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Unequal Justice

Paragraph 11 is another of the amendment's giant, irresponsible loopholes. Each jury would have a different set of rules from the last, arbitrarily established with no oversight or accountability to any governmental body or voter. When you consider how the amendment requires the frequent (and confusing) rotation of jurors on and off the Special Grand Jury (Paragraphs 12-14), it's clear that this is a prescription for a kangaroo court whose conduct from one jury to the next will be anyone's guess.

Our response:

When J.A.I.L. was first proposed, these provisions were not present in the original text, and the California Attorney General asked two questions: (1) What governs the internal conduct of the Special Grand Jury? and (2) To which branch of government does the Special Grand Jury give account? to the Legislative? the Executive? or the Judicial? 

To the first question, we acknowledged their point was well taken. We could not at that time correct the Initiative. However upon the next submission, we added the provision which the No-On-E Club is now attacking. Thus was born the words in Paragraph 11 "The Special Grand Jury shall have exclusive power to appoint a foreperson, establish rules of assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. ..." Our thanks is duly given to the then, and current, California Attorney General, Mr. Lockyer, for bringing this omission to our attention.

To the second question, we responded that it was "none of the above." The Special Grand Jury is not a branch of government, nor under the supervision of any of the three branches of government; but is the People to which the judiciary, one of the three branches of government, is accountable.

In the beginning of the creation of the Special Grand Jury, there will be the need for administrative matters to be accomplished, one of which will be agreeing upon a common set of internal rules. Such a project is common with all affairs of men. For instance, if there is to be a debate between political candidates, they first must establish ground rules. Obviously one cannot have a debate, play baseball or football, without governing rules of the game. (What constitutes a home run or a touchdown? How many strikes? etc.) Even political parties establish their own ground rules, and often agree upon Roberts Rules of Order. The Club is suggesting that perhaps during the "game" or in following Roberts Rules of Order that there will be changes made to the rules "in the middle of the game."

Amendment E does not propose any established rules except to indicate that such rules shall assure the attendance of the Special Grand Jurors, provide internal discipline, and a standard for removal. Such rules are not dictated laws for society, but only internal ground rules for the SGJ. Is it possible that in the passage of time improvements may be recommended and voted upon? We would be remiss if we didn't acknowledge that possibility. If an internal amendment to the ground rules is proposed and carried, the world will not end, nor will the laws of South Dakota be affected. Common sense, like the Declaration of Independence, reveals that "Prudence, indeed, will dictate that governments [rules of the Special Grand Jury] long established should not be changed for light and transient causes;..."  The No-On-E Club is suggesting that the SGJ will change the rules for change's sake, even though there be no compelling reason to do so. Thus, they contend the ridiculous idea that "Each jury would have a different set of rules from the last, arbitrarily established..."

The Club remarks "...frequent (and confusing) rotation of jurors on and off the Special Grand Jury..." Of the thirteen Jurors, only one Juror per month is rotated off and replaced, except in January it is two Jurors. That minimal rotation is necessary to keep the Jury fresh with new People, without too radical a change all at once that would adversely affect the continuity of efficient operation.

This rotation is another ingenious concept that should permeate all Grand Juries throughout the country. As it is now, Grand Jurors come to the end of their term, and walk out the door and turn the lights out. Then an entirely new Grand Jury walks in, turns the lights on, and knows nothing about what the former Grand Jury was dealing with. There is no continuity of operation. This process requires the government then to tell the new Grand Jury what it wants them to know, and they are dependent upon the government against whom they are to be a check. This of course creates a serious conflict of interest, in violation of the independence of the Grand Jury. Amendment E solves this problem.


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