Official summary of "Jail-4-judges" proposition was incredibly biased
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 ).
I will now examine some individual parts of the Attorney General Explanation for Amendment E. First, consider the following statement:
The proposed amendment is retroactive. The special grand jurors may penalize any decision-maker still alive for decisions made many years ago.
No provision in Amendment E says that, and any such interpretation of Amendment E would be unenforceable because ex post facto laws are prohibited by Art. 1, Sec. 9 of the US Constitution.
The explanation says,
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.
Official summaries of propositions should never speculate about the likelihood or possibility of lawsuits. For one thing, such speculation raises fears of big legal expenses, but even a lawsuit with multi-million dollar legal expenses would have a negligible fiscal impact on a state, even a low-population state like South Dakota.
The Attorney General Explanation for a gay-marriage amendment, Amendment C, that was on the same ballot did not mention that that amendment also carried a big risk of lawsuits. Amendment C says, "Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota." The Attorney General Explanation for an abortion referendum on the same ballot also warned about lawsuits and that too was wrong.
California's famous Proposition 13 resulted in at least three lawsuits but I doubt that the official summary for that proposition warned of the likelihood or possibility of lawsuits. One of the lawsuits against Prop 13 was heard by the US Supreme Court: Nordlinger v. Hahn, 505 U.S. 1 (1992). There was also a lawsuit against Colorado's anti-gay Amendment 2 proposition, which was struck down by the US Supreme Court in Romer v. Evans, 517 U.S. 620 (1996).
The Attorney General Explanation says,
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.
Just for the hell of it, why not just add the governor and the state legislature to that list of individuals and groups who "are all required to make judicial decisions"? With the term "judicial decisions" so broadly defined, is there any rational basis for excluding the governor and the state legislature from the list?
BTW, the legislature's resolution against Amendment E, passed way back in February, also claimed that Amendment E applies to all of these individuals and groups:
WHEREAS, if approved by the voters, Amendment E would actually allow lawsuits against all South Dakota citizen boards, including county commissioners, school board members, city council members, planning and zoning board members, township board members, public utilities commissioners, professional licensing board members, jurors, judges, prosecutors, and all other citizen boards; . . .
Here is what Amendment E actually said:
1. Definitions. Where appropriate, the singular shall include the plural; and for purposes of this Amendment, the following terms shall mean:
- - - - - - - - - -
b. Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.
So if you are not a justice, judge, magistrate judge, or judge pro tem and you don't want Amendment E to apply to you, then the solution is simple -- just don't claim to be shielded by judicial immunity.
Also, as I have already pointed out, the state legislature should not have voted on Amendment E because the proposition was created by a "direct" initiative, which means that the proposition is supposed to go directly onto the ballot rather than going to the legislature first.
According to the Jail-4-Judges website, California Attorney General Bill Lockyer's summary of the proposition was as follows, but I don't know if he actually approved this summary because the proposition never qualified for the California ballot:
"JUDGES. RESTRICTIONS ON JUDICIAL IMMUNITY. INITIATIVE CONSTITUTIONAL AMENDMENT. Supersedes existing judicial immunity and creates three 25-member 'Special Grand Juries' empowered to: determine if a judge may invoke judicial immunity in a civil suit; indict and, through a special trial jury, convict and sentence a judge for criminal conduct; and permanently remove a judge who receives three adverse immunity decisions or three criminal convictions. Disallows immunity for deliberate violations of law, fraud, conspiracy, intentional due process violations, deliberate disregard of material facts, judicial acts outside the court's jurisdiction, unreasonable delay of a case, or any deliberate constitutional violation."
A webpage on the Jail-4-Judges website also has a long condemnation of the SD attorney general's "explanation."
The official California voter pamphlet has neutral summaries of the propositions along with debates between the supporters and opponents of the propositions. That is the proper way to do it.
The question here is not whether Amendment E is good or bad but whether the government followed fair and legal procedures in handling the proposition. The answer to the latter question is a resounding no.