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The deliberate dodge

South Dakota’s J.A.I.L.ers recently trotted out a new theme in their continuing effort to mislead voters about Amendment E. Let’s call it the “deliberate decoy.”

It began appearing at the hearing on J.A.I.L.’s challenge to the ballot explanation for Amendment E. As Judge Gors noted in his decision, “At the hearing, [South Dakota J.A.I.L.er-in-Chief Bill] Stegmeier asked the court to point out that decision makers need only fear reprisal if their actions are ‘deliberate.’ Stegmeier asserts that judges will only be ‘jailed’ if they deliberately violate the law, deliberately ignore material facts or deliberately violate the state or federal constitution.”

Granted, Amendment E does say that among (but not all) the acts that can give rise to a complaint under J.A.I.L. are “deliberate” violation of law or the Constitution, “deliberate” disregard of material facts and “intentional” violation of due process. Yet the spin showed up within hours of Gors’ decision on the web site for good ol’ “South Dakotan’s (sic) for Amendment E.” It says, “Amendment E addresses Deliberate (sic) misconduct, Not (sic) accidental. Huge difference.” (Emphasis in original.) It also says, “We’re not referring to a bad decision or one ripe for an appeal. We mean when a judge deliberately violates laws. Which (sic) is different than the ‘deliberating’ cutely mentioned by Judge Gors.” (I would note that the word “deliberating” does not appear anywhere in the opinion written by Judge Gors.)

As Judge Gors noted, though, it is almost impossible for someone acting in a judicial capacity to exercise those powers accidentally. For example, the South Dakota Supreme Court has said that the word intentional does not “designate an additional mental state beyond that accompanying the act.” In other words, absent some sort of other language or expression, the question is whether a person (or entity) intended or deliberately took the act complained of.

Since I know J.A.I.L.ers don’t like courts, let’s go to basic language principles. The American Heritage Dictionary defines deliberate as:

1. Done with or marked by full consciousness of the nature and effects; intentional: mistook the oversight for a deliberate insult. 2. Arising from or marked by careful consideration: a deliberate decision.

Similarly, that dictionary defines intentional as “1. Done deliberately; intended[.]”

So how does this apply in the case of Amendment E. Let’s use J.A.I.L.’s own words to sort that out. Here’s what the flyer the Amendment E folks have been circulating for the last couple months says about why South Dakota needs Amendment E:

Amendment E will hold Judges accountable for the following all to (sic) common violations of citizen’s rights:

  • Preventing relevant evidence from being admitted, thereby weakening one’s case.
  • Preventing relevant witnesses from testifying before the jury, also weakening one’s case.
  • Violating the court’s own procedural rules.
  • Ruling on a case without having jurisdiction to rule.
  • Prohibiting the jury from hearing what rights and responsibilities that they have as jurors.
  • Dismissing valid cases as frivolous.
  • Violating the South Dakota and United States Constitutions.
  • Amendment E will end all of the above violations by holding judges accountable.
    How can a judge, city council, school board or administrative agency “accidentally” exclude evidence or witnesses at a hearing? That can result only from an intentional or deliberate act and, in fact, an act for which the consequences are plain — the evidence will not be presented.

    How can a court, administrative agency or jury “accidentally” rule on a case without the jurisdiction to do so? The threshold of any lawsuit or litigation is jurisdiction. For someone exercising judicial powers to rule on a case, they must first find jurisidction. It is plain, then, that they deliberately exercised jurisdiction, intended to rule and did so deliberately.

    How can a court “accidentally” prohibit a jury from hearing its rights and responsibilities? In every jury trial the court must give instructions to the jury and rule on any proposed by the parties and any objections to the proposed instructions. Thus, any instruction or lack thereof is the result of a deliberate and intentional process.

    How can a court, school board, administrative agency or jury “accidentally” dismiss or reject a case as frivolous? Plainly, the decision to dismiss was a deliberate and/or intentional decision. Equally plain is the fact the consequences of that decision are known — the case is thrown out.

    How can a court, school board, county commission or agency “accidentally” violate the state or federal constitution? A ruling or decision is either constitutional or it isn’t. The judicial entity can’t say, “Oops, I didn’t mean to make that decision or ruling.” Besides, federal law already provides there is no immunity for a federal civil rights claim if the action violated “clearly established statutory or constitutional rights.” If the rights are clearly established, the violation couldn’t be accidental.

    Now let’s go a bit beyond J.A.I.L.’s examples. Does the parole board “accidentally” grant or deny parole to a prisoner? Does a school board “accidentally” suspend a student or teacher? Does the Department of Labor “accidentally” grant or deny unemployment benefits?

    As the foregoing demonstrates, Judge Gors hit the nail on the head when he rejected this claim:

    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.”?It is facetious to suggest that judges need only fear reprisal for deliberate acts when all judicial acts are deliberate.

    Thus, plain language, common sense and the real world demonstrates that claiming J.A.I.L. applies only to “deliberate” acts is just more smoke and mirrors. I wager, though, that you’re going to hear the Amendment E folks consistently saying it doesn’t apply to “accidents” because that is another mechanism for them to mislead the public on the scope and effect of this measure.


    The truth is incontrovertible. Malice may attack it and ignorance may deride it, but in the end, there it is.

    Winston Churchill

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