Chief Justice Ronald M. George yesterday hailed the resounding defeat of a South Dakota ballot initiative that would have eliminated judicial immunity by constitutional amendment.
“I was very pleased to see that the voters in South Dakota were not misled by the campaign to enact what would have been a very severe blow to judicial independence in that state, and what might have led to...attempts for similar measure in other states including California,” he told the MetNews.
Despite earlier polls showing it poised to succeed, Amendment E, self-styled the J.A.I.L.—Judicial Accountability Initiative Law—Amendment, was squarely rejected by a 90-10 margin on Tuesday. 294,747 South Dakotans voted no while only 35,640 voted yes.
George said unsophisticated polling methods may have produced the numbers that led many of the measure's opponents, including Chief Justice of South Dakota David E. Gilbertson, to be unsure about its failure.
According to Sept. 20 Zogby poll results published on the initiative's website, 67 percent of voters favored the measure while only 20 percent opposed it. By last Friday, it was still favored by 51 percent of all voters, with 40 percent against and 9 undecided, in a poll conducted by local station KELOLAND TV.
“I find it difficult to believe there was anything just in the last few days that dramatically turned it around,” George said. “I think that the supporters of that measure are out of sync with the public. I really do.”
Amendment E would have stripped judges of 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 Constitutions of South Dakota or the United States, notwithstanding Common Law, or any other contrary statute.”
A 13-member “special grand jury” would have been created and authorized to determine whether a bench officer committed illegal conduct justifying a civil lawsuit or criminal charges.
The measure also included a “three strikes” provision under which judges could be permanently removed from office and lose up to half of their retirement benefits.
In his State of the Judiciary address at the State Bar annual meeting last month, the chief justice had strongly criticized Amendment E as an unprovoked attack on judicial independence. He cautioned Bar members not to ignore the South Dakota measure, as it was originated by a group of Californians—a fact of which he was “ashamed.”
That group, J.A.I.L.4Judges, was loosely organized in 1992 and unsuccessfully attempted to place the “Judicial Reform Act”—after which Amendment E was modeled—on California's 1996 ballot. George had warned that the group planned to bring the measure back to California after first achieving victories in several small states beginning with South Dakota.
Amendment E's organizer, South Dakotan Bill Stegmeier, said he was not discouraged by the measure's defeat.
“We'll certainly try again in two years, and this time we will answer all the objections that were thrown at us,” he said, adding that J.A.I.L.4Judges would also be working hard to get similar measures on at least the Michigan, Florida, Idaho and Nevada ballots in 2008.
The group would retool some of the measure's language and substance to make it more “acceptable,” he said, and undertake fundraising efforts instead of relying solely on word-of-mouth and email solicitations. In this election, he said, the State Bar raised $1 million to oppose the initiative, putting J.A.I.L.4Judges at a ten to one disadvantage on the advertising dollar.
Stegmeier suggested that voter fraud involving programming of the voting machines may have caused the tremendous margin of defeat.
“I just hired Zogby International to come in and do an exit poll and they should have the results in two or three days so,” he said. “We'll see how that compares to the election.”
Valencia attorney Gary Zerman, one of J.A.I.L.4Judges' founders, said the organization's California chapter was “ready and willing to go” but the timing was not right.
“This is an issue whose time will arrive at some point because the legal system is causing more problems that it's solving, and there's no one left to blame but the judiciary. They've taken over just about everything,” he remarked.
Meanwhile, the group was “regrouping” in this state.
“This won't go away,” Zerman said.
George commented that most individuals involved in J.A.I.L.4Judges-type efforts “have an axe to grind” because they have lost a case in court:
“What is significant is, to my knowledge, there was no particular issue in South Dakota, no court ruling, no problem with particular judges. It was just a general anti-judicial system measure. I'm sure there were some things that they were able to put out that they didn't like, but it's not like there was a major ruling that has galvanized everyone against the court or court system.”
Stegmeier, an agricultural equipment manufacturer, clarified that he personally never had any bad experiences in court, and was advancing the measure just because it was “the right thing to do.” South Dakota was the starting ground simply because it is one of the easiest states to place a measure on the ballot, he said, adding:
“Why should the judges not have effective oversight? Everybody else in society does.”
George explained that extensive pre-appointment vetting of judicial nominees, commissions on judicial performance, normal appeals processes, and elections provide comprehensive review of judges' qualifications and rulings.
“The system can always be improved, but not by engaging in this type of attacks on the system,” he said.
The chief justice added that the defeat of Amendment 40 in Colorado, which would have limited appellate justices terms to 10 years, was also a win for judicial independence. Approximately 57 percent of voters opposed that measure, a smaller margin of defeat than for Amendment E.
“[I]t would have been a very serious blow to judicial independence to have retroactive term limits in Colorado,” he said. “We want judges to develop their knowledge and expertise, and if we have limits such as these, which would have removed the majority of the supreme court within two years, the administration of justice would have suffered greatly.”
Copyright 2006, Metropolitan News Company