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Lawfirm of Lynn, Jackson, Shultz, & Lebrun

Aug 22nd, 2006
The mislabeled Judicial Accountability Initiated Law
By Gene N. Lebrun

Constitutional Amendment E that will be on the November General Election ballot would add a new twenty-three section provision to Article VI, the Bill of Rights of the South Dakota Constitution.  That new provision is longer than the current Bill of Rights, the Executive Article (Article IV), and the Judicial Article (Article V) combined.

Amendment E is not an Initiated Law as its California sponsor has labeled it, but rather it is an initiated constitutional amendment, that if approved by the voters, cannot be amended or repealed by the legislature.

Amendment E does not provide for Judicial Accountability, but rather would destroy the separation of powers so inherent in our constitutional form of government since our founding fathers wrote the United States Constitution in Philadelphia in 1787, and has been one of the hallmarks of our Republic ever since.

Amendment E would destroy the essential independency of the courts of justice that Alexander Hamilton wrote in Federalist Paper No. 78 “is peculiarly essential in a limited Constitution.”  Hamilton further wrote in the same Federalist Paper:

This independence of the judges is equally requisite to guard the Constitution and the rights of the individual from the effects of those ill humors, which are the acts of designing men, or the influence of particular conjunctures, sometimes disseminated among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

So what does Amendment E do?  The Judicial Accountability Initiated Law (J.A.I.L) would create a special grand jury for the sole purpose of determining whether judges civilly sued as a result of their judicial acts should be stripped of immunity and therefore liable for damages, and whether judges should be indicted for criminal violations.  Not only would members of the judiciary be subject to lawsuits for their decisions, but also all South Dakota citizen board members, including county commissioners, school board members, city council members, planning and zoning board members, professional licensing board members, members of the South Dakota Board of Regents, jurors, prosecutors, or other citizen board members who as part of their duties, exercise decision making authority on behalf of the public, would also be so exposed.

Who will be the judges, county commissioners, school board members and other board and commission members?  Many board and commission members work for little or no compensation.   If votes as members of such bodies expose members to suits for damages or criminal prosecution determined by a non-judicial grand jury, few will take the risk of service.  In making such determination, the non-judicial grand jury would not be bound by state statutes, case law, common law, or other constitutional provisions, but rather by the specific untested provisions of Amendment E.  As its California sponsor has said of Amendment E, “I am the final authority by operation of law” of its meaning.

What about funding for a new unit of government?  J.A.I.L would mandate funding by the South Dakota legislature with a minimum initial budget in excess of two million six hundred thousand dollars ($2,600,000) plus require a separate facility for the special grand jury located at least one mile from any judicial body, i.e. courthouse, judges chamber, city hall, school board hearing room, etc.

What is the purpose of Amendment E?  Even if it were only applicable to the judges of South Dakota’s unified judicial system, it is overkill for a problem that does not exist.  In South Dakota, all judges are subject to being either voted out of office in contested elections in the case of circuit court judges, or in the case of the members of the Supreme Court, by voters voting not to retain them in office.  In fact, this November all five South Dakota Supreme Court Justices will be on the ballot for approval or rejection by the voters.  

Litigants who believe that Circuit Court judges erred in their decisions have the right to appeal those decisions to the Supreme Court.  If someone believes that a judge has been guilty of wrongdoing, a complaint can be filed with a bi-partisan constitutionally created Judicial Qualifications Commission, consisting of lay persons and professionals, which investigates complaints against judges and can recommend to the Supreme Court that a particular judge be removed from the bench.

The sponsors of Amendment E have cited no examples of judicial misconduct in South Dakota that would warrant the drastic, unprecedented, expensive, and destructive process and procedures that would be imposed upon the citizens of this State by Amendment E.

If judges and others who are in decision making positions and have the constant threat of civil liability and/or criminal prosecution from a disgruntled litigant, the necessary independence of the court system and other governing bodies will be lost.  

President John Adams defined our democracy as “a government of laws and not of men.”   Amendment E would create a government of a special grand jury that is not bound by law, but rather of the whim of thirteen unelected and untrained individuals.




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