I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, November 09, 2006

Fraudulent election results for "Jail 4 judges" proposition?

In a Zogby poll of likely South Dakota voters conducted around 9/20/06, 67 percent said that they intended to vote for Amendment E (the "Jail 4 judges" proposition), only 19.8 percent said that they intended to vote against it, and 13.2 percent were "not sure." The poll's margin of error was +/- 4.5 percent.

However, on election day, 11/07/06, Amendment E lost, which is a little surprising, but voters do sometimes change their minds. However, what was a big surprise was the margin of defeat -- 89 percent to 11 percent. No, those figures are not a mistake.

Does it seem probable that such an unbelievably large percentage of voters would change their minds in the few weeks before the election?

Some opponents of Amendment E have argued that the big discrepancy between the Zogby poll and the election results is due to a misleading question that Zogby asked. Here is the question that Zogby asked:

Amendment E called the Judicial Accountability Amendment will be on the ballot this November. The amendment would allow the creation of a citizen's oversight committee or special grand jury which would hear complaints of alleged judicial misconduct against judges. If a judge is found guilty three times of having engaged in judicial misconduct, he or she would be removed from office and could never serve in any judicial capacity in South Dakota again. Will you vote for Amendment E or will you vote against Amendment E?

What is misleading about that question? And how could any informed voter in South Dakota have been unfamiliar with Amendment E? Amendment E was national news (that is how I found out about it). Amendment E must have been a big issue in South Dakota for a long time, because it was way back in February that the state legislature took the very unusual step ( and IMO improper and arguably illegal step -- Amendment E was a "direct" proposition that was supposed to go directly on the ballot without going to the legislature first ) of passing a resolution opposing the proposition. The resolution passed both houses unanimously. which certainly must have caught people's attention. And what was there to talk about in South Dakota besides abortion and Amendment E?

I think it is time for a new poll with the following questions:

(1) How did you vote on Amendment E?

(2) Did you change your position on Amendment E before the election, and if so, when and why?

Labels:

47 Comments:

Anonymous Voice in the Wilderness said...

> In a Zogby poll <

Zogby predicted the presidential wins of Gore and Kerry. He appears to be incapable of predicting the direction of the Sun's rise.

> The poll's margin of error was +/- 4.5 percent. <

The least credible figure in polls is their claimed margin of error.

> Does it seem probable that such an unbelievably large percentage of voters would change their minds in the few weeks before the election? <

No, so we have to believe that Zogby was in error as usual.

> Some opponents of Amendment E have argued that the big discrepancy between the Zogby poll and the election results is due to a misleading question that Zogby asked. <

That is no doubt part of it. The question, as you have quoted here, is clearly misleading.

> What is misleading about that question? <

Did you read it or was it just another one of these things that you post without appearing to have read them?

> And how could any informed voter in South Dakota have been unfamiliar with Amendment E? <

Informed voters are normally in the minority but in this case it appears that the informed voters won.

As to how informed voters are, I was asked by a woman two days ago whether the bombing of Hiroshima preceded the Pearl Harbor attack. She had an Ed.D degree and was teaching in a public school. The average college student can't find Florida on a map now of days. The recent election increased the debt of the State of California by an amount of nearly $1700 for every man, woman, and child in the state and people complain about increased taxes.

This was an exception. The informed voters of South Dakota won in a legitimate election. Zogby will have to speak for himself.

Thursday, November 09, 2006 9:52:00 AM  
Anonymous W. Kevin Vicklund said...

>>>Amendment E was national news (that is how I found out about it). Amendment E must have been a big issue in South Dakota for a long time, because it was way back in February that the state legislature took the very unusual step... of passing a resolution opposing the proposition.<<<

The typical voter has the attention span of a gnat and generally doesn't pay a whole lot of attention to far off events that don't affect them. The general public is not going to remember a resolution passed by the state legislature 8 or 9 months ago. What happened was Zogby conducted the poll, a bunch of people who hadn't even thought about the issue had to come up with an answer on the spot, and it made national news. All of a sudden, you get a media blitz, the national channels where most people get their news from start talking about it, opponents point out why it's a bad idea and bring up the legislative resolution, and a bunch of voters start to realize that this isn't such a great idea after all.

The Zogby poll might actually be responsible for the amendment failing, because it brought it to the attention of the average voter.

As support for this contention, I offer the final paragraph of a November 6 Chicago Tribune news report.

In a Sept. 19 poll, Zogby International read respondents an excerpt of the proposed amendment, and 67 percent of those polled said they would vote for it while 20 percent said they would vote against it. In a Moore Information poll conducted Oct. 16 to 17, which asked whether respondents would support Amendment E based on what they already know, 46 percent said they oppose it and just 12 percent expressed support.

12% expressing support is almost dead on target for the final results.

Thursday, November 09, 2006 11:34:00 AM  
Blogger Larry Fafarman said...

VIW said,

>>>>> Zogby predicted the presidential wins of Gore and Kerry. He appears to be incapable of predicting the direction of the Sun's rise. <<<<<

The Wikipedia article on Zogby says,

Zogby correctly predicted the cliffhanger result of the 2000 presidential election for George W. Bush, in contrast to most other pollsters who had expected Bush to win easily. In 2004, however, his predictions failed to materialize. Before polls had even closed in the 2004 presidential election, Zogby predicted a comfortable win for John Kerry (311 electoral votes, versus 213 for Bush, with 14 too close to call), . . . .

In close elections, predicting electoral college results can be extremely difficult because of our winner-take-all electoral college system.

In the Zogby poll on Amendment E, we are not talking about an error of a few percent -- we are talking about an error of grotesque magnitude.

>>>>> The least credible figure in polls is their claimed margin of error. <<<<<

On the contrary, the margin of error is the most credible figure -- in fact, it is an absolute certainty because it is a figure based solely on the mathematics of probability.

Your statement shows that you don't know what the margin of error is. This margin just represents the 95 percent confidence level where there is no bias -- intentional or not -- in the sample. In other words, suppose that there is an infinite number of balls in a jar and 67 percent of the balls are black. If random samples of 500 balls are drawn from the jar, then a margin of error of +/-4.5 percent means that 95 percent of the time the percentages of black balls in the samples would fall in the range of 67 percent +/- 4.5 percent. The margin is strictly a mathematical quantity calculated by the mathematics of probability. A table of margins is in this reference.

Informed voters are normally in the minority but in this case it appears that the informed voters won.

How could these voters have been "informed" if so many of them were apparently totally confused about a very prominent ballot proposition just a few weeks before the election?

Thursday, November 09, 2006 12:30:00 PM  
Anonymous W. Kevin Vicklund said...

>>>How could these voters have been "informed" if so many of them were apparently totally confused about a very prominent ballot proposition just a few weeks before the election?<<<

The poll was taken 7 weeks before the election. Most voters don't begin informing themselves unti 2-4 weeks before an election.

Thursday, November 09, 2006 12:54:00 PM  
Anonymous Voice in the Wilderness said...

The dim-witted troll bleated...

> The Wikipedia article on Zogby says... <

But the dim-witted troll already has confessed to attempts to place false information in Wikipedia, nevertheless it does confirm what I said as to Kerry.

> On the contrary, the margin of error is the most credible figure -- in fact, it is an absolute certainty because it is a figure based solely on the mathematics of probability. <

So the innumerate twit shows his lack of understanding of probability. "Absolute certainty", what a laugh. Nobody knowing enough math to count change would have made such an ignorant statement. Perhaps you can explain how two polls taken on the same issue at the same time can have one poll, which claims and accuracy of 4%, can differ from another claiming an accuracy of 3% when their answers differ by 15%? This is a common occurrence.

> Your statement shows that you don't know what the margin of error is. <

No. Yours doesn't.

> Jar analogy <

Shows that the ignorant troll doesn't understand samples in probability.

> How could these voters have been "informed" if so many of them were apparently totally confused about a very prominent ballot proposition just a few weeks before the election? <

First you must take a consistent position on who were informed voters. You seem to have taken two incompassable stands on this. (Look un incompassable in the Devil's Dictionary.)

Second, you seem not to understand what I said. (No surprise given your level of reading comprehension.) The side that won was the side of the informed voters. That does not say, or imply, that everyone who voted for it was informed. In contrast, we can assume that those who voted against it were either uninformed or, like yourself, demented.

Please note that with your low level of reading comprehension I feel obligated to point out that the preceding paragraph does not imply that you voted in the South Dakota election.

Thursday, November 09, 2006 1:59:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 11/09/2006 11:34:39 AM ) --
>>>>> The general public is not going to remember a resolution passed by the state legislature 8 or 9 months ago. <<<<<

I mentioned the resolution mainly to show how long Amendment E must have been a big issue in South Dakota.

And if I ever learned that the California legislature passed or even voted on a resolution on a ballot proposition, I am sure that I would remember it.

>>>>> What happened was Zogby conducted the poll, a bunch of people who hadn't even thought about the issue had to come up with an answer on the spot, and it made national news. <<<<<

You make it sound as if the Zogby poll was what made the proposition national news. The proposition was national news because of the following reasons:

(1) It was a very unusual proposition.

(2) It tied in with the national controversy over judicial independence -- see, for example, my articles Backlash against judges, Ex-Justice O'Connor moans about threats to judicial autonomy, and Judge Jones hides behind "judicial independence" issue.

>>>>> The Zogby poll might actually be responsible for the amendment failing, because it brought it to the attention of the average voter. <<<<<<

Your claim that the proposition was little known in South Dakota until just a few weeks before the election is not credible, for the reasons that I stated.

>>>>> In a Moore Information poll conducted Oct. 16 to 17, which asked whether respondents would support Amendment E based on what they already know, 46 percent said they oppose it and just 12 percent expressed support. <<<<<

You are trying to use one grotesque unexplained discrepancy to explain another grotesque unexplained discrepancy. .

W. Kevin Vicklund said ( 11/09/2006 12:54:59 PM ) --

>>>>>>The poll was taken 7 weeks before the election. Most voters don't begin informing themselves unti 2-4 weeks before an election. <<<<<

On obscure ballot propositions, yes -- but Amendment E was not an obscure ballot proposition.

Changes in voter positions in the last few weeks would explain a discrepancy of a few percentage points, but not the astonishing discrepancy that occurred.

My main article proposes a new poll to try to get to the bottom of what happened.

============================

"I'm from Missouri -- you'll have to show me." -- Willard Duncan Vandiver

Thursday, November 09, 2006 2:53:00 PM  
Anonymous Sherry D said...

This comment has been removed by a blog administrator.

Thursday, November 09, 2006 2:54:00 PM  
Anonymous Voice In The Wilderness said...

> You are trying to use one grotesque unexplained discrepancy to explain another grotesque unexplained discrepancy. <

There is nothing grotesque or unexplained about what Kevin said.

>>>>>>The poll was taken 7 weeks before the election. Most voters don't begin informing themselves unti 2-4 weeks before an election. <<<<<

> On obscure ballot propositions, yes -- but Amendment E was not an obscure ballot proposition. <

Many, if not most, voters don't even read the propositions until the last few days.

> My main article proposes a new poll to try to get to the bottom of what happened. <

You want Zogby to have a new poll to determine while he has been so inept at polling?

> "I'm from Missouri -- you'll have to show me." <

This blog has shown that you are too dense for any explanation, no matter how simple nor how obvious can get thrugh your neutron star skull.

Thursday, November 09, 2006 3:03:00 PM  
Blogger Larry Fafarman said...

VIW babbles,
>>>>> Perhaps you can explain how two polls taken on the same issue at the same time can have one poll, which claims and accuracy of 4%, can differ from another claiming an accuracy of 3% when their answers differ by 15%? <<<<<

You stupid, fatheaded beetlebrain, I defined margin of error and gave an example and a reference. It is the minimum sampling error that is reached when all causes of bias have been eliminated. It is just a mathematical concept.

Thursday, November 09, 2006 3:07:00 PM  
Anonymous Bill Carter said...

This comment has been removed by a blog administrator.

Thursday, November 09, 2006 4:00:00 PM  
Anonymous Voice In The Wilderness said...

The mindless troll blithered...

> I defined margin of error <

You are commonly redefining words. I am talking in terms of what the words mean to the literate and sane.

> and gave an example and a reference. <

Your reference was to a Roper Poll article which you obviously did not understand. There is a better description of it in the Wikipedia but is somewhat technical and would doubtless go over the head of a lay person like yourself.

Thursday, November 09, 2006 4:21:00 PM  
Anonymous W. Kevin Vicklund said...

More polls showing lack of support prior to the election.

Amendment E Polling

Mon, Oct 9th 2006

There's been some discussion of polling lately and it's left some people confused. This should set the record straight.

An independent poll conducted on September 25 and 26 showed Amendment E failling the ballot test in excess of ten points. The No on E poll was conducted October 1-3 and also shows Amendment E failing the ballot test in excess of ten points with a large block of undecided voters. Finally, another poll from a separate campaign conducted October 3 again showed Amendment E failing by double digits.

All three polls came out similarly and were drastically at odds with a push poll commissioned by proponents of Amendment E. No on E campaign treasurer Bob Miller explained the difference: "We actually asked voters how they planned to vote on the ballot issue," he said. "The proponents of Amendment E asked a question completely unrelated from what will appear on the ballot. They asked it as they wish it would appear. We asked it as it actually is."


>>>You stupid, fatheaded beetlebrain, I defined margin of error and gave an example and a reference. It is the minimum sampling error that is reached when all causes of bias have been eliminated. It is just a mathematical concept.<<<

While Voice was incorrect, Larry is leaving out a vital word in his description. It should read "It is the minimum sampling error that is reached when all known causes of bias have been eliminated." This is very important. If there are unknown biases, such as a poorly phrased question, the researcher will not be able to take the bias into account. The question posed by Zogby was poorly phrased, and it was asked before most voters had started to look at the language of the proposals. That's part of the reason why early polls on ballot measures are so innaccurate - people haven't drawn their own conclusions and are relying on how the question is presented. Once campaigning started in earnest, people became informed on the issues, and rejected the actual proposal, as opposed to a vague description.

To reiterate: the quality of a poll is only as good as the quality of its questions.

Thursday, November 09, 2006 4:52:00 PM  
Anonymous Bill Carter said...

In college I had a statistics professor who would quote a statistic weekly and ask the class to interpret it. In these cases, the question was not loaded, like the one here, and the sample would be 100%. The problem was usually in in understanding exactly what the figure meant. I can remember a few of them. I will try the group with one.

At that time (mid '60s) the average student at UCLA weighed 155 lbs while across town the average student at USC weighed 170. We were asked to come up with possible explanations for the difference. Anyone? (Not you, Dave. I think you will remember the answer.)

Thursday, November 09, 2006 6:55:00 PM  
Blogger jujuquisp said...

UCLA students were weighed naked, while USC students were weighed fully clothed and holding their textbooks.

Thursday, November 09, 2006 7:31:00 PM  
Anonymous W. Kevin Vicklund said...

My guess would be that there was a higher percentage of women at UCLA than at USC. Women on average weigh less than men.

Assuming it's not some kind of trick question.

Thursday, November 09, 2006 7:36:00 PM  
Anonymous Bill Carter said...

> My guess would be that there was a higher percentage of women at UCLA than at USC. Women on average weigh less than men. <

You win as usual.

At the time UCLA was 52% women, USC was 30% women.

Thursday, November 09, 2006 8:03:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund quotes ( 11/09/06 4:52:00 PM ) --
>>>>>Amendment E Polling

Mon, Oct 9th 2006

There's been some discussion of polling lately and it's left some people confused. This should set the record straight.
<<<<<<<

Could you please identify or give links to your sources?

>>>>> (quoting source) All three polls came out similarly and were drastically at odds with a push poll commissioned by proponents of Amendment E. No on E campaign treasurer Bob Miller explained the difference: "We actually asked voters how they planned to vote on the ballot issue," he said. <<<<<<<

Absolutely false. Zogby's question also actually asked voters how they planned to vote on the ballot issue -- the Zogby question ended with the statement, "Will you vote for Amendment E or will you vote against Amendment E?" It is not as if the Zogby poll just asked a vague general question such as whether or not the respondents favored judicial accountability.

>>>>> "The proponents of Amendment E asked a question completely unrelated from what will appear on the ballot." <<<<<<

Wrong. The Zogby question gave a short neutral description of Amendment E -- here it is again (it is also in my opening post):

The amendment would allow the creation of a citizen's oversight committee or special grand jury which would hear complaints of alleged judicial misconduct against judges. If a judge is found guilty three times of having engaged in judicial misconduct, he or she would be removed from office and could never serve in any judicial capacity in South Dakota again.

>>>>> While Voice was incorrect, Larry is leaving out a vital word in his description. It should read "It is the minimum sampling error that is reached when all known causes of bias have been eliminated." <<<<<

When I spoke of elimination of all causes of bias, I meant all causes of bias, known and unknown. That is why I gave the example of pulling balls out of a jar -- I wanted to show that the margin of error is strictly a mathematical concept.

>>>>> The question posed by Zogby was poorly phrased, and it was asked before most voters had started to look at the language of the proposals. <<<<<<

The question was not poorly phrased -- it gave a short neutral description of Amendment E and asked people how they intended to vote on Amendment E. The claim that most of the voting public was not familiar with the proposition at the time of the Zogby poll is simply not credible. The elephant in the room is the fact that the legislature unanimously passed a resolution against the proposition way back in February, and the 67 percent of voters in the Zogby poll who favored the proposition should have had a good reason for disagreeing with the legislature. And those respondents in the Zogby poll who needed more information before deciding had the option of answering "not sure" (only 13.2 percent of the respondents gave this answer).

Amendment E was national news. It practically put the hick state of South Dakota on the map. Maybe the state motto should be changed to "land of Amendment E." And you expect me to believe that most South Dakota voters were uninformed about Amendment E just a few weeks before the election? How dumb do you think I am?

=================================

"I'm from Missouri -- you'll have to show me." -- Willard Duncan Vandiver

Friday, November 10, 2006 1:44:00 AM  
Anonymous Voice in the Wilderness said...

> Could you please identify or give links to your sources? <

I believe that the discussion that he was referring to was on Larry's Cry Room. You are reading it now.

> Zogby's question also actually asked voters how they planned to vote on the ballot issue <

After distracting them with a loaded description.

> It is not as if the Zogby poll just asked a vague general question such as whether or not the respondents favored judicial accountability. <

Of course it is. The fact that the vague general question was followed by the mention of an obscure proposition doesn't change anything.

> The Zogby question gave a short neutral description of Amendment E <

I thought it gave the question you gave in your opening post, a question completely unrelated to what will appear on the ballot. which you restate here. Make up your mind.

> When I spoke of elimination of all causes of bias, I meant all causes of bias, known and unknown. <

That doesn't correspond to your description of margin of error.

> The question was not poorly phrased -- it gave a short neutral description of Amendment E <

It gave a loaded and misleading description of Amendment E.

> The claim that most of the voting public was not familiar with the proposition at the time of the Zogby poll is simply not credible. <

Except by the sane.

The elephant in the room is that the voters probably had little knowledge or interest in what the state legislature had done.

> Amendment E was national news. <

World War II was national news but the average voter may not even know in what decade it occurred or who were the participants.

> And you expect me to believe that most South Dakota voters were uninformed about Amendment E just a few weeks before the election? <

No. We expect you to continue your same illusions.

> How dumb do you think I am? <

It would be hard to overstate it. We think you are as dumb as you have shown yourself to be.

Friday, November 10, 2006 6:54:00 AM  
Anonymous sherry d said...

This comment has been removed by a blog administrator.

Friday, November 10, 2006 8:49:00 AM  
Anonymous Voice In The Wilderness said...

This comment has been removed by a blog administrator.

Friday, November 10, 2006 11:13:00 AM  
Blogger Larry Fafarman said...

BTW, I should add that it is insulting to South Dakotans to imply that they are a bunch of ignorant clodhoppers who take so little interest in what goes on in their state that they were uninformed about a very important ballot proposition just a few weeks before the election.

Friday, November 10, 2006 11:24:00 AM  
Anonymous Bill Carter said...

I am gaining a great deal of sympathy for Voice's attitude. He may seem cruel but I am reminded of a part in The Magnificent Seven.

Calvera is describing how they went into a church and were disappointed to see that the candlesticks were brass instead of gold. Sotero said "But we took them anyway." Calvera replies "I know we took them anyway. I am just trying to show this man how little religion some people have today. Besides it may have been sacrilegious not to do so. If God had not meant them to be shorn, he would not have made them sheep."

Larry(?) has either been made, or evolved into, a clown. Perhaps it would be wrong not to laugh at him.

Friday, November 10, 2006 11:28:00 AM  
Anonymous Bill Carter said...

> BTW, I should add that it is insulting to South Dakotans to imply that they are a bunch of ignorant clodhoppers who take so little interest in what goes on in their state that they were uninformed about a very important ballot proposition just a few weeks before the election. <

First the average voter is just that ignorant. Look at some of the clowns they elect. In California, Governor Moonbeam was just elected as Attorney General. In Massachusetts there hasn't been a honest and level-headed person elected to anything for some time, in the previous election, one county chose a man as sheriff who had to be released from prison to take the job into which he had been elected.
Second, I doubt that many would find it that important.
Third, it wouldn't apply to any of the judges who you have flamed here because they made valid and wise decisions. The same goes for the fundamentally unimpeachable decision of the judge that threw out your absurd pleadings.

Friday, November 10, 2006 11:39:00 AM  
Blogger Larry Fafarman said...

I tried very hard to stick to my no-deletions policy, but I now find that to be impossible.

It is totally inappropriate to gossip here about my private life, whether the gossip is true or false. That is not why I set up this blog.

Accordingly, I have deleted recent comments posted under the names Bill Carter, Sherry D, and VIW. This action is not meant to discourage people from posting insults and ad hominems of a general nature, but insults and ad hominems should be kept to a minimum and should be accompanied by a discussion of the issues.

Friday, November 10, 2006 12:43:00 PM  
Blogger Larry Fafarman said...

Bill Carter said...

>>>>> BTW, I should add that it is insulting to South Dakotans to imply that they are a bunch of ignorant clodhoppers who take so little interest in what goes on in their state that they were uninformed about a very important ballot proposition just a few weeks before the election. <

First the average voter is just that ignorant. <<<<<

On the other hand, I presume that you would argue that the SD voters are very knowledgeable because the reported election results overwhelmingly rejected Amendment E. You can't have it both ways.

Friday, November 10, 2006 6:38:00 PM  
Anonymous Voice in the Wilderness said...

The coward hypocrite, Larry(?) stated, after trying to give an excuse for continuing to violate the principals on which he began this blog...

> It is totally inappropriate to gossip here about my private life, whether the gossip is true or false. <

We all know that it is true. I thought that Sherry was actually quite concerned about your problems.

> That is not why I set up this blog. <

Please don't pretend any more. You have stated why you set up this blog and you have violated every principle you claimed.

> Accordingly, I have deleted recent comments posted under the names Bill Carter, Sherry D, and VIW. <

Now does anyone doubt that you also deleted the "missing" posts in the past?

> This action is not meant to discourage people from posting insults and ad hominems of a general nature <

Of which you are the greatest practitioner.

> On the other hand, I presume that you would argue that the SD voters are very knowledgeable because the reported election results overwhelmingly rejected Amendment E. You can't have it both ways. <

Nor did I attempt to do so. If you had your marbles you would have noticed that my claim was that even a blind pig occasionally finds an acorn. By taking the sensible route it does not mean that a person necessarily knows where they are going. You may even occasionally say something sane in the same way that a giraffe may occasionally walk on its hind legs. It just is not to be expected from your nature.

Saturday, November 11, 2006 12:47:00 AM  
Blogger Larry Fafarman said...

Voice in the Wilderness babbled ( 11/11/2006 12:47:58 AM ) --

>>>>>> It is totally inappropriate to gossip here about my private life, whether the gossip is true or false. <

We all know that it is true. I thought that Sherry was actually quite concerned about your problems. <<<<<<

LOL ! You pathetic fool, so you are saying that when commenting on a blog it is OK to gossip about the blogger's private life so long as the gossip is "true" or so long as a gossip is "quite concerned" about the blogger's "problems." That is like the March Hare saying at the Mad Hatter's Tea Party that it is OK to put butter in a watch -- along with some crumbs -- so long as it is the "best" butter. Here is the passage from Alice in Wonderland --

The Hatter was the first to break the silence. `What day of the month is it?' he said, turning to Alice: he had taken his watch out of his pocket, and was looking at it uneasily, shaking it every now and then, and holding it to his ear.

Alice considered a little, and then said `The fourth.'

`Two days wrong!' sighed the Hatter. `I told you butter wouldn't suit the works!' he added looking angrily at the March Hare.

`It was the best butter,' the March Hare meekly replied.

`Yes, but some crumbs must have got in as well,' the Hatter grumbled: `you shouldn't have put it in with the bread-knife.'

The March Hare took the watch and looked at it gloomily: then he dipped it into his cup of tea, and looked at it again: but he could think of nothing better to say than his first remark, `It was the best butter, you know.'


LOL

>>>>>> That is not why I set up this blog. <

Please don't pretend any more. You have stated why you set up this blog and you have violated every principle you claimed. <<<<<<<

You incredibly stupid, profoundly retarded idiot, I set up this blog as a place where people can freely discuss the issues. That does not include my private life.

>>>>>> Accordingly, I have deleted recent comments posted under the names Bill Carter, Sherry D, and VIW. <

Now does anyone doubt that you also deleted the "missing" posts in the past? <<<<<

I never delete comments without notice. When a comment disappears without notice, there is a software problem.

>>>>>> This action is not meant to discourage people from posting insults and ad hominems of a general nature <

Of which you are the greatest practitioner. <<<<<<

LOL -- I can't hold a candle to Sleazy PZ Myers. First Sleazy PZ deliberately misrepresented the 3rd chapter of Wells' book and then called Wells a "disreputable scoundrel" and said, "I keep looking for a word to summarize this book, and I keep coming back to 'dishonest'; devious, unethical, deceitful, underhanded, shifty, false, unethical, and untrustworthy would also fit."

>>>>>> On the other hand, I presume that you would argue that the SD voters are very knowledgeable because the reported election results overwhelmingly rejected Amendment E. You can't have it both ways. <

Nor did I attempt to do so. If you had your marbles you would have noticed that my claim was that even a blind pig occasionally finds an acorn. <<<<<<

Your claim? I was responding to Bill Carter. Are you Bill Carter?

And what does the 89-11 vote against Amendment E have to do with a blind pig finding a acorn?

Saturday, November 11, 2006 5:12:00 AM  
Anonymous Voice In The Wilderness said...

> That is like the March Hare saying at the Mad Hatter's Tea Party that it is OK to put butter in a watch -- along with some crumbs -- so long as it is the "best" butter. <

> And what does the 89-11 vote against Amendment E have to do with a blind pig finding a acorn? <

Does anyone note an inconsistency here? He uses an analogy that means nothing and then misses the obvious. "Straining at a gnat and swallowing a camel."

> I never delete comments without notice. When a comment disappears without notice, there is a software problem. <

Before you completely shot your credibility we were willing to believe this.

>>>>>> This action is not meant to discourage people from posting insults and ad hominems of a general nature <

Of which you are the greatest practitioner. <<<<<<

> LOL -- I can't hold a candle to Sleazy PZ Myers. First Sleazy PZ deliberately misrepresented the 3rd chapter of Wells' book and then called Wells a "disreputable scoundrel" and said, "I keep looking for a word to summarize this book, and I keep coming back to 'dishonest'; devious, unethical, deceitful, underhanded, shifty, false, unethical, and untrustworthy would also fit." <

When did PZ Myers post here? Saying that someone deliberately misrepresented something is not an ad hominem attack. You still don't seem to know what the term means.

> I was responding to Bill Carter. Are you Bill Carter? <

I thought that you had established that I was Ed Brayton and that Bill Carter doesn't exist. I can't find a previous mention of a blind pig, but there is a lot of evidence of one in the opening posts.

If you object to people knowing about your insanity, you should stop posting. If the problem is your losing your engineering registration or your failure in the legal realm, you should stop pretending competence in these fields. Your failures are part of the public record and can't be deleted.

Saturday, November 11, 2006 7:14:00 AM  
Blogger Larry Fafarman said...

This comment has been removed by a blog administrator.

Saturday, November 11, 2006 9:01:00 AM  
Anonymous Voice in the Urbanness said...

No. I'm Spartacus.

Saturday, November 11, 2006 9:58:00 AM  
Anonymous W. Kevin Vicklund said...

I'm closing some old browser windows in preparation for a reboot. I saw this and thought it germane. This was posted to the unofficial No on E blogger site on October 9th. If the site still exists (the previous one I referenced was closed the next day), the entry is part way down the page. Bolding is mine, I've tried to otherwise format the same as the original, using >>> for blockquotes and italics for underlines (maybe Larry could contact the guy to see how he enabled blockquoting and underlining - it's a blogger site. For that matter, the original Thoughts from Kansas blogger site had Trackbacks enabled)

-------------------------------
Monday, October 09, 2006
Amendment E polling

As I have distanced myself from politics over the years, I likewise am probably years if not decades behind on polling. That said, it looks like there's some interesting developments in polling on Amendment E (J.A.I.L.).

I heard over the weekend that within the last 10-14 days, three separate polls -- one by the No on E committee and the others by groups independent from it -- show the "No" vote has a 10 point lead over the J.A.I.L. proponents. While I have not seen any actual results and evidently a large number remain "undecided," I speculate this change reflects that voters are paying more attention as the election nears. Certainly, the undecided will move significantly between now and the election. More important, if accurate, these results indicate voters are learning the J.A.I.L. campaign is built upon the lie that the amendment would apply only to the judiciary.

How does this jibe with the Zogby poll South Dakota J.A.I.L.er-in-chief Bill Stegmeier commissioned? A recent Watertown Public Opinion article not only confirms questions about the poll's applicability, it may reveal the poll's true purpose.

The Public Opinion is the only media outlet of which I am aware that actually took the time to look behind Stegmeier's poll, which he claimed showed a 3-to-1 margin in favor of Amendment E. Jennifer Carstensen, a reporter at the paper, interviewed someone from the Zogby polling organization. Fritz Wenzel, Zogby's director of communication, admitted the poll was what is known as "message polling."

According to Carstensen's article,

>>>This particular polling questions (sic) was not meant to test the amendment as it would appear on the ballot, Wenzel said, but rather to test the message that Stegmeier wanted to examine related to the issue.

* * *

>>>The question represents Stegmeier's interpretation of the amendment, he said, and the way that Zogby officials summarized the amendment.

>>>"That's why we asked the question they way we asked it. We simply wanted to test a message for the client, and that's what we did," Wenzel said.

(Emphasis added.)

Wenzel also told her that "based on the question that we've asked," Zogby thinks the responses are accurate. As the Public Opinion said in an editorial, responses to the question "do you love motherhood and apple pie" would also produce accurate results that are about as valid on the J.A.I.L. issue as the question it asked. Basically, the poll simply told Stegmeier and crew that they need to keep pushing the lie that the proposal applies only to the judiciary.

Stegmeier also seemed to confirm this was a "push poll." He told the paper, "The whole idea is that you need to persuade the majority of people to vote the way you want them to vote." Thus, trying to persuade -- by using a misleading statement -- was the goal, not a true assessment of voter attitudes.

But Stegmeier may have revealed the ultimate purpose of the poll, telling Carstensen that

>>>you want to have something in case the vote turns out to be quite a bit different [from the poll results]. You might need to request an investigation or a recount. So if you don't have anything to compare the final vote to, you'll never get anywhere if you want to dispute the vote.

Can you see the handwriting on the wall? If and when Amendment E is defeated, Stegmeier and crew will point to this biased push poll and claim it shows there was election fraud or some such rot. If adverse to J.A.I.L., the J.A.I.L.ers won't say the election reflects the expression of "we the people," the phrase they always bandy about. Instead, the election will be another of those government/New World Order conspiracies Stegmeier and his friends see everywhere. Not only does this mindset indicate the paranoia is showing already, it may say more about the results of any unbiased questions Stegmeier had Zogby or other polling organizations ask.
---------------------------------

Looks like that post was quite prophetic, eh?

Four polls were taken within a few weeks of each other, three showed E losing big, one showed E winning big. The difference in these polls? The question asked. When the pollsters presented the actual ballot language, potential voters were strongly against the amendment (with a large number undecided, usually indicating many voters had not yet thought about the issue). When pollsters asked a question not on the ballot, they were strongly for the question posed (again with a very large undecided group).

PS: The issue of whether or not the election results were fraudulent based on old poll data is separate from the issue of whether the ballot language was improperly biased. The poll results and election results are quite clear: the voters did not favor the Amendment as presented in the ballot.

Wednesday, November 22, 2006 9:27:00 AM  
Blogger Larry Fafarman said...

Kevin Vicklund said --
>>>>>>(quoting other blog) "More important, if accurate, these results indicate voters are learning the J.A.I.L. campaign is built upon the lie that the amendment would apply only to the judiciary." <<<<<<

Kevin, you are a damn pest who makes me keep repeating points that I have already made --

(1) At the time of the Zogby poll in September, Amendment E must have been a big issue in South Dakota for a long time. It was way back in February that the legislature unanimously passed a resolution against the amendment.

(2) The Zogby poll did not ask a general question about judicial accountability but specifically asked respondents how they intended to vote on Amendment E.

(3) The claim that Amendment E applied to more than just the judiciary was not new -- this claim was made way back in the legislature's resolution in February.

(4) The discrepancy between the Zogby poll and the election result is not minor -- the election result was 11-89 whereas the Zogby poll was 67-20 with 13 percent undecided.

It is an insult to South Dakotan voters to state that they were so poorly informed about a major proposition just a few weeks before the election.

>>>>>>When the pollsters presented the actual ballot language, potential voters were strongly against the amendment (with a large number undecided, usually indicating many voters had not yet thought about the issue). <<<<<<

The pollsters could not have presented the actual language of Amendment E because of the length of the amendment. The pollsters might have presented the "Attorney General Explanation" of the amendment, but that explanation made the false assertion that the amendment applies to city councils, county commissions, etc.. The amendment defines "judge" as follows:

Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

For this definition to include those other public officials, they would have to claim to be shielded by judicial immunity. Our system of government consists of three branches -- the legislative branch, the executive branch, and the judicial branch. Judicial immunity obviously applies just to the judicial branch. If the term "judicial immunity" is applied to all public officials, then the governor and the state legislators should have been included in the attorney general's "explanation," but they were not.

Thursday, November 23, 2006 6:36:00 AM  
Anonymous W. Kevin VIcklund said...

>>>Kevin, you are a damn pest who makes me keep repeating points that I have already made --<<<

And they arejust as poor now as they were then.

>>>(1) At the time of the Zogby poll in September, Amendment E must have been a big issue in South Dakota for a long time. It was way back in February that the legislature unanimously passed a resolution against the amendment.<<<

I went and checked the archives of a major South Dakota newspaper (I assume it's major because I have over the years seen it referred to quite a number of times). If this was a "big issue" as Larry suggests, surely it must have been constantly making headlines and been a big topic of conversation in the letters to the editor, right? Not so. I couldn't find more than ten articles/LttE in any month, running all the way back to and including January. Several months didn't have any articles at all! Yet I was constantly running across references to other ballot measures. Seems that abortion weighed very heavily on people's minds throughout the course of the year (most days had multiple articles/LttE on abortion), as did Amendment D, some sort of property tax amendment. Gay marriage (Amendment C) wasn't as hot a topic, but occured at at least a 10:1 ratio to the JAIL amendment. Public interest appeared to pick up the last 2 weeks. Simply put, there is no indication that the general public considered this a big issue until just before the election.

>>>(2) The Zogby poll did not ask a general question about judicial accountability but specifically asked respondents how they intended to vote on Amendment E.<<<

The Zogby poll gave a vague description of the amendment that didn't include the reasons most people would vote against it.

>>>(3) The claim that Amendment E applied to more than just the judiciary was not new -- this claim was made way back in the legislature's resolution in February.<<<

Yes - seven months prior, it had been reported, buried in the middle of Section A, and then for the most part neglected for half a year. How many people even knew that the legislature voted on it back in February, and how many of those forgot in the meantime?

>>>(4) The discrepancy between the Zogby poll and the election result is not minor -- the election result was 11-89 whereas the Zogby poll was 67-20 with 13 percent undecided.<<<

The discrepancy between the Zogby poll and the 3 other polls conducted shortly thereafter is also not minor. The three other polls were all in agreement with each other and the election results. The three polls and the election results all shared something else in common - they all asked the same question. The question Zogby asked was different, and it got different results. There seems to be a strong correlation between the questions and results. Do you still deny this correlation, Larry?

>>>It is an insult to South Dakotan voters to state that they were so poorly informed about a major proposition just a few weeks before the election.<<<

I'm not insulting South Dakotans, Larry. I'm insulting the general American public, and I'm including myself in that. We are a nation of procrastinators. Americans generally do not inform themselves until right before an election. At the time of the Zogby poll, I personally only knew of two of the
five ballot measures I would be facing in my own state's elections. I waited until mid-October, a month later, to start doing the research.

>>>>>>When the pollsters presented the actual ballot language, potential voters were strongly against the amendment (with a large number undecided, usually indicating many voters had not yet thought about the issue). <<<<<<

>>>The pollsters could not have presented the actual language of Amendment E because of the length of the amendment.<<<

Agreed, but I never said they did. I said they presented the actual ballot language. The ballot is the sheet of paper (or equivalent screen for electronic voting) that you fill out that contains the names of all the candidates. It also contains descriptions of certain laws and measures that citizens are voting on. For some strange reason, these laws and measures are called "ballot measures" and the descriptions that are printed on the ballot are referred to as the "ballot language." I know it's very upsetting to Larry that something might be logical, but in this case, it's true.

The three polls presented the same information that was going to be presented on the ballot. For some strange reason, the results of these three polls were in accordance with the final results. Gee, I wonder why?

>>>The pollsters might have presented the "Attorney General Explanation" of the amendment, but that explanation made the false assertion that the amendment applies to city councils, county commissions, etc.. The amendment defines "judge" as follows:

Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

>>>For this definition to include those other public officials, they would have to claim to be shielded by judicial immunity. Our system of government consists of three branches -- the legislative branch, the executive branch, and the judicial branch. Judicial immunity obviously applies just to the judicial branch. If the term "judicial immunity" is applied to all public officials, then the governor and the state legislators should have been included in the attorney general's "explanation," but they were not.<<<

Larry also seems to not understand what "judicial immunity" means. It does not mean immunity fram suit arising from making judicial decisions as part of official duties. It means immunity from suit arising from making judicial decisions as part of official duties. State legislators do not make judicial decisions, and the only judicial decisions a governor makes are pardons and stays of execution - while they have immunity, it is a different type. Officials at the local level do not have as clearly separated powers. For example, a county commision, in addition to enacting ordinances, is responsible for determing whether some of them have been violated (though some are relegated directly to the courts). The decision that someone has violated a county ordinance is a judicial decision, whether that decision was rendered by the county commission or by the courts.

In short, whether a person has judicial immunity is not determined by whether or not they are a public figure, but whether or not their duties require them to make judicial decisions. State legislatures and governors do not make judicial decisions, therefore they are not covered by judicial immunity.

Friday, November 24, 2006 7:51:00 AM  
Anonymous W. Kevin Vicklund said...

An addendum: a county commision that enacts an ordinance may be able to claim sovereign immunity (the same type of immunity normally claimed by legislatures and governors). A county commision that enforces the ordinance may claim judicial immunity (the same type of immunity normally claimed by judges and juries).

Friday, November 24, 2006 7:41:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said ( 11-24-06 @ 7:51:45 AM) --

If this was a "big issue" as Larry suggests, surely it must have been constantly making headlines and been a big topic of conversation in the letters to the editor, right?

No, not right. Wrong. Why should a big issue be constantly making headlines if there is nothing new to report? And why should something be a big topic of conversation in the letters to the editor if the issues are simple?

Judging the importance of an issue by counting news articles and letters to the editor in a newspaper sounds like something Judge Jones would do. His ruling that the Dover school board's ID policy would be perceived by an objective observer to be a government endorsement of religion was partly based on a comparison of the numbers of times that religion was and was not mentioned in local newspapers' editorials and letters to the editor (for all we know, all of those editorials and letters that mentioned religion could have held that the ID policy was not an endorsement of religion).

>>>>> How many people even knew that the legislature voted on it back in February, and how many of those forgot in the meantime? <<<<<<

How could they not have known that the legislature voted on it? And how could they have forgotten? Is it every day that a legislature votes on a direct proposition? The legislature was not even supposed to vote on it at all, because a direct proposition is supposed to go directly on the ballot without passing through the legislature first (an indirect proposition goes to the legislature first).

>>>>> The Zogby poll gave a vague description of the amendment that didn't include the reasons most people would vote against it. <<<<<<

The description wasn't vague -- it was a clear description. Anyway, the respondents were not asked whether they supported the description but were asked whether they would vote for Amendment E.

Supposedly the biggest reason why people voted against Amendment E was the argument that it applied to more than just the judiciary. But that was a simple argument and an old argument and there is no reason to believe that most people were not aware of that argument until the last minute.

>>>>> The three polls and the election results all shared something else in common - they all asked the same question. <<<<<<

And what question was that?

>>>>> There seems to be a strong correlation between the questions and results. Do you still deny this correlation, Larry? <<<<<<

How in the hell can I answer that question when I don't even know what the other three polls asked?

>>>> At the time of the Zogby poll, I personally only knew of two of the five ballot measures I would be facing in my own state's elections. <<<<<

In the Zogby poll, respondents were giving the option of answering "not sure." So why in hell didn't those who had not studied the amendment answer "not sure" when asked how they were going to vote on it? Only 13.2 percent answered "not sure."

>>>The pollsters could not have presented the actual language of Amendment E because of the length of the amendment.<

Agreed, but I never said they did. I said they presented the actual ballot language. <<<<<<

What in hell did the ballot say, as opposed to what the official voter's guide said? And what in hell did those three other polls say? I want to know.

>>>>> The three polls presented the same information that was going to be presented on the ballot. <<<<<<

You profoundly retarded beetlebrain, you have presented neither the information in the ballot nor the questions in those three polls.

>>>>> State legislators do not make judicial decisions, <<<<<

Federal legislators -- and probably some state legislators -- can make judicial decisions on whether to impeach or convict public officials, and also can make judicial decisions on whether to expel members.

>>>>> the only judicial decisions a governor makes are pardons and stays of execution <<<<<

So governors can make judicial decisions, too. So why didn't the "Attorney General Explanation" include the governor and the legislators in the list of public officials that would be subject to Amendment E?

>>>>> In short, whether a person has judicial immunity is not determined by whether or not they are a public figure, but whether or not their duties require them to make judicial decisions. <<<<<

Some of the actions of judges are enforcement actions rather than judicial decisions. So if a judge is sued over an enforcement action, what is he going to claim -- executive privilege?

You have arbitrarily defined "judicial" in "judicial immuinty" as a reference to the kind of action rather than the branch of government.

Again, Amendment E defines "judge" as follows:

Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

So if a public official other than a justice, judge, magistrate judge, or judge pro tem does not want to be subject to Amendment E, then the solution is simple -- just don't claim judicial immunity.

Kevin Vicklund said ( 11 - 24 - 06 @ 7:41:17 PM ) --
>>>>> A county commision that enforces the ordinance may claim judicial immunity <<<<

An enforcement action is not a judicial action.

Anyway, debates over the meaning of the amendment are not going to explain the gross discrepancies among the election and poll results.

Saturday, November 25, 2006 2:28:00 AM  
Anonymous W. Kevin Vicklund said...

>>>What in hell did the ballot say, as opposed to what the official voter's guide said? And what in hell did those three other polls say? I want to know.<<<

Don't give me that utter bullshit, Larry. You wrote an entire fucking post on it. The ballot said exactly what the "official voter's guide" (assuming there even was a voter's guide) said. The lawsuit wasn't over what was on a separate voter's guide, it was over the language that was going to appear on the ballot itself.

>>>Official summary of "Jail-4-judges" proposition was incredibly biased

>>>This is a follow-up to my article titled "Fraudulent election results for "Jail 4 judges" proposition?".

>>>Ballot propositions often have official summaries that appear on the ballot or in official ballot guides published by the government. It goes without saying that these official summaries must be neutral -- a single biased word could swing the whole vote. The official South Dakota summary -- called the "Attorney General Explanation" -- of the Amendment E ("Jail-4-judges") proposition was so badly biased against the proposition that there was a lawsuit to have the explanation changed, but the court required that only one word be changed ( an obvious case of the fox guarding the chicken coop ). <<<

Of course, Larry can't pass up the opportunity to falsely claim that I have created an arbitrary definition:

>>>You have arbitrarily defined "judicial" in "judicial immuinty" as a reference to the kind of action rather than the branch of government.<<<

Wrong! It is not arbitrary. It comes directly from the lawsuit you were talking about, rewritten in my own words (in part because I was going from memory). Here's the entire section from the opinion on who can claim judicial immunity.

Description of Who Would Lose Judicial Immunity

[¶20.] Stegmeier objects to the attorney general’s statement that the abolition of judicial immunity extends to “[c]itizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors.” Stegmeier claims the proposed JAIL amendment only applies to judges.

[¶21.] Usually, objective means that something can be measured by a definite standard. For example, if fishermen can keep a walleye which is more than 14 inches long, this is an objective standard. Get out a ruler and the walleye is either too short or long enough. The only truly objective standard in SDCL 12-13-9 is that the statement cannot exceed 200 words. I count 185 words in the statement; therefore, it is within the 200 word limit.

[¶22.] If the ballot statement is true, it goes a long way toward being objective. Stegmeier first complains that the proposed amendment only applies to judges and not to “citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors” as stated in the attorney general’s ballot statement.

[¶23.] The amendment includes the following in the definitions in subdivision 1 of section 1:

Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

[¶24.] Stegmeier once thought it was true. In an answer to an article in the Madison Daily Leader which said the JAIL amendment applied to school boards, city councils, county commissions, professional licensing boards and every citizen board performing quasi-judicial functions, Stegmeier took out a paid political announcement in which he agreed with the author of the article and said:

[A]ny governmental employee (of any stripe, shape, or flavor) previously accustomed to violating the rights of South Dakota citizens while hiding behind the bogus doctrine called “judicial immunity”, will now have to shape up or ship out.

Stegmeier cannot claim a better version of the facts than he previously claimed. McElhaney v. City of Edgemont, 2002 SD 159, ¶14, 655 NW2d 441, 445.

[¶25.] The question, however, is not what Stegmeier thinks or says, but whether judicial immunity applies to persons other than judges.

[¶26.] Judges have judicial immunity.

[¶27.] “[F]or the purposes of absolute judicial immunity, judges and their law clerks are as one.” Mitchell v. McBryde, 944 F2d 229, 230 (5thCir 1991); Fariello v. Campbell, 860 FSupp 54 (EDNY 1994).

[¶28.] “Other officials who have been afforded judicial immunity include: hearing examiners employed by administrative agencies, see Butz v. Economou, 438 US 478, 516-17, 98 SCt 2894, 2914, 57 LEd2d 895, 922; attorneys in the course of activities ‘intimately associated with the judicial phase of the judicial process,’ see Imbler v. Pachtman, 424 US 409, 430, 96 SCt 984, 995, 47 LEd2d 128, 143 (1976); and witnesses who testify in judicial proceedings, see Briscoe v. LaHue, 460 US 325, 333-34, 103 SCt 1108, 1112-13, 75 LEd2d 96, 106-07 (1983).” (Emphasis added.) Hansen v. Kjellsen, 2002 SD 1, ¶9 n1, 638 NW2d 548, 550 n1.

[¶29.] In South Dakota, court service officers have judicial immunity when preparing pre-sentence investigations. Hansen v. Kjellsen, 2002 SD 1, 638 NW2d 548.

[¶30.] Jurors have judicial immunity. “[J]udicial immunity extended not only to public officials but also to private citizens (in particular jurors and arbitrators); the touchstone for its applicability was performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Burns v. Reed, 500 US 478, 499-500, 111 SCt 1934, 114 LEd2d 547 (1991).

[¶31.] Grand jurors[1] have judicial immunity. Imbler v. Pachtman, 424 US 409, 424, 96 SCt 984, 47 LEd2d 128 (1976); Lomtevas v. Cardozo, 2006 WL 229908 (EDNY 2006); Bliven v. Hunt, 418 FSupp2d 135 (EDNY 2005).

[¶32.] Bailiffs have judicial immunity. Robinson v. Freeze,15 F #2nd (8th Cir 1994).

[¶33.] Prosecutors have judicial immunity. Imbler v. Pachtman, 424 US 409, 424, 96 SCt 984, 47 LEd2d 128 (1976).

[¶34.] The absolute privilege applies to judges, jurors, attorneys, parties, witnesses and any others involved in the litigation. Kachig v. Boothe, 22 CalApp3d 626, 641, 99 CalRptr 393 (CalCtApp 1971); Christonson v. US, 415 FSupp2d 1186, 1195 (DId 2006).

[¶35.] Parole board officials who “serve a quasi-adjudicative function in deciding whether to grant, deny or revoke parole.” Montero v. Travis, 171 F3d 757, 761 (2d Cir 1999); Scotto v. Almenas, 143 F3d 105, 111 (2d Cir 1998).

[¶36.] Absolute quasi-judicial immunity is afforded to state government officials as well. Lomtevas v. Cardozo, 2006 WL 229908 (EDNY 2006). See, eg, Imbler v. Pachtman, 424 US 409, 420-24, 96 SCt 984, 47 LEd2d 128 (1976).

[¶37.] In Forrester v. White, 484 US 219, 108 SCt 538, 98 LE2d 555 (1988), the United States Supreme Court adopted a “functional approach” to judicial immunity. Under the functional approach, the Court examines the following:

>>>[T]he nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy ... .<<<

484 US at 224, 108 SCt at 542, 98 LE2d at 563. The Court acknowledged that there are difficulties attempting to draw the line “between truly judicial acts, for which immunity is appropriate, and acts that simply happened to have been done by judges.” 484 US at 227, 108 SCt at 544, 98 LE2d at 565. Immunity is only justified by the functions it protects, and not by the person to whom it is attached. Id.

[¶38.] It is the function performed not the title of the official that determines whether the citizen is protected by judicial immunity.

[¶39.] Consequently, judicial immunity may extend to any decision maker who exercises judicial functions: petit jurors, grand jurors, school boards, county commissions, city councils, professional and occupational licensing boards, prosecutors and other attorneys.

[¶40.] The attorney general’s statement about who has judicial immunity is true and is objective.


Let's repeat paragraph 38, since Larry has a reading problem. It is the function performed not the title of the official that determines whether the citizen is protected by judicial immunity. Sorry, Larry, it seems I once again have the law squarely on my side.

>>>Anyway, debates over the meaning of the amendment are not going to explain the gross discrepancies among the election and poll results.<<<

My interpretation of the events explains the discrepancy. Yours doesn't. Until you can come up with a better explanation than mine, mine will be preferred.

Saturday, November 25, 2006 6:56:00 AM  
Blogger Larry Fafarman said...

Kevin bullshits,
>>>>> The ballot said exactly what the "official voter's guide" (assuming there even was a voter's guide) said. <<<<<

Wrong. My quotations were from the official voter's guide. That guide had far too much stuff to put in the ballot. We don't know what the ballot said.

>>>>> The lawsuit wasn't over what was on a separate voter's guide, it was over the language that was going to appear on the ballot itself. <<<<<

The lawsuit was over the "Attorney General Explanation" in the separate voter's guide -- see this article. I don't know what appeared on the ballot itself -- maybe all, part, or none of the "explanation." Even the "explanation" was kind of too long to put on the ballot in its entirety. By "ballot," I mean what voters actually see in the voters' booths.

>>>>> Stegmeier took out a paid political announcement in which he agreed with the author of the article and said:

[A]ny governmental employee (of any stripe, shape, or flavor) previously accustomed to violating the rights of South Dakota citizens while hiding behind the bogus doctrine called “judicial immunity”, will now have to shape up or ship out. <<<<<

So, does that statement carry any legal weight? Should Judge "I am not a lousy judge" Jones' commencement speech's asinine remarks about that good old-time Founders' "true religion" be made part of the official record of Kitzmiller v. Dover?

>>>>> Absolute quasi-judicial immunity is afforded to state government officials as well. <<<<<

Oh, so now we have a new term -- "quasi-judicial immunity." Can a judge have "quasi-executive privilege"?

I've already pointed out that governors and legislatures have "quasi-judicial powers" -- e.g., governors can grant pardons and commutations and legislators can impeach and convict public officials and expel members. So why weren't the governor and legislators listed on the attorney general's "explanation"? BTW, the governor and the legislators were not in the list in the legislature's resolution back in February, either.

>>>>>Consequently, judicial immunity may extend to any decision maker who exercises judicial functions: petit jurors, grand jurors, school boards, county commissions, city councils, professional and occupational licensing boards, prosecutors and other attorneys. <<<<<

We know for a fact that judicial immunity does not extend to prosecutors and other attorneys. Prosecutors can be sued for wrongful prosecution and private attorneys can be sued for malpractice.

>>>>> Sorry, Larry, it seems I once again have the law squarely on my side. <<<<<

Sorry, Kevin, you have failed to come up with a clear and consistent definition of "judicial immunity."

Again, Amendment E defines "judge" as follows: "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity."

So any public official who does not fall into the first four categories above could avoid being subject to Amendment E just by not claiming judicial immunity.

And if this provision applying Amendent E to "all other persons claiming to be shielded by judicial immunity" is the only problem with the amendment, then the amendment could be fixed just by deleting or appropriately modifying this provision.

>>>>>>My interpretation of the events explains the discrepancy. <<<<<<

You have explained nothing. You have not shown what was actually on the ballot or in the questions asked in those three polls. You have not explained why people who had not studied Amendment E did not answer "not sure" when Zogby asked how they would vote on it. You have not explained how there could have been such a huge about-face in public opinion in just a few weeks before the election.

Saturday, November 25, 2006 7:50:00 PM  
Anonymous W. Kevin Vicklund said...

Here is the actual ballot language. Note that it is exactly the same text that Larry analyzed, just as I told him several times. This is in fact shorter than the official ballot language that appeared on my state's ballots. The official ballot explanation by law is required to be less than 200 words. Larry seems to feel that that is a long read. He might want to go to the children's section the next time he goes to the library - the picture books seem to be more appropriate for his reading level. Better yet, he could stop bullshitting us.

Constitutional Amendment E

Title: An Amendment to Article VI of the South Dakota Constitution, relating to judicial decisions.

Attorney General Explanation:

Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions. Their decisions may be reversed on appeal, or they may be removed from office for misconduct or by election. However, they cannot be made to pay money damages for making such decisions. This allows them to do their job without fear of threat or reprisal from either side.

The proposed amendment to the State Constitution would allow thirteen special grand jurors to expose these decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits, for making decisions which break rules defined by the special grand jurors. Special grand jurors are drawn from those who submit their names and registered voters.

The proposed amendment is retroactive. The special grand jurors may penalize any decision-maker still alive for decisions made many years ago.

If approved, the proposed amendment will likely be challenged in court and may be declared to be in violation of the US Constitution. If so, the State may be required to pay attorneys fees and costs.

A vote “Yes” will change the Constitution.

A vote “No” will leave the Constitution as it is.


>>>I've already pointed out that governors and legislatures have "quasi-judicial powers" -- e.g., governors can grant pardons and commutations and legislators can impeach and convict public officials and expel members. So why weren't the governor and legislators listed on the attorney general's "explanation"? BTW, the governor and the legislators were not in the list in the legislature's resolution back in February, either.<<<

Maybe because these powers are exercised so rarely? Just because the list may not have been exhaustive does not invalidate the list. Also, pardons, while having a judicial effect, are exercises of sovereign, not judicial, power, and so fall under sovereign immunity.

>>>We know for a fact that judicial immunity does not extend to prosecutors and other attorneys. Prosecutors can be sued for wrongful prosecution and private attorneys can be sued for malpractice.<<<

Why don't we take a look at Imbler v. Pachtman, 424 US 409 (1976), the Supreme Court case the SD Superior Court referred to in determining that attorneys and prosecutors have judicial immunity. The summary of the case:

Petitioner, convicted of murder, unsuccessfully petitioned for state habeas corpus on the basis of respondent prosecuting attorney's revelation of newly discovered evidence, and charged that respondent had knowingly used false testimony and suppressed material evidence at petitioner's trial. Petitioner thereafter filed a federal habeas corpus petition based on the same allegations, and ultimately obtained his release. He then brought an action against respondent and others under 42 U.S.C. 1983, seeking damages for loss of liberty allegedly caused by unlawful prosecution, but the District Court held that respondent was immune from liability under 1983, and the Court of Appeals affirmed. Held: A state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under 1983 for alleged deprivations of the accused's constitutional rights. Pp. 417-431.

(a) Section 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. Tenney v. Brandhove, 341 U.S. 367 . Pp. 417-419.

(b) The same considerations of public policy that underlie the common-law rule of absolute immunity of a prosecutor from a suit for malicious prosecution likewise dictate absolute immunity under 1983. Although such immunity leaves the genuinely wronged criminal defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty, the alternative of qualifying a prosecutor's immunity would disserve the broader public interest in that it would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system and would often prejudice criminal defendants by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. Pp. 420-428.


Gee, it looks like the Supreme Court says they do have judicial immunity. How then can prosecutors be charged with wrongful prosecution?

We emphasize that the immunity of prosecutors from liability in suits under 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. 242, [28] the criminal analog of 1983. O'Shea v. Littleton, 414 U.S. 488, 503 (1974); cf. Gravel v. United States, 408 U.S. 606, 627 (1972). The prosecutor would fare no better for his willful acts. [29] Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. [30] These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

Not mentioned is that various laws can waive immunity. Larry, here's a handkerchief to wipe the egg off your face.

>>>Sorry, Kevin, you have failed to come up with a clear and consistent definition of "judicial immunity."<<<

"Judicial immunity applies only to judicial acts performed as official duties" isn't a clear and consistent definition?

>>>Again, Amendment E defines "judge" as follows: "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity."

>>>So any public official who does not fall into the first four categories above could avoid being subject to Amendment E just by not claiming judicial immunity.<<<

Which would mean they would expose themselves liabity anyway. Would you rather be shot in the balls or in the gut? Either way, you end up getting shot in a most excruciating manner.

>>>And if this provision applying Amendent E to "all other persons claiming to be shielded by judicial immunity" is the only problem with the amendment, then the amendment could be fixed just by deleting or appropriately modifying this provision.<<<

Maybe they can try that next time. It was too late this time around. Of course, it still would be unconstitutional.

>>>You have explained nothing. You have not shown what was actually on the ballot or in the questions asked in those three polls.<<<

I told you multiple times it was the same language you had already analyzed, moron.

>>>You have not explained why people who had not studied Amendment E did not answer "not sure" when Zogby asked how they would vote on it.<<<

People don't like to admit to uncertainty when asked questions. 14% is quite high.

>>>You have not explained how there could have been such a huge about-face in public opinion in just a few weeks before the election.<<<

Sure I have. The public is in favor of accountability for judges (accountabilty for one's actions is an American value, after all). That is what Zogby asked. The public is not in favor of exposing jurors and local officials to disgruntled criminals that are trying to get revenge for being incarcerated, nor are they in favor of exposing the state to multi-million dollar lawsuits for enacting an unconstitutional amendment, in addition to holding judges accountable. That is what the other three polls and the ballot asked. This is of course exacerbated by the fact that the general public only follows news that makes the big headlines and generally doesn't inform itself of issues until right before an election.

You have failed to explain how there could have been such a huge about-face in public opinion in the space of two weeks between the polls. Care to try to explain why those three polls accurately predicted the election results when your poll didn't?

Sunday, November 26, 2006 8:37:00 AM  
Blogger Larry Fafarman said...

Kevin bullshits again --
>>>>>Here is the actual ballot language. <<<<<

No, that is the "Attorney General's Explanation" that was in the official voters' guide. We don't know what actually appeared on the ballot. As I said, by "ballot" I mean what the voters actually saw in the voters' booth. This "Attorney General's Explanation" presents con arguments, and discussing pro and/or con arguments is campaigning. In California, campaigning within a certain distance of a voting place is prohibited. This "explanation" of Amendment E also mentioned the possibility of a lawsuit, and it is noteworthy that the "explanation" for the proposed amendment banning gay marriage did not also mention this possibility.

>>>>> He might want to go to the children's section the next time he goes to the library - the picture books seem to be more appropriate for his reading level. <<<<<<

You stupid, fatheaded beetlebrain -- descriptions of propositions are purposely kept short because we can't have voters tying up voters' booths while reading long descriptions. The descriptions are really just supposed to serve as reminders of the purposes of propositions. I don't trust to memory and so I write down on a slip of paper how I intend to vote on the different propositions.

>>>>> I've already pointed out that governors and legislatures have "quasi-judicial powers" . . . . So why weren't the governor and legislators listed on the attorney general's "explanation"?

Maybe because these powers are exercised so rarely? <<<<<<

Once is enough.

>>>>> (quoting Imbler v. Pachtman, 424 US 409 (1976) ) The same considerations of public policy that underlie the common-law rule of absolute immunity of a prosecutor from a suit for malicious prosecution likewise dictate absolute immunity under 1983. <<<<<<<

OK, but note that this immunity is protected only by the common law, not by the US Constitution. Hence, a state law removing this immunity from prosecutors would not be unconstitutional.

Though prosecutors may have personal immunity, defendants have sued governments for wrongful prosecution and have won large settlements.

And what about those "other attorneys" that the South Dakota court mentioned? Private attorneys can be sued for malpractice.

>>>>> Gee, it looks like the Supreme Court says they do have judicial immunity. <<<<<<

Wrong. In the passages you quoted, the Supreme Court said that the prosecutors have "absolute immunity" and "civil immunity" but never said that they have "judicial immunity."

>>>>>This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. <<<<<

Prosecution for crime is discretionary. This is a case of the fox guarding the henhouse. The Supreme Court is really talking through its hat on this one.

>>>>> Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. <<<<<

Another case of the fox guarding the henhouse.

>>>>>"Judicial immunity applies only to judicial acts performed as official duties" isn't a clear and consistent definition? <<<<<<

Since when does a prosecutor perform judicial acts?

>>>>Which would mean they would expose themselves liabity anyway. <<<<<

Prosecutors, for example, could claim "civil immunity" under that Supreme Court case you cited.

>>>>> Of course, it still would be unconstitutional. <<<<<<

How?

>>>> I told you multiple times it was the same language you had already analyzed, moron. <<<<<

There is that "I told you" crap again. You have not shown what language was in the ballot or in the questions of those three polls.

>>>>> People don't like to admit to uncertainty when asked questions. 14% is quite high.<<<<<<

In one of those three polls that you have such great confidence in, about 40% said "not sure."

>>>>> The public is in favor of accountability for judges (accountabilty for one's actions is an American value, after all). That is what Zogby asked. <<<<<<

The Zogby question included a description of judicial accountability, but the question that Zogby actually asked was how the respondents intended to vote on Amendment E.

>>>>> That is what the other three polls and the ballot asked. <<<<<

For the umpteenth time, beetlebrain, we don't know what the ballot and those other three polls asked.

>>>>> You have failed to explain how there could have been such a huge about-face in public opinion in the space of two weeks between the polls. <<<<<<

You are the one who has failed to explain it. I have only pointed out that it is not explainable.

Monday, November 27, 2006 4:48:00 AM  
Anonymous W. Kevin Vicklund said...

>>>No, that is the "Attorney General's Explanation" that was in the official voters' guide. We don't know what actually appeared on the ballot. As I said, by "ballot" I mean what the voters actually saw in the voters' booth.<<<

And I've told you multiple times, that is what was on the fucking ballot! I even quoted the god-damned language!

A picture speaks a thousand words. Here is an actual picture of a sample 2006 South Dakota ballot. See the beginning of page 2. The language is exactly as I quoted it, you jackass.

The lawsuit wasn't over what was going to go on the voter's guide, it was over what was going to go on the ballot itself. The voter's guide just used the same language.

Here's a news article from four days prior to the election that claims that a majority of voters did not understand the Amendment.

11/03/2006
Do Voters Understand Amendment E?

If Amendment E passes, South Dakota will be the first state in the nation to enact accountability laws for people in judicial positions. But many people may not realize how far the measure reaches.

You may have seen the signs among the others scattered around Sioux Falls. But we wanted to know if the average voter really understands it.

Reporter: Do you know about the amendment that holds judges accountable?

"No," said Jay Greyson of Brookings.

"I've seen the commercials, but I'm not up to date on the subject," said Christine Neuhart of Sioux Falls.

Reporter: Are you familiar with Amendment E?
"Vaguely," said Tyler Tryon of Sioux Falls.

Most people we talked with, both on camera and off, had at least heard of the amendment, but weren't sure what it includes.

Reporter: Do you know it includes jurors? "No, I did not," said Tryon. Reporter: County Commissioners? "No." City Council members? "No."

Reporter: School board members? "No," said Neuhart. Reporter: City Council? "No." Jurors? "No." County Commissioners? "No."

A court decision just this week upheld the measure's description which includes those groups and strips them of judicial immunity... opening them up to lawsuits as well as judges.

A few voters we talked with were aware of that.

"Yes, it has to do with anybody potentially serving on a board, a school board, elected position, a lot of volunteer people," said Missy Radigan of Sioux Falls.

And they’re important details to keep in mind before voting on Amendment E.

This week U.S. Senators Tim Johnson and John Thune, U.S. Representative Stephanie Herseth and her opponent Bruce Whalen... and Governor Mike Rounds and his opponent Jack Billion issued a joint statement, opposing Amendment E.

Monday, November 27, 2006 9:27:00 AM  
Blogger Larry Fafarman said...

Kevin Vicklund whined,
>>>>>> Here is an actual picture of a sample 2006 South Dakota ballot. See the beginning of page 2. The language is exactly as I quoted it, you jackass. <<<<<<

You stupid birdbrain, this is the evidence I have been requesting for days.

OK, that looks like the real ballot -- I mean, what the voters actually saw in the voters' booths. I thought that maybe this was just a ballot preview, but it has instructions to fill spaces with a pencil, "turn the page," etc., so it looks like the real thing.

I thought that paper ballots were supposed to be machine readable. Of course, pencil-marked ballots are machine readable ( and you don't have to worry about hanging chads, though there is the problem of people not filling in enough of the blanks to be readable ), but machine-read ballots are supposed to be in single sheets for feeding into machines, and this South Darkota ballot is multi-page. A lot of places now have electronic balloting. South Dakota is really in the dark ages.

Unfortunately, a voter could tie up a voting booth for a long time by just reading and mulling over the "explanations" of the propositions. There is already a problem of long lines forming at my voting place during busy times. These explanations on ballots are completely out of place -- people should not wait until they are in an election booth to start learning about propositions.

>>>>> The lawsuit wasn't over what was going to go on the voter's guide, it was over what was going to go on the ballot itself. The voter's guide just used the same language.<<<<<<

No, the lawsuit was also partly about the official voter's guide. BTW, South Dakota appears to have two different online voter's guides -- here and here. The first of these guides has just the Attorney General Explanation and pro and con arguments from supporters and opponents and the second of these guides has just the explanation and the actual language of the amendment. Note that the attorney general "explanation" for Amendment E is mostly copied from the con arguments of the amendment's opponent. The California voter guide also has pro and con arguments and also has rebuttals of the pro and con arguments.

My objection to the "explanation" concerns more than the explanation's claims of who would be subject to Amendment E. I also object to the explanation's claim that the amendment would be retroactive (that is prohibited by the US Constitution's prohibition on ex post facto laws) and the explanation's speculation about the possibility of future lawsuits. As I said, the proposition against gay marriage did not mention the possibility of lawsuits but we know that there have been lawsuits against laws against gay marriage.

I think it would be a good idea to have no explanation or summary of propositions on the ballot at all and just have a short descriptive title -- maybe limited to ten words or so -- or nothing except a number or a letter identifying the proposition. That way there would be no possible conflict over the wording on the ballot. People should just write on a piece of paper how they intend to vote and take that piece of paper to the voting place. However, there could still be a disagreement over the official explanation or summary in a voter guide. I think that the official explanation or summary should be as neutral as possible and any advocacy should be confined to the pro and con arguments. Where there is controversy over the meaning of a provision in a proposition, the official explanation or summary should just state that provision verbatim and then let the pro and con arguments debate the meaning -- e.g., Amendment E's definition of "judge": "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity."

>>>>>>Here's a news article from four days prior to the election that claims that a majority of voters did not understand the Amendment.

11/03/2006
Do Voters Understand Amendment E?
<<<<<<

That's not a news article -- it is an editorial or op-ed. For example, the article said,
"And they’re important details to keep in mind before voting on Amendment E." That is a statement of opinion.

We still don't know the questions in those three polls taken after the Zogby poll.

Monday, November 27, 2006 10:52:00 PM  
Anonymous W. Kevin Vicklund said...

>>>You stupid birdbrain, this is the evidence I have been requesting for days.<<<

Yes. I told you many times that that was the actual language used on the actual ballots. You know, those pieces of paper that voters fill out when they go to the booth.

>>>OK, that looks like the real ballot -- I mean, what the voters actually saw in the voters' booths. I thought that maybe this was just a ballot preview, but it has instructions to fill spaces with a pencil, "turn the page," etc., so it looks like the real thing.<<<

In other words, Larry was trying to find an excuse to continue disbelieving what I said. What hypocrisy!

>>>I thought that paper ballots were supposed to be machine readable. Of course, pencil-marked ballots are machine readable ( and you don't have to worry about hanging chads, though there is the problem of people not filling in enough of the blanks to be readable ), but machine-read ballots are supposed to be in single sheets for feeding into machines, and this South Darkota ballot is multi-page. A lot of places now have electronic balloting. South Dakota is really in the dark ages.<<<

These are machine readable, moron. It's a single sheet, double sided. And I might note, it is more secure than electronic ballots, because it leaves a paper trail in case of alleged machine error or fraud. I am against electronic balloting for this reason.

>>>Unfortunately, a voter could tie up a voting booth for a long time by just reading and mulling over the "explanations" of the propositions. There is already a problem of long lines forming at my voting place during busy times. These explanations on ballots are completely out of place -- people should not wait until they are in an election booth to start learning about propositions.<<<

It would be nice if people actually bothered to inform themselves of major ballot issues before they voted. Oh wait, weren't you claiming that it was an insult to make the claim that they didn't inform themselves months in advance?

>>>>>> The lawsuit wasn't over what was going to go on the voter's guide, it was over what was going to go on the ballot itself. The voter's guide just used the same language.<<<<<<

>>>No, the lawsuit was also partly about the official voter's guide.<<<

I'm going to admit to error on both our parts here. The lawsuit was over the AG's official ballot explanation, primarily because it was by law the sole language that would appear on the ballot. The fact that it was also required by law to be on the official guides was a secondary concern.

>>>BTW, South Dakota appears to have two different online voter's guides -- here and here. The first of these guides has just the Attorney General Explanation and pro and con arguments from supporters and opponents and the second of these guides has just the explanation and the actual language of the amendment. Note that the attorney general "explanation" for Amendment E is mostly copied from the con arguments of the amendment's opponent. The California voter guide also has pro and con arguments and also has rebuttals of the pro and con arguments.<<<

Or is it that the con arguments are copied from the attorney general's factual determination of the actual effects the amendment as written would have?

>>>My objection to the "explanation" concerns more than the explanation's claims of who would be subject to Amendment E.<<<

Okay, quick examination.

>>>I also object to the explanation's claim that the amendment would be retroactive (that is prohibited by the US Constitution's prohibition on ex post facto laws)<<<

Provision 11 of the amendment explicitly states that the Special Grand Jury will have jurisdiction on retroactive claims. As Larry points out, this is unconstitutional. This is in fact the reason why the AG said the amendment is unconstitutional (my prior assertion that the amendment could be unconstitutional because of immunity issues was erroneous, and I retract that claim and apologise).

>>>and the explanation's speculation about the possibility of future lawsuits. As I said, the proposition against gay marriage did not mention the possibility of lawsuits but we know that there have been lawsuits against laws against gay marriage.<<<

The AG is required by law to address the state's exposure to liability if the ballot measure results in lawsuits. Normally, the state has sovereign immunity and is thus not exposed to liability to attorney fees and costs. However, two of the ballot measures would have exposed the state to liability because they are likely to be found unconstitutional. The gay marriage amendment is not likely to be found unconstitutional, therefore the state is not exposed to any liability.

>>>I think it would be a good idea to have no explanation or summary of propositions on the ballot at all and just have a short descriptive title -- maybe limited to ten words or so -- or nothing except a number or a letter identifying the proposition. That way there would be no possible conflict over the wording on the ballot. People should just write on a piece of paper how they intend to vote and take that piece of paper to the voting place. However, there could still be a disagreement over the official explanation or summary in a voter guide. I think that the official explanation or summary should be as neutral as possible and any advocacy should be confined to the pro and con arguments. Where there is controversy over the meaning of a provision in a proposition, the official explanation or summary should just state that provision verbatim and then let the pro and con arguments debate the meaning -- e.g., Amendment E's definition of "judge": "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity."<<<

I think that all ballot measures should have an explanation of the real effect the law will have as written. The reason is that laws can reach much farther than originally intended based upon how they are written, and the average lay-person may not be able to make that determination. Another reason is that proponents of these laws often (I do not mean to imply a majority or even plurality of these proponents, btw) have hidden agendas that are contained within the language, but fervently denied by the proponents because they know the ballot measure would fail. When the measure passes, they immediately begin using it for the purpose they expressly denied it was intended to be used. An example of this is Michigan's gay-marriage ban, which proponents claimed couldn't be used to deny benefits to domestic partners of state employees, such as employees of the University of Michigan. The co-author of that amendment is now the lead prosecuter in a lawsuit to deny benefits to domestic partners of University of Michigan employees. A clear explanation of the real legal effects of a proposed amendment or law is necessary to cut through the rhetoric on both sides to prevent these abuses. The AG is the logical choice, as he is the official expert of the state on legal matters, and since he is elected, there are numerous ways for the citizens to remove him from this duty if they feel he is over-stepping his bounds.

>>>>>>Here's a news article from four days prior to the election that claims that a majority of voters did not understand the Amendment.

11/03/2006
Do Voters Understand Amendment E? <<<<<<

>>>That's not a news article -- it is an editorial or op-ed. For example, the article said,
"And they’re important details to keep in mind before voting on Amendment E." That is a statement of opinion.<<<

I call any article that appears in a newspaper a news article. All news articles have bias,whether it is explicit or implicit, so I see no need to differentiate. In any case, the portion I was calling attention to was the part where they interviewed people on the street a week before the election and found out that the majority of people they interviewed (both on and off camera) were unaware that Amndment E might involve officials other than judges. This flies in the face of Larry's assertion that South Dakotans "must have" been aware of that because of the resolution passed back in February. In contrast, it is in direct support of my claim that South Dakotans, like the general American public, were waiting till the last minute to become informed of the issues facing them.

Tuesday, November 28, 2006 7:46:00 AM  
Blogger Larry Fafarman said...

Kevin moans,
>>>>> I told you many times that that was the actual language used on the actual ballots. <<<<<

There goes that "I told you" crap again.

>>>OK, that looks like the real ballot -- I mean, what the voters actually saw in the voters' booths. I thought that maybe this was just a ballot preview, but it has instructions to fill spaces with a pencil, "turn the page," etc., so it looks like the real thing.<

In other words, Larry was trying to find an excuse to continue disbelieving what I said <<<<<

A little skepticism is very healthy. That "ballot" looked fishy because it was so long-winded on the propositions.

>>>>> It's a single sheet, double sided. <<<<<<

People could miss that "turn page" instruction at the bottom. That instruction should have been in really big letters and -- better yet -- in red ink. Remember what happened with those "butterfly" ballots in Florida.

>>>>>> it is more secure than electronic ballots, because it leaves a paper trail in case of alleged machine error or fraud. I am against electronic balloting for this reason. <<<<<

Paper ballots can be used as a verification or a backup for electronic voting.

>>>>>> It would be nice if people actually bothered to inform themselves of major ballot issues before they voted. Oh wait, weren't you claiming that it was an insult to make the claim that they didn't inform themselves months in advance? <<<<<<<

They are more likely to hear all sides of an issue if they start informing themselves months in advance. And my point was that it is silly to give long-winded proposition summaries or explanations on the actual ballot because that assumes that people don't start informing themselves about propositions until they are in the voting booths.

>>>>>The lawsuit was over the AG's official ballot explanation, primarily because it was by law the sole language that would appear on the ballot. The fact that it was also required by law to be on the official guides was a secondary concern. <<<<<<

I don't think it was just a secondary concern -- people are as likely or even more likely to read the explanation in the voter guide (reading it on the ballot may take too long when the voter is in the voter booth).

>>>>>> Or is it that the con arguments are copied from the attorney general's factual determination of the actual effects the amendment as written would have? <<<<<<

One sentence in the "explanation' and the "con" arguments is identical, word for word -- "Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions" -- so it is obvious that one copied the other. Who knows who copied whom? It really looks ridiculous -- no originality.

>>>>>>Provision 11 of the amendment explicitly states that the Special Grand Jury will have jurisdiction on retroactive claims. As Larry points out, this is unconstitutional. <<<<<

Provision 11 does not expressly say that the retroactivity is supposed to apply to actions taken before adoption of the amendment. Anyway, I have no idea why there is a statement that Provision 11 applies "remedially" and "retroactively" -- the statement appears to be pointless.

IMO, a possible interpretation that leads to an unconstitutional result belongs in the con arguments and not in the official summary or explanation of the proposition.

>>>>> The AG is required by law to address the state's exposure to liability if the ballot measure results in lawsuits. <<<<<<

What law? Show me. How could such a law be enforced? Kevin, you are always pulling these unsupported crazy ideas out of the air.

>>>>>> I think that all ballot measures should have an explanation of the real effect the law will have as written. <<<<<<

As I said, advocacy belongs in the pro and con arguments in the voters' guide and not in the official summary or explanation.

>>>>> An example of this is Michigan's gay-marriage ban, which proponents claimed couldn't be used to deny benefits to domestic partners of state employees, such as employees of the University of Michigan. <<<<<<

The con arguments in the official voter's guide (assuming that Michigan's guide presents pro and con arguments) could have pointed out that the gay-marriage ban had no specific provision protecting benefits for domestic partners of state employees.

>>>>>The co-author of that amendment is now the lead prosecuter in a lawsuit to deny benefits to domestic partners of University of Michigan employees. <<<<<

I am not responsible for people who make asses of themselves.

>>>> I call any article that appears in a newspaper a news article. <<<<<

That is one of the dumbest ideas I have ever heard.

>>>>>In contrast, it is in direct support of my claim that South Dakotans, like the general American public, were waiting till the last minute to become informed of the issues facing them. <<<<<<

That's ridiculous. This was supposed to be the biggest argument against Amendment E and supposedly most people did not find out about this argument until the last minute. That is just not credible. Also, there is still no explanation as to why only 13.2% in the Zogby poll answered "not sure." And we still don't know what the other three polls asked.

A few percentage points change I could understand, but not an about-face.

Wednesday, November 29, 2006 3:33:00 AM  
Anonymous W. Kevin Vicklund said...

>>>A little skepticism is very healthy. That "ballot" looked fishy because it was so long-winded on the propositions.<<<

Bullshit. That went way beyond healthy skepticism, Larry. It looks about as long as the average Michigan ballot - in fact, it is shorter than the one I fille out this year, and we had less than half the measures. You have this very dumb habit of assuming that only California standards are applicable when dealing with non-Californians.

>>>>>> The AG is required by law to address the state's exposure to liability if the ballot measure results in lawsuits. <<<<<<

>>>What law? Show me. How could such a law be enforced? Kevin, you are always pulling these unsupported crazy ideas out of the air.<<<

I'm sorry that you feel that reality is crazy. However, I am simply providing factual information, that often seems to invalidate your warped worldview.

South Dakota Codified Law 12-13-9.
Attorney general's explanation of proposed questions--Maximum length--Effect of yes and no votes--Placement.
Before the third Tuesday in May, the attorney general shall deliver to the secretary of state an attorney general's statement for each proposed amendment to the Constitution and each initiated measure. The attorney general's statement for each referred measure shall be delivered to the secretary of state before the second Tuesday in July. The attorney general's statement shall consist of the title, the explanation, and a clear and simple recitation of the effect of a "Yes" or "No" vote. The explanation shall be an objective, clear and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. The attorney general shall include a description of the legal consequences of the proposed amendment, the initiated measure, or the referred law, including the likely exposure of the state to liability if the proposed amendment, the initiated measure, or the referred law is adopted. The explanation may not exceed two hundred words in length. On the printed ballots, the title shall be followed by the explanation and the explanation shall be followed by the recitation.


>>>They are more likely to hear all sides of an issue if they start informing themselves months in advance.<<<

If being the key word. The problem is, they don't start informing themselves months in advance, and no amount of covering your head with a towel will change that fact.

>>>And my point was that it is silly to give long-winded proposition summaries or explanations on the actual ballot because that assumes that people don't start informing themselves about propositions until they are in the voting booths.<<<

It's not just an assumption, Larry, it's an unfortunate reality. And it's not long-winded - it's less than 200 words, for gods' sake. California ballot descriptions have to rely on bullet points just to fit under their 100 word limit.

>>>Provision 11 does not expressly say that the retroactivity is supposed to apply to actions taken before adoption of the amendment. Anyway, I have no idea why there is a statement that Provision 11 applies "remedially" and "retroactively" -- the statement appears to be pointless.<<<

Legal experts from around the country disagree with you and agree with me and the entire legislature of South Dakota (including every municipality and county government).

>>>IMO, a possible interpretation that leads to an unconstitutional result belongs in the con arguments and not in the official summary or explanation of the proposition.<<<

Guess what, Larry? The AG, by law, just has to determine whether it's "likely". So a possible interpretation, especially one that outside legal experts agree is true, is sufficient, by law, to be placed on the ballot. If the public disagrees with this, they have numerous recourses available to change it.

>>>>>>In contrast, it is in direct support of my claim that South Dakotans, like the general American public, were waiting till the last minute to become informed of the issues facing them. <<<<<<

>>>That's ridiculous. This was supposed to be the biggest argument against Amendment E and supposedly most people did not find out about this argument until the last minute. That is just not credible.<<<

The simple reality of elections is that people do not inform themselves until the last minute. Reality does not care whether you find it to be credible.

>>>Also, there is still no explanation as to why only 13.2% in the Zogby poll answered "not sure." And we still don't know what the other three polls asked.<<<

After a bit of hunting, it turns out that I crossed up some of the poll results with the questions asked.

Zogby in mid-Sept gave the proponents definition of Amendment E and then asked how people intended to vote.

The first three non-Zogby polls (taken late Sept/early Oct) all simply identified Amendment E as the amendment on the judiciary, without giving any details. They then all asked "Based what you know now, how do you intend to vote on Amendment E?"

In mid-Oct another poll (which Larry has confused with the first three polls) asked the same question as the first three.

At about the same time, a straw ballot was taken by a newspaper (note - this is non-scientific). The paper printed out sample ballots with the official wording (identical to the sample ballot I linked to) and asked its readers to fill out the ballots and turn them in.

The results:

Zogby: 67% in favor, 13% undecided

the four polls based solely on voter knowledge: E losing by double digits, large blocks of undecideds

straw ballot: 86% opposed, 14% in favor

This, plus newspaper reports of the majority of interviewed voters unaware of more than a vague idea of what Amendment E was about, plus local and national media panning the Zogby poll at the time it was released, plus Zogby admitting that the poll was not intended to gauge how voters intended to vote on the amendment itself, all logically lead to the following conclusion: the voters were basically uninformed, and when presented with a description, responded based upon the description they were given.

>>>A few percentage points change I could understand, but not an about-face.<<<

At one point this year, polls in Michigan taken one day apart showed the governor winning by 60%-40% and losing 60%-40%. (Numbers are ounded and taken from memory) The way a question is asked can have a huge difference in the outcome of a poll.

Here's a standard disclaimer from the Harris Poll, one of the big polling firms:

Methodology
The Harris Poll was conducted by telephone within the United States between August 4 and 7, 2006 among a nationwide cross section of 1,009 adults (aged 18 and over). Figures for age, sex, race, education, and region were weighted where necessary to align them with their actual proportions in the population.

All surveys are subject to several sources of error. These include: sampling error (because only a sample of a population is interviewed); measurement error due to question wording and/or question order, deliberately or unintentionally inaccurate responses, nonresponse (including refusals), interviewer effects (when live interviewers are used) and weighting.

With one exception (sampling error) the magnitude of the errors that result cannot be estimated. There is, therefore, no way to calculate a finite "margin of error" for any survey and the use of these words should be avoided.

With pure probability samples, with 100 percent response rates, it is possible to calculate the probability that the sampling error (but not other sources of error) is not greater than some number. With a pure probability sample of 1,009 adults one could say with a ninety-five percent probability that the overall results have a sampling error of +/-3 percentage points. However that does not take other sources of error into account.

These statements conform to the principles of disclosure of the National Council on Public Polls.


emphasis in original

Wednesday, November 29, 2006 7:18:00 AM  
Anonymous W. Kevin Vicklund said...

Aha! That's where the confusion arose! The mid-October poll (the one I first mentioned) also looked at the effect of reading the AG's official ballot description. Unfortunately, the original site went down the next day, but I just found the google cache of another site that reprinted part of the original article.

Mon, Oct 23rd 2006

SIOUX FALLS, S.D. – According to a poll commissioned by the No on E Coalition and released today, South Dakotans are overwhelmingly opposed to Amendment E. The survey found that 46 percent of voters oppose Amendment E, 42 percent are undecided and only 12 percent say they support the measure.

The survey simply asked: “Based on what you know or have heard, if the election were held today, would you vote yes to adopt Amendment E, or no to reject Amendment E.”

“It is clear from our polling that the more South Dakotans learn about Amendment E, the more they reject it,” said Bob Moore, president of Moore Information. “After hearing the Attorney General’s explanation, the percentage of registered voters opposing Amendment E increases to 64 percent.”


Over the course of two weeks, polls taken by the same polling firm and asking the same question (thereby eliminating a large part of the unquantifiable biases) showed a significant change in voter position on the Amendment. The margin of "defeat" went from a little over 10% at the beginning of the month to 30% by mid-month. Also, simply reading the AG's statement drastically altered the results, from 42% against E to 64%, a jump in margin of 22% - nearly half the undecideds changing their mind solely based on learning about the AG's description.

Yet more evidence that the way the question is asked makes a huge difference. Yet more evidence that the public was not as well-informed as Larry would have us believe.

When is Larry going to offer any evidence?

Wednesday, November 29, 2006 2:25:00 PM  
Blogger Larry Fafarman said...

For starters, Kevin, you should not fly into a tirade whenever I have trouble finding or verifying information --

(1) I have a slow dial-up connection.

(2) I do not have access to fast and direct legal search engines like Westlaw.

(3) A lot of the information is available only through Westlaw or some other paid service.

(4) A lot of the information is on pdf files, which often hang up on my computer.

(5) I often cannot read your mind as to where information is located.

Anyway, for once you have provided information that is really useful to me -- you have helped show the great need for reform in ballot initiative and referendum procedures.

>>>>> (From South Dakota law) The explanation shall be an objective, clear and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. <<<<<<

That is like the "best butter" in the Alice-in-Wonderland Mad Hatter's Tea Party story. This "explanation" could very easily slip into advocacy. In California, campaigning is not allowed within a certain distance of voting places, so why should campaigning be permitted on the ballot?

>>>>>> The attorney general shall include a description of the legal consequences of the proposed amendment, the initiated measure, or the referred law, including the likely exposure of the state to liability if the proposed amendment, the initiated measure, or the referred law is adopted. <<<<<<<

A warning of a possibility of a lawsuit could be the kiss of death for a proposition that the courts might find to be constitutional if it passed. A lot of voters have a phobia about anything that might cost tax money, even when the cost might be nonexistent or trivial.

>>>Provision 11 does not expressly say that the retroactivity is supposed to apply to actions taken before adoption of the amendment. Anyway, I have no idea why there is a statement that Provision 11 applies "remedially" and "retroactively" -- the statement appears to be pointless.<

Legal experts from around the country disagree with you and agree with me and the entire legislature of South Dakota (including every municipality and county government). <<<<<

What legal experts? Where?

The legislature's resolution said nothing about retroactivity and said that the amendment violated the federal Constitution without saying why.

>>>>> Zogby in mid-Sept gave the proponents definition of Amendment E and then asked how people intended to vote. <<<<<<

Here is the Zogby question --
Amendment E called the Judicial Accountability Amendment will be on the ballot this November. The amendment would allow the creation of a citizen's oversight committee or special grand jury which would hear complaints of alleged judicial misconduct against judges. If a judge is found guilty three times of having engaged in judicial misconduct, he or she would be removed from office and could never serve in any judicial capacity in South Dakota again. Will you vote for Amendment E or will you vote against Amendment E?

As I said, the respondents were asked how they intended to vote on Amendment E -- they were not asked whether or not they liked the description of the amendment. 67 percent said yes, 20 percent said no, and 13 percent said "not sure." How could so many people who knew little or nothing about Amendment E have been persuaded by a brief description over the telephone in an opinion poll?

Wednesday, November 29, 2006 10:51:00 PM  
Anonymous W. Kevin Vicklund said...

>>>How could so many people who knew little or nothing about Amendment E have been persuaded by a brief description over the telephone in an opinion poll?<<<

In a poll taken October 16-17, people went from 42% opposed to Amendment E to 64% opposed when read the AG's description. Assuming that the 12% in favor didn't change their mind after being read the AG's description, that means almost half of the 46% that were originally undecided were persuaded by a description over the telephone in an opinion poll.

This is why I really dislike relying on opinion polls. They are way too sensitive to bias, whether that bias is intentional or accidental.

Wednesday, November 29, 2006 11:31:00 PM  

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