J.A.I.L.’s complaints about the ballot explanation – Part 2

As promised, I wanted to follow up on the complaints South Dakota Bill Stegmeier makes in his letter to Attorney General Larry Long about the AG’s ballot explanation of Amendment E. As detailed before, the first criticism is the goofy claim that Long somehow concocted the idea that J.A.I.L. applies to more than judges and that the proposal doesn’t do so.

The other criticisms deal largely with word choice and language. Thus, criticism two is that, “most perversely,” the ballot explanation doesn’t say J.A.I.L. would create a “special grand jury” or use language from the preamble to the proposal. (Emphasis in original.) Stegmeier claims that means the explanation violates the statutory requirement that it be objective and state the “purpose” of the proposed amendment. As a result, he writes, the explanation is intended to “distort and misrepresent the facts and the plain meaning of words, and [deceive] the voters of South Dakota.”

It seems to defy logic that not using the phrase “special grand jury” somehow makes the explanation lack objectivity, let alone deceive anyone. As for the purpose of the amendment, the thrust of J.A.I.L. is to create a mechanism by which to strip persons of judicial immunity. Whether that mechanism is called a special grand jury, the traveling extremist minstrel show or the anti-government clique does not go to the purpose of the amendment. While the preamble sets out the purpose as J.A.I.L. sees it, the governing statute says the explanation cannot exceed 200 words. To include the preamble would take nearly one-third of that limit, leaving very little by which the AG could explain the purpose and effect of a 23-section proposal.

This complaint is also interesting given the fact that in a fundraising letter sent out this summer, Stegmeier never used the term “special grand jury.” Instead, he said that “what Amendment E will do is create a ‘citizens oversight committee[.]'” To accept Stegmeier’s current argument means that his fundraising letter “deceived the voters of South Dakota.”

Next, Stegmeier complains the ballot explanation uses the term “volunteers” to describe the members of the special grand jury. This one may push the envelope a bit because the grand jury would be made up from people selected from the registered voter lists and any citizen submitting their name. At the same time, the ballot explanation specifically states: “Volunteers are drawn from those who submit their names and registered voters.” Moreover, Long does not mention the broad classes of citizens who are excluded from serving on the grand jury (elected and appointed officials, members of the State Bar, active or retired judges, and judicial, prosecutorial and law enforcement personnel).

Stegmeier then complains that Long says the grand jury could “expose” decision makers to fines and “strip” them of public insurance coverage. According to Stegmeier, these terms are too loaded. Long should have said “hold accountable” instead of “expose” or “forfeit” or “lose” instead of “strip.” Notably, while Stegmeier claims the word choice shows bias, he doesn’t assert that any of the words used are inaccurate or wrong.

Stegmeier’s last complaint about the language of the ballot explanation is that Long says only that if challenged J.A.I.L. might violate the U.S. Constitution. He asks whether that means Long is conceding that J.A.I.L. would not be challenged in a South Dakota court or, if it were, that it would accord with the state constitution. Maybe Stegmeier should read the last two sections of the initiative he claims to have “authored.”

Section 22 provides: “No judge under the jurisdiction of the Special Grand Jury, or potentially affected by the outcome of a challenge hereto, shall have any jurisdiction to sit in judgment of such challenge. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class action, or by any adversely affected person.” Thus, the “author” has already answered his first question —? the amendment itself precludes it from being challenged in a state court.

Then, Section 23 provides in part, “Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision.” As a result, even if Section 22 didn’t make it “unconstitutional” for a South Dakota court to hear a challenge to its constitutionality, J.A.I.L. elevates itself over every other provision of the state Constitution. In other words, J.A.I.L. and its continually changing group of 13 people chosen at random are the ultimate arbiters of the rights of every South Dakota resident.

Finally, Stegmeier spends about the last half of the letter addressing the “biggest problem” with the ballot explanation —? it doesn’t accept J.A.I.L.’s arguments that judicial immunity “itself is unconstitutional.” (Emphasis in original.) The fact is judicial immunity is the law of the land, whether J.A.I.L.ers like it or not. The ballot explanation has to be couched in terms of governing law. This would be like having a ballot explanation on the referral of the state’s abortion legislation containing the supporters’ arguments that Roe v. Wade was wrongly decided.

This points up what I noted in a recent post. If the J.A.I.L.ers —? or any group or individuals — have a problem with particular laws, methods exist to address them other than creating a group of 13 omnipotent potentates. The abortion and medical marijuana issues are prime examples. Regardless of where you stand on the issue, proponents of those measures used the electoral and legislative process to attempt to make the changes they desire. The fact the abortion measure will ultimately be decided by way of referendum or that medical marijuana comes as an initiated measure doesn’t undercut the concept of using the system, rather than seeking to obliterate it.

In the theater of confusion, knowing the location of the exits is what counts.

Mason Cooley, City Aphorisms

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