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I was remiss in not mentioning this last evening when PP told me it was about to be posted. He got a response from Bill Stegmeier on the 10 questions he sent Stegmeier about the Judicial Accountability Initiative Law (J.A.I.L.). The questions and answers are posted both at No on Amendment E and South Dakota War College.
In keeping with PP’s intent to let Stegmeier’s answers stand on their own without editorial comment, I will not comment on or respond to the answers. I will leave it to the reader to judge their credibility and responsiveness (and several commenters have already left their views at both blogs.) Several of the responses will undoubtedly appear in future posts.
Questions are never indiscreet. Answers sometimes are.
Oscar Wilde, An Ideal Husband
Virtually anyone alive during the Vietnam War will acknowledge its impact on American politics and society and, if honest, themselves. Yet as Danielle Trussoni’s memoir, Falling Through the Earth, demonstrates, there are persons not alive then for whom the war became an intimate part of their lives.
Trussoni’s father, Dan, was a “tunnel rat” in Vietnam. He was among those “two parts stubborn, one part insane” men who ventured into and searched the mazes of tunnels the Viet Cong used to hide, transfer men and material, and as a base of operations. Dan Trussoni was wounded both physically and emotionally in that task. Danielle and her family suffered the effects of the latter wounds.
Dan Trussoni engages in serial affairs following his marriage after the war. Combined with his drinking and temperament, it leads to divorce from Danielle’s mom. Although life would be more normal and stable, Danielle doesn’t join her brother and sister in staying with Mom. Instead, she decides to live with her father. From the outset, it is clear it isn’t just the similarity in names that makes her her father’s daughter. They are “we,” standing together against the rest of the world. “[W]e were on the run,” she says in the opening sentence. “We’d been picked up twice for drunk driving that year. …. We tried to keep a low profile, but the cops knew our truck and where we lived[.]”
That is just a sample of the father who makes up half of a dysfunctional unit. This is a father who has no compunction about taking his young daughter to Roscoe’s, his local tavern of choice, and having her sit at the bar with him while he drinks and engages in brawls. This is a father who lets his daughter fall asleep to the sounds of him making love to the series of women he brings home from the bars. This is a father who, when he finally slips a Hallmark card under her door, writes on it, “If it doesn’t kill you, it will make you strong.”
The memoir takes us back and forth to before and after the divorce, various stages in her life and her own trip to Vietnam at age 24. Trussoni punctuates early passages with the language of battle to illustrate how the war remained alive in her own life. Moonlight “cluster-bombed” the walls in her home. Sunlight “strafed” the bars over a window in her hotel in Vietnam, creating a “barrage” comprised of “the colors of explosion.”
The tumult stems in part from the fact her father “always went back to the war alone.” Suffering from post-traumatic stress disorder, he did not want to talk about his experiences or emotions. Instead, it came out in his actions and personality. As a result, Vietnam became “an amorphous monster” that permeated Trussoni life in La Crosse, Wisc.
It came to live in our house, eat dinner at our table, sleep in our beds. It trailed me home from school; it lapped at my heels as I walked to Roscoe’s. It was an elusive yet inescapable thing skulking through my life, a Jack-the-Ripper presence that hid in alleyways and in the sewers, waiting to get me alone. We could ignore it, but it would not go away. If we managed to shake it, it would track us down, hungry for more. Although there was no way for me, as a child, to understand this presence, I knew, when I saw my father’s sadness, that he had never really left Vietnam.
As things eventually worsen between father and daughter over the years, Danielle decides to go to Vietnam to try to understand why her father never left there. She tours and even enters tunnels like those he explored and in which his friends died. She describes various encounters there with an ominous man in sunglasses who seems to keep following her. Is he a figment of her imagination or a physical embodiment of the Jack-the-Ripper presence the war became in her life?
If Falling Through the Earth has a problem, it may be more in timing than style or content. Coming on the heels of the uproar over James Frey’s two memoirs and litigation over Augusten Burroughs’ Running with Scissors, a reader may wonder how much literary license is taken in recounting the story. While Trussoni notes that she has attempted to reproduce her father’s Vietnam stories “as accurately as possible,” considerable parts of the book and incidents in it stem from her pre-teen years.
Yet memory — the foundation of any memoir — is like life. It is not and can not be an exact science. The combination of the emotional struggle between a father and daughter too much alike and the continuing repercussions of a father’s war makes this a compelling and passionate work about war and memory and their impact on life.
When Dad spoke, the bar became quiet. Vines slithered up the bar stools; tunnels opened at our feet.
Danielle Trussoni, Falling Through the Earth
This series looks at how proponents of South Dakota’s proposed Judicial Accountability Initiative Law (J.A.I.L.) move shells around to divert attention when certain issues they don’t want to discuss come up. One of the more interesting items that’s come up in it is from Ron Branson, the author of J.A.I.L.. He recently said, “I am the final authority by operation of law as to what these words mean, and that all courts throughout the future must look to the author’s definition.”
So just what kind of grasp of legal and constitutional issues does Branson have that qualifies him to be the ultimate arbiter of the meaning of part of the South Dakota Constitution? He gives an indication in the same harangue, writing:
“Administrative Law” is but a euphemism for “Contract Agreement.” These administrative agencies can adjudicate only on subjects of contracts, not law. There are none of the trappings of law. For instance, there are no magisterial proceedings, no determination of Probable Cause, you have no right to counsel, and never a right to a jury trial. So what gives? If administrative agencies were dealing in law, instead of contract, every decision of an administrative agency could be overturned on appeal for lack of constitutional due process. But the Constitution has no bearing over contracts. The issue is only, did you abide by the contract, or did you not? And after the administrative process is exhausted, you may go to court. However, even in court the only issue is whether the administrative agency followed all the procedures established in the contract (administrative procedures) –no constitutional challenges, again because the Constitution does not apply to contract agreements.
As is so often the case with J.A.I.L. pronouncements, this paragraph contains so many errors it is hard to know where to begin. Just for a change, we’ll start from the end.
J.A.I.L.’s esteemed legal scholar says twice that the Constitution doesn’t apply to contracts. Since Branson wants to amend the South Dakota Constitution, maybe he should read it. For his future reference:
- Article 6, § 12 of the South Dakota Constitution says that no law “impairing the obligation of contracts” shall be passed. By the way, Article 6 is entitled “Bill of Rights” and happens to be the Article J.A.I.L. seeks to amend.
- Section 15 of Article VI also happens to provide: “No person shall be imprisoned for debt arising out of or founded upon a contract.”
- Article 17, § 20 of the state constitution says no one shall “make any contract” that would result in a monopoly or restraint of trade.
While the first is a restriction on government power, the second certainly regulates contract remedies and there is no doubt the third applies to private contracts.
Those two statements are a reflection of Branson’s thesis that administrative law is “contract law” and, thus, administrative adjudications deal only with contracts and not law. This is not only totally absurd, it is just plain wrong.
The South Dakota Administrative Procedures Act defines an administrative agency as an entity “vested with the authority to exercise any portion of the state’s sovereignty.” The state’s sovereignty does not arise out of contract. Similarly, a “contested case,” the act’s term for administrative adjudications, is a proceeding in which “the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing[.]” (Emphasis added).
It’s really quite simple. Administrative agencies are creatures of statute (i.e., law). As such, any and all actions they take are based upon and arise from law, not contract.
As for not having any of the “trappings of law,” a party to a contested case must be given “an opportunity for a hearing.” In fact, the United States Supreme Court has said that when certain interests are affected by an administrative hearing, a person must not only be provided timely and adequate notice, they must be given an effective opportunity to defend by confronting adverse witnesses and by presenting arguments and evidence before the decision maker. While the government need not furnish counsel, the individual must be allowed to retain an attorney if they desire.
That case also establishes the fallacy of the statement that there are no constitutional challenges on judicial review of administrative adjudications. The Court said the procedure established by the State of New York violated the due process guarantee of the 14th Amendment to the U.S. Constitution. I guess the Supreme Court wasn’t aware of Branson’s analysis and therefore erred in considering a person’s constitutional rights.
So, do you still want to buy a constitutional amendment from this man?
To be ignorant of one’s ignorance is the malady of ignorance.
A. Bronson Alcott
As I battle the annual spring illness, a few awards slid by that are worthy of mentioning:
For what it’s worth, I have read none of these books, although Air has been on the “to read” list for quite some time.
Books are not made for furniture, but there is nothing else that so beautifully furnishes a house.
Henry Ward Beecher
Here’s another look at the shell game being played by the originators of the Judicial Accountability Initiative Law (J.A.I.L.). Yet this one also looks at who thinks they’re going to call the shots if J.A.I.L. is adopted.
As the J.A.I.L. Lies series noted, last year the national J.A.I.L. organization said that liability under J.A.I.L. would “extend from the beginning participants, including administrative officials in an administrative case, through the final participants.” Once the Legislature and others started talking about the fact that J.A.I.L. applied to more than the judiciary, J.A.I.L.ers decided to put that approach under one of their shells. Instead, they decided to lift another shell to see if what was under it sold better for the time being.
J.A.I.L. founder Ron Branson pronounced that the statement that J.A.I.L. applied to “all other persons claiming to be shielded by judicial immunity” only dealt with a situation in which the state Legislature expanded or added “newly named judicial offices in the future.” According to him, “J.A.I.L. deals only with the judge(s) granting or upholding the grant of judicial immunity to a party, whether an agency, employee, or official.” (Emphasis in original). Evidently, “all other persons claiming to be shielded by judicial immunity” has now somehow become “all judges who allow other persons to claim to be shielded by judicial immunity.”
All these shells moving around on the table raises an interesting question. Who is ultimately going to determine the scope, meaning and effect of J.A.I.L. and its provisions if it is adopted?
The amendment itself (PDF file) 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.” Since all judges in the state would be subject to J.A.I.L. and impacted by a challenge to it, that evidently rules the judiciary out.
How about the members of the Special Grand Jury? Sorry. J.A.I.L. says their “responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions of immunity . . . and whether there is probable cause of criminal conduct by the judge complained against.”
Who, then, can we look to? That’s easy. In the same pronouncement quoted above, Branson said that “since I am the author of this verbiage, and penned these words, I am the final authority by operation of law as to what these words mean, and that all courts throughout the future must look to the author’s definition.” (Emphasis added).
In other words, J.A.I.L.ers want South Dakotans to amend their constitution and then leave it to someone from California to tell them what the amendment means if and when any issues arise. If that and the megalomania in Branson’s statement aren’t scary enough, the next installment in this series will look at Branson’s grasp and understanding of legal concepts and see just how qualified he is to bind “all courts throughout the future.”
The egotist is next-door to a fanatic.
Samuel Smiles, Character
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