The Worst Judicial Reform - A Jail For Judges

Judicial Immunity

Judicial Immunity is a special right extended to judges which prevents them from being sued for the decisions they make on the bench. It originally descended from the English Courts, where judges were seen as an extension of the king, and were therefore infallible, but here in the US, it’s changed, and in a very important way. In today’s world, judges have immunity to shield them from retribution for making unpopular decisions. While this may seem counter-intuitive, it’s absolutely essential. Correct decisions are not always popular decisions. Consider the case of Terri Schiavo. In that case the judge sided with Michael Schiavo, which was not popular, but according to the law, was the correct decision. Also, several of the habeas corpus cases that have arisen recently due to the detentions at Guantanamo Bay have been unpopular decisions, but are correct according to our understanding of human rights, and the laws we have currently.

Currently the judges in those decisions cannot be sued for their decisions. Amendment E wishes to change that.

Amendment E

Amendment E specifically addresses immunity, and claims that a judge cannot have immunity in the following cases:

(Source: Amendment E - http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/J.A.I.L.pdf)

In brief: Amendment E calls for a 13-Person Grand Jury to be created that will preside over hearings in cases where someone feels the judge has broken one of the above conditions. A case before the special J.A.I.L Grand Jury is decided by simple majority of 7 people. It’s worth noting that traditionally in the US, guilty verdicts have to be decided by a unanimous jury, rather than a simple majority as proposed here. If a judge is found guilty before these grand juries 3 times they are permanently removed from the bench and docked half of their retirement. It seems to me that the law has been created in such a way as to ease the process of finding a judge guilty, and for removing them from the bench as quickly as possible.

I would like to point out, that not all of the conditions outlined in the paragraph above are bad. Indeed, I strongly believe that judges who violate the law, or conspire to decide in a certain fashion regardless of the evidence, or of blocking the ability of either side from presenting their arguments should be called on the carpet. They should have to explain themselves, and in some cases pay for their actions. More on that later however, because while I agree with some of the clause, there are two items that trouble me deeply.

“…deliberate disregard of material facts…” is a broad statement. Defendants will claim that there is all manner of material evidence that was not taken into account during their case. As they say “Jails are filled with innocent men”. The J4J website claims to have settled this matter when they say:

“J.A.I.L. has nothing to do with court decisions on the merits of a case. It deals only with procedural actions that violate constitutional requirements. If a decision is arrived at based on procedural violations that fail to comport with the 1787 Constitution and laws in pursuance thereof, it is null and void as repugnant to the Constitution. A decision in that instance is no more valid than the procedures used to derive it.”

(Source: http://www.jail4judges.org/JNJ_Library/2005/2005-11-07B.html)

That “explanation” falls short because it’s not an explanation at all but rather a duck from making a direct assertion. Furthermore, Ron Branson, the J4J movement’s founder has claimed that he hopes J4J supporters drive through South Dakota after the initiative passes so they can get speeding tickets and start suing the judges. (Source: http://dakotawarcollege.blogspot.com/2006/07/no-on-e-campaign-finds-lots-of-south.html) If it’s not a mechanism by which the guilty can sue judges because the defendants don’t like the decision, then I don’t understand Mr. Branson’s expressed desire.

Also, consider “…judicial acts without jurisdiction…” I can’t find a good definition of what J.A.I.L 4 Judges means by this line, but they use it a lot. Searching for that line on their website yields 129 results, none of which explain their intent. It’s not too hard to figure out what they probably mean, however. It’s a common complaint from pundits about judges currently. The claim is that judges routinely overstep their bounds and make decisions that:

1. Don’t pertain to the matter at hand.


2. Are not available or open to the judge for consideration.

This could mean that someone decides that a judge didn’t have the right to make a ruling on an abortion case that would also have the effect of nullifying a state’s strict regulations on abortion. This could also mean that someone decides that judges don’t have the jurisdiction to rule on land disputes and need to be punished. It could also mean that judges aren’t supposed to rule on the rights of people detained by the President as an enemy combatant. People who support a strong executive over all other branches believe that courts shouldn’t have the ability to review actions by the Executive branch.

Let’s continue.

Amendment E gets more interesting further down:

(Source: Amendment E - http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/J.A.I.L.pdf)

What does the above mean? The first piece I touched on before. Judges hauled before the special grand-jury and found guilty three times are permanently removed from the bench. They are further docked half of their retirement pay. In the next clause (#19) it clearly states that if a judge is indicted by the J.A.I.L grand jury, they are responsible for paying for their own defense, and are not allowed to use public defenders in any way.

Finally:

(Source: Amendment E - http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/J.A.I.L.pdf)
The members of the special grand jury are themselves immune from being sued for the decisions they make! Can I point out the obvious that it’s the very definition of hypocritical to offer to the grand jury stripping judges of their immunity the very same right? Shouldn’t the grand juries be subjected to the same scrutiny and potential consequences? Sadly, they're not.

What Does It All Add Up To?

This will have a wicked chilling effect on judges. Rather than making decisions based on what they feel the law says, or based on the true merits of the case, judges will make decisions based on what they feel will not open them to being sued. I’m sure that in some cases that just won’t be possible. In some cases judges will be open to lawsuit no matter what they decide. Good judges will be kicked off the bench for doing their job, removing the good with the few bad out there.

Judges also know that when they do get hauled before the grand jury they’re going to have to pay for their own defense and lose money out of their pocket, defending themselves for doing the very job they were chosen to perform. Imagine if you were constantly hauled before a jury and asked to explain why you did what you did and had to pay for anyone helping you explain your actions. Judges will race to recuse themselves, even out of cases that they legally have jurisdiction over and should be hearing.

This will also mean an end to people wanting to be judges in South Dakota, or wherever laws like this get passed. A lack of judges will slow down the court system, and the wheels of justice will begin to grind to a halt. People will have to wait years to have their cases heard, and some cases, especially expensive civil litigation cases that involve class-action lawsuits, environmental law, and the like will have to be dropped altogether because the plaintiffs will not be able to afford keeping paying lawyers for the long time needed to get to court, and judges will refuse to hear the cases altogether for fear of being sued by both sides when they make a choice. It’s even feasible that the judge would get sued for deciding that he or she isn’t allowed to sit in judgment of the case. Amendment E does not make it clear if that’s possible, which typically means there will be a case exploiting that loophole.

Furthermore, Amendment E outlines no prohibitions on tampering with the special grand jury, so in cases where a company is sued in civil litigation and doesn’t agree with the verdict, they could indict the judge and then provide “services” to the grand-jury which could find in favor of the company. Amendment E does not make provision for preventing such abuse. And the decisions made by the special grand juries are non-appealable. But it doesn’t even need to be that directly maleficent. There is no place in the law that says a person called to sit on the special grand jury cannot know or be in any way connected to either of the parties in the case. It only bars politicians, law enforcement, and other judges from sitting in the judgment. It’s entirely possible that the grand jury could be filled with people who feel the defendant was innocent mostly because they know him or her and they railroad the judge.

Despite Mr. Branson’s assertion, and the assertions of the advocates for J.A.I.L 4 Judges, judges are a necessary piece of government. They provide an important check on the powers exercised by the other branches of government. Further, the courts provide a way for disputes between parties to be settled without bloodshed and violence.

Establishing these special grand juries as a fourth branch of government that has no oversight, no controls, and even more immunity than the judges they’re indicting, at great taxpayer expense no less, is a terrible reform. It’s going to cost South Dakotans, and probably all of us in the end, a lot of money, and completely hobble the ability of the State, or the people to seek justice.

So What Can Be Done?

J4J claims that it’s not currently possible to hold judges accountable in any way for their actions. It’s written as if judges are an uncheckable fifth column that seeks to undermine the very fabric of our country, and must be dealt with in the harshest of ways.

As a libertarian and supporter of the concept of jury nullification, I do agree that there does need to be some check on the power of the judges. I have seen my share of judicial abuses and I’m not so naïve as to believe that we have saints and angels sitting on the bench.

However, I don’t think that the draconian measures of Amendment E are necessary. First and foremost, I do think that judges should be on the ballot. J4J would have you believe that it does not work to have judges on the ballot. Ron Branson and his supporters make the claim that judges are never voted off the bench. They should check in with the voters in PA who, after the Commonwealth’s legislature voted themselves a backdoor midnight pay raise which the courts upheld, voted out Justice Nigro last year. (http://www.post-gazette.com/pg/05313/603133.stm) Judges on the ballots are susceptible to being voted out of office like every other politician, especially if their abusive actions are brought to light.

And the abuses of judges should be brought to light. Sunshine laws requiring the public cataloging and discussion of judges should be mandatory across all States and counties. Each person should have full access to the cases judges sat on and the decisions they made.

Also, there should be a method by which the legislature can censure judges. In between elections, the elected representatives of the people should have the ability to call judges before them, and censure them only by a super-majority. This prevents one party, or one interest, or one issue from becoming the reason why a judge is punished.

Judges should also be required to disclose any and all trips they take that are paid for by people other than themselves, as well as any gifts they receive. Judges should not be able to hide the people that attempt to influence them under the umbrella of immunity.

And finally, it is clear that some judges need to be removed from the bench, even if they’re publically popular. A system should therefore be provided to the Local, State, and Federal governments that would allow them to forcibly remove a judge once a threshold of abuse and/or complaint has been reached. But the threshold should be higher than 3. And it should be appealable.

Absolutely, judicial immunity should not shield a judge in all cases of wrong-doing, and I would never claim that it is in the best interests of the people to let bad judges continue to make bad decisions for the sake of protecting the good judges. So I’m also not going to claim that it’s best to rid the bench of the good judges just to toss out a handful of bad ones.

Conclusion

The tenants of good government include: being truly limited, understanding that its power is derived from the will of the people, and providing checks and balances. That’s not what’s happening here. That’s not what J.A.I.L 4 Judges is. That’s not what Amendment E is.

This is a move to remove from judges the long-standing protection of immunity in an attempt to cow them into judging the way that the majority wants. The will of the majority should not be the deciding factor here. The law should. Judges should have, judges need the freedom to interpret the law in the best and most fair way without fear of being hauled before a kangaroo court every time their decision rubs someone the wrong way.

Even as a libertarian I believe we need judges of some sort. We need some form of a judicial system that is functional and independent. Disputes are a way of life amongst humans. Someone needs to help settle those disputes. Laws protect people in society. Someone needs to help enforce the law. Society will not work without a legal system; at least, it won’t work well long-term.

A judiciary scared, browbeaten, and cowed is not a functioning judiciary. It’s a disaster whose long-reaching consequences will hurt us all, not just the people in South Dakota.

So What Can I Do?

The most important thing you can do is understand the issues at hand and keep informed. If you live in South Dakota you should vote against Amendment E, though at this time it looks like the law will pass by a comfortable margin. Write letters to the editor and tell them that you think a law like this in your State would be a bad thing. And most importantly, push for real judicial reform and create an environment in your State where the ideas in Amendment E are not only unnecessary, but are laughable. With real and thorough reform of government, it's possible to preserve and protect the rights of the people, especially their right to seek justice, while still preserving a judge's immunity.

More Information

http://www.jail4judges.org/ http://www.amendmente.com/ http://no-e-sd.blogspot.com/ http://www.npr.org/templates/story/story.php?storyId=6288938 http://www.slate.com/id/2138057/ http://en.wikipedia.org/wiki/Amendment_E http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/J.A.I.L.pdf