Since South Dakota J.A.I.L.er-in-Chief Bill Stegmeier posted a comment (and actually used his name on this visit), I’m happy to reply. Remember, this comment comes from the man who last year agreed Amendment E would apply to “every school board, city council, county commission, professional licensing board, in fact every citizen board in the state exercising quasi-judicial powers.”
First, he says because boards and commissions are already subject to suit “Amendment E does not make them ‘more sue-able.'” Wrong, as I’ve more fully explained here. Amendment E allows a suit to be authorized against any and “all other persons claiming to be shielded by judicial immunity.” Thus, even though a school board or county commission may have won in every court, a disgruntled litigant can still seek to have immunity stripped and bring suit, only this time not on grounds defined by the current constitution and statutes but for “weakening” someone’s case or “unreasonable delay.”
Stegmeier says it’s “laughable” Amendment E would allow a juror to be sued because they can only decide “innocent, guilty, or undecided.” (I’ve never seen “undecided” on a jury verdict form but we’ll assume it appears on verdict forms in Bill’s world.) Once again, I’ve previously explained how suit against a juror is possible. It boils down to J.A.I.L. allowing a suit against a person who can otherwise invoke judicial immunity if they are claimed to have engaged in “deliberate disregard of material facts,” which is, to quote Stegmeier, “one of the seven enumerated violations addressed in Section 2 of the amendment.” If a jury convicts a thief, rapist or murderer who put on an alibi defense, the defendant certainly can claim the jury deliberately disregarded what the defendant contends are material facts and can ask permission to sue the jury.
Stegmeier next looks to Black’s Law Dictionary to figure out what “judicial” means. While a good source, when it comes to Amendment E, we need to look to the language of the amendment itself. It defines “judge,” not Black’s. And Stegmeier’s claim that boards do not make “judicial” decisions is ludicrous. Perhaps someone should mention that to the state’s administrative law judges and the attorneys and parties who appear before state and local entities in contested case hearings all the time. It’s also interesting that Stegmeier disputes Judges Gors’s ruling that J.A.I.L. applies to more than judges. When Stegmeier appealed that ruling to the South Dakota Supreme Court, he “abandoned the argument that Constitutional Amendment E applies only to judges.” Once again, a different version in different forums.
The next piece of smoke is that boards, commissions and jurors only have “quasi-judicial” immunity, a term not mentioned in J.A.I.L. Recall again the definition of judge. It is someone claiming judicial immunity. It does not matter if it is called quasi-judicial, it is still judicial immunity that is invoked and claimed to apply.
Stegmeier then says the definition of “judge” was used only in case judges started calling themselves by a title like “your highness.” Sorry, but the title of the office comes from the South Dakota Constitution, not the judiciary itself. That doesn’t mean there couldn’t be a “your highness” amendment brought to the voters, though. After all, look what’s already on the ballot.
Finally, Stegmeier claims not to understand the mechanics of suing a school board president under Amendment E. Although I’ve explained it once, I will do so again. Appeals from school board decisions are based on certain statutory and constitutional grounds. Those grounds do not include such J.A.I.L. terms as “deliberate disregard of material facts” (although there are grounds that may allow a similar argument) or “unreasonable delay.” Once the litigant has attempted to exhaust judicial remedies, they would, as Stegmeier admits, be allowed to file a complaint with the special grand jury. But nothing in Amendment E says the suit has to be against the courts who heard the appeal. In his scenario, they were not the ones who allegedly violated J.A.I.L. Thus, the disgruntled litigant has every right under J.A.I.L. to seek to sue the board members individually. After all, doesn’t the definition of judge refer to “persons”? In fact, there is nothing on the face of J.A.I.L. that precludes someone from seeking to sue only those board members who voted against him or her on the basis those members deliberately disregard material facts.
While the grand jury is a buffer between the complaint and any actual suit, it is required to be prejudiced against the board member or other individual claiming immunity. J.A.I.L. requires that “[a]ll allegations in the complaint shall be liberally construed in favor of the complainant.” It also requires the grand jury to “not to be swayed by artful presentation” by the respondent. Were it not for the fact that people operating under J.A.I.L. have full immunity (you know, the stuff the J.A.I.L.ers don’t want anyone else to have), a failure to allow someone to sue a public official under these standards would appear to be a J.A.I.L. violation on its face.
When it gets down to it, I don’t think Stegmeier doesn’t understand J.A.I.L. He knows full well its scope, import and ramifications. He simply is an example of the phrase, “dumb as a fox.” He and the other J.A.I.L.ers figure it’s easier to sell a bill of goods if you gloss over the facts and what the amendment actually says and does. After all, isn’t that how you sell snake oil?
Next time, I’ll talk about Bill’s other comment on the poll he commissioned.
It is a general popular error to suppose the loudest complainers for the public to be the most anxious for its welfare.