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JAILers display their lack of understanding

Whether as part of their campaign or coincidence, the backers of the Judicial Accountability Initiative Law (“JAIL”) measure made it into Dave Kranz’s Sunday column and launched a web site. As for the latter, this “blog buffoon” thanks the JAILers for the traffic they’ve sent this way by their comment on my prior post on the initiative. Meanwhile, the former is a prime example of the misunderstandings behind and fallacies with this inane initiative.

In Kranz’s column, William Stegmeier, who is heading up the effort, gave this as a reason South Dakotans need JAIL:

“As an example: You go to court. You are the defendant. You want to enter evidence and help your case, and the judge won’t allow it. You appeal the case and lose on the grounds you think the judge acts improperly. The appellate court denies your case, and you file it with a special grand jury,” Stegmeier said.That grand jury, selected from a pool of registered voters through the the Secretary of State’s Office, would be seated.

“They hear the complaint. They rule whether the judge should enjoy immunity from lawsuits. If they find for you, the next step is to sue the judge. If they deny you, that’s it,” Stegmeier said.

Evidently Stegmeier doesn’t understand the concept of evidence and evidentiary rules in court and other adversarial proceedings.

A decision on whether evidence is admitted at trial is based upon the rules of evidence. Those rules have developed not only over the 200+ years of American legal history but also are based on concepts that developed over the centuries under English common law. Granted, a judge has discretion on evidentiary rulings but that discretion is governed and bounded by the rules of evidence. The fact the appeals court court agreed with the judge’s ruling indicates the ruling was correct under the laws the courts are bound to apply. Stegmeier and company, though, would rather have persons who have no concept of the rules of evidence decide whether a judge properly applied them.

Moreover, Stegmeier’s scenario indicatesd the plaintiff won the case. Despite the fact the plaintiff prevailed under the rules of law that govern litigation in this state and country, Stegmeier would let the losing party sue the judge. Now how much sense does that make?

I’ve been the “victim” of numerous evidentiary rulings with which I did not agree, whether an objection to a question asked at trial or a decision to allow or refuse an entire type of evidence. Some of these I’ve had decided by the Supreme Court and the 8th Circuit. Even when I’ve remained on the losing end, I’d much rather have someone who knows the rules of evidence and the law making the decision than someone who doesn’t have a clue what the terms hearsay, foundation and Daubert mean.

The comment in Kranz’s column by former South Dakota Supreme Court Chief Justice George Wuest is right on the mark: “That is one of the nuttiest things I have ever heard.” That’s because the proposal is to replace educated and legally guided decision-making with mobocracy.


Fragile as reason is and limited as law is as the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.

U.S. Supreme Court Justice Felix Frankfurter, Felix Frankfurter Reminisces

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