Here is the last installment (for now) examining the claims by promoters of South Dakota’s proposed Judicial Accountability Initiative law (J.A.I.L.) that it will not apply to anything other than the judiciary. In the first two posts, I looked at the how the arguments that J.A.I.L. only covers judges and “constitutional procedural issues” are contrary to the language of the amendment itself. The J.A.I.L.ers’ ultimate fallback position is “a litigant would have to first exhaust all judicial remedies which are presided over by judges having authority to finally rule on administrative proceedings involving constitutional questions.”
The last post explored how the contention that J.A.I.L. is limited to “proceedings involving constitutional questions” is untrue. Setting that aside, the exhaustion argument also is not necessarily what the amendment says.
Section 11 of the proposal says a complaint under J.A.I.L. can’t be considered “unless the complainant shall have first attempted to exhaust all judicial remedies available in this State within the immediately preceding six-month period.” Nothing says those remedies must be exhausted. Here’s a couple examples of what could occur under this language.
Assume a J.A.I.L.er is sued by another citizen or brought before a state licensing board. J.A.I.L.er asks the court or agency to throw out the case arguing it has no basis in law (a motion to dismiss) or the facts do not support the claim against him (a motion for summary judgment). The motion is denied. Such rulings are not immediately appealable. The J.A.I.L.er could, however, seek a discretionary intermediate appeal. Assume the reviewing court denies the request. Six months and two days later the J.A.I.L.er files a complaint with the “special grand jury.” Did the J.A.I.L.er not in fact attempt to exhaust all judicial remedies that were available in preceding six months?
Or suppose a J.A.I.L.er’s workers’ compensation claim is denied following a hearing before the Department of Labor. Under the law, he or she has 30 days to appeal. J.A.I.L.er, intentionally or not, files the appeal 32 days later and it is dismissed. By at least filing the paperwork, has the J.A.I.L.er not “attempted” to exhaust all available judicial remedies?
Moreover, the exhaustion provision specifically excludes section 17 of the amendment. That section says “a complaint for criminal conduct against a judge may be brought directly to the Special Grand Jury” if certain conditions are met. In other words, rather than appeal, if a J.A.I.L.er meets the requirements of section 17 (which would not be difficult) they can file a criminal complaint with the “grand jury.” Don’t think that would happen? Recall that Bill Stegmeier, who heads South Dakota’s J.A.I.L. effort, recently accused the entire state Legislature of criminal conduct for adopting a resolution urging voters to reject J.A.I.L. Stegmeier told his J.A.I.L. “Gang,” that he was simply trying to hold the Legislature accountable for illegal actions, “just like we are proposing to do with the judges.” Why appeal when you disagree with a decision if you can just yell criminal conduct, such as perhaps claiming the judge is guilty of failing to perform an official duty?
Will any of these situations arise and allow a J.A.I.L. complaint to proceed? No one knows. But that alone demonstrates that anyone who contends the amendment wholly forbids filing a J.A.I.L. complaint until any and all possible appeals are complete is ignoring the very language of the proposal.
More installments in the J.A.I.L. series will be posted in the coming months. These include looking at the changing and contradictory arguments of J.A.I.L. author Ron Branson on the meaning and scope of the measure and exploring more of the misrepresentations and misstatements J.A.I.L.ers make in claiming their piece of excrement is the salvation of the state and nation.
Never underestimate the power of human stupidity.
Robert A. Heinlein, Time Enough for Love