PP has posted the decision by Judge Max Gors on J.A.I.L.’s challenge to the Attorney General’s ballot explanation on their measure. I won’t repeat it in full but do want to look at its content and analysis. Two things come to mind: (1) I told you so and (2) If the public is foolish enough to pass Amendment E, Judge Gors may be J.A.I.L.’s first target.
Gors ruled on five issues, four raised by South Dakota J.A.I.L.er-in-chief Bill Stegmeier. The first was one raised by the State, which argued that Stegmeier delayed too long in bringing suit by waiting until the last day for certifying ballots when he’d known about the explanation since at least July 13.
Gors rejected that challenge. Noting that Stegmeier first wrote to AG Larry Long to request a change in the language of the explanation, Gors said, “Stegmeier should not be faulted for first attempting to resolve the matter short of litigation.” I think that approach not only fair but voters deserve a decision on the merits.
As noted before, Stegmeier’s main complaint was that the ballot explanation said the amendment extends to “[c]itizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors,” as well as judges. After noting that the amendment defines judge to include anyone else claiming judicial immunity, Gors pointed out that in a previous mailer to Madison area residents Stegmeier said that J.A.I.L. applied to “any governmental employee (of any stripe, shape, or flavor).” The judge concluded Stegmeier “cannot claim a better version of the facts” now than before. I wonder if the conflict between what Stegmeier said in the lawsuit and what he said in Madison has ever been pointed out before? (That’s my first, “I told you so.”)
Yet Judge Gors did not base his decision on that alone. “The question, however, is not what Stegmeier thinks or says, but whether judicial immunity applies to persons other than judges,” he wrote, going on to itemize the wide range of positions to which judicial immunity might apply. He concluded
Consequently, judicial immunity may extend to any decision maker who exercises judicial functions: petit jurors, grand jurors, school boards, county commissions, city councils, professional and occupational licensing boards, prosecutors and other attorneys.The attorney general’s statement about who has judicial immunity is true and is objective.
(That’s my second, “I told you so,” for which I could provide any number of links.)
Stegmeier also complained that the ballot explanation used the word “volunteers” to describe those who would sit on the grand jury. Gors calculated that even if everyone who signed the petitions to get J.A.I.L. on the ballot volunteered to serve on the special grand jury, they would still make up only 10 percent of the special grand jury pool. He said, “Use of the term ‘volunteers’ implies that the special grand jury envisioned by the proposed amendment is a group of hooded vigilantes riding the range with rope looking to hang the first judge they find. This is patently not true.” As a result, he instructed Long to replace “volunteers” with special grand jurors. (While I don’t give “volunteers” the same broad reading as Judge Gors, this is another “I told you so.”)
Stegmeier also complained about the ballot explanation using the word “strip,” indicating that it was an “Oooohhh-word.” Gors said, however, that the description was “entirely accurate.” (“I told you so” number 4.)
At the hearing, J.A.I.L. complained that the ballot explanation did not say that the amendment would come into play only if the decision-maker’s actions were “deliberate.” Gors response to that argument is on the mark:
Stegmeier’s argument is disingenuous at best. Judges do not accidentally decide a case or accidentally sign an order or accidentally send someone to prison. Judges do not accidentally do anything. Every act a judge does is deliberate. Deciding a case is called “the deliberative process” and juries are sent out to “deliberate.”
Remember, one of the things J.A.I.L. has harped on most recently is that J.A.I.L. can be used to attack the exclusion of witnesses or evidence. Any such decision is, of necessity, a deliberate one. As Judge Gors pointed out, it is impossible to accidentally exclude or allow evidence or dismiss a lawsuit.
At the hearing, Stegmeier also asked Judge Gors to require the explanation use the term “accountability.” Judge Gors really put the hammer down:
The attorney general could have said with a straight face that the real purpose and effect of the proposed JAIL amendment is to destroy justice in South Dakota by harassment of public decision makers with lawsuits, but he did not. His actual description is quite tame.
This will be my last “I told you so.” I have said all along that J.A.I.L. is nothing but an effort to not only attack the judiciary but to create a fourth branch of government made up of 13 individuals accountable to no one but themselves. J.A.I.L. is not about accountability. As Stegmeier’s stories and versions of J.A.I.L. change for sake of expedience, the last thing J.A.I.Lers want is for them to be held accountable.
No doubt J.A.I.L. will appeal. That’s fine. That’s their right and it will give us a final answer. Besides, you gotta love J.A.I.L. paying a lawyer and using the courts. Like I said before, although the J.A.I.L.ers keep saying people should be for J.A.I.L. because lawyers oppose it, this shows how J.A.I.L. is a full employment act for lawyers. And, of course, if the Supreme Court affirms Gors, they could join him as the targets of the first J.A.I.L. complaint should Stegmeier and crew successfully deceive the public about the piece of excrement they’re trying to sell.
Finally, just to pre-empt comments or speculation by Stegmeier, Bonnie Russell or the rest of the J.A.I.L.house crew, I had no connection or involvement in the litigation and certainly not with the decision. In fact, the first I saw or heard of the decision was on PP’s blog tonight. But if it makes Stegmeier and crew feel any better, Judge Gors ruled against me in a couple matters in a motion hearing I had with him last Friday afternoon.
Ironically, Stegmeier wants a judge to help him make it easier to sue judges. Stegmeier must have more confidence in the courts than he lets on in his public statements and his proposed constitutional amendment.
Memorandum Decision, Stegmeier v. Nelson