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Los Angeles, California October 11, 2005
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______________________________________________________(Controverting the South Dakota Bar Association)(Official J.A.I.L Response to Mr. Barnett)Forum, 10-8:J.A.I.L. is unnecessaryBy Tom Barnett, secretary-treasurer and executive directorof the State Bar of South Dakota.
PIERRE - There is an initiated constitutional amendment circulating South Dakota entitled "Judicial Accountability Initiative Law" (J.A.I.L.). While purporting to provide remedies for citizens victimized by activist judges ignoring the law and constitution, it is anything but that. Quite simply, it is an attack on our Legislature, judiciary and state and local citizen boards. So, before you decide whether to sign the petition, read it carefully.
Proponents admit that South Dakota does not have problems with its judges but that this initiated measure is designed to make sure that there is a remedy should abuses start to occur.
It isn't necessary. South Dakota judges are subject to being voted out of office by our citizens. In addition, our citizens have an absolute right to reject a particular circuit judge from sitting on a case where a party has concerns that he or she will be treated unfairly. Unlike other states where appeals to the Supreme Court are limited, in South Dakota all parties have an absolute right to appeal a judge's decision to our Supreme Court. Ethical violations by a judge are investigated by the Judicial Qualifications Commission - a constitutionally created body charged with judicial oversight. In other words, in case a problem arises in the future, South Dakotans already enjoy many protections against alleged abusive judges.
What's wrong with the initiated measure? It is expensive. Its funding formula would create an annual budget in excess of $2.5 million - ultimately paid in additional fees by South Dakota taxpayers. While being promoted as a check against an abusive judiciary, J.A.I.L. reaches much further. It covers all persons shielded by judicial immunity. Every school board, city council, county commission, professional licensing boards, in fact, every citizen board in South Dakota exercises limited quasi-judicial powers and thus would be subject to being sued under J.A.I.L.
A bad doctor could sue members of the state medical board for denial or revocation of medical license. A bad teacher could sue individual members of the local school board for terminating his or her teaching employment.
Under J.A.I.L., the special grand jury is empowered to rule on the law and the facts. In other words, it is a super-legislature having the power to overrule the Legislature, decide which laws (or constitutional provisions) to enforce or ignore and then also decide the facts.
While J.A.I.L. purports to rein in activist judges creating judge-made laws, it would create a special grand jury with the power to reject laws enacted by the Legislature. Even judges and citizen boards strictly complying with South Dakota law could be subjected to lawsuits.
Perhaps the most disturbing aspect of J.A.I.L. is that it is decidedly anti-law enforcement. It would allow convicted drug dealers, child pornographers, felony drunk drivers and a multitude of other convicted felons to serve on the special grand jury and decide whether a judge or member of a citizen board can be sued. In fact, while the measure prohibits any member of law enforcement from sitting on the grand jury, it would permit a convicted felon currently imprisoned to serve on the jury at a daily pay of $387. That's absurd.
At any given time, there are approximately 3,100 prisoners in the South Dakota correctional system. On any given day, there are approximately 1,100 prisoners in our county jails. Every one of these are sitting in jail by order of a judge. Every one of these people have both the time and the motivation to sue, or punish the judge who sentenced them. J.A.I.L. would empower every one of these convicts or prisoners to use this proposal to sue the judge.
Consider the following if the J.A.I.L. is approved: Our Legislature establishes sentencing minimums and maximums. If a judge gives a defendant a very strict sentence, the convict sues. If a judge gives a more lenient sentence, a victim or citizen upset with the sentence sues. If a judge hands down a sentence somewhere in between - both sue.
Frankly, criminals already have enough rights. They don't need more rights and that's precisely what J.A.I.L. gives them.
(J.A.I.L.'s Response)IntroductionIt is our pleasure to address you, Mr. Barnett, as the secretary-treasurer and executive director of the South Dakota State Bar Association, in response to your criticism of the South Dakota J.A.I.L. Amendment. Your first advice is given in the final sentence of the first paragraph which says, "So, before you decide whether to sign the petition, read it carefully." But apparently you fail to follow your own advice, Mr. Barnett, for you state things that are diametrically opposed to the clear wording of the Initiative you are critiquing. Hence, your conclusion that "J.A.I.L. is unnecessary" is no more truthful than your false premises upon which it is based.In responding to your critique which follows no logical order of subject matter, we are categorizing the subjects under headings in a logical flow for clarity and coherence. Your critique, as will be shown, is nothing more than propaganda designed to deceive and scare the public which is the typical modus operandi in opposing the J.A.I.L. Initiative.The purpose of the J.A.I.L. InitiativeApparently, Mr. Barnett, you did not read the Preamble, which sets forth the purpose of the Initiative as follows: "We, the People of South Dakota, find that the doctrine of judicial immunity has the potential of being greatly abused; that when judges do abuse their power, the People are obliged - it is their duty - to correct that injury, for the benefit of themselves and their posterity. In order to insure judicial accountability and domestic tranquility, we hereby amend our Constitution by adding these provisions as §28 to Article VI, which shall be known as 'The J.A.I.L. Amendment.' "The authority for the J.A.I.L. Amendment in South DakotaMr. Barnett, the J.A.I.L. Amendment follows the guidelines set forth in the Declaration of Independence which states "But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them [the People's unalienable rights] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."This right is codified in the South Dakota Constitution, Article VI §26, which states: "All political power is inherent in the people, and all free government is founded on their authority, and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper. And the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land."The People of South Dakota realize that J.A.I.L. IS NECESSARYThe People of South Dakota, as indicative of the country, have been living under absolute despotism after a long train of abuses and usurpations for more than 200 years. In collecting signatures from South Dakotans, they have told us that there certainly is plenty of judicial corruption in their state and they are eager to sign the Initiative because they realize that J.A.I.L. is necessary in South Dakota.One South Dakotan we spoke to was John Eggers, a 31-year veteran, now retired, sheriff of Meade County, showed us the front page of the current issue of the Black Hills Press Newspaper with his picture on it, in which he was being presented a plaque in his honor. The caption read that the mayor has proclaimed August 9th as Sheriff John Eggers Day. Sheriff Eggers was very bold in his opinion about the South Dakota Judiciary, and allowed us to quote him as saying, "I am well familiar with the judiciary in this State of South Dakota, and this J.A.I.L. Initiative is very much needed here." Sheriff Eggers also said, quote, "No one is above the law," referring to the judges of South Dakota. Having been in law enforcement all his life, he is definitely an authority on the subject, and he has given us permission to place his picture on our website and to openly quote him. The People themselves are best qualified to assess the need for J.A.I.L., certainly not the State Bar Association!The states have been unwilling or unable to rise above the overbearing, unconstitutional power of the federal government which has overtaken the sovereignty of the People; and have allowed and participated in the disabling of the exercise of their inherent rights. This forced alienation of their unalienable rights, which are to be protected by government, is caused by a judiciary that is unaccountable to the People for such violations. Therefore, Mr. Barnett, the People of South Dakota have the right and responsibility, recognized by their State Constitution, "to alter or reform their forms of government" by holding judges accountable to the People as a "new guard for their future security" admonished in the Declaration of Independence.Mr. Barnett, this reformation of government, to be effective, must be an independent and autonomous mechanism enforced by the People themselves, as represented by the Special Grand Jury. There has been no such provision for the People to enforce the protection of their rights, and they now see the need to establish the J.A.I.L. Amendment for that purpose.Government is not providing protection for the PeopleMr. Barnett, neither the voting system, nor judge-rejection system, nor appeals to a higher court, nor investigations by a judicial qualifications commission, can fulfill the need for an autonomous enforcement mechanism by the People. There is no government provision that allows the People to control their own future as they must. South Dakotans should be able to "enjoy many protections against alleged abusive judges," but they don't because government doesn't provide that protection as it should. Those protections may exist in theory, but not in practice! For that reason, the J.A.I.L. Amendment IS necessary! If indeed such protection is in fact provided by government and concurred in by the judicial system, then the J.A.I.L. process need not take place in that particular instance. However, J.A.I.L. must be available to stand guard for the People nevertheless.The South Dakota State Bar Association has a conflict of interestAs stated in our introduction above, the State Bar does not work in the interest of the People, but only in its own interests-- which include the judiciary. It logically follows, then, that the Bar would be opposed to J.A.I.L. The only ones who oppose J.A.I.L. are those who benefit from the corruption. Mr. Barnett, you describe J.A.I.L. as an "attack" process "on our legislature, judiciary and state and local citizen boards." The only attack involved here is your attack on J.A.I.L. on behalf of the South Dakota Bar Association which you would be expected to do to protect its own turf. After all, judicial corruption is against the People, but favors the Legal Industry Syndicate including the Bar association. Judges cover up for them and they like it that way! Crime does pay-- big bucks to the Legal Industry Syndicate-- especially when orchestrated by the "Black Robe Society."J.A.I.L. "reaches" only judges for specifically stated violationsHad you read ¶2 of the Initiative you would not have been able to truthfully report that "[e]very School Board, City Council, County Commission, professional licensing boards (such as the State Bar??), [and] every citizen board in South Dakota... would be subject to being sued under J.A.I.L." Don't worry, Mr. Barnett, your organization or other administrative agencies won't be "sued under J.A.I.L." Only the judge(s) involved in making the final ruling after all appeals would be subject to the J.A.I.L. process --not sued-- if a complaint is filed alleging any of the following violations:"2. Immunity. No immunity shall extend to any judge of this State for any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of South Dakota or the United States, notwithstanding Common Law, or any other contrary statute.""Judge" is defined as: "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity." (¶1.b). Any matter before any of the organizations you mention can be taken to court after the exhaustion of administrative remedies; then only if there is a violation by a judge or judges in the subsequent judicial stage of proceedings could a complaint be taken to the Special Grand Jury (SGJ) for alleged violation(s) listed. There are times when a judge will arbitrarily decide that a clerk is covered by judicial immunity when sued for failing to do her job as required by Court Rules. Because judges can and do exercise arbitrary power, those situations have to be covered by J.A.I.L. J.A.I.L. doesn't sue anyone. The SGJ only determines, according to evidence of record, whether the judge complained of is entitled to judicial immunity in a subsequent suit by the complainant if he chooses to so proceed.You argue, "A bad doctor could sue members of the state medical board for denial or revocation of medical license. A bad teacher could sue individual members of the local school board for terminating his or her teaching employment." That describes basic due process under current law that is afforded to anyone-- J.A.I.L. notwithstanding. However, you predispose due process by using the word, "bad." But is not a man entitled to a hearing on the question on whether he is "bad" before being condemned? Are you not insinuating that the mere accusation of "bad" is conclusive, and that such a one accused of being "bad" should be denied due process and condemned without a hearing? Even the USSC has condemned this practice as far back as the case of Windsor v. McVeigh (1876) 100 U.S. 23. Indeed, everyone must be afforded an opportunityto argue his case, and offer his proof, and take any perceived violations of the judge before the J.A.I.L. process in which the judge is given an opportunity to answer that he did not willfully violate the law. J.A.I.L. merely assures that everyone receives the due process to which he is entitled under law, to wit, "No immunity shall extend to any judge of this state for any ... intentional violation of due process of law." If you think about it, Mr. Barnett, you are actually making a case for the reason South Dakota needs J.A.I.L.The Special Grand Jury enforces the organic Constitution and laws made in pursuance thereofMr. Barnett, even the South Dakota Constitution states in Article VI §26 "the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land." The SGJ is made up of the People, which IS superior to government. That's the whole point of J.A.I.L. --to hold government (through the judiciary) accountable! Yes, more than a "super-legislature" the SGJ is the People "having the power to overrule the legislature" if, in fact, the law does not comply with the Constitution-- absolutely! It's up to judges to KNOW what state laws comply with the U.S. Constitution, so "strictly complying with South Dakota law" doesn't necessarily meet that requirement. Yes, Mr. Barnett, the J.A.I.L. Amendment "would create a special grand jury with the power to reject laws enacted by the legislature" IF, and only if, those laws do not comply with the supreme law of the land. Certainly you would agree, Mr. Barnett, that it's the duty of the judiciary in the first instance to declare any law passed by the legislature as unconstitutional if it fails to comply with the supreme law of the land. But when the judiciary fails to do so, the responsibility then falls to the People in the form of the SGJ. Any other conclusion presupposes that government can do no wrong, including the judiciary.The Special Grand Jury excludes criminalsMr. Barnett, you have really gone off the deep end when stating that the J.A.I.L. Amendment "would permit a convicted felon currently imprisoned to serve on the jury at a daily pay of $387. That's absurd." Yes indeed, that IS ABSURD, and moreover IT IS FALSE! It appears that you are quite panicky at the thought of having to give up your arbitrary power backed up by judges under the shield of judicial immunity, to the point that it's driving you to make that "absurd" and false statement. As you tell your readers, READ it before signing. Here it is, in pertinent part: READ IT!"12. Qualifications of Jurors. ... Those not eligible for Special Grand Jury service shall include elected and appointed officials, members of the State Bar, judges (active or retired), judicial, prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious crime against persons."WHERE does it say that it "would permit a convicted felon currently imprisoned to serve on the jury..."? WHERE does it say that J.A.I.L. "would empower every one of these convicts or prisoners to use this proposal to sue a judge."? WHERE does it say, or imply, "If a judge gives a defendant a very strict sentence, the convict sues. If a judge gives a more lenient sentence, a victim or citizen upset with the sentence sues. If a judge hands down a sentence somewhere in between-- both sue."?ConclusionMr. Barnett, you fail to cite to the Initiative itself as your authority for the points you make. That is very irresponsible writing, and it amounts to fraud and deception to the public. Again, J.A.I.L. is concerned only with judicial violations of the Constitution-- specifically the violations set forth in ¶2. Your conclusions quoted above are way off the mark, and it appears that you intend to misstate the truth in order to hoodwink the public into believing your lies!You have no understanding of the J.A.I.L. measure, and it is not in your interest to do so. When J.A.I.L. is passed into law, trials will continue to proceed just like they normally do in the system. Judges will be free to exercise their jurisdiction and to make their rulings and to issue sentences. J.A.I.L. in no way disturbs that process. You even admit that everyone is free to appeal his decision. J.A.I.L. does not interfere with that right. J.A.I.L. enters into the picture only after the exhaustion of all appeals, and it is alleged that the judge(s) willfully violated the law as specified in ¶2 of the Initiative.Are you arguing that willful violations of law should be overlooked based upon the fact that the offender is a judge? If so, what does that do to justice, and to the principle that no one is above the law? If this is what you are advocating, then you are an anarchist because you advocate disrespect for the law. We then challenge you, Mr. Barnett, to explain the difference between a convicted criminal behind bars, and a judge who willfully violates the law but is unaccountable for his actions.-Ron BransonAuthor/FounderNational J.A.I.L.We need everyone's help in South Dakota, with donations, collecting signatures, and spreading the word any way you can. The signature gathering campaign is currently under way until the beginning of November-- less than a month away. We are encouraged by the progress made so far and urge everyone to participate in this cause. Please go to www.SouthDakotaJudicialAccountability.com for details and information. Call the SDJA office at (605) 231-1418 for immediate contact. We thank all of you who have already helped and those who are actively working so hard in coordinating this effort.
REMEMBER-- A WIN IN SOUTH DAKOTA
IS A WIN FOR EVERY AMERICAN!
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