A proposed amendment to the South Dakota Constitution that was inspired and promoted by a Californian and that responds to no problem in South Dakota would destroy the partnership between judicial independence and judicial accountability in the state, fundamentally alter its form of government, and leave its citizens without the protections that independent courts have provided since 1889.
Last August we published an editorial that used a variety of recent proposals and programs which have been promoted under the banner of "judicial accountability" to "illuminate the partnership between accountability and independence and thus to distinguish means that would foster that partnership from those which might destroy it." (see Judicial Accountability, July-August 2005, at 4). Little did we realize at the time that a proposed state constitutional amendment which would destroy the partnership was circulating in South Dakota, one that now appears to have garnered a sufficient number of valid signatures to be placed on the ballot in November of this year.
The "Judicial Accountability Initiative Law (J.A.I.L.)" would create a special grand jury for the purpose of determining whether judges civilly sued as a result of their judicial acts should be stripped of immunity and whether they should be indicted for criminal violations. The special grand jury would be composed of those drawn at random from registered voters and any citizens who volunteered, although members of the state bar, judges, prosecutors and law enforcement personnel, among others, would not be eligible to serve. The special grand jury would be directed to construe "[a]ll allegations in the complaint ... liberally in favor of the complainant" and reminded on a monthly basis "that they are entrusted by the people of this State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge."
Judges of both law and fact, the special grand jury would deny immunity "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 state or federal constitutions. "Blocking" is defined as "[a]ny act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of an unlawful or void judgment or order."
In addition to being denied immunity in a civil suit, a judge who was the subject of three adverse immunity decisions ("strikes") would be permanently removed from office and lose one half of his or her retirement benefits. Moreover, the proposal would deny public reimbursement of defense and indemnity expenses, and representation "by any elected or appointed counsel," to judges complained against or sued civilly pursuant to the amendment. …