South Dakota measure puts judges on edge

By Nancy McCarthy
Staff Writer

While much of the nation is focused on who will win control of Congress in this month’s midterm elections, the state of South Dakota has become an unlikely testing ground for a judicial accountability measure that opponents charge will destroy the rule of law.

And because it was written by a North Hollywood man who has tried unsuccessfully three times to place the measure on the ballot in California, it has state jurists worried that they may be targeted next.

Officially called Amendment E, the initiative — the Judicial Accountability Initiative Law otherwise known as JAIL — is a constitutional amendment, needing only a simple majority to pass, that would create a special grand jury of 13 people that could investigate and indict sitting judges.

The measure would strip judges of judicial immunity, exposing them to civil lawsuits and criminal charges for their decisions. And if the special jury finds a judge guilty three times, he or she will be removed from the bench and lose half their retirement benefits.

The proposed amendment is retroactive.

A handful of states have measures on their ballots this month that critics view as an assault on judicial autonomy. Amendment E in particular even attracted the attention of former Supreme Court Justice Sandra Day O’Connor, who called it “unusually venomous” and a challenge to the intentions of the Constitution’s framers in a recent Wall Street Journal opinion piece.

“Although the amendment’s supporters claim they seek a ‘judicial accountability initiative law (JAIL), they aspire to something far more sinister — judicial intimidation,” O’Connor wrote. “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.”

Both California Chief Justice Ronald George and Solano County Judge Scott Kays, president of the California Judges Association, also have spoken out about efforts to limit judges’ ability to make independent decisions. “We want judges to make decisions based on the facts and the law in each individual case and not make a popular decision but make the right decision,” Kays said. “These efforts totally undermine that independent decision making that we have come to know as the basis of our judicial system.”

Indeed, the initiative has so alarmed many South Dakotans that a broad coalition, including lawyers, judges, corporate interests, teachers and elected and civic officials, has raised about $1 million to fight it.

Tom Barnett, executive director of the South Dakota Bar Association, took a temporary leave of absence and is criss-crossing the state to campaign against Amendment E. “It destroys the rule of law, it destroys the equal application of law to everybody, it puts into the Constitution jury nullification and ultimately it will get the state of South Dakota sued,” Barnett said.

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JAIL is the brainchild of Ron Branson, a southern California minister, former prison guard and prolific litigant who founded JAIL4JUDGES, an Internet powered organization of about 2,000 members dedicated to ending “the rampant and pervasive judicial corruption in the legal system of the United States.”

The measure, Branson said, is designed simply to hold judges accountable for their actions. “From my experience in the courts, I found that nothing works,” he said. “You argue A, B and C and the court deals with D, E and F. It’s just a futile thing. There’s absolutely no justice. The judges have their agenda and you’re not gonna change it.”

Branson has a long history of courtroom experience and says he has appealed to the U.S. Supreme Court 14 times. By chance, he met Valencia attorney Gary Zerman in 1992, the two struck up a friendship and eventually drafted the Judicial Reform Act of 1996, the template for the South Dakota measure. But Branson said he was unable to collect more than 5,000 signatures to put it on the California ballot and two more attempts got no further.

With the explosion of the Internet, Branson was able to attract followers to his JAIL4JUDGES Web site and says he now has chapters in every state. Filled with hyperbolic language, the site lists the many grievances imposed on “the people” by the government and calls Branson’s followers to action. Styling himself the Five Star National JAIL Commander in Chief, Branson, who sometimes wears a cluster of five stars on his shirt, modeled his organization on the Army. “We have it regimented from national to state to county,” he said.

Undaunted by his failures in California, Branson connected with South Dakota businessman William Stegmeier, who bankrolled the effort there. “Bill came in as one of our jailers,” Branson said, “and eventually I appointed him as jailer-in-chief for the state of South Dakota.”

Backers of Amendment E collected 46,800 signatures, well over the 34,000 needed to put a measure on the ballot.

The state’s attorney general believes the initiative applies not only to judges but to citizens serving on juries, school boards, city councils, county commissions or similar bodies, as well as prosecutors. And Barnett says disgruntled litigants could sue people serving on those entities, and convicted felons could sue not only the judge who imposed sentence, but the prosecutor, the jurors and even the victim. All allegations are to be “liberally construed in favor of the complainant.” Jurors would be drawn from voter registration rolls and from those who submit their names.

The system would be funded by deducting 2 percent of all judicial salaries throughout the state and placing the money in a trust account.

Zerman, the southern California lawyer who helped write the South Dakota initiative, dismissed the possibility that anyone other than judges would be affected by the initiative. People who sit on civic boards “can be sued already,” Zerman said, adding that the word “judges” is repeated 35 times in the amendment.

And the Amendment E backers are fighting charges that they are linked to conspiracy theorists, the patriot movement and tax protesters. In fact, the campaign recently distanced itself from the JAIL4JUDGES group and Stegmeier submitted his resignation to Branson.

“Branson provided a template, has had nothing to do with campaigning or financing,” said Jake Hanes, a campaign spokesman. “Personally, I think he’s a bit of a publicity hound and a bit of a clown.”

Amendment E supporters claim the measure is leading by a three to one margin, based on a September Zogby poll that did not ask directly whether voters favored the initiative. Barnett said his polling three weeks before election day showed 12 percent in favor of Amendment E, 46 percent opposed and 42 percent undecided.

His theme in the campaign, he said, is “this isn’t about judges, it’s about us.” Secondly, he cautioned lawyers and judges to avoid the phrase “judicial independence,” because it translates into judicial activism or social legislation in many voters’ minds.

“Voters want and expect that our courts fairly and impartially apply the law,” Barnett stressed.

If the amendment succeeds, it will hearten the JAIL4JUDGES movement, which wants to place similar measures on ballots in other states, including California. It also likely will be tied up in court for years.

If it fails, backers say it will be because of collusion between lawyers and special interests. Will they go to court?

“I’ll answer that like the politicians do,” Branson said. “I’m not taking it off the table.”