J.A.I.L. Splitting South Dakota Open
Prior to Amendment E and our collecting of the signatures necessary to qualify it in South Dakota, we talked humorously about the repercussion that would be going around in the newspapers if J.A.I.L. passed. I said we will hear that South Dakota will split wide open across the state and South Dakota will fall into the center of the earth, creating such a suction that the sky will be sucked in behind it. The South Dakota proponent stated that its passage will be said to create global warming, global cooling, and continental drift by our opponents. How on target we were. Just take a look at the following article from the America Judicature Society comparing J.A.I.L. to an earthquake in South Dakota.
An Earthquake in South Dakota?
Last August we published an editorial that used a variety of recent proposals and programs which have been promoted under the banner of "judicial accountability" to "illuminate the partnership between accountability and independence and thus to distinguish means that would foster that partnership from those which might destroy it." (See Judicial Accountability, July-August 2005, at 4). Little did we realize at the time that a proposed state constitutional amendment which would destroy the partnership was circulating in South Dakota, one that now appears to have garnered a sufficient number of valid signatures to be placed on the ballot in November of this year.
The "Judicial Accountability Initiative Law (J.A.I.L.)" would create a special grand jury for the purpose of determining whether judges civilly sued as a result of their judicial acts should be stripped of immunity and whether they should be indicted for criminal violations. The special grand jury would be composed of those drawn at random from registered voters and any citizens who volunteered, although members of the state bar, judges, prosecutors and law enforcement personnel, among others, would not be eligible to serve. The special grand jury would be directed to construe "[a]ll allegations in the complaint ... liberally in favor of the complainant" and reminded on a monthly basis "that they are entrusted by the people of this State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge."
Judges of both law and fact, the special grand jury would deny immunity "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 state or federal constitutions. "Blocking" is defined as "[a]ny act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of an unlawful or void judgment or order."
In addition to being denied immunity in a civil suit, a judge who was the subject of three adverse immunity decisions ("strikes") would be permanently removed from office and lose one half of his or her retirement benefits. Moreover, the proposal would deny public reimbursement of defense and indemnity expenses, and representation "by any elected or appointed counsel," to judges complained against or sued civilly pursuant to the amendment. Judges indicted by the special grand jury would be tried before a special trial jury that determined both law and fact and imposed the criminal sentence.
We are not aware of any case in which it has been alleged that a South Dakota judge engaged in behavior of the sort targeted by this proposed constitutional amendment, and its sponsors do not cite any. That is not surprising. For J.A.I.L. is the pet project of a frustrated California litigant who has been unsuccessful in putting it on the ballot in his home state. His hope apparently is that, if successfully adopted in a carpetbag in South Dakota, it would receive a more enthusiastic reception in California. We are reminded of a federal judge's wise observation: "Give a bad dogma a good name and its bite may become as bad as its bark."
We hope and expect that the voters of South Dakota will greet this attempt to export an unnatural disaster just as they would an attempt to export California's natural disasters. There is no need to "restore judicial accountability and a perception of justice" in South Dakota. South Dakota judges, who must stand for election or retention election, are already amply accountable because of that fact, because most of their decisions are subject to appellate review, and because the state has a system for investigating and imposing discipline for judicial misconduct.
Even if there were a problem of judicial misconduct in South Dakota, J.A.I.L. would not be a good solution. Apart from the fact that most of the conduct it targets would not be shielded by immunity under existing law, at least one of its standards is so vague as to invite abuse, and its provisions on attorney appointment and reimbursement for judges would leave them hopelessly exposed to disappointed litigants. South Dakota voters will surely recognize that, as scholars have pointed out, without judicial immunity for most judicial acts judges, including judges in elective systems, would lack the independence necessary to apply the law without fear or favor.