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By Mark Anderson

Backers of a South Dakota initiative designed to reform the state’s courts by holding judges accountable for their rulings are licking their wounds after the amendment’s defeat at the polls. Organizers behind the measure said they had to contend with a well-funded propaganda mill that ran nonstop to defeat the proposed state constitutional amendment.

Still, backers say they will not give up and hope that this revolutionary measure will spread like wildfire across the country.

The onslaught against Amendment E, known officially as the Judicial Accountability Initiative Law, or JAIL, featured several key players. The South Dakota State Bar figured prominently in the anti-amendment movement, reportedly spending at least $1 million. The bar’s allies included the insurance lobby, Citibank, which donated $50,000 and the U.S. Chamber of Commerce, which donated $15,000. All of the 105 state legislators signed a resolution opposing the amendment.

The legislators’ resolution claimed that Amendment E would have prohibited summary judgment, which is considered a legal remedy for quickly and cheaply ridding courts of lawsuits. The legal-banking-insurance juggernaut against the amendment also claimed it would have permitted convicted felons, whose convictions were Supreme Court-affirmed, to sue the prosecutors, jurors and judges who convicted them.

As a result of the barrage of powerful opposition, it was defeated with 294,747 “no” votes to 35,640 “yes” votes. A recent poll—even with its questions based on the state attorney general’s wording, which E backers considered flawed and unsuccessfully challenged in both the Circuit Court and Supreme Court—came out 51% to 40% percent in favor of the amendment. The results had been announced on a local television station on Nov. 4, three days before the election.

Six hundred people were polled. E organizer Bill Stegmeier said he wonders why the final vote was so lopsided. “Our Zogby Poll on Sept. 20 resulted in 67 to 20 percent in favor of passing,” he said. Amendment E’s plank No. 2, the crux of the amendment, said judges would be held accountable “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. . . .”

The amendment would create a 13-member special grand jury with statewide jurisdiction, independent of statutes governing county grand juries. This body’s function largely would be limited to determining objectively whether a civil lawsuit against a judge is frivolous or whether it is a valid complaint.

Amendment backers argued that many judges were kicking proper court procedures to the curb, oftentimes abusing defendants’ rights by preventing them from calling key witnesses or presenting crucial evidence. Feeling there was not a genuine mechanism in place to hold such judges accountable, amendment backers collected over 33,456 signatures to get their initiative on the ballot.

Besides the state bar, the state legislature and other groups, various county commissions and even local school boards went on record against it. In many cases these public bodies, which are supposed to stay neutral in their official capacities, broke state law by using public funds to fight the amendment, said Stegmeier.

South Dakota legislators claimed that Amendment E would have exposed the individual members of these boards and commissions to litigation. The backers answered: “County commissioners and school board members make decisions as a group, never as individuals. We have already established that Amendment E has no effect whatsoever on these groups, let alone their members. . .nobody gets sued for ‘just doing their job.’ People get sued for wrongdoing. . . . These boards and commissions can already be sued, and do get sued quite often.”

And as for opponents’ claim that Amendment E’s passage would have dried up bank credit overnight, the backers answered that this was a “ridiculous scare tactic” hatched by bankers who rely on not-so-honest judges in order to take advantage of the “little” guy. “Judicial accountability spells the end to their gravy train,” backers said.

Backers say the added accountability would put a damper on developers grabbing land using the courts and eminent domain powers. Backers also noted that the insurance industry, with which banks are heavily involved, would have to deal honestly when paying claims, especially personal injury, workman’s compensation and property claims, had E passed.

“They are terrified that if accountability comes to the judiciary, it may very well come to the banking and insurance industry next and force them to be honest,” said backers.

Opponents also said that had Amendment E passed, a criminal could have sued jurors who helped convict him.

Backers answered that Amendment E was intended to have “specific and limited jurisdiction. It can only address certain classes of judicial misconduct. As a jury member, you cannot possibly engage in the types of judicial misconduct covered by the amendment. On the contrary, Amendment E will actually restore a lost right jury members once enjoyed.

And that is the right to vote your conscience, as opposed to how the judge wants you to vote.”

Backers added that Amendment E would have ensured that if a law is being misapplied, or is a bad law, the jury may vote their conscience and overrule even the judge and the legislators by acquitting the defendant. This is called jury nullification.

As it is now, backers say that judges prevent juries from learning they have the right to nullification. Opposition groups also claimed that South Dakota’s Judicial Qualifications Commission already disciplines bad judges. Backers said that instead of disciplining wayward judges, the commission covers for them. The commission, backers say, is nothing more than a “good ole’ boys club, comprised of two judges, three lawyers, and two of the governor’s politically connected cronies.”

(Issue #48, November 27, 2006)

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Updated November 18, 2006