JAIL4Judges sues Florida Bar in US Supreme Court

A broadcast email from JAIL4Judges said,

On January 7, 2008, a petition for writ of certiorari was docketed in the United States Supreme Court titled Florida JAIL4Judges, Petitioner v. The Florida Bar, Respondent, prepared and filed by Montgomery Blair Sibley, Attorney for Petitioner, on behalf of Florida JAIL4Judges and Florida JAILer-in-Chief (JIC), Nancy Grant, ngrant@strato.net.

The background of this lawsuit is quite interesting and goes back to the South Dakota 2006 ballot. For a history see www.sd-jail4judges.org. Therein we explain the shenanigans that went on in South Dakota to misrepresent the J.A.I.L. Amendment before the electorate. As a result, J.A.I.L. went down allegedly 89% against to 11% in favor. Thereafter Attorney Tom Barnett, the Director of the South Dakota Bar Association and leading the opposition campaign rushed down to Florida to address the Florida Bar, bragging on how they "defeated" JAIL4Judges in South Dakota.

A news article on the website of the Florida Bar described advice that Barnett gave at a meeting of the Florida Bar's board of governors:
.

If backers of an amendment known as J.A.I.L.4Judges succeed in getting their constitutional amendment on the Florida ballot, the state’s lawyers should be ready to lead a campaign to defeat it.

The public face of that campaign should not be judges and lawyers, but rather regular citizens who would be adversely affected by the amendment that nominally seeks to strip civil and criminal immunity from the judiciary in cases where a special grand jury decides they have acted improperly.

Tom Barnett, executive director of the State Bar of South Dakota, gave that advice to the Bar Board of Governors at its December meeting.

A state bar 's board of governors has no business even hearing advice on getting involved in a political issue, let alone acting upon such advice.

JAIL4Judge's broadcast email said,

This rhetoric spewed out by Barnett so enraged Florida Bar member Montgomery Sibley that he brought suit against the Florida Bar for illegal and unlawful use of Bar membership dues. The nature of the lawsuit filed in the Florida Supreme Court, which was three-pronged, alleges that any entity that advocates for or against a State Constitutional Amendment must be registered as a Political Action Committee (PAC). Florida JAIL4Judges, pursuant to this law, is an officially-recognized PAC with a State-assigned number. However, its opposition (The Florida Bar) is not. The lawsuit seeks to compel the Florida Bar to comply with Florida law and register as a PAC, albeit pointing out that the Florida Bar is a duly-recognized official arm of the Florida Supreme Court and the second prong is that the Florida Bar is precluded by Florida law from involving itself in State initiatives.

The third prong asks that the seven justices of the State Supreme Court recuse themselves because their own official arm is the defendant. This of course placed the Florida Supreme Court in a real catch-22 situation which they stalled upon ad infinitum, refusing to make a decision on their own conflict. Finally by compulsion the Florida Supreme Court determined that they were not the proper court to decide the question before them. Another motion followed by Attorney Sibley calling on them to decide the question before them or state why they did not have jurisdiction to make a ruling. The motion was denied and the instant matter is now brought before the United States Supreme Court.

The current petition, assigned Case No. 07-885, may be read at http://www.jail4judges.org/state_chapters/fl/Petition.pdf. What we now know is that the entire State of Florida, including its Supreme Court, is incapable of deciding a matter in which it has a conflict of interest. Left to be decided by the United States Supreme Court is whether Florida JAIL4Judges has a forum available to it for redress of grievance (First Amendment, U.S. Constitution). Maybe even more basic is, do we have a U.S. Constitution? We shall soon find out. If in the negative, J.A.I.L. has made a prima facie case to all Americans as to the universal need for the passage of J.A.I.L. in this country. We ask, without J.A.I.L. does America even have a future?

The national media, to which this is being sent, should be very interested in following this case.

-Ron Branson-
VictoryUSA@jail4judges.org

Incidentally, I met Ron Branson in person many years ago when I was fighting the flagrantly unconstitutional $300 California "smog impact fee" imposed on federally-certified vehicles brought into the state. I am grateful to Ron for his continued dedication to fighting judges' shenanigans.
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Mass. legislature kills ballot initiative

The Massachusetts legislature voted to kill a voter initiative on whether to ban gay marriage in the state. As I previously reported, the legislature waited until the very last day to make a constitutionally required previous vote on the initiative. An AOL news article said,

BOSTON (AP) - Massachusetts lawmakers threw out a proposed constitutional amendment Thursday that would have let voters decide whether to ban gay marriage in the only state that allows it.

The vote -- which came amid heavy pressure to kill the measure from Gov. Deval Patrick and legislative leaders -- was a devastating blow to efforts to reverse a historic 2003 court ruling legalizing same-sex marriage . . .

The ban needed 50 votes in consecutive sessions of the 200-seat Legislature to secure a place on the 2008 statewide ballot. At the end of the last session in January it passed with 62 votes, but this time it garnered just 45 . . .

More than 8,500 gay couples have married there since it became legal in May 2004.

Kris Mineau, president of the Massachusetts Family Institute that backed the amendment, questioned the legality of what he said was rampant horse trading in the final hours, saying there was "tremendous pressure and we believe some tremendous incentives" to flip votes . . .

Outside the Statehouse on Thursday, hundreds of people rallied on both sides of the issue.

"We believe it's unconstitutional not to allow people to vote on this," said Rebekah Beliveau, a 24-year-old Gordon Conwell Theological Seminary student who stood with fellow college-age amendment supporters across the street from the Statehouse.

"We're standing up not necessarily on the issue of same-sex marriage, but our right to vote," she said. Advocates said they had gathered 170,000 signatures supporting the amendment; the secretary of state's office accepted 123,000 as valid . . .

I don't understand why the Massachusetts Constitution gives the legislature opportunities to kill ballot initiatives. I thought that the whole idea of ballot initiatives was to get away from the lobbying and horse-trading that goes on in legislatures. And the power of the legislature to kill initiatives is a disincentive to gather signatures for initiatives.

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Massachusetts legislature finally votes on ballot initiative

Today, January 2, the Massachusetts legislature finally fulfilled its constitutional obligation to vote on a ballot initiative that would ban future same-sex marriages in the state. Under the state constitution, today was the last day to vote. The legislature acted under a lot of pressure, including a lawsuit and widespread criticism in editorials.

For more info, see -- Massachusetts and S. Dakota legislatures violated initiative rules

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Massachusetts and S. Dakota legislatures violated initiative rules

Update: On the last day, Jan. 2, the Massachusetts legislature finally voted on the initiative.

Both the South Dakota and Massachusetts legislatures have violated their respective states' ballot initiative rules -- the former legislature by voting on a ballot initiative and the latter legislature by failing to vote on a ballot initiative.

As I have previously noted, there are two different kinds of ballot initiatives -- the "direct" initiative and the "indirect" initiative. In the"direct" initiative, a proposition is supposed to be put directly on the ballot without going to the legislature first, and in the "indirect" initiative, a proposition is supposed to go before the legislature before going on the ballot. In an indirect initiative procedure, a proposition may or may not go on the ballot (I don't know how the initiative rules of the different states differ in this regard). Massachusetts' state constitution has an "indirect" initiative procedure that requires the legislature to vote on the initiative and South Dakota has a "direct" initiative procedure. I have already noted that the South Dakota legislature violated the spirit of the state's direct initiative procedure by voting on a resolution against the state's Amendment E ("Jail-4-judges") ballot proposition -- in several decades of following California's propositions, I cannot recall the legislature ever voting on a single one of them. Now the Massachusetts legislature has violated the letter of the state constitution by failing to vote on a ballot proposition.

It is hard enough trying to get an initiative passed into law without having to worry about these illegal and/or unethical sabotage efforts by the state legislature.

A related article on this blog is titled Reform of ballot proposition rules. I would add another proposed reform: where the legislature fails to vote on an indirect initiative, the rules should require that the initiative go directly on the ballot by default.

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Reform of ballot proposition rules

The shenanigans that went on in the South Dakota government's handling of the Amendment E ("Jail-4-judges") proposition -- see here and here -- made me aware of the need for reform of ballot proposition rules. I suspect that the possibility of similar shenanigans exists in other states as well. Here are my suggestions for reform:

Legislative gag rule for "direct" initiatives

Formal state legislative votes, resolutions, debates, and speeches about "direct" initiatives should be prohibited. Similar formal actions by other bodies of government officials -- e.g., city councils and county commissions -- should be discouraged or prohibited.

State ballot initiatives are classified as "direct" initiatives and "indirect" initiatives (initiatives are also classified as statutory or constitutional). A "direct" initiative is supposed to go directly on the ballot and an "indirect" initiative goes through the legislature first. A "direct" initiative should be treated as such.

Official summary or "explanation" of a proposition

Official summaries or "explanations" are unfortunately necessary because: (1) many ballot propositions are too long for many people to read entirely; (2) a proposition's language may be hard to understand; and (3) many people are concerned about the potential fiscal impact of the proposition. However, I propose the following rules to help assure neutrality and guard against prejudicing the election:

(1) The official summary should not go on the ballot. The official summary should appear only in an official voter's guide along with pro and con arguments presented by the supporters and opponents of the proposition. An "objective" or "balanced" summary on the ballot is like the "best" butter that the March Hare put in the Mad Hatter's watch in Alice in Wonderland. In California, campaigning within a certain distance of election sites is prohibited, so why should the possibility of campaigning be allowed on the ballot? Also, voters are likely to tie up voting booths while reading and mulling over these official summaries -- this is a particular problem with electronic voting because there are likely to be reductions in the numbers of voting booths because of the great expense of the electronic voting machines.

(2) If there is a controversy or question over the interpretation of a particular provision of the proposition, the summary should just quote the provision and then let the pro and con arguments discuss the different interpretations. An example was the controversy over the meaning of "judicial immunity" in Amendment E's definition of "judge": "Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity. "

(3) Speculation concerning the initiative's constitutionality or the possibility of lawsuits should not be allowed in the official summary. Many voters have a knee-jerk dislike for anything that might cost tax money, no matter how minor the cost, and such speculation could be the kiss of death for a proposition that the courts might find to be constitutional if passed. Such speculation belongs in the pro and con arguments in the official voter's guide.

Ballot

To avoid any possibility of prejudicing the vote, the short title of the ballot initiative (e.g., Proposition 2, Amendment E) should either stand alone or be accompanied by no more than a brief descriptive title of maybe twenty words or less. As discussed above, the official summary should not be on the ballot.

Voter's guide

An official voter's guide -- whether printed or online -- should contain the official summaries, the pro and con arguments, and the complete propositions. In California, the printed official voter's guide is set up this way (I don't know about the online versions). In the case of South Dakota, one official online voter's guide contained only the official summaries ("explanations") and the complete propositions and another official online voter's guide contained only the official summaries ("explanations") and the pro and con arguments.

Pro and con arguments in the official voter's guides

At least one rebuttal of the pro and con arguments should be allowed. The California voter's guide allows one rebuttal. The South Dakota voter's guide with the pro and con arguments allows no rebuttals.

Voters' booths

To help prevent voters from tying up the voters' booths or stations by reading and mulling over official voter's guides or other election material, voters should be allowed to take only a single sheet of paper (showing voting intentions) into the voters' booths. In order to see that voters are not violating this rule, voters' booths should not be enclosed. Electronic voting screens should have a blinder on each side to ensure privacy.

I think it would be interesting to do a comparative study of the states' ballot proposition rules, using the above suggestions as a guide.

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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 ).

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.

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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?

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