A radical proposal to enhance judicial accountability was offered in several states, but it only secured the necessary signatures to get on the ballot in South Dakota. Amendment E, the Judicial Accountability Initiative Law (Or J.A.I.L. – I am not making this up, people) would allow citizens to sue judges or other public officials for damages resulting from their decisions.
A special grand jury would be convened, comprised only of people who have
"attained to the age of thirty years, and have been nine years a citizen of the United States, and have been an inhabitant of South Dakota for two years immediately prior to having his/her name drawn."
All lawyers, convicted felons and peace officers are excluded from serving on this grand jury. This grand jury would
"Hav[e] power to judge both law and fact… Their responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions [enumerated above]…, and whether there is probable cause of criminal conduct by the judge complained against."
The acts for which judges (and other judicial and quasi-judicial officials) could be held liable include:
"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."
Presumably, even in South Dakota, these kinds of acts would get a judge in trouble under the current law. What really changes here is that this independent grand jury can force any case against a judge to go to a jury trial.
The grand jurors are to be instructed that:
"All allegations in the complaint are to be liberally construed in favor of the complainant. The jurors … are not to be swayed by the artful presentation of the judge."
At this point, the judge’s challenged conduct would be subject to the whims of a citizen jury, whose appreciation for the subtleties of civil and criminal procedure probably doesn’t rise to that of the judge. The jury would be:
"Instructed that they have power to judge both law and fact… Upon conviction, sentencing shall be the province of the special trial jury, and not that of the selected trial judge."
A judge would be in real peril of being punished for handing down a principled, but unpopular decision. (How is a judge supposed to enforce the exclusionary rule in such an environment?)
We already know that judges in states with judicial elections perform worse than appointed judges on a number of metrics. Directly elected judges are more predictably anti-defendant than even judges who face retention elections. They get reversed on appeal more often, too. The framers of the Constitution clearly believed that judicial responsiveness to public pressure was a bad thing. I tend to agree. As much as I support using lay juries for many types of judicial decisions, and giving them more respect and responsibility than they currently enjoy, this South Dakota proposal is an unambiguously bad idea (and probably unconstitutional, too).
