Counter-charges are hereby made that it is grossly
unethical, immoral, and criminal for the Legislators to use South
Dakota taxpayer dollars to pass a "Resolution," and to influence a
popular vote at said taxpayers' expense. It is further unethical and immoral
to use a taxpayer-financed website to spread their propaganda
in a vendetta against the People's right to propose
Initiatives, to wit, "All political power is inherent in the People,
.... [T]hey have the right in lawful and constituted methods to alter or
reform their forms of government in such manner as they may think proper."
Art. VI, Sec. 26. The People have the absolute right to exercise
their inherent power to affect matters regarding their government without
being attacked by that same government, or being blasted by their own
website at their expense.
While it is acceptable for legislators in their
private and individual capacity to vote at the polls on November 7th, it
is totally unacceptable for these same Legislators to betray the public trust
by turning the Capitol Building into a massive campaign headquarters, and
using the auspices of their official offices to campaign against the
People's Amendment E. Because the Legislature has not only presumed to
"pass" that which is immoral, but also that which they have absolutely no
jurisdiction to do, such so-called "Resolution" is null and void for
all purposes, and is as if it had never existed. It has absolutely no force or
effect of law. It is designed merely for the purpose of deceiving and
defraud the voters of South Dakota into not voting in favor of Amendment
E.
Such action makes a total mockery of the election process, and reduces
the election process down to the level of a Banana Republic,
wherein People are afraid to appear at the polls and vote. What's more,
it calls into suspect the after-results of the voting, to wit, was it an
honest election? It serves merely to deteriorate People's faith in all
government processes, which breaks down sound government and lends to
confusion and eventual open anarchy. When the People cannot trust their
government with the voting process to be honest, what do we have left?
This principle against
altering, influencing, or tampering with the outcome of elections is
so strong that not even the Governor of South Dakota can veto the
People's Initiative process. "The veto power of the Executive shall not be
exercised as to measures referred to a vote of the People." Art. III, Sec. 1,
South Dakota Constitution. Further, the same Constitution also forbids the
Legislature from tampering with the election process, to wit,
"Elections shall be free and equal, and no power, civil or military,
shall at any time interfere to prevent the free exercise of the right of
suffrage [votes]." Art. VII, Sec. 1 Re:
Elections.
Response is hereby made to the charges issued by
the Legislature of South Dakota against Amendment E. For purposes of an
orderly response, we assign a maroon colored Roman Numeral to each
and every charge responded to:
|
State of South Dakota |
|
EIGHTY-FIRST
SESSION
LEGISLATIVE
ASSEMBLY, 2006
|
| 229M0660 |
HOUSE CONCURRENT RESOLUTION NO.
1004
|
|
Introduced
by: Representatives
Hennies, Boomgarden, Brunner, Buckingham, Cutler, Davis, Deadrick,
Dykstra, Elliott, Faehn, Frost, Fryslie, Garnos, Gassman, Gillespie,
Glenski, Glover, Hackl, Haley, Halverson, Hanks, Hargens, Haverly,
Heineman, Hills, Howie, Hunhoff, Hunt, Jensen, Jerke, Koistinen, Kraus,
Krebs, Kroger, Lange, McCoy, McLaughlin, Michels, Miles, Murschel,
Nelson, Novstrup, O'Brien, Pederson (Gordon), Peters, Putnam, Rausch,
Rave, Rhoden, Roberts, Rounds, Schafer, Sebert, Sigdestad, Street,
Thompson, Tidemann, Tornow, Turbiville, Valandra, Van Etten, Van Norman,
Vehle, Weems, Wick, and Willadsen and Senators Koskan, Abdallah,
Adelstein, Bartling, Bogue, Broderick, Dempster, Duenwald, Duniphan,
Earley, Gant, Gray, Greenfield, Hansen (Tom), Hanson (Gary), Hundstad,
Kelly, Knudson, Koetzle, Kooistra, Lintz, McCracken, McNenny, Moore,
Napoli, Olson (Ed), Peterson (Jim), Schoenbeck, Smidt, Sutton (Dan),
Sutton (Duane), and Two Bulls
|
A
CONCURRENT RESOLUTION, Urging the
voters of South Dakota to reject the Judicial Accountability Initiated Law
(J.A.I.L.), which will be submitted to South Dakota voters in November 2006,
designated Amendment E.
I.
WHEREAS,
Amendment E was drafted by a resident of California and the petitions were
circulated by paid out-of-state persons; and
II.
WHEREAS,
the Amendment E petition failed to get more than a few thousand signatures in
California, and thus was never submitted to California voters; and
III.
WHEREAS,
South Dakota voters were told that Amendment E simply provided for a remedy
for intentional judicial misconduct; and
IV.
WHEREAS,
if approved by the voters, Amendment E would actually allow lawsuits against
all South Dakota citizen boards, including county commissioners, school board
members, city council members, planning and zoning board members, township
board members, public utilities commissioners, professional licensing board
members, jurors, judges, prosecutors, and all other citizen boards; and
V.
WHEREAS,
Amendment E would authorize and encourage jury nullification in South Dakota,
which was previously rejected overwhelmingly by South Dakota voters in 2002;
and
VI.
WHEREAS,
Amendment E would prohibit summary judgment, a legal remedy currently
available and used to quickly and inexpensively rid our courts of frivolous
lawsuits; and
VII. WHEREAS,
Amendment E would permit convicted felons, whose convictions have been
affirmed by our Supreme Court, to sue the prosecutors who prosecuted the
felons, the jurors who voted to convict the felons, and the judges who
sentenced the felons, thus burdening our courts and citizens with countless
expensive and needless lawsuits; and
VIII. WHEREAS,
the author of Amendment E has publicly stated that with the passage of
Amendment E, Judicial Accountability Initiated Law members from across the
country will "purposely drive to South Dakota...just for the privilege of
getting a traffic ticket so you can demand a jury trial. I anticipate traffic
courts to be among the first courts to all but totally close...," thus
depriving South Dakota citizens of their constitutional right of access to our
courts and making it clear that Amendment E is not intended to help cure any
alleged problems with South Dakota courts; and
IX. WHEREAS, if
approved, Amendment E would establish a new entity to investigate complaints
with an initial budget of two million six hundred fifty thousand dollars, plus
the cost of a facility, with authority to hire as many employees as it deemed
appropriate without legislative appropriation, consultation, review, or
approval; and
X. WHEREAS,
the South Dakota Constitution already provides for the Judicial Qualifications
Commission, which hears complaints and investigates allegations of judicial
misconduct, and operates very economically, with an average annual expenditure
of eleven thousand five hundred fifty-nine dollars over the past ten years;
and
XI. WHEREAS, if
approved, Amendment E would violate the federal Constitution, thereby
subjecting South Dakota taxpayers to millions of dollars in damages and
attorney fees; and
XII.
WHEREAS,
Amendment E would be devastating to the South Dakota economy, harming economic
development and driving existing businesses from South Dakota:
XIII. NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives
of the Eighty- first Legislature of the State of South Dakota, the Senate
concurring therein, that the South Dakota Legislature strongly urges all South
Dakota voters to protect our citizen boards, to protect our system of justice,
to protect economic development, to protect all our citizens from frivolous
lawsuits that would be authorized by the Judicial Accountability Initiated
Law, and to vote against Amendment E.
I. The J.A.I.L. Amendment was
originally drafted in California for the State of California under
its initiative process. People from all fifty states (including South Dakota)
independently, of their own volition, contacted its author, and
requested to advance the cause of J.A.I.L. in their own respective
states, such being an inherent right of the People pursuant
to the First Amendment of the U.S. Constitution under freedom of
association -- a right which every government official in South Dakota has
sworn with an oath to defend and protect. What's more, these same
officials are subject to the South Dakota Constitution, which states, "To
secure these rights governments are instituted among men, deriving their just
powers from the consent of the governed." Art. VI, Sec. 1.
As to the charge, "[T]he petitions were
circulated by paid out-of-state persons;" that is incorrect. The truth is
that Amendment E was adapted in South Dakota for South Dakotans, and the
vast majority of the petition circulators were South
Dakotans. What's more, this charge by the Legislature is moot, for
if its collection of signatures were performed illegally, then why
is Amendment E officially on this November's ballot? Please
explain. You have all the petitions containing the signatures of the
circulators before you. Prove your accusation, or admit your
falsehood!
II. The Amendment E petition is a South
Dakota measure and does not apply to California.
The People of California were not able to
gather sufficient signatures for the California J.A.I.L. amendment by
volunteers (requiring almost 700,000 valid signatures to qualify for the
ballot), nor were they able to raise the necessary funds of about one million
dollars to finance the California amendment. (California J.A.I.L. has
been informed by professional signature-gathering companies that never in the
history of California has any proposed constitutional amendment reached
the ballot by volunteers).
III. True. No rebuttal.
IV. Our
Founding Fathers wisely established our system of three distinct,
separate, and independent branches of government. This principle is preserved
in the South Dakota Constitution, "The powers of the government of
the state are divided into three distinct departments, the legislative,
executive and judicial; and the powers and duties of each are prescribed by
this Constitution." Art. II. No powers of one branch shall function within
that of another.
Amendment E specifies its application as
exclusively to the judicial branch of government, and no other. By
definition (�1b) it applies only to "justices, judges, magistrate judges,
judges pro tem, and all other persons claiming to be shielded by judicial
immunity;" and by definition (�2) it applies only to "deliberate
violations of law, fraud or conspiracy, intentional violations 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
violations of the Constitutions of South Dakota or the United States."
By the same definition, Amendment E cannot apply to
administrative agencies, such as boards, councils, commissions,
etc., since they are limited in jurisdiction and cannot adjudicate with
finality the violations specified in �2.
The requirement in �11 that "the complainant shall
have first attempted to exhaust all judicial remedies available in this State"
carries with it, by operation of law, the requirement that all
administrative remedies be exhausted before petitioning for judicial
remedies. The laws of the State of South Dakota recognizes the differences
between exhaustion of administrative remedies and exhaustion of judicial
remedies. Amendment E likewise recognizes that distinction in law that
administrative forums are not of the judicial branch of government, nor can
they be "judges." Nor can "judges" apply to prosecutors, and
certainly not jurors, who are not an office of government, nor any
part of the three branches of government, but is the People, who do
not take an oath of office. Therefore, all final dispositions regarding
the above violations rest only with the judiciary, contrary to your charges
made against Amendment E.
V. Our
Founding Fathers designed our government to be fully accountable directly to the People through the
jurors. We leave to them the decisions of life and death of matters
regarding serious offenders. "No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a grand
jury..." Amendment V, U.S. Constitution. In other words, there is no
government powers that can cause a person accused of murder to
answer, much less face a trial, unless there is a presentment or
indictment of a Grand Jury. Now is that power, or what? Absolutely. It is
a power that all government in all its majesty and power, cannot
exercise.
Thomas Jefferson accordingly wrote: "I consider
trial by jury as the only anchor yet imagined by man by which a government can
be held to the principles of its Constitution." And, in 1794, in the first
jury trial held before the U.S. Supreme Court, John Jay, the first Chief
Justice instructed jurors thusly: "It is presumed, that juries are the best
judges of facts; it is, on the other hand, presumed that the courts are the
best judges of law. But still both objects are within your power of decision.
The jury has a right to judge both the law as well as the fact in
controversy." [Georgia v. Brailsford, 3 U.S. 1
(1794)]. Oliver Wendell Holmes, Supreme Court
Justice, ruled in 1920 "The jury has the power to bring a verdict in the teeth
of both law and fact." (Horning v. District of Columbia, 254 U.S. 135). This
principle has never been reversed by any court in this country, nor can it
be.
Your argument that "Amendment E would authorize and encourage jury
nullification in South Dakota, which was previously rejected
overwhelmingly by South Dakota voters in 2002;" is bogus for the
following reason. Jurors have always from the beginning retained
this power. The fact is that the Amendment to which you refer was off
point, failing to present the proper question whether the jurors should
be informed of their powers. Judges have never denied the powers of
the jury, but have ruled instead that the jurors may not be informed
of their power. Your charge presents an example of why we do need
Amendment E to hold judges accountable, not why we do not need Amendment
E. Judges have deceived the People by not allowing them to be informed of
their rights.
Under Amendment E it assures judges
shall receive this right in a criminal trial. To
deny judges this right before a jury would be to deny them due
process, and provide grounds for reversal on appeal.
Common sense dictates that we, as Americans, cling fast to the historical heritage of our jury
system, and never depart from it as instructed by Thomas
Jefferson.
VI.
Amendment E says nothing about summary judgment. Any judge in South Dakota may
issue summary judgment, or any other disposition, according to law. Only if
he willfully violates the law under �2. can a judge be liable
under Amendment E.
You mention getting rid of cases "Quickly and
inexpensively." Nothing wrong with that, provided that "Quickly and
inexpensively" is not to the exclusion of obedience the
law. "Justice" must be the primary objective of South Dakota courts,
not rushes to judgment. Are we in agreement on that?
VII. As stated in IV, above, Amendment E,
by definition (�1b) applies only to "justices,
judges, magistrate judges, judges pro tem, and all other persons claiming to
be shielded by judicial immunity;" and further, by definition (�2) it applies
only to "deliberate violations of law, fraud or
conspiracy, intentional violations 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 violations of the Constitutions of
South Dakota or the United States."
Amendment E specifically
maintains security by precluding those people within "imprisonment,
or parole from a conviction of a felonious crime..." See Paragraph 12.
Amendment E will actually decrease the number of expensive and needless
lawsuits by enforcing the proper adjudication of cases by honest judges.
Honesty, that's what you seek, is it not?