The Inherent Right of ALL People to Alter
or Reform Abusive Government.
The Right Upon Which All Other Rights
That "What" is the Abuse of
By Barbie, ACIC, National J.A.I.L.
As most of you know, there has been a lot of
confusion over the phrase "...and all other persons claiming to be shielded by
judicial immunity" (¶1b of the South Dakota J.A.I.L. Amendment). The focus
of that phrase is "judicial immunity" since it is that doctrine, and more
particularly its abuse, that has caused the
necessity for J.A.I.L. throughout the nation.
The Preamble, which states the purpose of
the Amendment, says (and this applies to all states): "We, the People of South
Dakota, find that the doctrine of judicial immunity has the potential of being
greatly abused; that when judges do abuse their power, the People are obliged -
it is their duty - to correct that injury, for the benefit of themselves and
their posterity. In order to insure judicial accountability and domestic
tranquility, we hereby amend our Constitution by adding these provisions as §28
to Article VI, which shall be known as 'The J.A.I.L. Amendment.' "
The Preamble follows the admonition given in
the Declaration of Independence, to wit, "But when a long train of abuses and
usurpations, pursuing invariably the same object evinces a design to reduce them
under absolute despotism, it is their right, it is their duty, to throw off such
government, and to provide new guards for their future security."
The "long train of abuses and usurpations"
creating the necessity for J.A.I.L. is the abuse of the doctrine of judicial
immunity by the judiciary in whatever state the Amendment is presented-- the
abuse occurs in all states.
It is presented in South Dakota first for
purely economic reasons-- it has the least number of signatures required, the
longest period of time to collect those signatures, and thus the state in which
a measure is most likely to qualify for the ballot. It is not a question of one
state "needing" the Amendment more than another state-- they
ALL need it. What is important is that J.A.I.L. be on
the ballot in some state, to start the precedent of J.A.I.L. eventually being on
the ballots in all states. J.A.I.L. is a national cause, with South
Dakota being just the first state in the nation to present the Amendment to
the People. No single state can be disassociated from the national effort. The
entire country is in this cause together, state by
The doctrine of judicial immunity is not
law-- it is not found in the Constitution, state nor federal. It is a doctrine
that was established in Europe for the King's courts, under the theory "The King
can do no wrong" and the "Divine Right of Kings." There is no kingship in
America; however the judiciary created the doctrine for themselves originally to
avoid "frivolous" lawsuits. Although the term "frivolous" is a conclusion that
should be based on findings, it has become an arbitrary "finding" in and of
itself, thus leading to the arbitrary unconditional application of "judicial
Because the doctrine is not law but is a
creation of the judiciary, it naturally "has the potential of being greatly
abused," as stated in the Preamble, as long as judges are not accountable to an
entity other than themselves. While the potential for abuse exists, it is
only "when judges do
abuse their power, [that] the People are obliged - it is their duty - to correct
that injury" by "throw[ing] off such government, and ...provid[ing] new guards
for their future security." (DOI, supra). In a government by the People and for
the People, it is to the People that accountability
must be enforced.
As far as "all other
persons claiming to be shielded by judicial immunity," it would
necessarily be limited only to those having authority to finally rule on
constitutional procedural issues as set forth in ¶2 of the Amendment. That
limitation would eliminate administrative agencies, such as "boards" and
"councils" etc. since they do not have such final
authority. In order to qualify for J.A.I.L. scrutiny, a litigant would have to
first exhaust all judicial remedies which are presided
over by judges having authority to finally rule on
administrative proceedings involving constitutional questions. "Boards" and
"councils" are not part of the judicial remedy
required under J.A.I.L.