South Dakota to Vote on Ending Judicial Protections

South Dakotans will vote next month on a proposed state constitutional amendment that would strip judges, jurors, and other state officials, of their immunity from lawsuits for their official actions. The proposal has alarmed not only judges, but also large swathes of South Dakota society.

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Residents of South Dakota will vote next month on the proposed state constitutional amendment known as J.A.I.L. 4 Judges.

The proposal has alarmed not only lawyers and judges, but bankers, union members, law enforcement organizations, just about every segment of South Dakota society.

And yet the measure was leading in the polls when it was put on the ballot.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: J.A.I.L. 4 Judges is the brainchild of a Californian named Ron Branson, who has a history of suing state officials. He's even appealed 14 times to the U.S. Supreme Court, to no avail.

Mr. RON BRANSON (J.A.I.L. 4 Judges Proponent): I found out that the higher you go, the more corrupt they are.

TOTENBERG: Having failed three times to secure the 700,000 signatures needed to get his J.A.I.L. 4 Judges proposal on the California ballot, he's now calling on his nationwide Internet membership to support the measure in South Dakota, where getting on the ballot was a lot easier and less expensive. Proponents only had to get 34,000 signatures there to qualify.

The South Dakota proposal, formally called Amendment E, would amend the state constitution to strip judges, jurors and other state officials of their immunity for lawsuits for their official actions.

Judicial immunity dates back to before the U.S. Constitution and is meant to insulate judges and others from being punished for making unpopular decisions. The attempt in South Dakota to strip judges of their immunity, wrote retired Supreme Court Justice Sandra Day O'Connor, is quite simply an attempt to intimidate judges.

Not so, says William Stegmeier, the South Dakotan who's spearheading the measure in the state.

Mr. WILLIAM STEGMEIER (J.A.I.L. 4 Judges Proponent): We're not trying to destroy the court system. We're just trying to make judges accountable. Just like everybody else in society is accountable to somebody.

TOTENBERG: Specifically, South Dakota's Amendment E would create a special grand jury composed of at least 13 people chosen by lottery. It would be funded by deducting two percent of all judicial salaries throughout the state. No lawyer, public official or law enforcement person could be a grand juror. And anyone who objects to the way his case was handled in the regular courts could file a complaint with the special grand jury. The grand jurors would be instructed to weigh such complaints not for evidence beyond the reasonable doubt, but, quote, "liberally in favor of the complainant".

As Will Stegmeier explains...

Mr. STEGMEIER: It's there to give the complainant the best of chance he has of prevailing.

TOTENBERG: And if the special grand jury finds in favor of the complainant, the judge is then stripped of all immunity and can be sued for damages over his decision. The special grand jury can also indict the judge and order his prosecution.

Regular jurors and other state officials with immunity will similarly be subject to lawsuit or prosecution. But the special grand jury itself would be immune.

Mr. PAT POWERS (Blogger): It represents paranoia and revenge against the legal system. It sets up the rule of the mob as being more important than the rule of law.

TOTENBERG: Pat Powers is the author of one of South Dakota's leading conservative blogs, called South Dakota War College. He and Tim Gebhart, a liberal blogger known as A Progressive on the Prairie, agree about almost nothing, except Amendment E. Gebhart calls Amendment E downright undemocratic.

Mr. TIM GEBHART (Liberal Blogger): A vote of seven people selected at random can overrule what the legislature, the South Dakota Supreme Court or the governor has done, and there's no method to review it.

TOTENBERG: I guess that the proponents of J.A.I.L. 4 Judges would say, well, but under their current system a judge can do that.

Mr. GEBHART: But a judge's decision is subject to review by the South Dakota Supreme Court, and in certain circumstances by the U.S. Supreme Court.

TOTENBERG: Indeed, notes Gebhart, South Dakota, not only has a mechanism for filing complaints against judges, but the state elects its judges, the ultimate input for the people. That's simply not an enough for Bill Stegmeier and other Proposition E supporters.

Mr. STEGMEIER: You can't find out about the bad judges. It's so secretive, and it just doesn't work.

TOTENBERG: Stegmeier, who owns a company that makes grinders for livestock feed, says he has no personal complaint with the state's judiciary. A review of state records shows he's twice been convicted for drunk driving and four times for other traffic offenses. But Stegmeier, like many others in the J.A.I.L 4 Judges movement, is an avid anti-income tax crusader and a 9/11 conspiracy theorist; he thinks the U.S. government is responsible for the events of 9/11.

Stegmeier says that what put him over the top against judges was a trial for failure to pay income taxes that he attended as an observer in Texas. Pressed to cite an example of malfeasance in South Dakota, he cites the case of a man suspected of killing his wife. Stegmeier says that when the police couldn't come up with evidence to prove the man's guilt, they charged him with grand theft.

Mr. STIGMIRE: The judge gave him 15 years for each item, and those three sentences ran consecutively. So he's got the dubious distinction of being given the longest sentence anybody has ever received for possession of stolen property: 45 years.

TOTENBERG: Liberal blogger Tim Gebhart notes that the man was sentenced as a repeat offender, that the prosecution wanted a sentence of 60 years, and that the man was paroled after 14 years.

Mr. GEBHART: He didn't like his sentence. So in other words, we're going to have any convicted felon who receives a prison sentence he doesn't like able to go to the grand jury and if he can convince seven people that, well, gee, maybe it was a little stiff, he can go sue the judge.

TOTENBERG: Stegmeier says that's exactly what an individual should be able to do and would be able to do under Amendment E. The ballot measure is opposed by just about every organized group in the state, from the bankers to the unions, the farmers to the police, and even the broadcasters. Each group has a different nightmare. The bankers worry that they'll never be able to collect on defaulted of loans. The unions worry that their members won't be able to collect on workman's compensation judgments. The school board members worry that they'll be sued individually under the new law, because it's worded so that it applies to them, to county councilmembers and countless other state officials.

Last winter, J.A.I.L. 4 Judges' Mr. Stegmeier paid for a poll that showed Amendment E favored by voters in South Dakota by a margin of three to one. That lit a fire under other interests in the states, and led by the state bar, opponents have now raised over a half million dollars to oppose the measure. In contrast, most of the money supporting Amendment E, less than $200,000, has come from Mr. Stegmeier's own pocket so far. Actors on both sides of this issue see South Dakota as a test case. Conservative blogger Pat Powers.

Mr. POWERS: We are their guinea pig, and they have every intention of promoting the measure out of South Dakota. If you look at some of the material where they talk about getting the movement started on other states, they're looking at South Dakota to take the lead.

TOTENBERG: Ron Branson, the Californian who calls himself the Jailer in Chief, sees gold in the black hills of South Dakota.

Mr. BRANSON: One multimillionaire said that if you can win in South Dakota, I've got money for you to help you finance this cause in other states.

TOTENBERG: Tom Barnette, who's taken a leave from his position as executive director of the state bar to run the opposition, says his polling now shows an edge for the opponents of Amendment E. But that's not enough.

Mr. TOM BARNETTE (J.A.I.L. for Judges Opponent): This proposition is so bad and so devastating, it is critical that it not only be defeated, but it be defeated by a very wide margin so no other jurisdiction ever has to go through what we in South Dakota are going through this year.

TOTENBERG: But Bill Stegmeier says that if Amendment E looses in South Dakota, that won't be the end of the road.

Mr. STIGMIRE: To the contrary, it will make people that much more determined. Because if we loose, it's because of all of these special interests and the lawyers colluded to defeat us.

TOTENBERG: Collusion and conspiracy may animate the J.A.I.L 4 Judges movement right now, but there's no denying that many of its members are also people who think they've been treated unfairly by the courts and have nowhere else to turn.

Nina Totenberg, NPR News, Washington.

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