The Feel Bad Amendment of the Year

By October 19, 2006Briefly Legal

This election season, if there’s one only editorial you can read on South Dakota’s Amendment E, make it this one.

South Dakota’s proposed Constitutional Amendment E — the so-called J.A.I.L. amendment — on the November ballot is one of the more distressing measures to ever go before the state’s voters. At best, it’s unfortunate and possibly unconstitutional at the federal level; at worst, it’s an invitation to chaos not only in the state’s judicial system but for elected officials at various levels.

That’s the Yankton Press & Dakotan, weighing in on the initiated amendment to lift judicial immunity, allowing personal lawsuits against judges for decisions they hand down. Through creation of an unfettered “Special Grand Jury,” the amendment would tear down the rule of law, discourage judges from dismissing frivolous lawsuits, and invite business-threatening litigation from around the country. The attorney general has opined that the law would also apply to citizens who make decisions on bodies like school boards and county commissions.

The proponents rail against out-of-state interests for opposing the measure, although the initiative has its roots in radical anti-government activism in California. So, let’s let the Yankton paper speak in a South Dakotan voice.

What we see happening should Amendment E be enacted is a tidal wave of frivolous complaints, filed by disgruntled individuals, filling the dockets of these special grand juries. In some cases, what would the “complainants” have to lose? This would have devastating impact on the state’s judicial system and on governing boards. It would also have a chilling effect on potential candidates for judgeships and for boards: Who would be willing to expose themselves to such intimidation and punishment? That kind of atmosphere would indeed be a recipe for chaos.

One should also ask, if Amendment E is enacted and special grand juries are set up, would these special grand juries be subject to this same kind of review? And would the special grand jury that sits in judgment of the first grand jury also be exposed, etc., etc.? And if not, why not?

On a personal note, we should also mention that our fleeting exposure to the Amendment E proponents, several of whom hail from out-of-state and thus would not be affected by the mess they may generate here, has been intriguing, to say the least. Rightly or wrongly, they come off as hotheaded, paranoid, quick to pass judgment and the kind of people who probably wouldn’t hesitate to file lawsuits and take other actions against anyone they dislike or define as “wrongdoers” according to their own definitions. In short, they make the case in illustrating why the immunities they criticize were set up in the first place.

There’s a wealth of information out there on the amendment, including its implications for businesses across the country. Along with the organized No On E Coalition, the bipartisan bloggers at No E SD are doing a superlative job.

The NAM offers a resource page on the topic here.

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  • But the worst provision of the amendment is section 2 which states:

    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.

    Who in their right mind would be in favor of holding judges accountable for the above stated violations of a person’s constitutional rights?
    Outlandish! Judges MUST remain free to do whatever they want to their courtroom victims.
    I say we need to go one step further. We need to bring back the divine rights of the King of England. (only today it would be the “divine rights of judges”) I curse justice. Long Live Judicial Immunity!