As promised, this is the first of several installments in this series based upon a brochure promoters of the Judicial Accountability Initiative Law (J.A.I.L.) are distributing at their “town hall meeting/debate” sessions. Today’s is the first of two on local officials.
Part of the concern about J.A.I.L. is that it applies to more than the judiciary. J.A.I.L.ers have repeatedly attempted to mislead the public by claiming it does not. Here’s one of the lies in that regard in the brochure:
Q: Will Amendment E expose county commissions and school boards to being sued, just for doing their job?A: First off, nobody gets sued for “just doing their job”. People get sued for wrongdoing. But the fact of the matter is that these boards and commissions can already be sued, and do get sued quite often. Amendment E doesn’t effect [sic] these boards and commissions in the least.
Because I’ve pointed out the lie in the assertion that J.A.I.L. doesn’t apply to persons who are “just doing their job,” we’ll just look at the statement that J.A.I.L. doesn’t affect boards and commissions “in the least.” Since the brochure uses school boards as an example, let’s do the same.
South Dakota law requires school boards to afford a hearing for a student who is expelled or suspended for more than 10 days. Likewise, a teacher whose contract is not renewed is entitled to a hearing before the school board. In both circumstances, the school board is acting in a judicial capacity and, hence, falls within J.A.I.L’s definition of judge (i.e., “all other persons claiming to be shielded by judicial immunity”). The student or teacher can appeal the school board’s decision to circuit court and that decision, in turn, can be appealed to the Supreme Court.
Currently, if the school board’s decision is adverse to the student or teacher and the circuit court and Supreme Court uphold that decision, the matter is over and done with. But not under J.A.I.L. The very same brochure says J.A.I.L. applies if a judge (which by definition includes the school board in this situation) “[p]revent[ed] relevant evidence from being admitted, thereby weakening one’s case” or “[p]revent[ed] relevant witnesses from testifying . . ., also weakening one’s case.” Note it doesn’t say the actions had to affect the outcome; it only need “weaken” the case. Moreover, J.A.I.L. specifically says a complaint can be filed if the school board is claimed to have engaged in “deliberate disregard of material facts.” As I’ve asked here many times before, how many disgruntled litigants don’t think relevant evidence or witnesses may have been excluded or the decision-maker disregard facts they think were material to their case.
So even though the school board followed all required procedures and was deemed by two courts to have acted properly and legally, the student or teacher can file a J.A.I.L. complaint. Then, only seven of 13 people chosen at random can grant them the right to sue the school board for damages. Even though school boards can be sued now, this creates an entirely new class of litigation against them. Thus, to say “Amendment E doesn’t effect [sic] these boards and commissions in the least” is an outright lie.
Repetition does not transform a lie into a truth.
Franklin D. Roosevelt, radio address, Oct. 26, 1939