J.A.I.L’s California shell game – Chapter 4

This series looks at how proponents of South Dakota’s proposed Judicial Accountability Initiative Law (J.A.I.L.) move shells around to divert attention when certain issues they don’t want to discuss come up. One of the more interesting items that’s come up in it is from Ron Branson, the author of J.A.I.L.. He recently said, “I am the final authority by operation of law as to what these words mean, and that all courts throughout the future must look to the author’s definition.”

So just what kind of grasp of legal and constitutional issues does Branson have that qualifies him to be the ultimate arbiter of the meaning of part of the South Dakota Constitution? He gives an indication in the same harangue, writing:

“Administrative Law” is but a euphemism for “Contract Agreement.” These administrative agencies can adjudicate only on subjects of contracts, not law. There are none of the trappings of law. For instance, there are no magisterial proceedings, no determination of Probable Cause, you have no right to counsel, and never a right to a jury trial. So what gives? If administrative agencies were dealing in law, instead of contract, every decision of an administrative agency could be overturned on appeal for lack of constitutional due process. But the Constitution has no bearing over contracts. The issue is only, did you abide by the contract, or did you not? And after the administrative process is exhausted, you may go to court. However, even in court the only issue is whether the administrative agency followed all the procedures established in the contract (administrative procedures) –no constitutional challenges, again because the Constitution does not apply to contract agreements.

As is so often the case with J.A.I.L. pronouncements, this paragraph contains so many errors it is hard to know where to begin. Just for a change, we’ll start from the end.

J.A.I.L.’s esteemed legal scholar says twice that the Constitution doesn’t apply to contracts. Since Branson wants to amend the South Dakota Constitution, maybe he should read it. For his future reference:

  • Article 6, § 12 of the South Dakota Constitution says that no law “impairing the obligation of contracts” shall be passed. By the way, Article 6 is entitled “Bill of Rights” and happens to be the Article J.A.I.L. seeks to amend.
  • Section 15 of Article VI also happens to provide: “No person shall be imprisoned for debt arising out of or founded upon a contract.”
  • Article 17, § 20 of the state constitution says no one shall “make any contract” that would result in a monopoly or restraint of trade.

While the first is a restriction on government power, the second certainly regulates contract remedies and there is no doubt the third applies to private contracts.

Those two statements are a reflection of Branson’s thesis that administrative law is “contract law” and, thus, administrative adjudications deal only with contracts and not law. This is not only totally absurd, it is just plain wrong.

The South Dakota Administrative Procedures Act defines an administrative agency as an entity “vested with the authority to exercise any portion of the state’s sovereignty.” The state’s sovereignty does not arise out of contract. Similarly, a “contested case,” the act’s term for administrative adjudications, is a proceeding in which “the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing[.]” (Emphasis added).

It’s really quite simple. Administrative agencies are creatures of statute (i.e., law). As such, any and all actions they take are based upon and arise from law, not contract.

As for not having any of the “trappings of law,” a party to a contested case must be given “an opportunity for a hearing.” In fact, the United States Supreme Court has said that when certain interests are affected by an administrative hearing, a person must not only be provided timely and adequate notice, they must be given an effective opportunity to defend by confronting adverse witnesses and by presenting arguments and evidence before the decision maker. While the government need not furnish counsel, the individual must be allowed to retain an attorney if they desire.

That case also establishes the fallacy of the statement that there are no constitutional challenges on judicial review of administrative adjudications. The Court said the procedure established by the State of New York violated the due process guarantee of the 14th Amendment to the U.S. Constitution. I guess the Supreme Court wasn’t aware of Branson’s analysis and therefore erred in considering a person’s constitutional rights.

So, do you still want to buy a constitutional amendment from this man?

To be ignorant of one’s ignorance is the malady of ignorance.

A. Bronson Alcott

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