Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
While conservatives are busy saying, "Attacks on judicial independence? What attacks on judicial independence?", South Dakota has an amendment on the ballot this year allowing people to sue judges for making decisions they don't like. And that's not the half of it. The LA Times reports:
South Dakota's Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals -- including, in a rare show of unanimity, every member of the state Legislature.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."
Gee, what attacks on judicial independence.
Comments
I heard about this today on NPR for the first time and almost had a wreck! WTF! I think they will have something longer on Morning Edition tomorrow.
Posted by: coturnix | October 18, 2006 10:29 PM
There are clods of dirt smarter than the S. Dakota Leg and yet they still figured out that this was a bad idea. Wow. Kind of takes your breath away.
I particularly like the guy in the article who thinks this is a move in favor of democracy. Because American Idol should be the model for all kinds of decisions.
Posted by: kehrsam | October 18, 2006 10:51 PM
You know who frightens me more than the so-called "activist" judges? My neighbors, that's who. This is a terrible idea.
Posted by: Allen | October 18, 2006 11:53 PM
Very rare is the piece of Woo that makes me do anything more than shake my head and chuckle at the cluelessness. Ammendment E made the cut.
Items that jumped out at me while reading the text.
Discipline of members of this special grand jury (SGJ) is exclusively retained by the SGJ. Oh good. They can grind any judge to dust based purely on personal distaste for a judge's decision without facing consequence.
Beyond zero accountability for their decisions, there is no provision of appeal, overruling or reversing. Once sacked, a judge is sacked. Period.
All judicial decisions going back to antiquity are eligible for review. No limitations. That first SGJ could purge the entirety of the judiciary in the first week.
Anyone who possibly has actual knowledge of the law or the judicial system are banned from service on the SGJ. No judges, lawyers, or law enforcement officers.
The SGJ can actually institute criminal proceedings against a judge. A second SGJ is formed, selects the prosecutor, gracially allows a judge with less than four years of experience to sit in as an advisor, and then criminally tries and sentences the judge.
The ammendment specifically states that criminal convictions made by this SGJ are immune to judicial review.
No state funding or services may be used to help an accused judge face this kangaroo court.
Selection to the SGJ is entirely random. Any woo woo nutjob can stick his name into the proverbial hat and be drawn. Exactly what percentage of those who take an active step to serve on the SGJ are going to understand the concept of an independent judiciary? Will all liberal judges be wiped the first year when the random draw leans conservative? Will the remaining judges go out the window the following year if the random draw blows a different political direction?
Fortunately there is only poll showing that E is going to pass. Twas a mushy one commissioned by the pro E camp that asked a question dealing with the philosphy behind the ammendment and not the ammendment itself. Easy to put up the front that you have a two thirds majority when your poll is essentially, "Do you think eating kittens is evil?"
Posted by: Sean | October 19, 2006 12:05 AM
If such a thing passed, I suspect Federal courts would declare it unconstitutional as a violation of due process. One of the basic tenets of due process is ultimate fairness (in some sense). Any judge that has to modify his impartiality because of the threat of being sued is clearly not providing due process to whoever he/she rules against.
Posted by: Ahcuah | October 19, 2006 12:21 AM
The amount of ignorance displayed by members of our legislatures is stunning. Did they never take a basic class in US History during high school? Do they not understand that that's why the judges are there? One of the primary tenets behind our government is that populist movements should not be allowed to move quickly through the government. That's why we have legislative rules that, on the whole, require bills to move slowly. That's why we have (or used to have) an independent judiciary that can protect the people from themselves when they're egregiously violating their own contracts, or Constitutions.
And the hell of it is, for all the complaining about the judiciary doing "end-runs," this is one of the worst actual end-runs I've ever seen. If you don't like a judge's decision, the solution is simple: pass a Constitutional amendment that changes that decision. But that's too hard to do (whine)! And the truth is, if that judge's decision was contrary to what the constitution of the state or country actually says, that decision would not stand on review for very long. This is populism and anti-intellectualism at its very worst.
Bills like this and HR 2679 means that many people in this country no longer care what's true and right anymore. They're perfectly willing to be wrong and clearly break the law, as long as they get what they want.
Posted by: Brian | October 19, 2006 12:43 AM
In defense of the South Dakota legislature, this is an initiative ammendment that is coming straight from the citizens. Every single member of the South Dakota legislature has come out in opposition to the ammendment.
The writers of the actual ballot text have inserted a comment that this will likely be challenged as a violation of the federal Constitution and the fine state of South Dakota will be picking up the bill.
Posted by: Sean | October 19, 2006 1:02 AM
The hell? What kind of idiot wakes up one day and thinks "hmm, you know what's wrong with the US? Not enough lynch mobs"?
Posted by: Corkscrew | October 19, 2006 5:56 AM
So, under this amendment, when a judge is decided to have judged a case wrongly, does the case go back to trial?
If so, under the right conditions one really nasty divorce could wipe out the whole state judiciary. Say Judge X decides the case in a way that the ex-wife dislikes. She sues the judge, the SJG "tilts liberally" in her favor and removes the judge, and the case goes to a new judge... who rules in a way that the ex-husband dislikes. He sues the judge, the SJG "tilts liberally" in his favor and removes the judge, and the case goes to a new judge... repeat ad infinitum.
Posted by: MJ Memphis | October 19, 2006 8:05 AM
"We want to give power back to the people," said Jake Hanes, a spokesman for the measure.
If, as in most misguided states, SD elects judges, "the people" have the "power" to remove judges at the next election.
Posted by: raj | October 19, 2006 8:19 AM
Does not appear that the amendment can actually overturn the decision that has landed a particular judge in the People's Court.
Does that make it better or worse?
At least a judge who deliberately makes an unpopular but legally sound decision will know his sacrifice will not be completely in vain.
Another joy. Funding for this SGJ comes from from three sources: a 1.9% paycut for all judges, forfeited benefits from disciplined judges and imposed fines. The Inquisition running a bit low on fundage? Pick a few victims and levy some five figure fines!
Posted by: Sean | October 19, 2006 8:29 AM
"My jeans have holes in them. The judge must be guilty!"
Posted by: Alex | October 19, 2006 9:53 AM
Another thing that could possibly happen would be people filing frivolous lawsuits in an attempt to make a quick buck filing suit against the judge after they lose. This would just provide another path for someone to abuse the system.
Posted by: llDayo | October 19, 2006 10:16 AM
If this passes, this commission is going to be busy, since half of the people that go before the court (i.e., everyone that loses!) is going to blame the judge!
Posted by: KeithB | October 19, 2006 10:39 AM
Stuff like this makes me want to invade rural Murka and impose an education on the population. At least a year more of civics class, anyways.
Posted by: Stogoe | October 19, 2006 11:04 AM
Brian wrote:
"Bills like this and HR 2679 means that many people in this country no longer care what's true and right anymore. They're perfectly willing to be wrong and clearly break the law, as long as they get what they want."
See, gay marriage has already destroyed the fabric of our society.(/snicker)
Posted by: SharonB | October 19, 2006 12:02 PM
Sean wrote:
Sean, great post, with one minor quibble -- you're misusing the slangwords "woo" and "woowoos." It doesn't just mean nonsense, it is supposed to signify a particular *kind* of nonsense, one involving the paranormal and/or pseudoscience, usually with a vaguely "New Age" flavor to it.
If the amendment provided citizens with the opportunity to address their grievances against judges by forcing said judges to wear special magnets in their shoes to "adjust the negative energy flow and allow closer contact with Universal Harmony, thus helping to bring the natural balance of justice and mercy into line with one's chakras" then THAT would be a "piece of Woo."
As it is, it's just a piece of sh*t.
Posted by: Sastra | October 19, 2006 1:15 PM
Posted by: linnen | October 19, 2006 2:35 PM
What I want to know is: What if this passes, and a judge declares it unconstitutional? Can supporters of the amendment sue that judge? Wait, what if it passes, and when the test case comes a judge declares that it is constitutional? Can supporters of judicial independence sue that judge?
Posted by: Coin | October 19, 2006 5:14 PM
That sound you here is the DI and the Thomas More Law center snuffling around for a case they can try in an SD state court.
Posted by: KeithB | October 19, 2006 6:47 PM
The Chinaman is not the issue here, Dude.
Posted by: Ginger Yellow | October 19, 2006 7:33 PM
Hey, if our fine president can mangle elementary school vocabulary words into new and fascinating forms, I demand the right to misapply a piece of slang.
I am more embarrassed by spelling 'amendment' correctly when writing my first post. Then I saw 'ammendment' in the masthead of the pro-amendment website. "I'll be darned," I said. Quickly added extra Ms and submitted.
Serves me for trusting a woowoo website at midnight.
Posted by: Sean | October 19, 2006 9:45 PM
It's about time!!! As a collective judges are the most corrupt, power drunk elitists in society. Nobody should ever have a lifetime appointment for anything! In my divorce the judge stole my childrens property, which was held in trust, and gave it to me ex by "selling" it to her for ONE DOLLAR!!! The kids lost their college funds and my attempted appeals so far have been protected by the cronies of Judge Rick Lawrence of Oxford County District Court in Maine. I will probably never win and will spend a lot of time and money, but one thing is for sure. That judge may not be forced to pay money but he will pay in aggrivation. My next move is to sue him for ruling out of his jurisdicyion (family court judge ruling on probate property). JUDGES SHOULD BE AS ACCOUNTABLE FOR THEIR ACTIONS AS ANYONE ELSE IN SOCIETY AND THE NOTION OF AN INDEPENDENT JUDICIARY IS DANGEROUS AS IS ABUNDENTLY APPARENT.
Posted by: Rob Campbell | October 27, 2007 6:37 AM