J.A.I.L.’s Lies – Part 9

Seems the “new” website for South Dakota’s Judicial Accountability Initiative Law (J.A.I.L.) is back to being updated. As history would indicate, the new material contains a healthy dose of new lies. This time J.A.I.L. is attacking South Dakota Supreme Court Chief Justice David Gilbertson and the news media.

J.A.I.L. relies on and links to the minutes of the December 8, 2005, meeting of the State Bar Commission. (Disclosure: I served on the Bar Commission from June 2001 to June 2004). It claims Justice Gilbertson violated the judicial canon of ethics at that meeting and the press has refused to report that. Here’s the J.A.I.L. version of that meeting:

Earlier this year the press was alerted to Justice Gilbertson’s political activities. As the Bar Minutes reflect, after Judge Gilberson [sic] spoke Thirty Thousand dollars was immediately requested to defeat Amendment E. Although a clear violation of several judicial canons, the South Dakota media appears willing to give him a pass. So much for the “watch dog press.” Our view is newspapers that short-change subscribers expecting unbiased news reporting, constitutes a breach of journalistic integrity.

(Emphasis added).

First, there is nothing improper about Justice Gilbertson attending the Bar Commission meeting. Any member of the South Dakota Bar can do so. But that’s an insignificant point because the minutes of the meeting demonstrate the falsity of the italicized sentence.

Here is what the minutes actually say:

The purpose of the meeting was to consider a draft campaign prepared by Tom Barnett to respond to the J.A.I.L. initiative. President Riter led a discussion of the campaign plan. The Chief Justice commented briefly. Moved by Sogn, seconded by Williams, to approve the plan, which was unanimously approved, with McGuigan abstaining.

To say that $30,000 was “immediately requested” after Justice Gilbertson spoke (actually, “commented briefly”) is a lie, plain and simple. Yes, the Bar Commission did approve $30,000 to oppose J.A.I.L. but it was not “immediately” after Justice Gilbertson spoke nor at his request.

The next paragraph of the minutes reflects that State Bar Secretary-Treasurer Barnett discussed the cost of a campaign against J.A.I.L. and he requested a $30,000 budget. That request was then supported by State Bar President Bob Riter. Nothing indicates Justice Gilbertson said a word about the request. It was only after Barnett and Riter’s discussion of J.A.I.L., the budget request and its potential impact on Bar Association dues that the Bar Commission approved Barnett’s request.

As J.A.I.L. has a copy of the minutes, it knows the sequence of events and that their statement is false.

Equally false is the assertion that Justice Gilbertson’s actions were “a clear violation of several judicial canons.” (I would invite J.A.I.L. to specify those violations but I don’t want to take them away from their months-long yet still apparently unproductive effort to respond to my repeated requests that they identify specific South Dakota cases demonstrating the need for J.A.I.L.)

The canons of judicial ethics provide: “A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects” in compliance with the canons. The commentary to that rule notes that because judges are “in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice,” they are “encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.” (Emphasis added). In addition, judges “may participate in efforts to promote the fair administration of justice [and] the independence of the judiciary[.]” J.A.I.L. attacks and seeks to gut each of the items addressed in the commentary.

It may also be worthy to note that while the Bar Commission is not an arm of the executive or legislative branch, the canons allow a judge to appear before public entities or officials on “matters concerning the law, the legal system or the administration of justice.” If Justice Gilbertson could speak to the Legislature or the Governor about J.A.I.L., he can certainly speak to the governing body of the Bar Association.

Finally, no one can claim Justice Gilbertson’s actions are improper because they indicate a predisposition on how he might rule on the amendment. Section 22 of J.A.I.L. says: “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.” Thus, the J.A.I.L.ers have made sure that neither Justice Gilbertson nor any other state court judge in South Dakota can ever rule on the measure’s constitutionality or legitimacy.

Here we are just past the first day of summer and the lies already seem to grow more desperate. With all the falsehoods the J.A.I.L.ers keep spewing, this series could end with triple figure installments by election day.

Graham Greene, The Heart of the Matter