Suing The Toga Off Justice

On Tuesday, we will all be waiting with baited breath for the outcome of the mid-term election. But what most have missed in all the flurry of blue candidates, cantankerous pundits, erroneous negative ads, bad state amendments and many regressive tax increases is Amendment E in South Dakota.

In short, Amendment E will give South Dakotans the right to sue judges for misconduct.

While many questions over this might arise allow me to point out one reason the advocates for this Amendment feel it is necessary. They say it is because the current rules and regulations and oversight of judges is not working.

This is where I get rabidly libertarian.

An amendment is not what is needed nor advisble to correct bad actions. Legislation, yes. Correction of authority of boards of oversight, yes. But not a sweeping amendment voted on by Bubba of the Plains. This requires thought, experience and expertise most of which Bubba does not have the inclination to acquire.

We are beyond slippery slopes here. We are in a basket and no idea we are headed south. This trend of amending the constitution to enforce pedestrian views is wrong. Its fraught with majority bias and threatens the basis of the Constitution. And though we purportedly live in a democracy (its really a republic) what happens when Bubba develops and votes on constitutional issues is that anyone with a minority opinion gets trampled by might is right and there is no thought that EVERYONE at some point is in a minority and will need protection. But on to this crap amendment.

At the website for this amendment, they have an FAQ. And though there are questions posed there that ask things such as "will this amendment allow people to sue school boards and banks et al" the amendment supporters say no, that the language is clearly intended for judges only. However, it opens to the door for this to happen. Beyond that what happens here is that judges are now no longer able to deliberate with immunity. That immunity is allowed at all may stick in your craw a bit, but the reason for it is that in order for a judge to apply the law and the constitution to a particular case, often they do have to step outside of what Bubba wants. But it is the judicial process and its procedure that allows Bubba fairness when he needs it not just when he agrees with it.

Stephanie Simon of the LA times writes, "Under the amendment judges in the state could lose their jobs or assets if citizens disliked how they sentenced a criminal, resolved a business dispute or settled a divorce. 'We want to give power back to the people,' said Jake Hanes, a spokesman for the measure.

"A special grand jury would evaluate citizen complaints against judges — and judges would not be presumed innocent. Amendment E explicitly instructs jurors to 'liberally' tilt in favor of any citizen with a grievance, and 'not to be swayed by artful presentation by the judge.'"

I wonder if Jake Hanes ever read the Lottery? The people have no business having power over the courts. We are not as a mob fair and just.

Putting aside the obvious derailing of what the founding fathers envisioned for our judicial process and why, the far-reaching sticky thing about this amendment is that once amendments are established there are cases to try it for interpretation and precedent.

Also of concern with radical actions like this are the questions that they pose and yet there are no answers to. For example: How much malfeasance occurs in the courts of SD? What evidence is there that there is need for this amendment? What other actions could take place to correct what is seen as wrong? What do the current oversight mechanisms need to do a better job? Is a better job actually needed? What laws could be put in place to help avoid or correct judicial wrongs? (I thought appeals were in order) Are any needed? What are the stories, the numbers? In light of the number of cases heard what is the percentage of misconduct? Are they being committed by some of the same judges? Cannot those judges be removed?

Another point to be made here is that its really hard to get legislators to agree on anything, let alone unanimously, but by golly this Amendment has. All the SD leges are against it! All of them! That must say something!

Lady Justice has a sword for a reason.

Oh and as a closing note, this amendment is named the J.A.I.L. Amendment for the Judicial Accountability Initiative Law. My cockles are just cozy over it.

Another good link for info: Point of Law

Here is the amendment