February 17, 2005
The Inherent Right of ALL People to Alter
or Reform Abusive Government.
The Right Upon Which All Other Rights
The Torchbearer for J.A.I.L. Nationally - Support Them!
P.O. Box 412, Tea, S.D. 57064 - (605)
Understanding The Term
(By Ron Branson - J.A.I.L.
There has arisen within the national movement to
acquire judicial accountability, known as J.A.I.L. (Judicial Accountability
a concern as to the precise definition and meaning
of the term "judge." This treatise is written to establish the official
position of J.A.I.L. that may be relied upon and applied to as the ultimate and
final authority upon this subject.
The phrase in question, as will be found
in Amendment E scheduled for the November 7th South Dakota ballot
states: "(b) Definitions. ... the following terms shall mean:
... 2. Judge: Justice,
judge, magistrate judge, judge pro tem, and all other persons claiming to be
shielded by judicial immunity."
Inquiries from the media are asking for an
explanation of the definition of the term
"judge" particularly as to the words, "... and all other persons
claiming to be shielded by judicial immunity." This concern brings to light
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
The words, "...and all other persons claiming to be
shielded by judicial immunity," are penned to prevent titles from being
altered or changed to elude the provisions
of paragraph (c), to wit, "(c) 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." [Italics bold emphasis added]. That
phrase funnels everyone, whomever that might be, down to the subject of
"judicial immunity," which is the crux of the J.A.I.L. Amendment (designated
"Amendment E" in South Dakota). In the final analysis, it isn't
who, but what with
which J.A.I.L. is concerned.
These words, "...and all other persons claiming to be
shielded by judicial immunity," thus cover such other
persons should the State Legislature
expand or add newly named judicial offices in
the future. For example, in California the Legislature failed to provide
for future positions within the judicial branch, and they did
indeed add the position of "Commissioner." The practical result was
that there existed no disciplinary body, board or entity to
hold "Commissioners" accountable because they were not recognized as
"judges." It was at first established that "Commissioners" were to be
subordinate judicial officers accountable to the judges that
appointed them. However, as a practical matter, Commissioners were regarded by those judges not as "subordinate judicial
officers" but as independent adjudicators of the matters before them; and said judges
declined to override or reverse Commissioners' decisions because it placed
the appointing judges in an appellate
In an actual case regarding the
jurisdictional conduct of a Commissioner in California
directed to the supervising judge, that judge ruled he could not
interfere with, or override, the Commissioner's independent decisions because the Commissioner was free
to exercise his own discretion. Hence, as a
practical matter, there existed no forum in which a citizen could possibly
complain about a Commissioner's conduct. What's more, everyone who submitted a
complaint to the Commission on Judicial Performance was informed "We have
no jurisdiction because a Commissioner is not a judge."
The Legislature thereafter had to provide that
Commissioners, in their own right, are now subject to the Commission on Judicial
Additionally, "private judges," theretofore unknown,
came into existence from among retired judges, and began to adjudicate cases
from the judicial branch of government.
Again, there was no provision that applied to accountability
of these "private judges." This was cause for concern of the
California Chief Justice, Ronald George, who acknowledged the problem and
criticized the current system of non-accountability. To date, I am unaware of
any resolution of that problem which J.A.I.L. would resolve by its definition of
judges, to wit, "all other persons claiming to be shielded by judicial
immunity." Amendment E will prevent these
problems in California from coming to South Dakota.
Obviously if a measure, such
as Amendment E in South Dakota, required an amendment every time new
legislation was passed, or practices changed, it would require
repeated future Initiatives to correct it, which would be impractical. Thus, it
is best to prevent this potential problem by including in the definition of
judge, "and all other persons claiming to be shielded by judicial immunity."
Instead of referring to titles of judicial officers, the Amendment focuses
upon their claimed immunity.
By way of another actual example, statute provides that
default clerks are required to enter a default after a process server files
a sworn declaration of service upon a defendant, and the requisite number of
days have expired without a response filed in the action. The County of Los
Angeles, who was also a named defendant in the same case, and was also the
employer of the default clerk, directed the
clerk not to enter the default because "the
defendant was not served." The default clerk's duty, under law, was to enter the
default and have the dispute of service adjudicated by the judge in
However, what happened was the default clerk, in
following the directive of her employer County, effectually adjudicated the
matter in favor of her employer, and refused to carry out her duty
under law. She was therefore sued for refusal to perform her duty as
prescribed by law. Her employer County, a co-defendant in the
case, argued before the judge that she was immune from lawsuit because she
worked for the judicial department. The judge granted the County's
argument, and the default clerk was immediately dismissed stating that she was
covered by judicial immunity. All appeals on this clear violation of
law provided no remedy.
Applying J.A.I.L. to this actual scenario, the
judge granting the clerk judicial immunity and
appellate judges upholding the act would be subject to J.A.I.L. scrutiny
should this issue not be reversed on appeal.
J.A.I.L. would not deal with the clerk. The clerk would be independently liable because she refused
to perform her duties required by law, and
not because she claimed to be covered by judicial
immunity and thus made a "judge" under J.A.I.L.'s definition, to wit,
"all other persons..." Only the Legislature can
establish the office of judges, which positions are
determined either by
appointment or by election, not by judicial declaration.
By granting the default clerk
judicial immunity, the judge thereby "legislated"
a new "judge" into existence
without the benefit of either an appointment by law or an
One newspaper reports a senator as
having said, "It [Amendment E in South Dakota] would subject county
commissions, school boards, city councils, township boards and a host of others
to frivolous legal action if the supporters of J.A.I.L. did not like a decision
that is contrary to their belief."
The above application regarding the default clerk would
also apply to these administrative agencies, such as boards, commissions, and
councils. 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. These
examples of liability are not intended to
This senator fails to understand "lesson 101" in law.
Anyone can look in the register of actions of any city in the United States and
find a long list of lawsuits that have been filed over the years against these
prescribed entities, and Amendment E had nothing to do with these lawsuits.
The basics of law is "Sue and be sued." That's life. Somehow, the senator is
delivering the impression that Amendment E, if passed in South Dakota, will open
up a Pandora's box of lawsuits against these entities, never before
All of these entities, at best, are but
administrative agencies. "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.
Only judges operating at law,
can hear and adjudicate constitutional challenges and questions wherein
administrative hearing boards and officers lack such jurisdiction. So
the above senator totally shows his ignorance regarding administrative
agencies in asserting that Amendment E will make these entities "judges" or
"courts" that are liable under J.A.I.L. Despite his raving to the contrary,
administrative hearing officers are neither judges, nor can they be
Should the Legislature declare administrative
hearing officers to now be judges having jurisdiction to adjudicate
constitutional issues under law, then of course, they would no longer be
administrative hearing officers but "judges" for purposes of Amendment E.
But no judge can "legislate" them to be judges, giving
them jurisdiction wherein there is none. Further, there cannot possibly be a
mixing of the two jurisdictions, for if it be contract, the
Constitution cannot apply; and if the Constitution controls, then
the contract is overcome by the Constitution and is null and void. Indeed,
our Constitution recognizes the inherent right to contract, "No state
shall...make any...law impairing the obligation of contracts." Article I, Sec.
10, Clause 1. So if the controlling document is made by reason of contract
agreement, which all men my freely exercise, then government can make
no law that impairs that contract!
The words "...and all other persons claiming to be
shielded by judicial immunity" are very simple, and can only constitutionally
apply to judges in the conventional sense. There are
no secret or esoteric meanings. J.A.I.L. means what it says, and says what it
means. As Bill Stegmeier said in his speech before the South Dakota Senate
2/10/06, "Is" means "is."
Author of J.A.I.L. (Amendment E in South