Sunday, October 15, 2006

A South Dakotan Star Chamber?

From Greedy Trial Lawyer, there comes this article about the proposed Amendment E which is on the ballot for this year's election.

The snarky part of me wants to say its not the inquisition, its the Star Chamber. The difference, the Inquisition could, and regularly did, kill people. The Star Chamber could hand down any sentence short of death.

But the more serious side of me wants to find the person who put this Amendment together and ask him what in the hell he is thinking? The supporters of it call it a judicial accountability act. If you read the actual text of the proposed amendment (available here, click on the "Read the Amendment" option), you will see this is actually "lets-have-witch-hunts" or "let's-abolish-the-judicial-system" act.

Essentially, the act allows anyone who is dissatisfied with a judge's performance on a case to bring a complaint with a special empanelled, permanently standing, grand jury. (Incidentally, my favorite part about this special grand jury is the bit where it is funded entirely by a tax on the judge's salaries. ) This special grand jury would then take complaints from any party that had been before a judge and determine whether the judge's action constitute,

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.

Now on the surface, it seems rather innocuous. Who wouldn't want to see a judge who committed a crime hauled before a grand jury. But then read it again. It includes a number of things which happen all the time and for good reason.. because they are part of the legal system under which we exist. For example, one of the categories is "blocking of a lawful conclusion of a case". That could be read by lay people, since no judges would sit on the special grand jury, to include a party who has had their case dismissed because they failed to comply with discovery, answer an order to show cause, or failed to comply with a technical rule. Another example would be when a criminal takes his case to the special grand jury because of a ruling that put him in jail (say, the judge refused to suppress evidence illegally obtained by the police, or perhaps failed to issue a writ of habeas because of ineffective assistance of counsel).

The person who has masterminded this Amendment is a man by the name of Bill Stegmeier. In some of his comments made to other blogs, he has stated that the special grand jury would " hear complaints concerning alleged violations of peoples rights, not the “decisions” of judges." That may be the intention of the amendment, but the wording allows review of any decision because every decision affects a person's rights.

Above, I mentioned the example of the criminal. He could bring a complaint to the special grand jury for the judge's failure to grant bail prior to trial. The denial of bail arguably affects his right to freedom of travel, ability to participate in his own defense, and his rights of free speach. Anothe rexample I mentioned above is the party that has its case dismissed for failure to comply with discovery rules. The party could have a claim for a violation of their civil rights (say someone was illegally detained by a store clerk on an unfounded belief that shoplifting had occurred). If the party did not comply with discovery, they could have sanctions imposed on them which could terminate the case (say, they refused to disclose their criminal history because they did have a shoplifting history in their distant past). The party's case would dismissed, their rights would be affected. Therefore, every right is determined by the decisions which the judges make on a daily baisis.

Essentially, this ballot measure would provide for a "loser's justice". Loser's justice is where the loser gets to say that they lost, but only because "they was robbed!" Any party that was not happy with a ruling, could use that as a basis to bring a suit under this act and have the judge prosecuted and convicted. Three convictions, and the judge is permanently retired from service. So in addition to ruling on cases, the judge would have to be fighting for their jobs form all the people who feel that because they lost, it must have been because the judge was violating the will of the people and ruling in an inappropriate fashion which violated the law.

But this brings us to the real question, what is the purpose fo the courts? Is it to rule the way the mob wants it to rule? Or is it to apply the law in an even handed manner in an attempt to do justice to both parties?

Under the former, justice ceases to be justice and instead becomes trying to appease all in the name of popularity. Standards for ruling on points of law are destroyed and instead the only standard applied is "Will I be prosecuted for ruling on this case?"

Under the latter, there are standards. There may be different judicial philosophies applied, but there will at least be a fairness and impartiality in the application of the law. Conservative and liberal judicial thinkers may differ on how they interpret the law, but at least each side can point to a system by which they arrive at their conclusion. A state where the judciary is held hostsage by the fear that the magistrates will be prosecuted for any ruling or judicial action which they make, is state where the electorate has ceaed to be interested in justice as an institution and simply want jduges who care only appeasing the population.

Is that what you want from your judges?

Passing this type of law is going to undermine the judicial system. How can you expect someone to do their job in an even handed manner, if all it will get them is a reward being prosecuted? How will you get qualified people to serve as judges in a climate where decisions are not only questioned but investigated by a permanent grand jury of people who are not qualified to sit as judges, or even as jailhouse lawyers.

Hopefully the people of South Dakota are not so foolish as to throw away the Anglo-Saxon system of law away in favor of some new rule by the mob. Then again, the mob has a way of dissappointing.

If someone lives in South Dakota reads this, please vote no on this amendment.

Because if it passes in South Dakota, there is a national organization hoping to follow it up in other states.

So ask yourself, what kind of judge do you want on the bench?

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