(Back to Home)

J.A.I.L. News Journal
______________________________________________________
Los Angeles, California                                              February 21, 2006
 ______________________________________________________
The Inherent Right of ALL People to Alter or Reform Abusive Government.
The Right Upon Which All Other Rights Depend
 
South Dakota Legislature
Forfeits Their Public Trust
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 defrauding 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 the 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.
 
 Rebuttal:
 
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 to 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? 
VIII.  Such comment made by the author of the J.A.I.L. amendment does not reflect any provision of Amendment E and is irrelevant thereto. Any stated anticipation by the author does not dictate the terms of Amendment E.  The intention of Amendment E is that stated in the Amendment itself. The Amendment shows on its face that access to our courts for South Dakota citizens will be guaranteed by assuring that judges will act honestly according to law. 
 
The South Dakota Constitution clearly provides in Article VI, Sec. 20, "All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay."  Amendment E enforces that right under ¶2, to wit, "No immunity shall extend to any judge of this State for... any deliberate violation of the Constitution[ ] of South Dakota...."
 
IX.  Amendment E provides: "Each Juror shall receive a salary commensurate to that of a Circuit Court judge, prorated according to the number of days actually served by the Juror." ¶9.  This means that if the judges behave themselves,  Special Grand Jurors will have no cases pending before them, then salary for the Jurors will be zero. If the Jurors work only 30 days out of the year, they are paid for just the 30 days they worked and no more. It would be good if all governments worked this efficiently, and perhaps by the example of Amendment E, it will.
 
Obviously the $2,650,000 cost as an operational expense for the Special Grand Jury claimed by this Legislature, whose credibility is already questionable, states no basis in fact to which anyone could calculate. It is just a figure pulled from the air designed to frighten the voters of South Dakota that this thing is going to cost a lot of bucks. The Legislature must be presuming that the Jurors will be working full time throughout the year in order to keep up with the extensive judicial corruption in South Dakota. This indicates that they believe the judges in South Dakota are extremely corrupt and evil, and that there is a very great need for Amendment E. This statement does not speak well of their opinions of the South Dakota judges. We would like to see the chambers of the Special Grand Jury dark most of the year without any matters pending before them.
 
Assuming the Legislature's position that the judges of South Dakota are really evil and corrupt, and the Special Grand Jury will be busy full time, then they must also calculate into the equation the plus side, to wit, the large number of fines, fees, and forfeitures paid into Amendment E by the judges. All this money will ultimately be channeled into the State Treasurer of South Dakota, creating a "profit" for the state. One can read about this provision in ¶¶6, 10.  The objective of Amendment E is to be self-supporting, and not chargeable to the taxpayers of South Dakota. ¶8.
 
After Amendment E becomes in force, and if it costs the taxpayers anything out of the pocket, it can only mean that the Legislature of South Dakota is failing or refusing to do their job, ¶8. Now the Legislature would not willfully violate that constitutional "shall," would they? We have already proved that they have willfully violated Art. VII, Sec. 1 by "passing" this "Resolution," which we believe is an on-going criminal act of this Legislature designed to continue each and every day until November 7, 2006. Once the public finds out what they are doing, they are going to have some very serious explaining to do.
 
Agreed, the Legislature is going to have to provide for a facility as set forth in ¶5.  Staffing for the Special Grand Jury will depend upon the workload generated by corrupt judges in South Dakota.  The financing for the operation of the Special Grand Jury will work like an accordion-- when there is a workload, it will expand to meet the demand. If there is no workload, it will go dark. 
 
X.  Amendment E will not interfere with, nor replace, the Judicial Qualifications Commission of South Dakota. In fact, ¶21 states "The provisions of this Amendment are in addition to other redress that may exist and are not mutually exclusive."  These words are intend to include the JQC, but is not limited thereto.
 
Litigants have the right to present any complaint they may wish to the JQC, but honesty dictates that those complaining be informed that, as a victim, they will never be made whole of their injury inflicted by a judge as would be the case under Amendment E.
 
If the Judicial Qualifications Commission can bring about honest judges throughout South Dakota for only $11,559 a year, that is very good. But this statement runs into a credibility problem. A person on Social Security receives more than that per year. Frankly we are amazed that the Legislature can possibly even pay the rent on a building to house the Judicial Qualifications Commission, much less hire a single employee to hear and decide all the complaints against the judges of South Dakota on that amount. A medical doctor called this to our attention by challenging one of these senators signing on to this "Resolution" on what the $11,559 figure represented, and suggested the JQC could not be the slightest bit effective running on that budget. He asked if that figure represented  the salary paid to a boy to come in occasionally to carry out all the filed complaints to the dumpster. Surely the Legislature is not including telephones,  lights, heat, water bills, supplies and office equipment in this annual operational budget of $11,559 for this "judicial commission." This judicial commission must obviously be a shell -- non-existent. But then, what is this $11,559 for? Padding for someone's pocket? It appears this JQC needs to be investigated. Now, if we can only find an honest person in government to perform an investigation of those who investigate judges! Then we must determine how much we should pay him. Do you really expect the South Dakotans to believe you Legislators on this? It's a joke, just like your entire "Resolution" of lies, fraud and propaganda at taxpayer's expense. Please, somebody, drop by this "Judicial Qualifications Commission" and say "Hi," and have the staff there introduce themselves to you and show you around.
 
Honestly, should this JQC be the least bit successful in enforcing the laws of  South Dakota against miscreant judges, it might prevent the violations specified in ¶2, which would reduce or eliminate altogether the convening of the Special Grand Jury to hear complaints about the judiciary. 
 
The same is said regarding the appellate process. Indeed we hope that all cases are resolved at the appellate level without the necessity of anyone having to file a single complaint against a judge with the Special Grand Jury. The mere existence of the SGJ is anticipated to influence justice in the courts more than will the Special Grand Juries' actual actions just as the roar of a lion influences more deer than does its teeth and claws, which affects but one deer. 
 
XI.  We are told by the South Dakota Legislature "...Amendment E would violate the federal Constitution, thereby subjecting South Dakota taxpayers to millions of dollars in damages and attorney fees;"
 
There is no basis supplied in which to respond to this charge other than to point out that for years we have placed the basis for Amendment E under challenge by numerous lawyers, professors, and legal minds to arrive at a genuine federal constitutional challenge of its provisions, and we have yet to find anyone able to find a hole in it. 
 
XII.  We are told by the Legislature, "Amendment E would be devastating to the South Dakota economy, harming economic development and driving existing businesses from South Dakota:"
 
The answer to this charge against Amendment E calls for a speculation on the future such as predicting the stock market whether it will go up or down. Since we do not deem the South Dakota Legislature to be a prophet, knowing the future, nor do we deem them to have special insight as to the future, we respond to their charges based upon common sense.
 
By holding judges accountable to the laws of South Dakota, honesty will spring forth abundantly, resulting in honest dealings with one another. Honest dealings will mean honest business. Honest business will result in prosperity for South Dakota beyond imagination. Businesses will be drawn to South Dakota in flocks and droves, contrary to California where the businesses are departing in droves. 
Once businesses hear about South Dakota, they will relocate there, bringing with them their dollars and their job opportunities. Unemployment will go next to zero.  

Everyone will be truly amazed over the improvement of the quality of life in South Dakota, in which crime will go down enormously, resulting in the need for fewer Bar Members, prosecutors, judges, bailiffs, prisons in South Dakota.

 
XIII. What is so sorely lacking is the protection of the People's rights from corrupt judges which are creating the need for Amendment E. J.A.I.L. is the only means available to South Dakota by which they may exercise their duty to renew the use and protection of their inherent rights, by enforcing the Constitution through holding the guardians of those rights, i.e., the judges, accountable to them for unconstitutional judicial action. Amendment E will be the best thing that has ever happened to South Dakota!
 

(Back to Home)