Many of my posts on J.A.I.L. (Amendment E) over the last year have focused on what I have no problem calling lies and misrepresentations. Yet I like it more when the backers, such as South Dakota J.A.I.L.er-in-Chief Bill Stegmeier, tell the truth. Why? Because it reveals the heart, purpose and intent of Amendment E.
One example is something the South Dakota J.A.I.L.ers have proudly put on their website – an interview with Stegmeier on “Live Fire,” a radio talk show hosted by the president of the Gun Owners of America. Stegmeier said he was using the interview to “drop a few bombshells on the opposition” and tell people the “unspoken realities of this amendment.” I’m not sure why Stegmeier thinks his pronouncements come as a surprise to opponents as they reinforce what we have been saying about Amendment E.
Stegmeier says Amendment E will be used to attack a procedure known as “summary judgment.” Most simply explained, such judgments are granted when the facts are undisputed and application of governing law to those facts requires a ruling in favor of one party or more without the need for a trial. I have not researched it but based on my 20 years of practice before administrative agencies and state and federal courts, I would wager a significant amount of money that many more such requests are denied than granted. In fact, I would call summary judgment motions an exception rather than the rule in a litigator’s practice.
What is most revealing is the basis Stegmeier gives for why we need Amendment E to attack something that has been used in the federal courts and every state for decades. He says its because cases are decided on the basis of whether one party is a friend of the judge. Of course, when the host asks Stegmeier to respond to criticisms that Amendment E can not point to any specific cases of judicial misconduct (like his example) in South Dakota, it is as the music to a commercial break starts playing and begins to drown out Stegmeier’s admission they can not. Instead, Stegmeier later points to a “poll” of 200 South Dakota prison inmates who all said they were treated “unfairly” by the judge or prosecutor.
Stegmeier also says Amendment E is intended to provide a method of jury nullification if a judge does not tell the jury they can ignore governing law. Likewise, he says the special grand jury has the power to overturn any law passed by the Legislature. That leads to a couple points.
First, J.A.I.L.ers claim the amendment is needed because the judiciary has become an unequal branch of government, contrary to the intent of the founders. Yet it appears their solution is to let 13 unelected individuals picked at random decide what laws they like and which they don’t and the public must abide by those decisions with no opportunity for recourse. I guess we no longer need the legislative and executive branches to participate in the law-making process and we can cast aside the initiative and referendum provisions of the state Constitution.
Second, four years ago an initiated measure was on the ballot that would have allowed jury nullification arguments and instructions. Voters rejected it by a margin of roughly 4 to 1. Like J.A.I.L., that proposal ended up on the ballot because a national, out-of-state group picked South Dakota due to “its low population and the small number of petition signatures necessary to get an initiative on the ballot.” If you doubt that part of the motivation behind Amendment E is to use a different package to sell voters something they already rejected, Amendment E directs voters to the national jury nullification group both in its campaign brochures and on its web site.
Finally, and perhaps most frightening, is Stegmeier’s view of how Amendment E would implement jury nullification. If a defendant contends a law shouldn’t apply to them but wasn’t allowed to argue or have the jury instructed on that contention, once the conviction is upheld the defendant can go to J.A.I.L.’s special grand jury. According to Stegmeier, not only could the special grand jury allow the defendant to sue the judge, they could give the defendant a new trial on the original charge! The standards by which this super jury answerable to no one will decide whether a law of general application applies to a particular individual? Whether the defendant is an “upstanding citizen” or has a “dubious” background.
The cause celebre for this argument was the host’s example of a Virginia school teacher with a revolver in her handbag in the classroom being arrested for violating a law against carrying a firearm during school hours in or on school property. (That is illegal under both federal law and Virginia law. South Dakota also bans possession of firearms on school premises.) Stegmeier said that, if convicted, the teacher would have little trouble getting a J.A.I.L. grand jury to give her a new trial if she were not allowed to claim the Second Amendment right to bear arms made such laws unconstitutional. In fact, Stegmeier said, “had there been a gun in every handbag of a teacher, we could have saved many, many lives.”
So, the solution to violence in schools is to put guns in them. And Amendment E’s view of a legal system is having 13 people selected at random, accountable to no one, deciding on a case-by-case basis what laws will be enforced and whether any particular law should apply to any particular defendant or litigant. What standards determine whether a person has a “dubious” background and is subject to all the laws or if they are a good person and, thus, can qualify to be exempt? Is it skin color? How about religion? Is it their job (or lack thereof)? What about their political affiliation or beliefs?
That’s why I love it when Stegmeier tells the truth about Amendment E. It demonstrates not only how radical it is, it shows that the amendment really is not about accountability, justice or democracy. Rather, that is what it seeks to destroy.
Three things cannot long be hidden: the sun, the moon and the truth.