It isn’t very often I disagree with PP when it comes to the Judicial Accountability Initiative Law (J.A.I.L.). Yet one area of disagreement arises from his recent post about finding two South Dakotans (at least two who have more than an initial for a first name) who support J.A.I.L.
PP concluded J.A.I.L. would not have “changed things or provided a remedy” in the court cases in which the supporters were involved. I don’t agree. In fact, I think those cases illustrate the broad scope and danger of the initiative.
In the Fred Bostick case, the trial court twice refused to issue what is known as a “certificate of probable cause.” A decision in a state habeas corpus proceeding cannot be appealed to the Supreme Court unless the trial court or a Supreme Court justice issues such a certificate. The Supreme Court ultimately issued certificates but limited to narrow issues, not all the claims made by Bostick. Despite the fact the Supreme Court agreed with part of the trial court’s refusal and ultimately ruled against Bostick, J.A.I.L. would give him more bites at the apple.
J.A.I.L. can be invoked by alleging the judge deliberately violated the law or federal or state constitution, intentionally violated due process, deliberately disregarded material facts or blocked the lawful conclusion of a case, “notwithstanding . . . any other contrary statute.” Bostick is free to file a J.A.I.L. complaint asserting that forcing him to ask the Supreme Court for a certificate of probable cause blocked the conclusion of his case because that term is defined as “[a]ny act that impedes the lawful conclusion of a case, to include unreasonable delay.” Likewise, he could allege that the trial court’s — and the Supreme Court’s — ruling was wrong because it amounted to deliberate violation of part of the constitution or violated his due process rights or was based on the court deliberately disregarding facts he thinks are material.
The same is true in the Jack Harriman case. Harriman appealed to the Supreme Court after the trial court relied upon something known as the statute of frauds to set aside a jury verdict in his favor in a contract action. The Supreme Court agreed with the trial judge. Yet the ad Harriman bought that appears in PP’s post specifically invokes the Seventh Amendment to the U.S. Constitution, which guarantees trial by jury. All Harriman need to is file a J.A.I.L. complaint asserting that by setting aside the jury verdict the trial court and Supreme Court essentially violated that constitutional provision.
Or consider the flip side of the coin. If the jury ruled against the plaintiff and that decision was upheld on appeal, the jurors could be brought before the J.A.I.L. special grand jury because under the law they could be “persons claiming to be shielded by judicial immunity.” I would wager that almost any losing party in a jury trial thinks the verdict could have been reached only if the jury deliberately disregarded material facts.
Here we have two cases in which trial court rulings were upheld by the state Supreme Court based upon applicable governing law and legal analysis. Despite that, displeased litigants can file a complaint under J.A.I.L. and have 13 persons selected at random sit in judgment of those rulings and the persons involved in them. All it takes is a $50 filing fee. Actually, you don’t even have to pay if you file a “confidential” declaration saying you can’t afford or “object to” the fee. How many people are going to pay a fee when all they have to do is say they object to it?
Moreover, “[a]ll allegations in the complaint shall be liberally construed in favor of the complainant” and the members of the special grand jury “are not to be swayed by artful presentation” by those against whom a complaint is filed. In fact, in the Harriman case, the special grand jury could allow him to sue the judge(s) despite the state law the courts relied upon because J.A.I.L. tells those jurors they can ignore “any other contrary statute.” Finally, even though the judges and other parties were acting as public servants, J.A.I.L. says they may not “be defended at public expense or by any elected or appointed public counsel.”
I’m sure proponents will say I’m just conjuring things on old cases where J.A.I.L. would never apply. Well, J.A.I.L. specifically states it applies “retroactively.” That means anyone who was a party to the thousands and thousands of civil and criminal cases filed in South Dakota over the last 40, 50 or 60 years can now use J.A.I.L. to chase after the the judges, attorneys or jurors.
Don’t doubt for a minute that J.A.I.L. stands for one and only one proposition: If you don’t like the result, sue the judge or jury under J.A.I.L.
Where there are laws, he who has not broken them need not tremble.
Vittorio Alfieri, Virginia