* * Official Review of the S.D. J.A.I.L. Initiative * *
- J.A.I.L. News Journal
Los Angeles, California June 19, 2005
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______________________________________________________Official Review of theSouth Dakota J.A.I.L. Initiative[Addressed to Bill Stegmeier, JAILer-In-Chief of South Dakota and Proponent of the J.A.I.L. Initiative]South DakotaLegislative Research CouncilSen. Ed Olson, ChairRep. Gordon R. Pederson, Vice ChairJames Fry, DirectorDoug Decker, Code CounselJune 8, 2005William Stegmeier27116 Grummand AvenueTea, SD 57064Dear Mr. Stegmeier:Pursuant to SDCL 12-13-25, this office is required to review each initiated law or initiated amendment to the South Dakota Constitution. Further, this office is required by SDCL 12-13-24 to determine if each initiative or initiated amendment is "written in a clear and coherent manner in the style and form of other legislation" and that it is "worded so that the effect of the measure is not misleading or likely to cause confusion among voters." You are under no obligation to accept any of the suggestions contained in this letter. But please keep in mind the legal standards established in SDCL 12-13-24.We have reviewed the draft of the initiated constitutional amendment that you have submitted to this office. Because of the length of the proposed draft and the number of minor style and form changes suggested, we have chosen to rework the draft to incorporate all of these style and form suggestions. To assist you in identifying where these suggestions occur within the draft, we are also enclosing a copy of the rough draft markup. [Redraft and markup commented on, in part, below]Although these style and form corrections are extensive, they are relatively less important than other more pervasive concerns about the style and form inherent in your draft. Some of these are addressed in the redraft, others are not.Of the significant style and form suggestions embodied in the redraft, please take special note of the following:(1) Five sections have been deleted:(A) The preamble which is entirely inappropriate to constitutional amendments.(B) The definitions [¶(b) - now changed to ¶(1)] which serve no useful purpose since all of the terms are used in ordinary common sense meanings.(C) The redress provision [¶(v) - now changed to ¶(21)] which merely restates the uncontested common law.(D) The challenges provision [¶(w) - now changed to ¶(22)] which appears to be designed to prevent something which is inconceivable ab initio.(E) The preeminence provision [¶(x) - now changed to ¶(23)] which does nothing to resolve any dispute that might arise from a conflict of laws.(2) We believe that the amendment is not appropriate to Article VI of the Constitution and have suggested that Article V is the correct venue. [Note- Article VI is titled "Bill of Rights" and Article V is titled "Judicial Department"](3) We have split the draft into a number of sections as opposed to the one multi-paragraph of your original draft.Of the significant style and form concerns that we have not attempted to address in the redraft, please consider the following:(1) The material proposed is inherently statutory, rather than constitutional. Frankly, your own title, Judicial Accountability Initiative Law, indicates that the proper basis of the material is that of an initiated state law.(2) If you choose to submit the material as a constitutional amendment, you should be concerned about the amount, variety, and complexity of the detail embodied and the difficulty of amending the Constitution when the necessity for revision becomes apparent. As just one of many possible illustrations, in your facilities provision [¶(f) - now changed to ¶(5)], your draft requires the establishment of a suitable facility within the city of Pierre but not within one mile of any "judicial body." This is quite possibly a physical impossibility at present and, if not, could easily become so in the future. [Note- that provision has now been changed to read "...centrally located in the State, but not within a mile of any judicial body."](3) Finally, there are several potential conflicts between your draft and the United States Constitution. An example of this would be your provision for criminal retroactivity in your jurisdiction section. [¶(l) - now changed to ¶(11)]This letter constitutes neither an endorsement of your initiated measure nor a guarantee of its statutory sufficiency. It does constitute fulfillment of your responsibility pursuant to SDCL 12-13-25 to submit your draft to this office for review and comment. If you proceed with your initiated measure, please take care to ensure that your statements of advertising do not imply that this office endorses or approves your proposal.Please contact this office if you need additional information.Sincerely,Jim Fry, Directorcc: The Honorable Chris Nelson, Secretary of State[Indeed, Mr. Stegmeier did contact that office for "additional information" by writing the following letter]:June 10, 2005Legislative Research CouncilJim Fry, DirectorState Capitol500 East CapitolPierre, SD 57501-5070Re: Constitutional Amendment by People's Initiative - Adding §28"The J.A.I.L. Amendment"Reply to your letter of June 8, 2005Dear Mr. Fry:Thank you for your response to my submission of the proposed constitutional Amendment which shall be known as "The J.A.I.L. Amendment." Submitted herewith is the revision of the Amendment, with a substantive change to paragraph 5 regarding the facilities provision, some minor changes in wording overall, and conforming to the form and style of the South Dakota Constitution. Please note that it follows the pattern in format similar to §6 of Article XIII consisting of an initial unnumbered paragraph followed by subsequent paragraphs numbered seriatim.I hereby request that you respond to my questions below within five business days of the date of this letter so that my associates and the public may be apprised of the foundations upon which the suggestions in your letter of June 8 are based:1. What is your authority and reasoning for concluding that the preamble "is entirely inappropriate to constitutional amendments"?2. What is your authority and reasoning for concluding that the four terms defined under "Definitions" are "used in ordinary common sense meanings" and would not require the specific definitions unique in application to the subject matter of this Amendment?3. What is your authority and reasoning for concluding that the "redress provision ... merely restates the uncontested common law"?4. What is your authority and reasoning for concluding that "the challenges provision ... appears to be designed to prevent something which is inconceivable ab initio"?5. What is your authority and reasoning for concluding that the "preeminence provision ... does nothing to resolve any dispute that might arise from a conflict of laws"?6. What is your authority and reasoning for concluding that "the amendment is not appropriate to Article VI of the Constitution" and "that Article V is the correct venue"?7. What is your authority and reasoning for concluding that the Amendment should be "split ... into a number of sections" and not remain as "one multi-paragraph" section?8. What is your authority and reasoning for concluding that "[t]he material proposed is inherently statutory, rather than constitutional"? and that the title, Judicial Accountability Initiative Law, "indicates that the proper basis of the material is that of an initiated state law"?9. What is your authority and reasoning for concluding that "there are several potential conflicts between [the] draft and the United States Constitution"? and that there is any reference to "criminal retroactivity in your jurisdiction section"?While I await your answers to the above questions within five business days hereof, the following states my position on the above matters:1. The Preamble of "The J.A.I.L. Amendment" is in the public's interest, in that it gives notice to the public of (a) why the People find the amendment necessary, and (b) what it intends to accomplish. "Preamble: A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. [citations omitted]" Black's law Dictionary, Revised Fourth Edition.2. The definitions provided are important to give notice to the public of the specific application the terms listed have as they relate to The J.A.I.L. Amendment, i.e., "...for purposes of the Amendment, the following terms shall mean:" Specifically, (a) Blocking in the ordinary sense can mean a football strategy or a defensive move in the sport of boxing, or some such like. Blocking in a legal context is not common usage. (b) Judge in the ordinary sense means just that: a judge. The specific meaning for purposes of this Amendment is not limited to "judge" only, but means all of the terms shown, including "all other persons claiming to be shielded by judicial immunity." (c) Juror in the ordinary sense means someone serving on any jury. However for purposes of this Amendment, the term specifically means a Special Grand Juror. (d) Strike in the ordinary sense means hit, contact, collide, delete, cancel --just to mention a few. For purposes of this Amendment, it specifically means an adverse immunity decision or a criminal conviction against a judge (as defined by (b)). Specificity in legal terms is paramount, or it could render the term void for vagueness.3. Regarding the Redress provision, as is the case with all provisions of this Amendment, a full and explicit explanation for each is required to eliminate any doubt as to its intention with respect to this Amendment. No conclusory presumptions are permitted.4. Regarding the Challenges provision, it is my position that the circumstances described therein is not inconceivable, and serves to preempt any possibility of such occurrence in the future. Like a fire escape on a building, it serves to ensure the continued integrity and good standing of this Amendment in the event of any challenges thereto.5. As with all provisions of this Amendment, no conclusory presumptions are permitted regarding the effect of the Preeminence provision. It, too, must be included to ensure the continued integrity and good standing of this Amendment. That provision also calls for the reading of this Amendment every month to the Jurors, as well as the provision that should any part of this Amendment be determined unconstitutional, the remainder shall remain in full force and effect, all of which is a necessary component of this Amendment. This provision resolves all disputes wherein there is a conflict of laws.6. It is my position that this Amendment is not appropriate for Article V since its subject matter is not that of the Judicial Department, nor any part of government whatsoever. This Amendment is the People's preemptive measure superior to government operations. The purpose of this Amendment is for the People of South Dakota to exercise their inherent right to alter or reform their form of government in the manner provided by this Amendment in fulfillment of §26 of Article VI of the South Dakota Constitution, 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..." This Amendment shall assure that the "Bill of Rights" of Article VI will be enforced directly by the People. Therefore, the correct venue for this Amendment is Article VI, adding §28.7. This Amendment is a single amendment consisting of several provisions to carry out its sole purpose, judicial accountability to the People. Therefore, only one section of the Constitution is affected. A "number of sections" is not warranted nor proper for purposes of this single Amendment.8. The material proposed by this Amendment is strictly constitutional. As stated in 6 above, it is the fulfillment of §26 of Article VI by constitutional amendment of the People of South Dakota. As shown by the Preamble, which must be included to introduce this Amendment, the People of South Dakota "hereby amend our Constitution by adding these provisions as §28 to Article VI...." This Amendment is intended to be a constitutional amendment by which the People can correct any injury caused by judicial abuse of power.9. I find nothing in this Amendment in conflict with the United States Constitution. There is nothing regarding "criminal retroactivity" in the jurisdiction provision, nor is there any retroactivity in its criminal provisions. Quite the contrary, it provides specifically, to wit, "(4) the criminal statute of limitations has not run."I include herewith a copy of the revised Amendment [pasted in below our comments], which conforms to the format of the South Dakota Constitution. I look forward to receiving your response within five business days hereof.Your truly,William Stegmeier[His email address is rmsroll@... and phone contact is (605) 231-1220][Mr. Fry's response is as follows]:June 10, 2005Re: Proposed Initiated Measure on Judicial AccountabilityDear Mr. Stegmeier:Thank you for your response to our letter of June 8, 2005. As noted in our letter, you are under no obligation to modify your initiated measure to conform to our comments.Sincerely,James Fry, DirectorState Capitol, 500 East Capitol, Pierre, SD 57501-5070605/773-3251 * TTY 605/773-4305 * Fax 605/773-4576
The purpose of Mr. Stegmeier's questions to Mr. Fry was to give him an opportunity to provide the foundations upon which his suggestions and statements were based, so that we, and all of you, would be apprised thereof. Mr. Stegmeier (Bill) stated his position, as the Proponent of The J.A.I.L. Amendment, to provide Mr. Fry specific reasons why his suggestions were unacceptable absent some authority supporting them, especially in light of our stated position.Bill emphasized that a full and explicit explanation for each provision of this Amendment is required to eliminate any doubt as to its intention with respect to the Amendment. "No conclusory presumptions are permitted." However, Mr. Fry's conclusory remarks were not supported by facts, although he was invited to do so.Comments on the markup and redraft:1. Mr. Fry proposed striking the entire Preamble, as being "inappropriate to constitutional amendments." Yet, the very Constitution of the State of South Dakota to which he impliedly refers, states "All political power is inherent in the people, ... they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may deem proper." It should be noted here that the word "proper" and "appropriate" are synonyms and interchangeable. Thus, the question of what is "appropriate," and what is the "proper" forms of government is a decision solely inherent in the People-- not the legislature or its analysts.2. Mr. Fry proposed striking all of our definitions applicable to J.A.I.L., leaving the Amendment vulnerable to judicial interpretations.3. He proposed striking in ¶(d), now ¶(3), two important phrases: (1) the phrase "For the purpose of returning power to the People," which is the reason for creating the Special Grand Jury in the first place; and (2) the phrase "...fall within the exclusions of immunity" which goes to the heart of the function of the Special Grand Jury in exercising its jurisdiction in finding that the judge's conduct does not warrant the protection of judicial immunity. The abuse of judicial immunity is the thrust for thisAmendment.4. Mr. Fry proposed striking the entire provisions of Redress, Challenges, and Preeminence. He states that the Challenges provision "appears to be designed to prevent something which is inconceivable ab initio." In other words, in his mind it is "inconceivable" that any judge in South Dakota would even dare sit in judgment over a challenge to this Amendment, which provision states "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. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class action, or by any adversely affected person." Mr. Fry did not offer any factual support for his conclusion of "inconceivable ab initio."5. Within the Preeminence provision sought to be stricken by Mr. Fry, are the words, "Preeminence shall be given to this Amendment in any case of conflict... " Mr. Fry stating that this "does nothing to resolve any dispute that might arise from a conflict of laws."Conclusion:It appears that Mr. Fry wishes to steer clear of the following words or subjects: judicial immunity, power of the People, challenges to and preeminence of this J.A.I.L. Amendment. The fact is that the passage of J.A.I.L. announces the beginning of the end of judicial tyranny, and thus, government tyranny as we know it.In closing, I quote §27 of Article VI of the South Dakota Constitution "Bill of Rights" which is the section that will immediately precede The J.A.I.L. Amendment, "The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles."Ron BransonJ.A.I.L. Author/FounderP.S. It is anticipated that starting June 20th (tomorrow), we will be permitted to begin collecting signatures in South Dakota.
(Revised Version 6/10/05)
§28. Judicial Accountability Initiative Law (J.A.I.L.)
Preamble. 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."
1. Definitions. Where appropriate, the singular shall include the plural; and for purposes of this Amendment, the following terms shall mean:
a. Blocking: Any act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of an unlawful or void judgment or order.
b. Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.
c. Juror: A Special Grand Juror.
d. Strike: An adverse immunity decision or a criminal conviction against a judge.
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.
3. Special Grand Jury. For the purpose of returning power to the People, there is hereby created within this State a thirteen-member Special Grand Jury with statewide jurisdiction having power to judge both law and fact. This body shall exist independent of statutes governing county Grand Juries. 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 as set forth in paragraph 2, and whether there is probable cause of criminal conduct by the judge complained against.
4. Professional Counsel. The Special Grand Jury shall have exclusive power to retain non-governmental advisors, special prosecutors, and investigators, as needed, who shall serve no longer than one year, and thereafter shall be ineligible to serve; except a special prosecutor may be retained to prosecute ongoing cases in which they are involved through all appeals and any complaints to the Special Grand Jury. The Special Grand Jury may hire clerical staff, as needed, without time limitation.
5. Establishment of Special Grand Jury Facility. Within ninety days following the passage of this Amendment, the Legislature shall provide a suitable facility for the Special Grand Jury centrally located in the State, but not within a mile of any judicial body.
6. Annual Funding. The Legislature shall cause to be deducted one and nine-tenths percent from the gross judicial salaries of all judges, which amount shall be deposited regularly into an exclusive trust account created by this Amendment in paragraph 10 for its operational expenses, together with filing fees under paragraph 7, surcharges under paragraph 8, forfeited benefits of disciplined judges under paragraph 18, and any fines imposed by sentencing under paragraph 16.
7. Filing Fees. Attorneys representing a party filing a civil complaint or answer before the Special Grand Jury, shall, at the time of filing, pay a fee equal to the filing fee due in a civil appeal to the State Supreme Court. Individuals filing a civil complaint or answer on their own behalf, before the Special Grand Jury, as a matter of right, shall, at the time of filing, post a fee of fifty dollars, or file a declaration, which shall remain confidential, stating they are impoverished and unable to pay and/or object to such fee.
8. Surcharges. Should this Amendment lack sufficient funding through its fines, fees, and forfeitures (including deductions in paragraph 6), the Legislature shall impose appropriate surcharges upon the civil court filing fees of corporate litigants as necessary to supplement the funding of this Amendment.
9. Compensation of Jurors. Each Juror shall receive a salary commensurate to that of a Circuit Court judge, prorated according to the number of days actually served by the Juror.
10. Annual Budget. The Special Grand Jury shall have an annual operational budget commensurate to double the combined salaries of the thirteen Jurors serving full time, which sum shall be initially deposited by the Legislature into an exclusive trust account to be annually administered by the State Treasurer. Should the trust balance, within any budget year, drop to less than an amount equivalent to the annual gross salaries of seven Circuit Court judges, the State Treasurer shall so notify the Legislature which shall replenish the account, prorated based on the actual average expenditures during the budget year. Should the trust balance in any subsequent year exceed the annual operational budget at the beginning of a new budget year, the State Treasurer shall transfer such excess to the state treasury.
11. Jurisdiction. The Special Grand Jury shall have exclusive power to appoint a foreperson, establish rules assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. The Special Grand Jury shall immediately assign a docket number to each complaint brought. Except as provided in paragraphs 17 and 22, no complaint of misconduct shall be considered by the Special Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in this State within the immediately preceding six-month period. (Such six-month period, however, shall not commence in complaints of prior fraud or blocking of a lawful conclusion until after the date the Special Grand Jury becomes functional. This provision applies remedially and retroactively.) Should the complainant opt to proceed to the United States Supreme Court, such six-month period shall commence upon the disposition by that Court.
12. Qualifications of Jurors. A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United States, and have been an inhabitant of South Dakota for two years immediately prior to having his/her name drawn. 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.
13. Selection of Jurors. The Jurors shall serve without compulsion and their names shall be publicly drawn at random by the Secretary of State from the list of registered voters and any citizen submitting his/her name to the Secretary of State for such drawing. The initial Special Grand Jury shall be established within thirty days after the fulfillment of the requirements of paragraph 5.
14. Service of Jurors. Excluding the establishment of the initial Special Grand Jury, each Juror shall serve one year. No Juror shall serve more than once. On the first day of each month, one Juror shall be rotated off the Special Grand Jury and a new Juror seated, except in January it shall be two. Vacancies shall be filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror drawn to fill a vacancy shall complete only the remainder of the term of the Juror replaced.
15. Procedures. The Special Grand Jury shall serve a copy of the filed complaint upon the subject judge and notice to the complainant of such service. The judge shall have twenty days to serve and file an answer. The complainant shall have fifteen days to reply to the judge's answer. (Upon timely request, the Special Grand Jury may provide for extensions for good cause.) In criminal matters, the Special Grand Jury shall have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under oath. The Special Grand Jury shall determine the causes properly before it with their reasoned findings in writing within one hundred twenty calendar days, serving on all parties their decision on whether or not immunity shall apply as a defense to any civil action that may thereafter be pursued against the judge. A rehearing may be requested of the Special Grand Jury within fifteen days with service upon the opposition. Fifteen days shall be allowed to reply thereto. Thereafter, the Special Grand Jury shall render final determination in writing within thirty days. All allegations in the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the People of this State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge. They shall avoid all influence by judicial and government entities. The statute of limitations on any civil suit brought pursuant to this Amendment against a judge shall not commence until a final decision by the Special Grand Jury. Special Grand Jury files shall always remain public record following their final determination. A majority of seven shall determine any matter.
16. Indictment. Should the Special Grand Jury also find probable cause of criminal conduct on the part of any judge against whom a complaint is docketed, it shall have the power to indict such judge, except where double jeopardy attaches. The Special Grand Jury shall, without voir dire beyond personal impartiality, relationship, or linguistics, cause to be impaneled twelve special trial jurors, plus alternates, which trial jurors shall be instructed that they have power to judge both law and fact. The Special Grand Jury shall also select a non-governmental special prosecutor and a judge with no more than four years on the bench from a county other than that of the defendant judge, to maintain a fair and orderly proceeding. The trial jury shall be selected from the same pool of jury candidates as any regular jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of any other prosecutor within this State. Upon conviction, sentencing shall be the province of the special trial jury, and not that of the selected judge. Such sentence shall conform to statutory provisions.
17. Criminal Procedures. In addition to any other provisions of this Amendment, a complaint for criminal conduct against a judge may be brought directly to the Special Grand Jury, when all the following conditions have been met: (1) an affidavit or declaration of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety days of the commission of the alleged crime; (2) the prosecutor declines to prosecute, or one hundred twenty days has passed following the lodging of such affidavit or declaration, and prosecution has not commenced; (3) an indictment, if sought, has not been specifically declined on the merits by a county Grand Jury; and (4) the criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any judicial process shall constitute a strike.
18. Removal. Whenever any judge has received three strikes, the judge shall be permanently removed from office, and thereafter shall not serve in any State judicial office. Judicial retirement for such removed judge shall not exceed one-half of the benefits to which such judge would have otherwise been entitled. Retirement shall not avert third-strike penalties.
19. Public Indemnification. No judge complained against, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amendment.
20. Enforcement. No person exercising strict enforcement of the findings of a Special Grand Jury shall be held liable civilly, criminally, or in contempt.
21. Redress. The provisions of this Amendment are in addition to other redress that may exist and are not mutually exclusive.
22. Challenges. 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. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class action, or by any adversely affected person.
23. Preeminence. Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision. The foreperson of the Special Grand Jury shall read, or cause to be read, this Amendment to the respective Jurors every month. Should any part of this Amendment be determined unconstitutional, the remainder shall remain in full force and effect as though no challenge thereto existed.
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