South Dakota's Amendment E takes a swipe at a judicial tradition almost as old as
habeas corpus:
judicial immunity. In my limited, IANAL understanding, judicial immunity disallows people from suing a judge personally over official actions he/she has taken - whether handing down a sentence to throwing out a lawsuit deemed frivolous. And unfortunately, it's not only people who work as judges who could be sued under amendment E: anyone under the blanket of judicial immunity, including school boards, county commission members, health professionals reporting abuse, and possibly even
jury members can be sued personally by someone who didn't like the results of the legal proceeding. As if that weren't enough, it's also retroactive, and the suits are presided over by an unregulated "Special Grand Jury." (Information from
Project VoteSmart.)
More on the flip...
In my opinion, paragraph 3 of Amendment E cuts right to the chase of why this is a bad idea (emphasis mine).
Special Grand Jury. For the purpose of returning power to the People, there is hereby created within this State a thirteen-member Special Grand Jury with statewide jurisdiction having power to judge both law and fact. This body shall exist independent of statutes governing county Grand Juries. Their responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions of immunity as set forth in paragraph 2, and whether there is probable cause of criminal conduct by the judge complained against.
My problems with this, least to greatest:
-"For the purpose of returning power to the people..." Did you take your propaganda cues from the Chinese Communist Party? Sheesh. South Dakota judges are elected, and there is also a 7-member Judicial Qualifications Commission to review complaints. Is this not enough accountability?
-There is already a mechanism in place for challenging a judge's decision: it's called an "appeal." (Legal esoterica, I know.)
-Yet another layer on top of an already overloaded justice system. Not to mention, retroactive to forever!
-In paragraph 4, the Special Grand Jury is allowed to hire all sorts of "non governmental advisors, special prosecutors, and investigators as needed," costing the SD government as much money as it wants. Another way to grind government to a halt.
-The Special Grand Jury gets immunity, the same thing the amendment's backers claim is so dangerous for judges. There is nothing to oversee or check the Special Grand Jury.
-Because it can judge "both law and fact," the Special Grand Jury can throw out case law, precedent, and theoretically the rights enumerated U.S. Constitution if it likes.
This is a recipe for a disastrous breakdown of the court system in SD.
The brain (and I use the term loosely) behind amendment E is Rob Branson, a guy with a serious vendetta against judges that started in California. As he says on his website, "Trial jurors retain the right to veto, or 'nullify' bad laws." Clearly, this man is fair and balanced! And if the prior quote didn't convince you, try these:
"The passage of JAIL in South Dakota will make it a coveted state among all states. I have little doubt that a number of you, following JAIL's passage, will purposely drive to South Dakota, if you do not already live there, 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."
- Ron Branson, "It's Time to Go To Work," JAIL News Journal, 11/4/04
"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."
- Ron Branson, "Understanding the Term 'Judge,'" JAIL New Journal, 02/17/05
I am not going to say that Mr. Branson is not a fine, upstanding American citizen who believes in apple pie, bunnies, habeas corpus, the right to a fair and speedy trial, and the rule of law... but does it sound that way to you?
Even South Dakota's (scary) legislature is worried about amendment E. According to the Dakota Voice:
...practically every legislature in South Dakota came out against the measure because many believe it will not only subject judges--the principle target of the measure--to potential lawsuit, but also almost every other public official, down to school board members. The South Dakota legislature passed a resolution against the JAIL amendment with a 67-0 vote in the House and a 34-0 vote in the Senate.
By now, you must be saying to yourself, "Self, that ballot initiative sounds totally ridiculous, harmful, and untenable. How could anybody in their right mind vote for it?" Frighteningly though,Zogby currently says that 67% of SD voters support amendment E. Has there been honest discussion of the consequences in public forums? I don't know; I'm not in South Dakota and don't actually know anyone living in the state.
I am heartened that a group who opposes E has a great website. But I have to hand it to Mr. Branson. Much like the extreme Right-Wing, he has a cohesive and obfuscatory agenda; but his is to bring government to a standstill rather than drown it in the bathtub or create a theocracy. If this kind of rule-of-law subversion can take hold once, we need to prepare for an onslaught.