[In the vein of the classic Saturday Night Live skit, here's another bad idea:]


S.D.-based effort targets judges' immunity

Current doctrine has been in place since 1871

Associated Press
Tue, Nov. 15, 2005

PIERRE - A movement is under way in South Dakota to turn the tables on members of the bench.

Activists are trying to put a radical measure on next year's ballot that could make South Dakota the first state to let people who believe their rights have been violated by judges put those judges on trial. Citizens could seek damages or criminal charges.

The measure would overturn more than a century of settled law in the United States by stripping judges of their absolute immunity from lawsuits over their judicial acts.

''The current system doesn't work because there is no adequate way to hold a given judge accountable for improper behavior or to prevent them from judicial misconduct if they choose to do so,'' said businessman William Stegmeier, a leader of the movement.

Potential consequences: Legal experts warned that such a provision could dangerously undermine the independence of South Dakota's judiciary, plunge the court system into anarchy, and run afoul of the U.S. Constitution.

And they noted there are already remedies available to the public: Bad rulings can be overturned on appeal, and judges who break the rules can be punished by state disciplinary boards and, in South Dakota and other states, voted out of office.

Marie Failinger, a law professor at Hamline University in St. Paul, Minn., said judicial immunity is seen as a way to protect judges' independence so they decide cases on the merits, not in response to pressure from the community or individuals.

''Judges are kind of the last barrier we have between government oppression and the individual, so if they can't be independent, that could be a problem,'' Failinger said. She added: ''Judges will be chilled from making the right decision because they don't know what crazy litigant is going to decide they are going to sue them.''

Stegmeier, owner of a company that manufactures livestock-feed grinders, turned in 46,800 signatures last week to put the proposed state constitutional amendment on the ballot in November 2006. That is about 13,000 more than needed. The state is still verifying the signatures.

Judicial immunity, the doctrine that says judges cannot be sued over their judicial acts, was established by the U.S. Supreme Court in an 1871 case.

How it would work: The South Dakota amendment would eliminate state judges' immunity in cases involving deliberate violations of the law or someone's constitutional rights or deliberate disregard of the facts.

People could file complaints against judges after the traditional appeals process has concluded. A special grand jury would handle complaints, deciding whether a judge could be sued or face criminal charges.

If the grand jury decides on criminal charges, it could indict the judge and create a special tribunal that would act as both judge and jury, deciding guilt and any sentence. The measure would not apply to federal judges.

No bad experiences: Stegmeier said he has never had a bad experience in court. In fact, supporters of the measure have no examples of any problems in South Dakota. But Stegmeier said the amendment could help curb the abuses he has heard about across the country.

On its Web site, the group promoting the amendment, South Dakota Judicial Accountability, cites an Indiana case from the 1970s involving the sterilization of a 15-year-old girl, and argues that stripping judges of immunity would also help prevent decisions such as the recent U.S. Supreme Court ruling that allowed homes to be seized for private development.

''We didn't throw the yoke of the king off to get under the yoke of the judges,'' said Gary Zerman, a Valencia, Calif., lawyer who is a spokesman for the South Dakota ballot effort.

Other concerns: Tom Barnett, secretary-treasurer of the State Bar of South Dakota, said inmates would quickly figure out that they could harass the judges who put him behind bars by filing a complaint.

''You don't think there aren't going to be hundreds and hundreds of them, everybody giggling up in the penitentiary?'' he said.

Georgetown University Law School professor Roy A. Schotland, who studies judicial elections and constitutional law, said the measure could violate the Constitution.

''It at least erodes and may go so far as to destroy judicial independence, which means it erodes and perhaps destroys the rule of law and fair judging,'' Schotland said. ''Having this come in would be big trouble.''

The South Dakota amendment would eliminate state judges' immunity in cases involving deliberate violations of the law or someone's constitutional rights or deliberate disregard of the facts.
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Gee, don't we spend our days arguing over what are the facts? and doesn't the SD leg see that all a defendant would have to do to delay certain types of proceedings will be to file suit after suit? I imagine in some SD counties it would not take long to disqualify Judges for miles around.

Ah, but this is not a legislative issue, Ben. SD allows referendum initiatives that can be placed on the ballot without input from the legislature, as do many other states.

Thankfully (at least in this case), Texas is not one of those states.