Oh. My. God!
Mar. 17th, 2006 01:30 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumYou thought S. Dakota was not the place to go because of the abortion issue...
That, my friends, is nothing compared to the judicial accountability intiative being put on the ballot.
For some 800 years judges have; so long as they acted in good faith, been free from prosecution for doing their jobs. It allows for judicial independence. This has been limited, at times, usually by monarchs who didn't like adverse rulings. So they removed the judges and appointed lackey and sycophants who would do as the ruler wanted.
S. Dakota has decided to legalise a sort of public opinion council/lynch mob, to effect a similar end.
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.
And what, you may ask, issues of law and fact will this Special Grand Jury be deciding?
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.
OK, seems to me the State has means to sanction judges who do that. And, since most judges are elected, the voters could just turn them out of office, but on its face it isn't that bad. So far.
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.
hrmn...
Ok, how will it be implented, and what do they mean by willful rendering of an unlawful or void judgement? After all, judgements are made with some deliberation, so all of them are in ways wilful... will being overturned on appeal count?
Lets look at the implementation.
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. So elible persons (above thirty, citizen of the U.S. for not less than nine years, resident of S. Dakota for not less than two years. Excluded from serviceelected 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.
So they will be decidedly cognizant of the law, the customary methods of interpretation, the limits of scope (what arguments, legal and practical were made, precedents cited; and relevance of conflicting precedent) on a judges interpretation of statute and caselaw, minutae of procedure and the thousand petty details of decision. That will help.
What happens if a case is brought?
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.
So... someone makes a complaint, and the judge has to pay all the costs of his defense. To be noted is the lack of sanction, nor recovery of expenses from the state, for complaints which result in the judge being exonerated. Nice.
Who then decides if a complaint has merit?
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,... A majority of seven shall determine any matter.
The Jury has the sole discretion on what shall be pressed, with a predisposition against the judge.
Just in case there seems to be a worry that the various prosecutorial aspects of the State of S. Dakota are too kind to judges, 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; on the other hand, if a Grand Jury has actually decided to deny a True Bill, that will serve to shield a judge.
What then shall be the procedure for trying, "both law and fact?"
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.
Lest one worry too much, Such sentence shall conform to statutory provisions.
Three convictions under this system will cause a judge to be removed from the bench, and forfeiture of half of any pension earned to that date.
How will the costs of this be paid?
6. Annual Funding. The Legislature shall cause to be deducted one and nine-tenths percent from the gross judicial salaries of all judges, Once it gets rolling however, the fines (and forfieted benefits) will go into the operational budget.
So, lets review the bidding. Complaint gets filed (and any perceived curtailment of law would count, the least is as punished as the most. Someone thinks the refusal to void a traffic ticket was a violation, it can go to trial. Three strikes, for anything, and you are off the bench) the Special Grand Jury looks at it, appoints a jury, which hears it. Judges are taxed to cover the costs. There are no penalties for filing a charge which has no merit. The Special Grand Jury gets to steal jurisdiction if the local prosecutor fails to indict, or goes forward too slowly. The judge for such a trial is purely for procedural control of the trial (and must be, relatively, inexperienced) but has no brief to weigh issues of law.
Now for the kicker (you thought it couldn't get any better), 23. Preeminence. Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision. There's a clause which says it could conflict with the present constitution, but that pre-eminence stuff seems to me to be trumps (unless that clause is ruled void, which could happen).
That, my friends, is nothing compared to the judicial accountability intiative being put on the ballot.
For some 800 years judges have; so long as they acted in good faith, been free from prosecution for doing their jobs. It allows for judicial independence. This has been limited, at times, usually by monarchs who didn't like adverse rulings. So they removed the judges and appointed lackey and sycophants who would do as the ruler wanted.
S. Dakota has decided to legalise a sort of public opinion council/lynch mob, to effect a similar end.
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.
And what, you may ask, issues of law and fact will this Special Grand Jury be deciding?
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.
OK, seems to me the State has means to sanction judges who do that. And, since most judges are elected, the voters could just turn them out of office, but on its face it isn't that bad. So far.
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.
hrmn...
Ok, how will it be implented, and what do they mean by willful rendering of an unlawful or void judgement? After all, judgements are made with some deliberation, so all of them are in ways wilful... will being overturned on appeal count?
Lets look at the implementation.
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. So elible persons (above thirty, citizen of the U.S. for not less than nine years, resident of S. Dakota for not less than two years. Excluded from serviceelected 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.
So they will be decidedly cognizant of the law, the customary methods of interpretation, the limits of scope (what arguments, legal and practical were made, precedents cited; and relevance of conflicting precedent) on a judges interpretation of statute and caselaw, minutae of procedure and the thousand petty details of decision. That will help.
What happens if a case is brought?
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.
So... someone makes a complaint, and the judge has to pay all the costs of his defense. To be noted is the lack of sanction, nor recovery of expenses from the state, for complaints which result in the judge being exonerated. Nice.
Who then decides if a complaint has merit?
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,... A majority of seven shall determine any matter.
The Jury has the sole discretion on what shall be pressed, with a predisposition against the judge.
Just in case there seems to be a worry that the various prosecutorial aspects of the State of S. Dakota are too kind to judges, 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; on the other hand, if a Grand Jury has actually decided to deny a True Bill, that will serve to shield a judge.
What then shall be the procedure for trying, "both law and fact?"
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.
Lest one worry too much, Such sentence shall conform to statutory provisions.
Three convictions under this system will cause a judge to be removed from the bench, and forfeiture of half of any pension earned to that date.
How will the costs of this be paid?
6. Annual Funding. The Legislature shall cause to be deducted one and nine-tenths percent from the gross judicial salaries of all judges, Once it gets rolling however, the fines (and forfieted benefits) will go into the operational budget.
So, lets review the bidding. Complaint gets filed (and any perceived curtailment of law would count, the least is as punished as the most. Someone thinks the refusal to void a traffic ticket was a violation, it can go to trial. Three strikes, for anything, and you are off the bench) the Special Grand Jury looks at it, appoints a jury, which hears it. Judges are taxed to cover the costs. There are no penalties for filing a charge which has no merit. The Special Grand Jury gets to steal jurisdiction if the local prosecutor fails to indict, or goes forward too slowly. The judge for such a trial is purely for procedural control of the trial (and must be, relatively, inexperienced) but has no brief to weigh issues of law.
Now for the kicker (you thought it couldn't get any better), 23. Preeminence. Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision. There's a clause which says it could conflict with the present constitution, but that pre-eminence stuff seems to me to be trumps (unless that clause is ruled void, which could happen).
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no subject
Date: 2006-03-17 05:30 am (UTC)I don't even want to think about the sort of scoundrel or syncophant who would be willing to be a judge under those conditions -- and I'm sure they are out there.
no subject
Date: 2006-03-17 05:57 am (UTC)If one is dealing with a Richard III, or Stalin, or Pinochet, one knows what one has to do to avoid sanction.
Under this, you have to please all of the people, all of the time. If a guy accused of robbery gets off, and the jury says they had to acquit because of a piece of excluded evidence (or if the complaintant says it, and the evidence never got to the jury) then that goes to trial.
The judge has to fight it, out of pocket. If he loses, one strike.
What happens when a civil case is reveresed on appeal? Or a guilty verdict dismissed because of judicial error?
The side effects are horrifying.
TK
no subject
Date: 2006-03-17 06:22 am (UTC)Civil cases would be a judge's nightmare.
I could see how it might actually increase graft -- from judges taking bribes to cover legal expenses.
I wonder what its prospects are for passage? It's exactly the sort of initiative that can be reduced to tv commercial sound bites "Vote for Judicial Accountability!" which disguise what a horrendous piece of crap it is.
no subject
Date: 2006-03-17 07:14 am (UTC)But the problem is the enforcment. It's hideous. I know a little something about the law, in its squalor, and its majesty. But most people don't, and they will apply, "common sense," which can (as you know) lead to all sorts of prejudice being granted force.
And this thing has no Stare Decisis. The Jury is tryer of both law and fact? Ye gods and little fishes. Yes, judges do that, but they do it by request, and with training. How do motions get handled in this fiasco? The judge isn't allowed to rule, the Jury gets to vote on them. WTF!?
It increases all sorts of threats. What if the judge has to make a controversial ruling... is it going to be improper for someone to mention that they think such a ruling to be a violation of this law?
The Appellate issue... only protects the judge if it's an in-state appeal. If the feds overturn it, he goes down for it; if the appeals court upholds, he's safe, and the appeals judge are now exposed, but if the appeal is overturned (in state) he is vulnerable again.
The bit about unreasonable delay... what does that mean? The law doesn't define reasonable delay, so it's at the discretion of the aggrieved. Allow too many delays by the defense, and "boom" not only are you haled into court, you are off that case. This is a judge shoppers dream.
Gah! My head hurts. The more I look at it the worse it looks.
I think Calif. having review refernda on the State Supreme Court compromises the independence of it (and Rose Bird and I forget the Hispanic guy prove my case. I was against it then {when I was more tolerant of capital punishement, because of that, and that was when I was in high school).
Angels and Ministers of Grace...
TK
no subject
Date: 2006-03-17 06:00 am (UTC)no subject
Date: 2006-03-17 06:03 am (UTC)Even this Court won't cross that Rubicon. They are of the opinion that making it de facto impossible is legal, so long as it is still, de jure available.
But yes, that sort of thing is part of what this destroys.
TK
no subject
Date: 2006-03-17 06:19 am (UTC)Then comes disbelief - not that such a thing could be written in and pass, because I see random madness from time to time - but in the thing itself. When the very means of rendering a system functional becomes a threat to the system, things break. I'll deal with bad things I can predict, but I can't even begin to guess how this will play out if it goes through.
I'm really tempted to point and say, "Here comes the legal equivalent of anarchy, where everyone defines harm without an outside control." Or perhaps a legal vigilantism, where anyone who feels they have a cause can put on their cape and take on the law.
I’m reduced to WTF, and that doesn’t help anyone.
Needless to say, if this goes through, I'll be skipping the next badlands race.
no subject
Date: 2006-03-17 07:35 am (UTC)I really can't understand how someone could think this was the right path.
Finally friending you, by the way, having seen you give the heads-up on several things like this.
no subject
Date: 2006-03-17 08:05 am (UTC)I think I could follow what you wrote if it weren't midnight and my brain weren't full of Batman Begins.
I friended you 'cos I like what I see of your thoughts.
no subject
Date: 2006-03-17 01:36 pm (UTC)(As a long-time Minnesotan, I could make all kinds of humorous remarks about South Dakota, but this is too serious.)
no subject
Date: 2006-03-17 02:15 pm (UTC)I'll be damned (possibly literally, if they get their mitts on me.) They've written a law to let mob rule pre-empt the law.
This isn't just about abortion, y'know. It's about how a "majority" religion's views of Genesis should trump science teaching in schools, how just because the marriage laws don't actually state "one man one woman" everyone KNOWS thats the only way they can be interpreted. Oh, and punish "renegade runaway activist judges" like that guy in Florida who allowed Terri Schivo's parents two decades of appeals in their way to find a way around the laws as written. Because anyone who saw that 5-minute video just KNEW she was conscious, nevermind the transcript saying the judge watched all 4 hours of it with doctors and found the exact opposite.
no subject
Date: 2006-03-17 02:49 pm (UTC)And they'll destroy their state economy when they do it, because no businesses will want to go to such a backwards place, and all the brains will flee, making it a religious ghetto. I really ache for my friends there...
South Dakota...The New Lion Country Safari
Date: 2006-03-17 02:27 pm (UTC)They are advised to keep their windows and doors closed and not to leave the vehicle.
no subject
Date: 2006-03-17 04:53 pm (UTC)This seems to be the work of a small group of whackjobs instead of a whole state full of them.
no subject
Date: 2006-03-18 01:59 am (UTC)I also don't doubt they can use this to gin up a base, not useless in a general election... and a strategy I've been noting: Get something crazy on the ballot, so the devoted will come out to vote for it [even when the rest of the state will get it killed] and the coattails get the election skewed on the candidates. This also becomes a rallying cry; "See how persecuted we are, they prevent us from holding judges accountable....! {with wailing and gnashing of teeth).
Which keeps the money coming, and the base roiled.
TK
no subject
Date: 2006-03-17 05:01 pm (UTC)Do they seriously not realize that this will result in overburdened court dockets, larger government, and weaselly judges? What next, another amendment for the accountability of prosecutors if they decline to indict a judge? (Huge sucking sound as everyone with a real legal mind leaves the state.)
Who's on this jury?
Date: 2006-03-17 06:58 pm (UTC)"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." (My emphasis)
So the Focus on the Family crowd or others of its ilk could potentially pack the jury, similar to what they're doing to the FCC complaint mailboxes.
Re: Who's on this jury?
Date: 2006-03-18 01:51 am (UTC)TK
no subject
Date: 2006-03-18 01:42 am (UTC)