There are times when one is reminded of the immortal words of legendary newsman Kent Brockman: "I've said it before and I'll say it again: Democracy simply doesn't work."
Mr. Brockman, of course, was referring to a bill whose failure to pass Congress (due to a rider funding the perverted arts) seemingly doomed the inhabitants of his fictional hometown of Springfield to a fiery, comet-fueled death.
He could just as easily have been talking about the very real state of South Dakota, however, where direct democracy is threatening to wreak havoc on the state's judiciary by means of an exceedingly ill-conceived referendum.
The measure is known as Amendment E or the Judicial Accountability Initiative Law (JAIL), and it's the brainchild of organizations with names like JAIL 4 Judges. If approved by the state's voters in November's election, Amendment E would change the South Dakota constitution to allow litigants and defendants the ability to sue judges for decisions they don't agree with.
It would do this by establishing a "special grand jury," a 13-member panel of citizens with the ability to judge both law and fact in determining whether to strip justices of judicial immunity and allow civil lawsuits or criminal sanctions to proceed against them. Members of the special grand jury would serve one-year terms, be paid the same as a circuit court judge, and needn't have any special qualifications other than being at least 30 years old and a citizen of the United States for nine years (elected officials, judges, law enforcement personnel and members of the State Bar would be ineligible, however).
In essence, any disgruntled criminal or unsuccessful civil litigant could stick it to the man (judge) if they're unhappy with how their case turned out. And due to vagueness in the law, members of juries, parole boards, school boards and other governmental bodies would be vulnerable to special grand jury investigation as well.
The amendment would destroy the doctrine of judicial immunity, a concept that exists so that jurists may make impartial decisions without fear of reprisal. It would eradicate due process rights by allowing the special jurors to decide both fact and law.
Furthermore, it would do away with two basic hallmarks of the American judicial system. Amendment E extends retroactively to any decision a living judge has ever made, in clear violation of ex post facto rules. And all petitions brought to the special grand jury "shall be liberally construed in favor of the complainant," turning the notion of "innocent until proven guilty" on its head.
If Amendment E passes, the result would be devastating. The courts in South Dakota could literally come to a standstill. No one would want to serve on the bench, and the system would collapse under the weight of too few judges and far too many new methods of appeal provided by the special grand jury for defendants and litigants.
Avenues already exist if someone does not like a judge's ruling. He or she may appeal, and judges at the state level still must be re-elected to stay on the bench. Amendment E is simply the work of people with a deep grudge against the judicial branch of our government.
Sadly, the JAILers may win. Though opposition to Amendment E has been strong, with every member of the South Dakota Legislature denouncing it, a September Zogby poll put support for the measure among the public at 67 percent.
Measures like Amendment E raise strong questions as to the worth of the initiative and referendum process, which is similarly being abused with other deeply flawed referendums in other Western states this election year. Hailed as a means of putting power back in the hands of the people, the referendum process allows any quack with a little time and money to gather a few signatures and put up any issue for statewide vote.
That is not to say direct democracy has no place in America. But when it is employed, it must not undermine representative democracy, which, as the unanimous stance of the South Dakota Legislature attests, is the case with Amendment E. Legislators are elected to carefully deliberate over public policy, to provide some expertise to balance against the otherwise unchecked whims of the majority. Referendums, on the other hand, impose a stringent yes or no vote on a public often uninformed to make decisions of the magnitude of Amendment E, allowing the tyrannous majority to rule the day.
Proponents of Amendment E have said South Dakota is being used as a test state and have promised to take their campaign elsewhere if it is successful in November. Wisconsinites thankfully need not worry about a JAILer onslaught, as it is one of 22 states with neither the initiative nor referendum process at the state level.
In Wisconsin, a statewide constitutional referendum may only go up for public vote after being approved by two consecutive sessions of the Legislature. Such creates a fair balance between direct and representative democracy. It may be small comfort for those opposed to this year's flawed gay marriage and civil union ban, but at least we're not South Dakota.
Ryan Masse ([email protected]) is the editorial board chairman of The Badger Herald.
