The Amendment E lawsuit

Proponents of the J.A.I.L. measure, also known as Amendment E, have filed suit challenging portions of the Attorney General’s ballot explanation of the amendment. The claim, made in a sworn pleading signed by South Dakota Bill Stegmeier, is not as broad-based as complaints raised in an earlier letter to AG Larry Long but does rely on claims made in that letter.

The lawsuit alleges two parts of the explanation exceed the authority of both Long and Secretary of State Chris Nelson, the two defendants named in the litigation. Specifically, the lawsuit objects to these two sentences:

Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions.The proposed amendment to the State Constitution would allow thirteen volunteers to expose these decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits, for making decisions which break rules defined by the volunteers.

According to Stegmeier’s application, these sentences are not a “clear and simple recitation of the effect of a ‘Yes’ or ‘No’ vote” and do not “state succinctly the purpose and legal effect of the proposed initiated measure.” Instead, Stegmeier says, the explanation “contains a purely political opinion and a deliberate attempt to convince the people of South Dakota to vote against Amendment E.” The AG cannot express beliefs as to the consequences of adoption of a ballot measure, only state its legal effect, according to the application.

I’ve previously stated my views on the ballot explanation and won’t repeat them now. I do want to make a couple points, though.

First, it was probably wise for Stegmeier and the J.A.I.L.ers to narrow the focus of their complaints. Given the length of time between now and the election, I think they need to present what they believe are their best arguments and not dilute them with the shotgun approach taken in their letter to Long, which included arguments that the doctrine of judicial immunity is itself unconstitutional.

As for “best arguments,” I still see the claim regarding the first sentence as a loser. Established legal precedent makes clear that the entities J.A.I.L. now asserts (contrary to prior statements) are not included within the amendment’s scope do exercise judicial functions at times and, thus, are entitled to claim judicial immunity for those actions. That brings them within the scope of the amendment as written. At the same time, I previously noted that the term “volunteers” might be pushing the envelope. It will be interesting to see to the extent to which Judge Gors, who is assigned the case, believes a judge or court must or can sit as a copy editor for the choice of words in a ballot explanation.

Finally, the South Dakota Supreme Court has said the legal effect of a proposed measure means the result the proposal “will have upon existing law” but not “collateral, theoretical or potential consequences which may or may not occur.” I think Judge Gors will have an interesting task parsing the language to determine if it states the “legal effect” of the amendment or consequences that may or may not occur.

Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.

Socrates (attributed)

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