A Progressive on the Prairie

Since I’m sure this series will have plenty to explore after tonight’s broadcast on public television and Saturday’s meeting in Brandon, I thought I’d better post an installment that’s been sitting in draft form for a couple weeks.

One of the always popular lies from the supporters of the Judicial Accountability Initiative Law (J.A.I.L.) popped up again on their ever-changing web site. (Seems the changes tend to coincide with opponents pointing out misstatements and falsehoods it contains.) Here’s the oft-repeated but false saw that continues to rear its head: “A judge cannot be sued for doing his or her job, however unpopular the ruling.” Not only is that false, it can happen repeatedly.

As demonstrated in a prior post, it is entirely possible for a judge whose ruling has been affirmed on appeal to be the subject of a J.A.I.L. complaint. If the losing party still disagrees, they need only file a complaint with the special grand jury. Because J.A.I.L. requires that “[a]ll allegations in the complaint shall be liberally construed in favor of the complainant,” says the special grand jury can ignore “any other contrary statute” and gives itself precedence “in any case of conflicts with statute [or] case law,” the grand jury can wholly disregard the rulings or statutes supporting the judge’s decision. Thus, if seven members of the grand jury don’t like the result — even if it is proper under the law — they can authorize a lawsuit against the judge(s).

Yet it doesn’t necessarily end there. Now let’s assume suit is brought against the judge(s) and after hearing the evidence and applicable law, the jury rules against the complainant. He or she appeals and the Supreme Court upholds the jury verdict (assuming none of them were named as defendants because they affirmed the prior decision). Guess what? The complainant can now go back to the grand jury and file a complaint against the judge(s) who sat on the lawsuit against the first judge(s). But it goes beyond that.

As discussed before, since J.A.I.L. says the term judge includes “all other persons claiming to be shielded by judicial immunity,” included in its scope are not only judges but individuals who participate in the judicial process, such as grand and petit jurors and witnesses. That’s right, at any step in the process a disgruntled person can invoke J.A.I.L. to go after the judge, the lawyers, the jurors and even those who testified. All he or she needs to do is claim these individuals acted in “deliberate disregard of material facts.” And this can go on for as long as the special grand jury allows. No on E refers to this as the “Cascading Lawsuit effect,” a very apt description.

So, when J.A.I.L.ers tell you a judge can’t be sued for doing his or her job, that’s a lie. The truth is J.A.I.L. will let people do whatever the grand jury allows them to do and even average citizens can be attacked for participating in the system. Yet these citizens will have no recourse. Why? Because the people who claim immunity is so horrible made sure their measure gave the grand jury and those associated with it immunity “civilly, criminally, or [for] contempt.”

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One defeats the fanatic precisely by not becoming a fanatic oneself, but on the contrary by using one’s intelligence.

George Orwell

Supporters of the Judicial Accountability Initiative Law (J.A.I.L.) are always trotting out the claim that the initiative only applies to “judges.” That’s true but the rub lies in what they don’t tell you.

J.A.I.L. says the term judge includes “all other persons claiming to be shielded by judicial immunity.” So who falls in that category? The U.S. 9th Circuit Court of Appeals has nicely summarized (PDF file) the parts of the legal system to which judicial immunity can apply:

Among those the [Supreme] Court has found immune are: (1) prosecutors, when initiating a prosecution and presenting the state’s case, (2) prosecutors, when taking acts and making decisions in preparation for the initiation of a prosecution or trial, (3) administrative law judges and agency hearing officers, when performing adjudicative functions within a[n administrative] agency, (4) agency officials, when performing functions analogous to those of a prosecutor, (5) agency attorneys, in arranging for the presentation of evidence in the course of an administrative adjudication, and (6) individuals, when acting within the scope of their duties, who participate in the judicial process, such as grand jurors, petit jurors, advocates, and witnesses.

(Emphasis added and citations omitted.)

That’s right, someone who invokes J.A.I.L. can not only ask to sue the judge, they can also go after the jurors and even those who testified in the case. All he or she needs to do is claim these individuals acted in “deliberate disregard of material facts.” How many people do you think are out there who believe they lost their lawsuit or were convicted because the judge or the jury chose (deliberation) to ignore (disregard) the facts the litigant thought were important (material facts)?

So, don’t take at face value J.A.I.L.’s claim that the initiative applies only to “judges.” Press the J.A.I.L.ers on this point on the South Dakota Focus broadcast, at Brandon Saturday afternoon or at any of the other public forums to see if they tell you the truth — that J.A.I.L. can let people sue not only elected officials other than judges but also jurors and witnesses for doing their job.

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The true motives of our actions, like the real pipes of an organ, are usually concealed. But the gilded and hollow pretext is pompously placed in the front for show.

Charles Caleb Colton, Lacon or Many Things in Few Words