This installment of the series will look at another of the lies in the campaign brochure being circulated in support of the Judicial Accountability Initiative Law (J.A.I.L.). As you’ll recall, the last one dealt with whether the amendment affected local citizen boards. Here’s the follow-up as it appears in the brochure:
Q: Will Amendment E expose the individual members of these boards and commissions to being sued?A: No. The fact is that county commissioners and school board members make decisions as groups, never as individuals. And we have already established that Amendment E has no effect whatsoever on these groups, let alone their members.
As we’ve already seen that first part of that last sentence is a lie, so is the second part. It is true that citizen boards make decisions as groups. That does not mean, however, that they cannot be sued individually. In fact, there are actually different names for the different types of suits. An “official capacity” suit is one where a plaintiff brings an action against a public official in his or her official capacity and the suit is essentially against the office that official represents, not the individual holding it. In contrast, a “individual capacity” suit is an action to impose personal, individual liability on a government officer.
In the latter case, if the officer is acting in the scope of his or her duties, they can invoke immunity. Thus, if a school board member sits as an adjudicator in a student or personnel matter, they can invoke judicial immunity in any individual capacity suit. Under J.A.I.L., however, the grand jury can strip away that immunity. As a result, the claim that J.A.I.L. doesn’t expose individual board members to suit is another bald-faced lie.
Don’t believe my analysis? Well, how about we see what Bill Stegmeier, South Dakota’s J.A.I.L.er-in-chief, has said on this point.
Last November, Keith Jensen wrote an editorial in the Madison Daily Leader saying, among other things, that J.A.I.L. “covers all persons shielded by judicial immunity…meaning every school board, city council, county commission, professional licensing board, in fact every citizen board in the state exercising quasi-judicial powers.” Here is what Stegmeier said in reply in a mailer sent to Madison residents (PDF file):
It is said that even a blind sow occasionally finds an acorn. Such it is with Jensen occasionally stating the truth. Yep, with the passage of SD J.A.I.L., any governmental employee (of any stripe, shape, or flavor) previously accustomed to violating the rights of South Dakota citizens while hiding behind the bogus doctrine of “judicial immunity”, will now have to shape up or ship out.
Maybe Stegmeier should explain to the public whether he was lying when the mailer went out in December or if he’s lying in the current brochure. It is impossible for both statements to be true. So either the mailer or the brochure is a criminal violation under SDCL 12-13-16, the statute he accuses the Legislature of breaking. The fact is that the earlier statement is accurate because J.A.I.L. will apply to any governmental employee or official acting in an adjudicatory process. Because of the ramifications of that, J.A.I.L. has evidently chosen to lie in its campaign literature.
All the leaders of groups tend to be frauds. If they were not, it would be impossible for them to retain the allegiance of their dupes.
H.L. Mencken, Minority Report