EDWARD LAZARUS summarized the situation this way:
In legal circles, the issue of the moment is judicial “independence.”
For many years now, right-wing conservatives [authoritarians (RWA)] have been conducting an unrelenting attack on supposedly out-of-control “activist” judges, as part of their campaigns against abortion rights, affirmative action, and the judicially-imposed ban on prayer in public schools.
In the last few years, however, the assault on the judiciary has developed a new fury. In the wake of the legal maneuverings surrounding Terri Schiavo’s tragic death, conservatives have not only ratcheted up their anti-judge rhetoric, they’ve started acting on threats to seek impeachment of federal judges [another enemy of the authoritarian right] they don’t like, and to set up systems for monitoring judges who depart from their preferred legal views.
The latest, and potentially first successful, “assault on the judiciary” is Amendment E to the South Dakota constitution. This amendment is titled, “Judicial Accountability Initiative Law,” (JAIL). According to Vote No on E, this amendment has been put together by “Ron Branson of North Hollywood, California” and his internet network of supporters. Vote No on E also states that, “Even though Amendment E may be new to you, it’s just the latest chapter in his 12-year vendetta against judges and local governmental officials and employees. He’s tried and failed to get the initiative on the ballot in California, Idaho and Washington. But his hatred for our courts and government at all levels is so great that those failures couldn’t deter him. Last year he turned his sights on South Dakota and called on fellow Californians to help get the initiative on the ballot here.”
The executive and legislative branches of government are already driven by special interests and lobbyists. The judiciary, by the design of our founding fathers, is the only branch that is immune from this kind of self interest influence. If this South Dakota amendment becomes law, then that could be the beginning of the end of judiciary immunity. Combine this with the recent loss of habeas corpus and we will all become subject to the whims of those in power as the rule of law is buried.
The Rapid City Journal, put it this way.
No matter how sincere the JAIL supporters are, this amendment dismantles the judiciary’s autonomy thus leaving S.D. vulnerable to special interest groups. Special interest groups could endlessly sue public officials who didn’t see things their way until the official resigned. The special interest group could then replace them with officials that supported only their viewpoint. These hand-picked officials (judges) would have the potential to ignore or disallow the rights of ordinary citizens.
This scenario was our Founding Father’s greatest fear. They could foresee that, because of political process, the executive branch (president or governor) and the legislative branch could fall into the hands of a special interest. To prevent a takeover of all three branches, it was essential that the court system be immune from pressure to interpret the Constitution in favor of a special interest.
The proposed JAIL amendment dangerously dismantles the constitutional protection of the judiciary by subjecting it to pressure from individuals and special interest groups. As outlined in the JAIL amendment, a Special Grand Jury would be selected from citizens that volunteer specifically for the jury and also from the state’s list of registered voters. Anyone having a vendetta against the official could volunteer to serve on the jury to “get even” with that judge or elected official.
This contaminates the judicial process. Just think if you were being sued and everyone that was ever angry at you volunteered to be on the jury! You have to agree, this would not be justice. Furthermore, the JAIL amendment instructs the jury to favor the complainant. By the JAIL amendment’s instructions to favor the person who is suing you and the jury stacked with people against you, the court is unfairly set up for you to lose!
This scenario exposes every S.D. school board member, city councilman, county commissioner, and judge, literally, for the rest of their lives because there is no limit on when a suit can be filed. Good, honest citizens would be very wary to ever run for office under these circumstances because they could be sued by anyone that didn’t like their decision until they died.
South Dakotans need to start vigorously using the laws already in place to deal with officials who treat citizens unfairly. If there is a problem judge, use your legal rights to challenge them or make sure they are defeated in the next election. South Dakota should not change how democracy works to accomplish oversight of judges.
South Dakota cannot afford to unknowingly sabotage democracy by passing Amendment E. It is time to start using the legal remedies already in the Constitution to make the court system accountable without destroying the foundations of democracy.
“No” is the only vote that will protect South Dakota from killing our form of government that we proudly call democracy!
As I said in an earlier article, we have a choice this November, “Between a judiciary immersed in personal beliefs and popular opinion or one grounded in the rule of law.”
If you’d like to find out more on J.A.I.L., check out a progressive on the prairie.
According to the NPR article referenced below, Ron Branson chose S. Dakota for his latest attempt because it took far fewer signatures to get it on the ballot. The web articles below discuss the current system.
American Judicature Society Applauds Defeat of South Dakota ‘Jail 4 Judges’ Judicial Initiative