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J.A.I.L. News Journal
Published                                                              February 17, 2006
The Inherent Right of ALL People to Alter or Reform Abusive Government.
The Right Upon Which All Other Rights Depend
Understanding The Term "Judge"
(By Ron Branson - J.A.I.L. Author)
There has arisen within the national movement to acquire judicial accountability, known as J.A.I.L. (Judicial Accountability Initiative Law), a concern as to the precise definition and meaning of the term "judge." This treatise is written to establish the official position of J.A.I.L. that may be relied upon and applied to as the ultimate and final authority upon this subject. 
The phrase in question, as found in Amendment E, scheduled for the November 7th South Dakota ballot, states: "(b) Definitions. ... the following terms shall mean: ...  2. Judge:  Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity."
Inquiries from the media are asking for an explanation of the definition of the term "judge" particularly as to the words, "... and all other persons claiming to be shielded by judicial immunity." This concern brings to light that since I am the author of this terminology, 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 as authority. 
The words, "...and all other persons claiming to be shielded by judicial immunity," are penned specifically to prevent titles from being altered or changed to elude the  provisions of paragraph (c), to wit, "(c) Immunity. No immunity shall extend to any judge of this State for any deliberate violation of law, fraud or conspiracy, intentional violation 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 violation of the Constitutions of South Dakota or the United States, notwithstanding Common Law, or any other contrary statute." [Italics bold emphasis added]. That phrase funnels everyone, whoever that might be, down to the subject of "judicial immunity," which is the crux of the J.A.I.L. Amendment (designated "Amendment E" in South Dakota). In the final analysis, it isn't who, but what with which J.A.I.L. is concerned. 
These words, "...and all other persons claiming to be shielded by judicial immunity," thus cover such other persons, should the State Legislature expand or add newly named judicial offices in the future. For example, in California the Legislature failed to provide for future positions within the judicial branch, and they did indeed add the position of "Commissioner." The practical result was that there existed no disciplinary body, board or entity to hold "Commissioners" accountable because they were not recognized as "judges." It was at first established that "Commissioners" were to be subordinate judicial officers accountable to the judges that appointed them. However, as a practical matter, Commissioners were regarded by those judges not as "subordinate judicial officers" but as independent adjudicators of the matters before them; and said judges declined to override or reverse Commissioners' decisions because it placed the appointing judges in an appellate capacity.
In an actual case regarding the jurisdictional conduct of a Commissioner in California directed to the supervising judge, that judge ruled he could not interfere with, or override, the Commissioner's independent decisions because the Commissioner was free to exercise his own discretion. Hence, as a practical matter, there existed no forum in which a citizen could possibly complain about a Commissioner's conduct. What's more, everyone who submitted a complaint to the Commission on Judicial Performance was informed "We have no jurisdiction because a Commissioner is not a judge." The Legislature thereafter had to provide that Commissioners, in their own right, are now subject to the Commission on Judicial Performance.
Additionally, "private judges," theretofore unknown, came into existence from among retired judges, and began to adjudicate cases independently from the judicial branch of government. Again, there was no provision that applied to accountability of these "private judges." This was cause for concern of the California Chief Justice, Ronald George, who acknowledged the problem and criticized the current system of non-accountability. To date, I am unaware of any resolution of that problem which J.A.I.L. would resolve by its definition of judges, to wit, "all other persons claiming to be shielded by judicial immunity."  Amendment E will prevent these problems in California from coming to South Dakota.
Obviously if a measure, such as Amendment E in South Dakota, required a new amendment every time new legislation was passed, or practices changed, it would require repeated future Initiatives to correct it, which would be impractical. Thus, it is best to prevent this potential problem by including in the definition of judge, "and all other persons claiming to be shielded by judicial immunity." Instead of referring to titles of judicial officers, the Amendment focuses upon their claimed immunity.
By way of another actual example, statute provides that default clerks are required to enter a default after a process server files a sworn declaration of service upon a defendant, and the requisite number of days have expired without a response filed in the action. The County of Los Angeles, who was also a named defendant in the same case, and was also the employer of the default clerk, directed the clerk not to enter the default because "the defendant was not served." The default clerk's duty, under law, was to administratively enter the default and have the dispute of service adjudicated by the judge in the case.
However, what actually happened was the default clerk, in following the directive of her employer County, effectually adjudicated the matter in favor of her employer, and refused to carry out her ministerial duty under law. She was therefore sued for refusal to perform her duty as prescribed by law. Her employer County, a co-defendant in the case, argued before the judge that she was immune from lawsuit because she worked for the judicial department. The judge granted the County's argument, and the default clerk was immediately dismissed stating that she was covered by judicial immunity. All appeals on this clear violation of law provided no remedy.
Applying J.A.I.L. to this actual scenario, the judge granting the clerk judicial immunity and appellate judges upholding the act would be subject to J.A.I.L. scrutiny should this issue not be reversed on appeal. 
J.A.I.L. would not deal with the clerk. The clerk would be independently liable because she refused to perform her ministerial duties required by law, and not because she claimed to be covered by judicial immunity and thus made a "judge" under J.A.I.L.'s  definition, to wit, "all other persons..."  Only the Legislature can establish the office of judges, which positions are determined  either by appointment or by election, not by judicial declaration. By granting the default clerk judicial immunity, the judge thereby "legislated" a new "judge" into existence without the benefit of either an appointment by law or an election.
One newspaper reports a senator as having said, "It [Amendment E in South Dakota] would subject county commissions, school boards, city councils, township boards and a host of others to frivolous legal action if the supporters of J.A.I.L. did not like a decision that is contrary to their belief."

The above application regarding the default clerk would also apply to these administrative agencies, such as boards, commissions, and councils. J.A.I.L. deals only with the judge(s) granting or upholding the grant of judicial immunity to a party, whether an agency, employee, or official. These examples of liability are not intended to be exhaustive.

This senator fails to understand "lesson 101" in law. Anyone can look in the register of actions of any city in the United States and find a long list of lawsuits that have been filed over the years against these prescribed entities, and Amendment E had nothing to do with these lawsuits. The basics of law is "Sue and be sued." That's life. Somehow, the senator is delivering the false impression that Amendment E, if passed in South Dakota, will open up a Pandora's box of lawsuits against these entities, never before done.
All of these entities, at best, are but administrative agencies. "Administrative Law" is but a euphemism for "Contract Agreement." These administrative agencies can adjudicate only on subjects of contracts, not law. There are none of the trappings of law. For instance, there are no magisterial proceedings, no determination of Probable Cause, you have no right to counsel, and never a right to a jury trial. So what gives? If administrative agencies were dealing in law, instead of contract, every decision of an administrative agency could be overturned on appeal for lack of constitutional due process. But the Constitution has no bearing over contracts. The issue is only, did you abide by the contract, or did you not? And after the administrative process is exhausted, you may go to court. However, even in court the only issue is whether the administrative agency followed all the procedures established in the contract (administrative procedures) --no constitutional challenges, again because the Constitution does not apply to contract agreements.
Only judges operating at law, can hear and adjudicate constitutional challenges and questions wherein administrative hearing boards and officers lack such  jurisdiction.  So the above senator totally shows his ignorance regarding  administrative agencies in asserting that Amendment E will make these entities "judges" or "courts" that are liable under J.A.I.L. Despite his raving to the contrary, administrative hearing officers are neither judges, nor can they be jurisdictionally.
Should the Legislature declare administrative hearing officers to now be judges having jurisdiction to adjudicate constitutional issues under law, then of course, they would no longer be administrative hearing officers but "judges" for purposes of Amendment E. But no judge can "legislate" them to be judges, giving them jurisdiction wherein there is none. Further, there cannot possibly be a mixing of the two jurisdictions, for if it be contract, the Constitution cannot apply; and if the Constitution controls, then the contract is overcome by the Constitution and is null and void. Indeed, our Constitution recognizes the inherent right to contract, "No state shall...make any...law impairing the obligation of contracts." Article I, Sec. 10, Clause 1. So if the controlling document is made by reason of contract agreement, which all men may freely exercise, then government can make no law that impairs that contract! 
The words "...and all other persons claiming to be shielded by judicial immunity" are very simple, and can only constitutionally apply to judges in the conventional sense. There are no secret or esoteric meanings. J.A.I.L. means what it says, and says what it means. As Bill Stegmeier said in his speech before the South Dakota Senate 2/10/06, "Is" means "is."
-Ron Branson
Author of J.A.I.L. (Amendment E in South Dakota)


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