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Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

South Dakota Jail for Judges Initiative

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Ever wonder what sort of recourse you have against a judge?

There’s a fascinating and disturbing constitutional amendment on South Dakota’s November ballot.

Here’s an editorial dated October 17, 2006 from the Press & Dakotan, which can be found at http://www.yankton.net/stories/101706/opEd_796101706.shtml:

South Dakota’s proposed Constitutional Amendment E — the so-called J.A.I.L. amendment — on the November ballot is one of the more distressing measures to ever go before the state’s voters. At best, it’s unfortunate and possibly unconstitutional at the federal level; at worst, it’s an invitation to chaos not only in the state’s judicial system but for elected officials at various levels.

Proponents of the measure describe Amendment E as a tool by which ordinary citizens can file complaints and possibly collect restitution and assess damages (retroactively, to boot) on judges who have abused their powers.

However, many — including the state’s attorney general — have interpreted the proposed measure in much broader and more disturbing terms. It could expose not only judges but also juries, prosecutors (and, potentially, witnesses with judicial immunity), city commissioners, county commissioners, school board members and other officials, elected or voluntary, who make judicial decisions to punishment doled out by special grand juries organized to hear complaints of wrongdoing.

One must bear in mind that there are reasons the aforementioned group of decision-makers are granted these immunities. Our system allows this so that, as the ballot explanation for this measure states, they are free to “do their job without fear of threat or reprisal from either side.” This is essential to ensuring as much equity and impartiality in our system as possible, as well as maintaining a viable separation of power within our government. Otherwise, a judge or jury, for instance, may find their decisions influenced if they fear retribution from one of the parties in a case.

In fact, there are already avenues in place for certain recourses. Judicial and court decisions can be appealed, and judges can be defeated in elections or held up to scrutiny by the Judicial Qualifications Commission. In a broader scope, commissioners can be voted out or recalled. Members of zoning boards can have their decisions appealed. So, there are remedies and options already available that manage to keep intact the “immunity” these positions need to perform.

What we see happening should Amendment E be enacted is a tidal wave of frivolous complaints, filed by disgruntled individuals, filling the dockets of these special grand juries. In some cases, what would the “complainants” have to lose? This would have devastating impact on the state’s judicial system and on governing boards. It would also have a chilling effect on potential candidates for judgeships and for boards: Who would be willing to expose themselves to such intimidation and punishment? That kind of atmosphere would indeed be a recipe for chaos.

One should also ask, if Amendment E is enacted and special grand juries are set up, would these special grand juries be subject to this same kind of review? And would the special grand jury that sits in judgment of the first grand jury also be exposed, etc., etc.? And if not, why not?

On a personal note, we should also mention that our fleeting exposure to the Amendment E proponents, several of whom hail from out-of-state and thus would not be affected by the mess they may generate here, has been intriguing, to say the least. Rightly or wrongly, they come off as hotheaded, paranoid, quick to pass judgment and the kind of people who probably wouldn’t hesitate to file lawsuits and take other actions against anyone they dislike or define as “wrongdoers” according to their own definitions. In short, they make the case in illustrating why the immunities they criticize were set up in the first place.

Many lawyers, judges and lawmakers have come out vigorously against this measure (proponents might claim it proves their point) for various reasons. In fact, the state Legislature adopted a rare resolution condemning it. So, let us try the angle of pleading: For goodness sake, run away from Amendment E — or better yet, make a stand and vote “no” on Nov. 7 to plant this thing in the grave of oblivion it richly deserves.