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This installment of the series will look at another of the lies in the campaign brochure being circulated in support of the Judicial Accountability Initiative Law (J.A.I.L.). As you’ll recall, the last one dealt with whether the amendment affected local citizen boards. Here’s the follow-up as it appears in the brochure:
Q: Will Amendment E expose the individual members of these boards and commissions to being sued?A: No. The fact is that county commissioners and school board members make decisions as groups, never as individuals. And we have already established that Amendment E has no effect whatsoever on these groups, let alone their members.
As we’ve already seen that first part of that last sentence is a lie, so is the second part. It is true that citizen boards make decisions as groups. That does not mean, however, that they cannot be sued individually. In fact, there are actually different names for the different types of suits. An “official capacity” suit is one where a plaintiff brings an action against a public official in his or her official capacity and the suit is essentially against the office that official represents, not the individual holding it. In contrast, a “individual capacity” suit is an action to impose personal, individual liability on a government officer.
In the latter case, if the officer is acting in the scope of his or her duties, they can invoke immunity. Thus, if a school board member sits as an adjudicator in a student or personnel matter, they can invoke judicial immunity in any individual capacity suit. Under J.A.I.L., however, the grand jury can strip away that immunity. As a result, the claim that J.A.I.L. doesn’t expose individual board members to suit is another bald-faced lie.
Don’t believe my analysis? Well, how about we see what Bill Stegmeier, South Dakota’s J.A.I.L.er-in-chief, has said on this point.
Last November, Keith Jensen wrote an editorial in the Madison Daily Leader saying, among other things, that J.A.I.L. “covers all persons shielded by judicial immunity…meaning every school board, city council, county commission, professional licensing board, in fact every citizen board in the state exercising quasi-judicial powers.” Here is what Stegmeier said in reply in a mailer sent to Madison residents (PDF file):
It is said that even a blind sow occasionally finds an acorn. Such it is with Jensen occasionally stating the truth. Yep, with the passage of SD J.A.I.L., any governmental employee (of any stripe, shape, or flavor) previously accustomed to violating the rights of South Dakota citizens while hiding behind the bogus doctrine of “judicial immunity”, will now have to shape up or ship out.
(Emphasis added.)
Maybe Stegmeier should explain to the public whether he was lying when the mailer went out in December or if he’s lying in the current brochure. It is impossible for both statements to be true. So either the mailer or the brochure is a criminal violation under SDCL 12-13-16, the statute he accuses the Legislature of breaking. The fact is that the earlier statement is accurate because J.A.I.L. will apply to any governmental employee or official acting in an adjudicatory process. Because of the ramifications of that, J.A.I.L. has evidently chosen to lie in its campaign literature.
All the leaders of groups tend to be frauds. If they were not, it would be impossible for them to retain the allegiance of their dupes.
H.L. Mencken, Minority Report
As I was reading Philip Roth’s Everyman, the person sitting next to me noticed the plain black cover and said, “That looks depressing.” I think it is more accurate to call it an existential meditation on death. But don’t let even that somber description put you off. Mind you, the book isn’t a blithe beach read but it is far better than you would think given the topic.
Everyman opens with the funeral of the never-named narrator. The book is essentially the narrator looking back on his life and pondering death as he nears the end of life. Death is something he never really thought about before retiring from the advertising agency for which he worked as a commercial artist and art director. He always believed “[t]he remote future will be time enough to anguish over the ultimate catastrophe.” But the remote future is now the present.
Our narrator is troubled by the failings of health. He recounts his hernia surgery as a child and the burst appendix that nearly killed him in his early 30s and proudly notes that those were his only hospitalizations until 22 years after the latter. Then, though, he undergoes a quintuple heart bypass, the first in a chain of heart problems that will come with increasingly frequency. The heart problems get to the point he almost begins to hate his older brother for remaining healthy despite the two of them coming from the same gene pool.
What makes it perhaps more difficult is this: Everyman doesn’t have anything to which he can look forward. As far as he is concerned, death means only oblivion.
Religion was a lie that he had recognized early in life, and he found all religions offensive, considered their superstitious folderol meaningless, childish, couldn’t stand the complete unadultness–the baby talk and the righteousness and the sheep, the avid believers. No hocus-pocus about death and God or obsolete fantasies of heaven for him. There was only our bodies, born to live and die on terms decided by the bodies that had lived and died before us. If he could be said to have located a philosophical niche for himself that was it–he’d come upon it early and intuitively, and however elemental, that was the whole of it.
As he contemplates life in his retirement, he looks back on growing up, on his three marriages and the infidelities that destroyed them. While close with his daughter, the divorces left him estranged from his two sons. Yet there is physical distance between him and his daughter. The narrator moves out of New York City to the Jersey shore after 9/11 but his daughter remains in the city. His entertainment, so to speak, is his vivid recall of events in his childhood and life, thoughts of women and sex, and painting. Yet even memory isn’t sufficient.
But how much time could a man spend remembering the best of boyhood? What about enjoying the best of old age? Or was the best of old age just that[?]
That is a large part of what underlies Everyman. How do we deal with aging? How do we face or cope with death? Is there a refuge from the inevitable?
While Roth may not find answers, his exploration of these and related issues from his narrator’s standpoint compresses plenty of thoughts and life in a slim volume. While Everyman may not rank as Roth’s best or even one of the best of this year, it is a testament to his talent that the reader can actually enjoy reading the contemplation of an otherwise somber and bleak subject.
It had never been difficult to know what to make of either his mother or his father. They were a mother and a father.
Philip Roth, Everyman
As promised, this is the first of several installments in this series based upon a brochure promoters of the Judicial Accountability Initiative Law (J.A.I.L.) are distributing at their “town hall meeting/debate” sessions. Today’s is the first of two on local officials.
Part of the concern about J.A.I.L. is that it applies to more than the judiciary. J.A.I.L.ers have repeatedly attempted to mislead the public by claiming it does not. Here’s one of the lies in that regard in the brochure:
Q: Will Amendment E expose county commissions and school boards to being sued, just for doing their job?A: First off, nobody gets sued for “just doing their job”. People get sued for wrongdoing. But the fact of the matter is that these boards and commissions can already be sued, and do get sued quite often. Amendment E doesn’t effect [sic] these boards and commissions in the least.
Because I’ve pointed out the lie in the assertion that J.A.I.L. doesn’t apply to persons who are “just doing their job,” we’ll just look at the statement that J.A.I.L. doesn’t affect boards and commissions “in the least.” Since the brochure uses school boards as an example, let’s do the same.
South Dakota law requires school boards to afford a hearing for a student who is expelled or suspended for more than 10 days. Likewise, a teacher whose contract is not renewed is entitled to a hearing before the school board. In both circumstances, the school board is acting in a judicial capacity and, hence, falls within J.A.I.L’s definition of judge (i.e., “all other persons claiming to be shielded by judicial immunity”). The student or teacher can appeal the school board’s decision to circuit court and that decision, in turn, can be appealed to the Supreme Court.
Currently, if the school board’s decision is adverse to the student or teacher and the circuit court and Supreme Court uphold that decision, the matter is over and done with. But not under J.A.I.L. The very same brochure says J.A.I.L. applies if a judge (which by definition includes the school board in this situation) “[p]revent[ed] relevant evidence from being admitted, thereby weakening one’s case” or “[p]revent[ed] relevant witnesses from testifying . . ., also weakening one’s case.” Note it doesn’t say the actions had to affect the outcome; it only need “weaken” the case. Moreover, J.A.I.L. specifically says a complaint can be filed if the school board is claimed to have engaged in “deliberate disregard of material facts.” As I’ve asked here many times before, how many disgruntled litigants don’t think relevant evidence or witnesses may have been excluded or the decision-maker disregard facts they think were material to their case.
So even though the school board followed all required procedures and was deemed by two courts to have acted properly and legally, the student or teacher can file a J.A.I.L. complaint. Then, only seven of 13 people chosen at random can grant them the right to sue the school board for damages. Even though school boards can be sued now, this creates an entirely new class of litigation against them. Thus, to say “Amendment E doesn’t effect [sic] these boards and commissions in the least” is an outright lie.
Repetition does not transform a lie into a truth.
Franklin D. Roosevelt, radio address, Oct. 26, 1939
An intermezzo is an interlude between two major musical pieces. It seems an appropriate title for this post after attending the “town hall meeting” on the Judicial Accountability Initiative Law (J.A.I.L.) in Brandon Saturday afternoon. Instead of giving a full report on it, this post will just give an overview and an indication of what will be forthcoming here as a result of that meeting.
Not counting the “panelists” there were about 16 people there, counting me and a person I think was the reporter from the Brandon Valley Challenger. State Sen. Gene Abdallah (R-Sioux Falls), State Rep. Roger Hunt (R-Brandon) and State Sen. Clarence Kooistra (R-Garretson) attended for the “opposition.” Bill Stegmeier was there along with an individual who did not say anything and was not introduced until the very end. It was Jake Hanes, who said he was there for “moral support.”
Although very few people actually asked questions, I would say at least a dozen of those in attendance were people who evidently had been contacted by e-mail about the meeting. It seemed pretty clear that, for the most part, Stegmeier was preaching to the choir and the opposition was talking to a wall. If the goal was to educate the public, I don’t believe it was met just based on how many attended and who. On the “pro” side, most of the questions (and debate) came from Gene Lodermeier, who was there to talk about how he believes he was wrongfully convicted and the system won’t do anything about it.
Lodermeier and Stegmeier accused the legislators of violating the law by unanimously passing a resolution opposing J.A.I.L. Stegmeier specifically accused the Legislature of violating SDCL 12-13-16, which says:
Any person knowingly printing, publishing, or delivering to any voter of this state a document containing any purported constitutional amendment . . . to be submitted to the voters at any election, in which such constitutional amendment . . . is misstated, erroneously printed, or by which false or misleading information is given to the voters, is guilty of a Class 2 misdemeanor.
Why is this interesting? Because, in addition to water, coffee and cookies, the J.A.I.L.ers also made available a brochure I had not seen before. That brochure will not only give rise to additional installments in the “J.A.I.L. Lies” series (demonstrating how the brochure violates the law Stegmeier cited) but at least an additional post in the “J.A.I.L. Shell Game” series and further posts examining — using J.A.I.L.’s own words — the ramifications of the amendment.
The peculiar office of a demagogue is to advance his own interests, by affecting a deep devotion to the interests of the people.
James Fenimore Cooper, The American Democrat
Everyone at some time must respond to their conscience. When Charlie Johnson’s inner voice leads him in new directions in Mike Palecek’s Terror Nation, Charlie finds himself truly a prisoner of conscience in middle America.
Charlie is retired after spending 35 years as a sportswriter and sports editor in Saint Smith, Iowa. He is a prototypical resident of rural and small town America. He went to work dutifully, raised his family, belonged to the Kiwanis Club and was a Reagan Republican. Yet with his retirement, Charlie has begun pondering the state of America. He ends up writing letters to the president and the local newspaper, among others, questioning the war in Iraq and the direction of the country. His letters and comments cause his townsfolk to start looking at him askance.
With his wife having left him, relatives in Saint Smith convince Charlie to voluntarily commit himself to the Saint Smith Mental Health Institution. Yet this is little more than a pretext by which to lock Charlie up. With an ongoing yet seemingly unknown armed struggle between rebels (“The White Sox”) and government forces (“The Red Sox”), Charlie is viewed by the powers that be as a dissident and potential homegrown terrorist. When Charlie walks away from the institution, SWAT teams and federal forces come in search of and forcibly return him.
What happens to Charlie is a precursor for the rest of the country. Emulating the worst of the Soviet Union, dissidents (i.e., those who oppose the administration) are sent to mental institutions and/or disappear. Shortly after Charlie’s institutionalization, more widespread and public sweeps and detention of dissidents occur on the basis they threaten national security. The message is not only that this could happen but if it can happen in rural America, it can happen everywhere.
This is a tome that points out the personal price people can pay for expressing opinions that may run counter to much of rural and middle America. It is also one that is heavy on class struggle and the view that many “enemies” are created to divert and control the public. Charlie says in one letter to the editor:
If there weren’t terrorists, there would be criminals, or communists, or dragons, to scare us into letting our government and the rich men who own it also run our lives and the lives of our children.Be afraid of the Russians.
Be afraid of “criminals”: poor people trying to live or those who have tried to fight the rich.
Be afraid of “terrorists”: whatever that is, and learn to make fun of them for being not quite like the folks you have them live and die in squalor and pain.
Shoot them! There’s one now!
But do not notice us: rich white men and women.
Yet it’s not these kinds of sentiments alone that make Charlie dangerous. His writings have found play and fertile ground amongst the rebels who have taken up arms against the government. They see him as a potential voice for the nation. Thus, Charlie is a threat not only because of what he thinks but because he dares publicly express and spread his opinions.
Like Palecek’s earlier books, Terror Nation is a brassy and dauntless expression of viewpoints too often overlooked or cast aside in today’s America. Here, though, the work’s potential is damaged by the fact advancing those opinions tends to take priority over exploring the consequences of expressing them. As Palecek resides in and writes from small town Iowa, he is uniquely positioned to show what happens to someone like Charlie on a personal level.
Given Charlie’s background and prior status in the community, he is a perfect vehicle to explore the ostracism and animus suffered by those who dare voice a dissenting opinion in rural America. More time spent looking at that aspect of American society may have been a more compelling story than Charlie being institutionalized. The focus on the latter tends to reduce this to a cautionary near future tale of how an authoritarian America run by Homeland Security will reach as far as small towns in the heartland.
There are also some exasperating stylistic problems. The narrative has a tendency to wander and perhaps attempt to incorporate too many elements. The flow is also marred by a tendency to shift perspective too rapidly. One minute the reader is seeing things from Charlie’s eyes. A paragraph or two later, the action is seen from the standpoint of a third person.
These flaws keep Terror Nation from being Palecek’s best work. Still, if there is a genre of dissident literature in the United States today, Palecek remains in the advance guard.
Writing a thing down on paper is so powerful.
Mike Palecek, Terror Nation
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