Wisconsin Lawyer
Vol. 79, No. 9, September 2006

J.A.I.L. for Judges

by George C. Brown,
State Bar executive director

South Dakota is known for rolling fields of wheat and corn, towns full of prairie dogs, and flocks of pheasants. But, if some people have their way, it may soon be known as the state that puts judges in jail.

The Judicial Accountability Initiative Law, or J.A.I.L., is a proposed amendment to the South Dakota constitution that is on the ballot in November this year. Supporters of the initiative, many of them from outside South Dakota, hired a firm to collect enough petition signatures, at a cost of $2.50 each, to get the initiative on the ballot.

The J.A.I.L. amendment would create a special grand jury, comprised of South Dakota citizens, empowered to authorize the pursuit of lawsuits or criminal charges against members of the judiciary for making incorrect decisions. Disgruntled litigants or criminals would have a direct right of appeal to the special grand jury. Criteria for the composition of the special grand jury, whose members serve a one-year term, disqualify elected and appointed officials, members of the state bar, all judges, and judicial, prosecutorial, and law enforcement personnel. Funding for this special grand jury would primarily come from a deduction of 1.9 percent of the gross salaries of all South Dakota judges.

The special grand jury, an extra-legislative, extra-judicial body, could impanel 12 special trial jurors plus alternates who would have the power to judge both law and fact. The special grand jury also would select a nongovernmental special prosecutor and a judge with no more than four years of experience on the bench. If the trial jury were to convict the judge, the trial jury - not the selected judge - would decide the sentence.

The proposed amendment apparently goes beyond reviewing judges' conduct and could affect school board members, county commissioners, licensing and zoning boards, and even jurors. In other words, almost anyone in a governmental decision-making capacity could be subject to J.A.I.L.

This system threatens more than the due process rights of judges and those subject to the jurisdiction of South Dakota courts. If enacted, you can imagine the catastrophic results it will have on any predictability in judicial decisions, the ability to recruit knowledgeable lawyers to the bench, and the ability of government even to function. Which may, in fact, be the goal of the initiative's proponents.

As you might guess, the State Bar of South Dakota is strongly opposed to this initiative. It is taking the lead in this ballot fight. It is working with the state's many business groups and the state legislature in this effort and is raising money to support a campaign to educate South Dakotans of the dangers of this initiative.

Some people are predicting that the J.A.I.L. proponents are using South Dakota as a test and, if successful, will bring this issue to other states that have a direct initiative and referendum process to amend their constitutions. Wisconsin does not have the initiative and referendum process, so we are not at risk in having the J.A.I.L. proposal come before our electorate in the same way it did in South Dakota. However, based on correspondence I have received, this J.A.I.L. proposal is not without its proponents in our state.

Wisconsin Lawyer