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Rather Than Immunity, They Argue Accountability


Rather than address judicial immunity here, the No-On-E Club refers to remedies for judicial accountability that already exist.

They argue as follows:

Judges are already held accountable for the hypothetical transgressions spelled out in this paragraph. This is the part of the amendment that "sets up" government officials, judges and others who are protected by judicial immunity in their official decision-making. It strips them of legal protections for their official decision-making and makes them personally liable to lawsuits from people who have a gripe about those decisions.

Our response:

Nowhere does Amendment E relate to "official decision-making" or "people who have a gripe about those decisions." The Amendment, in paragraph 2, addresses seven specific violations of procedural law for which "no immunity shall extend."

Violations of procedural law do not reach the decision stage, and therefore "decisions" are not involved with Amendment E provisions. The opposition often brings up the "disgruntled litigant" mantra which is generally related to "decisions they don't like." However, they do not reference any part of Amendment E that discusses that theory. Obviously, litigants "don't like it" when judges violate the State and/or federal Constitutions which they have been doing for decades with impunity. True-- they don't like it!  The problem has been however, that the system DOES like it, and the People have had enough. Judges can avoid any involvement by the J.A.I.L. process if they simply follow the law during their conduct of judicial proceedings. Once that is accomplished, the decision reached is not within the jurisdiction of J.A.I.L. (Amendment E).

They claim that South Dakota has "five excellent, proven remedies that give judges an incentive to perform their duties with honesty, fairness and integrity." They list them as follows:

  • If a judge breaks the law he or she can be prosecuted.
  • People have the right to challenge a decision made by a judge. It’s called the “appeals process,” and every day scores of South Dakotans use it for the lawful, proven redress of their grievances in a higher court.
  • South Dakotans have the Right of Recusal — a very rare citizen power among the United States — in which a party to a lawsuit or a prosecution may remove the judge assigned simply because they doubt as to whether the assigned judge will treat them fairly.
  • Judges are routinely disciplined and even removed from the bench for misconduct. The body that holds them accountable is called the Judicial Qualifications Commission.
  • Judges are voted off the bench all the time. This November alone, 38 judges are up for reelection, with 55 candidates vying for their seats.

Amendment E does not prevent the People from pursuing any or all of the above system remedies. In fact, Amendment E encourages them to do so. Amendment E specifically provides in paragraph 21: "The provisions of this Amendment are in addition to other redress that may exist and are not mutually exclusive." [emphasis added]. It was intended, when written, that any or all existing state remedies would be sought, and hopefully work. It may be that the J.A.I.L. process won't be necessary if indeed the People are satisfied with the results of those existing remedies.

Having learned through eighteen consecutive years of seeking redress and pursuing all available judicial remedies, including the counter-parts of those listed above, and petitioning the U.S. Supreme Court fourteen times, I speak from my own experiences when I say that those remedies, on their own, do not work. I have found that the legal fraternity operates as a "Good-Ol-Boys Club," routinely covering up for one another at all costs, clearly exhibiting their lack of accountability. "And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the streets, and equity cannot enter. Yea, truth falleth; and he that departeth from evil maketh himself a prey..." Isaiah 59: 14-15.

It is only when the system is accountable to the People that the results of accountability ultimately can be assured. J.A.I.L.'s Amendment E will certainly motivate the system to make their suggested remedies work. After all, if they don't work on their own, there is always the ultimate remedy by the People-- J.A.I.L.


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