----- Original Message -----
Sent: Sunday, August 20, 2000 9:55 PM
Subject: INPUT???? - Certifying Ballot Title for Initiative #5, JAIL
in Oregon - gets filed Tuesday.....
Dear Ron and other JAIL Chapter Heads:
are in the process of certification of Ballot Title and Summary for
Initiative #5, the Judicial Accountability Initiative for the 2002 election in
The Secretary of
State wrote these titles - we are objecting to the whole process that they write
the titles, but this is the process in place at this time.
Short notice, but any who want to
comment on these titles and summary, please respond - we have to file the
response on Tuesday. The Secretary of State usually writes really
deceptive ballot titles, and this is one of the least deceptive I have
seen. Your input and comments appreciated.
We will find out tomorrow if any other
submissions have been filed regarding the titles, and share the process as we
go. (We respond, the Attorney General and the Secretary of
State respond, if that still is not workable, then we go to the Supreme
Court, as we did last week on Ballot Measure #1, and make our case).
(I do not like their
characterization of "restricts judges criminal defense rights" - it sound
misleading - this is a mild example of how they word things to sound
biased in favor of the judges)
Draft Ballot Title -
CONSTITUTION: LIMITS JUDICIAL IMMUNITY, RESTRICTS JUDGES' CRIMINAL DEFENSE
RIGHTS; ADDS GROUNDS FOR REMOVING JUDGES FROM OFFICE
RESULT OF "YES"
VOTE: "Yes" vote limits judicial immunity, judges' criminal defense
rights, adds grounds for removing judges from office; new "special grand
juries" determine judicial immunity, indict judges.
RESULT OF "NO"
VOTE: "No" vote rejects: limiting judicial immunity, judges'
criminal defense rights; adding grounds for removing judges from
office; creating "special grand juries" determining judicial immunity,
SUMMARY: Amends Constitution. Eliminates certain
grounds on which judges currently have judicial immunity from civil
lawsuits. Creates two "special grand juries" to determine
whether a judge has immunity from civil lawsuit; sets "special grand
jury" qualifications and selection process; excludes government officials,
judges, lawyers, police, some convicted felons, and others from service.
Funds "special grand juries" with 2.9% reduction in current judicial
salaries; imposes surcharge on certain civil filings if needed to
cover any budgetary shortfall. Requires removal from office and partial
forteiture of pensions of judges receiving three adverse immunity
findings. Allows "special grand jury" to indict judges, appoint
decide case, and impose sentence; eliminates criminally accused
judges, appoint jury to decide case, and impose sentence; eliminates
criminally accused judges' right to waive jury in criminal prosecutions. Other
Wolfgram to Oregon Jail:
There are a couple of changes
that the Secretary might accept. One is on the "Limits Judicial
Immunity". Change this to "Disallows immunity for deliberate violations of
law ... ". Either use the same words as the California initiative on that
issue, or shorten it to "deliberate violations of law, fraud, conspiracy, due
process or deliberate disregard of material facts or unreasonable delay of
The Words "Restricts Judges
Criminal Defense Rights" is misleading. The only "restriction" is on the "right
to waive a jury" and that is not a right of the accused. Jury waiver must be
reached by agreement, and the initiative only prevents the state from
agreeing. The proper words therefore are: "requires trial by jury of all
criminally accused judges".
"eliminates criminally accused Judges Right to waive Trial by Jury" put
"Requires Criminally accused Judges to be tried by Jury."
The Reason is because the former is misleading. No one has, by himself,
the right to "waive" a jury trial. Rather, usually, the prosecution also
waives the state's right to demand a jury, and only when both sides so waive, is
a criminal case tried to a judge. In this case, JAIL is saying to the
Prosecutor that he shall not waive the state's right to a jury trial on the
state's behalf. The result is a jury trial.
I agree with
John Wolfgram imput, but wish to expand upon the point of trial by jury. The
Secretary of State has a misunderstanding of Constitutional rights. Yes, there
is a Constitutional right to a trial by jury. This right involves both
parties to the action, that is, both the prosecution as well as the defense.
This has always been true in this country. To say one has a right to
unilaterally "waive" his right to a jury trial infringes upon the right of the
other side to a jury trial. As authority of such position, I cite to the
California Constitution, Article I, Sec. 16, "Trial by jury is an inviolate
right and shall be secured to all, but in a civil cause three-fourths of the
jury may render a verdict. A jury may be waived in a criminal cause by the
consent of both parties expressed in open court by the defendant and the
defendant's counsel. In a civil cause a jury may be waived by the consent of the
parties expressed as prescribed by statute." Here it it clear that both
sides to an action, whether civil or criminal, have a right to a jury
While this is
cited from the California Constitution, this fact is true universally throughout
the fifty states. One has
no Constitutional right to waive his right to a jury trial without consent and
agreement of both sides. The right to a jury trial cannot be translated into the
right to a judge trial. The prosecution also has a right to a jury trial to
which they may not be deprived. Such "judge" trial, if it were to take
place, would be mandatorily reversible on appeal on the
Constitutional grounds of deprivation of an inviolate right to a jury
trial. Furthermore, any appellate panel of judges who would violate such right
would themselves be subjected to review by the Special Grand
No judge may be
heard to argue that under JAIL their "right" to waive a jury trial was denied.
Secretary of State should consult Constitutional scholars to become informed on
Branson, author of JAIL
PS - I strongly
urge others respond immediately to this, as time is of the essence, directly to
Pamela Gaston at avoice@...,
with a copy to me at jail4judges@....