Getting Out the ‘No’ Vote
For almost a year, Thomas Barnett has been on a mission, traveling across South Dakota in a campaign to persuade voters to reject a November ballot initiative known as JAIL.
Barnett, the executive director of the State Bar of South Dakota, has visited Kiwanis clubs, Rotary meetings, chambers of commerce–even state fairs. “Wherever groups of 15 or more people meet, we’re there,” he says.
If Barnett fails, South Dakota will become the first state in the country to abolish judicial immunity.
The ballot proposal, the South Dakota Judicial Accountability Initiative Law, would amend the state constitution to allow litigants to sue judges for intentionally violating people’s due process rights, deliberately disregarding material facts, acting without jurisdiction and various other conduct.
Polls Show Initial Support
Last year the measure, also known as amendment e, secured a place on the ballot after it garnered more than 46,000 signatures. In January, polling by Barnett and opponents showed there was support for the measure by a margin of 3-to-1.
Initial support for the amendment didn’t spring from any particular cause célèbre cases or judges, early polling showed. Rather, it appeared that voters who signed petitions to get the proposal on the ballot supported the basic premise that nobody is above the law. That’s the message pushed by initiative supporters, who say judges should face lawsuits for wrongdoing the same as any other citizen.
“Right now, judges have no fear,” says Gary Zerman, a Valencia, Calif. based lawyer who serves as both a consultant and spokesman for the organization behind the amendment. The proposed law, he says, would “act as a sword of Damocles over them.” But opponents contend the amendment threatens judicial independence. “Amendment E interferes with the ability of our courts to fairly and impartially apply the law,” says Barnett, who has been active in the No on E Committee, a coalition of lawyers and laypeople fighting the proposal.
Barnett’s concerns have been echoed by retired Justice Sandra Day O’Connor, who called the initiative “unusually venomous” in a commentary published in the Wall Street Journal. O’Connor is honorary co chair of the ABA Commission on Civic Education and the Separation of Powers.
Though amendment supporters claim they are seeking judicial accountability, “they aspire to something far more sinister–judicial intimidation,” O’Connor wrote in the Sept. 27 commentary. “Judges who are afraid–whether they fear for their jobs or fear for their lives–cannot adequately fulfill the considerable responsibilities that the position demands.”
In addition to abolishing judicial immunity, the proposal creates a procedure for vetting cases against judges–but critics say that system is unconstitutional. The amendment would create special grand juries, made up of civilians, who would decide whether a case against someone with judicial immunity can go forward. If the grand jury rules against a judge on three separate occasions, the judge would be removed from the bench and his or her pension would be sliced in half.
The amendment is being fronted by local businessman Bill Stegmeier of Tea, but Zerman and the other backers are based in California. The initiative’s mastermind, Ron Branson of North Hollywood, has unsuccessfully fought to get a similar bill on the California ballot since 1996.
Branson started the JAIL movement after filing his own series of unsuccessful lawsuits in California, including a 1994 false arrest case. He has tried to seek redress before the U.S. Supreme Court in at least 14 cases, according to his group’s site at www.jail4judges.org. Zerman joined forces with Branson after he lost a legal malpractice lawsuit he filed against two lawyers he describes as “very powerful plaintiffs attorneys”–he says the judge wrongly told the jurors to decide for defendants. “Specifically, all of us are victims of legal abuse, of judicial tyranny,” Zerman says. He argues that nothing in the Constitution guarantees judicial immunity.
Barnett suggests JAIL supporters seem to be taking their cues from legislators and others who have publicly attacked judges in recent years. Controversies such as the Terri Schiavo case and a decision legalizing gay marriage by the Massachusetts Supreme Judicial Court appear to have fueled a broader backlash against judges, Barnett says. Barnett’s group doesn’t even use the phrase judicial independence when arguing against the law, because of fears that laypeople will equate independence with judicial activism a phrase that took on negative connotations during the most recent U.S. Supreme Court judicial confirmation hearings.
Barnett and the No on E Committee are working to frame the debate differently by emphasizing the likely effects of the ballot proposal. Their efforts gained ground at the end of August when the South Dakota Supreme Court approved a ballot explanation written by state Attorney General Larry Long. It says Amendment E would allow lawsuits and criminal charges against anyone now protected by judicial immunity, including judges, city council and school board members, and county commissioners, among others.
JAIL had unsuccessfully attempted to get additional language included that says the bill allows people to sue judges for deliberately violating their rights, and that the purpose of the act was to hold judges and others accountable.
Striking a Resonant Chord
Long’s explanation is similar to the message of no on E’s campaign to educate voters that eliminating judicial immunity will affect not only judges but also a host of others, including citizen boards and jurors. One “Vote No on E” poster shows a woman posing for a mug shot with a placard identifying her as “Juror No. 3.” “
That message–this isn’t just about judges; it’s about all of us–is the one that’s resonated,” Barnett says. “If all this was about judges, it would be very, very difficult to beat,” he adds.
Barnett says that after voters learn that abolishing judicial immunity potentially subjects jurors and other ordinary citizens to lawsuits, opinion shifts from 3 to 1 in favor of passage to at least 2-to-1 opposed.
By the end of September, No on E had racked up support from a broad range of organizations, including the South Dakota Chamber of Commerce, the State Bar of South Dakota and the state AFL CIO.
The American Bar Association has not taken a position on the amendment, says Doreen Dodson, a St. Louis attorney and chair of the ABA’s Standing Committee on Judicial Independence. But she calls the proposal “mind bogglingly unconstitutional.”
Opponents point to problems with provisions for special grand juries that don’t squarely fall within the executive, legislative or judicial branches of government.
“The proposal sets up a fourth branch of government that would be accountable to no one, and that would be in charge of hunting judges,” says Jesse Rutledge, spokesman for Justice at Stake. The Washington, D.C. based organization partners with the American Bar Association and is dedicated to promoting impartiality in the judiciary.
“It’s a very problematic sledgehammer approach in a state where there is absolutely no history of problems with the judiciary,” Rutledge says.
Dodson adds that judges could expect to face an endless parade of dissatisfied parties. “You would have every disgruntled criminal defendant going to that body of people and saying, ‘I don’t think I got a fair trial.’ ”
William Missouri, a judge in Prince George’s County, Md., says judges may leave the bench rather than face the financial burden of having to defend themselves every time an unhappy litigant tries to take them to court.
“Fifty percent of the people who come before you will come away unsatisfied,” Missouri says. “Whether a suit is frivolous or not, you still have to defend against it and defending a suit costs money.” Missouri serves as chair of the ABA Judicial Division’s National Conference of State Trial Judges, which hasn’t taken a position on the proposed amendment.
JAIL, meanwhile, has ambitions beyond South Dakota. The organization hopes that a victory there in November will spur ballot initiatives elsewhere. Zerman says other states with some grassroots support for the law include Idaho, Florida and Nevada. That’s exactly the scenario that Justice at Stake fears. “The danger is not just that the measure might pass in South Dakota, but that it’s an idea that might spread to other states,” Rutledge says.
As of late September, Barnett was optimistic that scenario wouldn’t come to pass. “We’re going to kill them dead here,” he says, “so no other state has to go through what we’re going through.”