not?