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South Dakota’s J.A.I.L.ers recently trotted out a new theme in their continuing effort to mislead voters about Amendment E. Let’s call it the “deliberate decoy.”
It began appearing at the hearing on J.A.I.L.’s challenge to the ballot explanation for Amendment E. As Judge Gors noted in his decision, “At the hearing, [South Dakota J.A.I.L.er-in-Chief Bill] Stegmeier asked the court to point out that decision makers need only fear reprisal if their actions are ‘deliberate.’ Stegmeier asserts that judges will only be ‘jailed’ if they deliberately violate the law, deliberately ignore material facts or deliberately violate the state or federal constitution.”
Granted, Amendment E does say that among (but not all) the acts that can give rise to a complaint under J.A.I.L. are “deliberate” violation of law or the Constitution, “deliberate” disregard of material facts and “intentional” violation of due process. Yet the spin showed up within hours of Gors’ decision on the web site for good ol’ “South Dakotan’s (sic) for Amendment E.” It says, “Amendment E addresses Deliberate (sic) misconduct, Not (sic) accidental. Huge difference.” (Emphasis in original.) It also says, “We’re not referring to a bad decision or one ripe for an appeal. We mean when a judge deliberately violates laws. Which (sic) is different than the ‘deliberating’ cutely mentioned by Judge Gors.” (I would note that the word “deliberating” does not appear anywhere in the opinion written by Judge Gors.)
As Judge Gors noted, though, it is almost impossible for someone acting in a judicial capacity to exercise those powers accidentally. For example, the South Dakota Supreme Court has said that the word intentional does not “designate an additional mental state beyond that accompanying the act.” In other words, absent some sort of other language or expression, the question is whether a person (or entity) intended or deliberately took the act complained of.
Since I know J.A.I.L.ers don’t like courts, let’s go to basic language principles. The American Heritage Dictionary defines deliberate as:
1. Done with or marked by full consciousness of the nature and effects; intentional: mistook the oversight for a deliberate insult. 2. Arising from or marked by careful consideration: a deliberate decision.
Similarly, that dictionary defines intentional as “1. Done deliberately; intended[.]”
So how does this apply in the case of Amendment E. Let’s use J.A.I.L.’s own words to sort that out. Here’s what the flyer the Amendment E folks have been circulating for the last couple months says about why South Dakota needs Amendment E:
Amendment E will hold Judges accountable for the following all to (sic) common violations of citizen’s rights:
Preventing relevant evidence from being admitted, thereby weakening one’s case.
Preventing relevant witnesses from testifying before the jury, also weakening one’s case.
Violating the court’s own procedural rules.
Ruling on a case without having jurisdiction to rule.
Prohibiting the jury from hearing what rights and responsibilities that they have as jurors.
Dismissing valid cases as frivolous.
Violating the South Dakota and United States Constitutions.
Amendment E will end all of the above violations by holding judges accountable.
How can a judge, city council, school board or administrative agency “accidentally” exclude evidence or witnesses at a hearing? That can result only from an intentional or deliberate act and, in fact, an act for which the consequences are plain — the evidence will not be presented.
How can a court, administrative agency or jury “accidentally” rule on a case without the jurisdiction to do so? The threshold of any lawsuit or litigation is jurisdiction. For someone exercising judicial powers to rule on a case, they must first find jurisidction. It is plain, then, that they deliberately exercised jurisdiction, intended to rule and did so deliberately.
How can a court “accidentally” prohibit a jury from hearing its rights and responsibilities? In every jury trial the court must give instructions to the jury and rule on any proposed by the parties and any objections to the proposed instructions. Thus, any instruction or lack thereof is the result of a deliberate and intentional process.
How can a court, school board, administrative agency or jury “accidentally” dismiss or reject a case as frivolous? Plainly, the decision to dismiss was a deliberate and/or intentional decision. Equally plain is the fact the consequences of that decision are known — the case is thrown out.
How can a court, school board, county commission or agency “accidentally” violate the state or federal constitution? A ruling or decision is either constitutional or it isn’t. The judicial entity can’t say, “Oops, I didn’t mean to make that decision or ruling.” Besides, federal law already provides there is no immunity for a federal civil rights claim if the action violated “clearly established statutory or constitutional rights.” If the rights are clearly established, the violation couldn’t be accidental.
Now let’s go a bit beyond J.A.I.L.’s examples. Does the parole board “accidentally” grant or deny parole to a prisoner? Does a school board “accidentally” suspend a student or teacher? Does the Department of Labor “accidentally” grant or deny unemployment benefits?
As the foregoing demonstrates, Judge Gors hit the nail on the head when he rejected this claim:
Stegmeier’s argument is disingenuous at best. Judges do not accidentally decide a case or accidentally sign an order or accidentally send someone to prison. Judges do not accidentally do anything. Every act a judge does is deliberate. Deciding a case is called “the deliberative process” and juries are sent out to “deliberate.”?It is facetious to suggest that judges need only fear reprisal for deliberate acts when all judicial acts are deliberate.
Thus, plain language, common sense and the real world demonstrates that claiming J.A.I.L. applies only to “deliberate” acts is just more smoke and mirrors. I wager, though, that you’re going to hear the Amendment E folks consistently saying it doesn’t apply to “accidents” because that is another mechanism for them to mislead the public on the scope and effect of this measure.
The truth is incontrovertible. Malice may attack it and ignorance may deride it, but in the end, there it is.
Winston Churchill
Okay, everybody now knows Gov. Mike Rounds temporarily delayed Elijah Page’s execution because of concerns over the execution procedure. I will leave to political pundits the impact, if any, of that decision on his re-election bid and that of Attorney General Larry Long (who, given the ballot question decisions, doesn’t seem to be having a good month). I’m more interested in the longer term ramifications.
The first thing that came to my mind when I heard the Governor say he wants the legislature to look at and perhaps change the protocol was: Can the new law apply to a case where the conviction, sentence and warrant of execution occurred before the law went into effect? The general rule in South Dakota, like other states, is that statutes and amendments are presumed not to apply retroactively. There are, however, a variety of exceptions to that rule. One is for laws that are “procedural” in nature as opposed to “substantive.” It strikes me that a statute prescribing a method of execution is far more substantive than procedural. Yet that is not the only exception to the general rule and I have not researched the application of any of the exceptions to death penalty cases, let alone the role, if any, of the constitutional prohibitions against ex post facto laws.
Second, as South Dakota Moderate notes, this brings the whole death penalty issue back into play in the legislature. The death penalty passed only by the narrowest of margins when it was reinstated in 1979. Throw in the fact the Legislature this year banned most abortions out of respect for life, legislators are in the midst of two of the most morality-based hot button issues in the entire nation. There’s s absolutely no way to predict how the death penalty debate will ultimately shake out, particularly since this is an election year and we don’t know who will be sitting during the next session.
Finally, adopting a three drug protocol doesn’t necessarily mean all is well and good. It is not immune from controversy. As the local daily noted in passing, that protocol faces various challenges, including constitutional ones, in several venues. While Page apparently waived any claim regarding use of the so-called “three drug cocktail,” that doesn’t mean a new statute allowing it will escape challenge even if not by Page.
All in all, the ripple effect of the reprieve granted by Rounds may be more significant and complex than appeared at first blush.
DISCLOSURE: One of my law partners represents the death row inmate who recently raised the issue of the execution protocol in the challenges to his death sentence. I have never participated in or looked at the files and pleadings in that case. The foregoing represents my thoughts and opinions only and is not based upon anything other than general knowledge.
Society has erected the gallows at the end of the lane instead of guideposts and direction boards at the beginning.
Edward Bulwer-Lytton
So this happens probably a mile and a half from my home and we didn’t hear, see or smell a thing until trying to drive to work. The same isn’t true for my next door neighbor, who’s in management for the pipeline company, and got a call just after 2:30 a.m. telling him “your facility is in danger.” Not a wonderful wake-up call.
Robert Charles Wilson won the 2006 Hugo Award for Best Novel for Spin. (My review is here.) Personally, I was pulling for Accelerando by Charles Stross but Spin (which Stross thought might win)which Stross thought might win) is certainly worthy and probably a bit more accessible. The film Serenity, based on Firefly, one of the best TV series ever cancelled, won the award for Best Dramatic Presentation, Long Form.
Go see Little Miss Sunshine. It is a highly intelligent and clever film that undoubtedly is one of the best of the year. I doubt you’ll ever find a film that can throw in Nietzsche and Proust with biting commentary on child beauty pageants and make you laugh until you have tears running down your face. Hurry Â? before the chains replace it with some “Hollywood blockbuster” POS.
I had an opportunity to hear an advance copy of Bob Dylan’s newest, Modern Times. My initial reaction is that, of course, hardcore Dylan fans will love Dylan’s continuing exploration of American roots. It likely may find favor with the average fan as it strikes me as a bit more laid back and reflective than Love and Theft. I have not devoted enough time to it to determine if it merits the 5 stars Rolling Stone gives it.
Everyone pretend to be normal.
Richard Hoover (Greg Kinnear), Little Miss Sunshine
South Dakota’s J.A.I.L.ers have filed an amended campaign finance report, trying to fix the earlier one that wasn’t accepted for filing. Evidently, those pesky reports seem to be hard for the J.A.I.L.ers to figure out.
To start with, the cover letter says the Amendment E proponents are filing a “the year end report.” That’s odd. The year tain’t quite over. Moreover, what the law requires is a mid-year statement and one filed the last Tuesday before the election that is complete through the 10th day prior to that election. Then, the report, which covers the period through June 28, of the report shows unpaid “debts and obligations” totaling just under $111,500, all from South Dakota J.A.I.L.er-in-Chief Bill Stegmeier or one of his two businesses. Yet the summary understates that by $100,000.
These errors are likely akin to typographical mistakes. Yet one thing that is more inexplicable remains: the report still omits more than 60 percent of the donors the J.A.I.L.ers claimed earlier this year.
There’s no doubt who the major contributor is. The debts listed on the report include loans of $98,500 by Stegmeier and one of his businesses. The report also lists Stegmeier as president of his other business in connection with a contribution of just more than $54,000. That means that less than $10,000 was contributed by individuals for whom addresses are given and more than half of that come from one individual in Oregon. Of those contributors with addresses listed, only nine come from South Dakota (one is a PAC) and their contributions total less than $600. Of just under $3,500 in contributions from individuals that evidently came through PayPal, roughly 10 percent is from Stegmeier. As a result, it appears that rather than “South Dakota all the way,” Amendment E is basically “Stegmeier all the way.”
And speaking of campaign finance reports, loopy publicist Bonnie Russell has criticized the No on E campaign for not reporting contributions it has received since June 30, 2006. Russell, of course, would not be aware that the law doesn’t require a report until the Tuesday before the election. After all, her “South Dakotan’s [sic] for Amendment E” has yet to file a campaign finance report despite the fact it certainly appears to be raising and spending money for the adoption of the initiative.
Yes, those campaign finance laws certainly appear too difficult and pesky to file or even fill out accurately. But then, why should people always invoking the word “accountability” ever want to be accountable themselves?
Good men prefer to be accountable.
Michael Edwardes
JAIL4Judges founder Ron Branson, who’s seemed to be sitting on the sidelines since the South Dakota J.A.I.L.ers disavowed him, is making his presence known with a new website he registered last week dedicated to “SD-JAIL4judges.”
As usual, Branson rambles on and spews loads of nonsense, all interspersed with random quotes from sources ranging from the Bible to FDR to Gandhi (with a parenthetical reference in one quote telling “Pierce County management” to “pay attention”). Not only are J.A.I.L. opponents “treasonous,” it seems he’s not real happy South Dakota’s Amendment E campaign disavowed him. As you may recall, the South Dakota J.A.I.L.ers have a disclaimer on their web site, saying their organization “authored” Amendment E and there is no one “more accountable, or more qualified, to address issues pertaining to Amendment E.” On his new site, Branson proclaims more than half a dozen times that he is the author of Amendment E and the arbiter of what it means.
Branson largely seems to be trying to bolster the 180-degree turn Amendment E folks made on whether the proposal applies to more than the judiciary, a centerpiece of their litigation over the Attorney General’s ballot explanation. Branson sets forth in its entirety a J.A.I.L. News Journal piece deconstructed here. In the inimitable style of J.A.I.L. proponents, he backdates the article by a full year, apparently to make it appear he reached that conclusion long before Amendment E opponents drew attention to J.A.I.L.’s scope. Similarly, Branson does not mention a December 7, 2005, J.A.I.L. News Journal article specifically talking about Amendment E a month after the petitions to put it on the ballot were filed. It says:
The criterion under J.A.I.L. is not what a person’s title is –it can be a janitor, a clown in a circus, –anything. The criterion under J.A.I.L. is if a person, regardless of title or position, who allegedly violates the law as specified in the Initiative, has been deemed by the judiciary to be shielded by judicial immunity. Such person in that event is a “judge” within the meaning of the J.A.I.L. Initiative, to wit, “…and every person shielded by judicial immunity.”
(Emphasis in original.)
Paragraphs 25 through 39 of the decision on the challenge to the ballot explanation lays out in detail those positions “deemed by the judiciary to be shielded by judicial immunity,” establishing the fallacy of Branson’s current argument. Moreover, the backdating of the article he posts and the fact it actually was published only after opponents drew attention to statements like the one quoted above shows that for the “accountability” movement, “truth” is whatever story you feel compelled to tell at the time.
A lie has speed, but the truth has endurance.
Edgar J. Mohn
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