Los Angeles, California
December 24, 2005
The Inherent Right of ALL People to Alter or Reform Their
The Right Upon Which All Other Rights Depend
South Dakota Judges Referring
Questions Re: J.A.I.L. To State Bar
(By Ron Branson - National J.A.I.L. CIC)
As has already been announced by the S.D. Secretary of State, and by
us, J.A.I.L. has officially qualified for the Nov. 2006 ballot as
Amendment E. This announcement has caused J.A.I.L.'s
opponents to shift into high gear, knowing that they are now
facing their last chance to convince the People not to vote
for Amendment E. At stake here is not only South Dakota, but the
The very contemplation of the passage of this measure has thrown
fear into the establishment, and the judges of South Dakota are already
referring questions about this measure to the State Bar for answers.
Needless to say, as the author of the measure, and one who has learned
by many years of experience with the judges, and who has
prosecuted fourteen cases to the United States Supreme Court, I can
answer any of the questions these judges care to ask, and I dare say,
much better than can the State Bar of South Dakota.
Below is an article published in today's Rapid City
Journal. Personally, I think our opposition such as below are
making fools of themselves, but I realize they just can't help
themselves because they are addicted to their zeal to attack J.A.I.L.
even though their opposition is bringing more and more People
into our fold. I'm already making plans for our Victory
Celebration on the state Supreme Courthouse steps next year, which
event will include presenting an AWARD PLAQUE to Mr. Tom Barnett of the
South Dakota State Bar, mentioned below, for the excellent job he
is doing in spreading the word about J.A.I.L. to the South
Dakotans. Great work, Mr. Barnett, keep it up!
I will be entering footnote numbers into the below article to comment
on the various points following the article. -Ron Branson
December 24, 2005
Vote on judicial immunity weighed
By Kevin Woster, Journal Staff Writer
A measure headed for the 2006 general-election ballot that would make
judges vulnerable to lawsuits stemming from their court decisions is
a threat to the foundation of the judicial process, critics said
But supporters said it would simply hold judges accountable for
improper decisions and prevent them from "legislating from the
Proponents of the Judicial Accountability Initiative Law, or JAIL,
which would strip judges of immunity from lawsuits and create a
citizen's board to review court decisions, collected about 47,000
petition signatures. That was 13,000 more than needed to put the
issue on the 2006 general election ballot. South Dakota Secretary of
State Chris Nelson confirmed Thursday that there were enough valid
signatures to put the issue on the ballot.
But that doesn't mean the amendment to the state constitution makes
sense or could ever withstand a legal challenge, Rapid City trial
lawyer Patrick Duffy said Friday.
"It is the single most insane piece of legislation ever proposed by
the people of South Dakota," Duffy said. 1 "This contemplates some
system with a self-proclaimed grand jury of
lunatics 2 that will, apparently based on
nothing more than a whim and a will, drag a judge in to answer about
something of which they disapprove."
Duffy said there are clear problems in the existing legal system,
which is too heavily weighted toward incarceration. But the JAIL
amendment is an unworkable solution that almost certainly would be
struck down immediately in a court challenge, 3 he said.
"I'm one who happens to think that we hit injustice more than justice
in this country," Duffy said. "But this isn't the answer. This isn't
the answer by a long shot."
Supporters of the amendment argue that judicial immunity creates an
environment where judges rule like courtroom kings, giving citizens
few options except the self-protective appeals process that involves
other judges. The amendment would create a special grand jury of
citizens who would review complaints of judicial misconduct. Members
of the legal community or officers in other branches of government
could not serve on the grand jury.
Sioux Falls chiropractor Allen Unruh said the proposal comes at a
time when citizens throughout the nation are rebelling against
"I think there is a great uproar in this country against judges who
are usurping legislative authority and legislating from the bench,"
Unruh said. "I think this is an idea whose time has come."
It makes sense that the battle would come to South Dakota, where
citizens embrace traditional American values and are likely to
believe that judges should be held accountable for their actions,
Unruh said. If successful here, it will spread to other states, he
"They're men. They're human beings. They're not infallible," Unruh
said of judges. "Just like we impeach presidents when they violate
their oath, nobody should be above the law, including judges."
John Egger of Sturgis, who was sheriff of Meade County for 31 years,
said he would vote for the amendment. Eggers, 85, said it would
improve the legal system, not destroy it.
"They (judges) should be respected. But they ought to be treated like
the rest of us if they make a decision that was unreasonable," he
said. "There ought to be something in there so the people can do
something about that."
7th Circuit Court Judge Jack Delaney said Friday that judges were
referring questions about the amendment to the State Bar in Pierre.
Bar Secretary-Treasurer Tom Barnett said the issue goes beyond a
threat to judges and the courts. It also could include city councils,
school boards, county commissioners and other public bodies that
serve in quasi-judicial roles, he said.
"I think this is a huge issue for all the people of South Dakota,"
Barnett said. "I'm talking about all the elected boards that would be
subject to being sued. Who's going to be willing to serve if they can
be sued for simply doing their jobs?" 4
Barnett said the amendment could create more legal work - and more
financial gains - for lawyers 5 because cases that are now dismissed
as frivolous or unjustified could be revived through the citizens'
grand jury and move back into court.
"Lawyers would make a lot more money, but it would be horrible for
the system and horrible for the state," he said.
Contact Kevin Woster at 394-8413 or email@example.com
1. " 'It is the single most insane
piece of legislation ever proposed by the people of South Dakota,"
Duffy said.' The fact
is, Duffy, you are playing in the little league. Let's hear how
"insane" the professionals think J.A.I.L. is. I refer to the
Legislative Analyst of the Legislature of California in a letter to our
current State Attorney General Bill Lockyer Re: J.A.I.L. dated March
30, 2000. We are told;
"Limitations on Judicial Immunity.
Current law provides that judges are completely immune from civil
claims based on actions taken within the scope of their judicial
performance. As a result, perceived abuses by a judge within the scope
of his or her judicial performance can only be remedied by appealing
the action in question to obtain a reversal, filing a complaint with
the Commission on Judicial Performance, or petitioning the Legislature
to impeach the judge. None of these remedies allow the complaint to
seek civil damages. Judges are currently subject to criminal
prosecution for criminal acts taken within the scope of their judicial
duties (for example taking a bribe). The 'victim' of such an offense,
however, cannot seek a civil remedy against a judge for any negative
consequences of the criminal action.
This measure would provide a mechanism for
plaintiffs to overcome this immunity in certain cases by filing a claim
with the newly created special grand juries who would have jurisdiction
to determine whether a civil suit fell within certain immunity
exclusions set forth in the initiative. Judges would no longer be
immune from civil liability in cases in which they intentionally
violate due process of law, deliberately disregard material facts,
block the lawful conclusion of a case, or deliberately violate the U.S.
or California Constitutions. In any case in which the special grand
jury finds that a suit would fall within these exclusions, its finding
acts as a bar against the judge raising the defense of judicial
immunity in any future proceeding involving that claim."
Now Mr. Duffy the above is from the highest legal
source within the State of California. It is clearly seen that J.A.I.L.
is considered a remedy in California in which none currently exists.
Hardly such words can be considered "an insane piece of
legislation." These words are a matter of record, and express the
official position of California. While I realize that this officially
expressed position of California is not the officially expressed
position of the South Dakota Legislature, but do you still wish to
declare J.A.I.L. "insane"?
Now Mr. Duffy you refer to the Special Grand Jury as a "self-proclaimed grand jury of lunatics."
This is an interesting descript since this jury
is drawn by the Secretary of State. Paragraph 13. says,
"Selection of Jurors. The Jurors shall serve without compulsion and
their names shall be publicly drawn at random by the Secretary of State
from the list of registered voters and any citizen submitting his/her
name to the Secretary of State for such drawing." Further, these Jurors
are seated by the S.D. Legislature, paragraph 5, hardy a
"self-appointed" position. Or is it that you believe that
all officials in South Dakota are "self-appointed?" You further
call these Jurors "lunatics." Do you realize what you are saying? You
are calling every citizen in South Dakota a potential lunatic. Do you
not know that these citizens you are calling "lunatics" are the
voters of South Dakota, and make up the civilization of your state? or
do you really care? Have you not proclaimed yourself at war with the
voters of South Dakota by calling them all lunatics? Are you
3. You say,
Duffy, that J.A.I.L. is an "unworkable solution that almost certainly would be struck
down immediately in a court challenge" I am ahead of you, Duffy, of this one. Yes, when I wrote
J.A.I.L. I knew it would be the chief enemy of most judges within the
system, and whose greatest desire would be to strike down J.A.I.L. just
as the courts have done with so many other initiatives passed by the
People. This is precisely the very reason you find the words in
paragraph 22 of the South Dakota Initiative, "Challenges. No judge
under the jurisdiction of the Special Grand Jury, or potentially
affected by the outcome of a challenge hereto, shall have any
jurisdiction to sit in judgment of such challenge. Such pretended
adjudication shall be null and void for all purposes and a complaint
for such misconduct may be brought at any time, without charge, before
the Special Grand Jury by class action, or by any adversely affected
Now let me give you a little lesson in law. The
jurisdiction of every court is established by law. Where the law limits
the jurisdiction of a court, that court has no jurisdiction to rule
there upon. This principle is true even of the Constitution as it
affects the United States Supreme Court. Article III, Sec. 1 creates
the Supreme Court, but Sec. 2, Clause 3 establishes the power of
Congress to create limitations and exceptions upon the Supreme
Just so, by the People of South Dakota Amending
their Constitution through the passage of J.A.I.L. as provided for
in their Constitution, they thereby draw a very specific
limitation upon the jurisdiction of the courts of South Dakota
which they cannot trespass without falling under the sword of the
provisions of that Amendment. No court may create or define its own
jurisdiction that contravenes legislation that forbids its assertion of
Congress has the power to limit the jurisdiction
of every federal court in this nation to the sidewalk around the
building if they so chose to do so. Just so, the People of South
Dakota have the power to limit the jurisdiction of the
S.D. courts accordingly, and they will have so done
by passing J.A.I.L. into law as a constitutional amendment.
4. Barnett says, "I think this is a
huge issue for all the people of South Dakota," Barnett said. "I'm
talking about all the elected boards that would be subject to being
sued. Who's going to be willing to serve if they can be sued for simply
doing their jobs?" What the Director
of the S.D. Bar Association Tom Barnett fails to realize is that
it is only until all judicial remedies are exhausted can one invoke the
jurisdiction of the J.A.I.L. Special Grand Jury as set forth in
paragraph 11, "...no complaint of misconduct shall be considered by the
Special Grand Jury unless the complainant shall have first attempted to
exhaust all judicial remedies available in this state..."
I realize you are an attorney, Mr. Barnett, so I
will explain this to you again very carefully so you can understand it.
Every matter involving boards, etc. of which you refer, have their
right to due process. This means they, or their opponent, has access to
the courts in which to adjudicate their dispute. Therein they can argue
to the judge what is right and proper under applicable law. If the
judge willfully refuses to apply the appropriate law, either side may
appeal, and then they may take the matter up to the State Supreme Court
and argue the applicable law to the facts.
Here is a truth that has failed to dawn upon all
of J.A.I.L's critics, including you, Barnett. All power is within the
courts at every level to prevent every case from going before the
Special Grand Jury. How so, you ask? Let me explain. When a trial judge
does that which is beyond his jurisdiction under law, or fails to
faithfully apply the proper law, the appeals court, as a master
tennis-player, can hit the ball back over the net to the trial
judge who did the wrong, and tell him or her to make the proper
ruling. Should the appellate court fail to do their job, the ball
the lands in front of the Supreme Court Justices. They can lobby
the ball back into the Appellate Court and tell them to do
In effect, the ball could be lobbied back
and forth between the trial judge, the appellate judges and justices
until the cows come home. As long as the ball is in action, and there
is no conclusion, and therefore no case in action can go before
the Special Grand Jury, because the outcome of the case is still
pending, and will continue in that state until the Supreme Court
reaches its final judgment with nothing more pending.
Now you ask me, Barnett, what keeps the courts
from just volleying back and forth the ball forever to keep it away
from the Special Grand Jury? Good question, Mr. Barnett, I'm very
proud of you for thinking of this. I give you five brownie points for
this great question. The answer is found in paragraph 1 of the S.D.
Initiative, to wit, " a. Blocking: Any act that impedes the lawful
conclusion of a case. to include unreasonable delay..." And in
paragraph 2, "...no immunity shall extend to any judge ... blocking
...a lawful conclusion of a case..." At some point the lobbying
back and forth of the ball between the upper and lower courts
to keep it away from the Special Grand Jury becomes an
"unreasonable delay," and the appealing party may gain access
to the Special Grand Jury because of the courts unreasonable
delay as provided for in paragraph 11. So, you see, Barnett,
except for blocking and unreasonable delay, the operational functions
of J.A.I.L. are entirely in the hands of all judges at every level
at all times, and without the final approval of all these judges,
J.A.I.L. simply cannot operate, having no final exhaustion of the
5. Barnett, you say that J.A.I.L. could create
greater financial gains and more business for you lawyers. My
goodness, have you forgotten the Sixth Amendment of the U.S.
Constitution? It says we are entitled to the assistance of
counsel. Assistance of counsel is not necessarily a "lawyer." Gee,
with the reputation you lawyers have, I am sure that most people, if
not all, would be willing rather to hire a paralegal to give them
assist of counsel rather than one of you "lawyers" to "represent"
them. The way I see it, it won't take long before the People of South
Dakota will see a lot of you lawyers in the unemployment line. I
concede that perhaps a number of you will drastically lower
your legal fees so far down so as to keep up with the
paralegals swiping all your legal business which would
otherwise land you in the unemployment line. I am of the
impression that the only reason people even hire you at all is because
they have to according to your fellow comrades, to wit, judges. But
when these judges can no longer sustain the argument that
"assistance of counsel" and "representation by a lawyer" are identical,
things will change.
Say, all you lawyer guys are so fun to play
around with in these so-called debates. But can't you guys come up with
something that is a little more challenging? - Ron