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cannot be amended or repealed by the legislature.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
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
PROTECT OUR CONSTITUTIONAL BALANCE OF
POWER VOTE NO ON AMENDMENT E