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The following is an excellent letter to the South Dakota Chief Justice prepared by an independent South Dakota businessman who is concerned about where the state and nation are going:
August 7, 2006
David E. Gilbertson, Chief Justice
South Dakota Supreme Court
500 East Capitol Avenue
Pierre, South Dakota 57501
Re: Your Attendance at the South Dakota State Bar
` Board of Commissioners, December 8, 2005 Meeting
Dear Chief Justice Gilbertson:
Let me introduce myself to you. I am Eugene Paulson, an independent South Dakota businessman concerned about where our state, our nation, is going. Too often today, too many matters end up in the Courts, with judges having the final say-so on the matter.
We don’t think our Founding Fathers could have ever dreamt that America would become the litigious, lawsuit-warring, sue-at-the-drop- of-a-hat, place we have become. Clearly, we don’t agree with that, nor with the continuing amassing of power by the local, state and federal governments. We believe it is clear that, at a certain point, the more power government gets, the less liberty We The People have.
So as more and more of these issues end up in the Courts with judges, many not elected, deciding the finality of the matter, we thought not only that we should have a truly independent judiciary, but more importantly that we should have, and ensure that we have, an accountable judiciary --a judiciary that has integrity; a judiciary that is beyond reproach. Clearly, the doctrine of absolute judicial immunity is contrary to the above; thus my/our sponsoring of Amendment E.
Which brings up the following matter. Enclosed find a copy of the South Dakota State Bar Board of Commissioners, December 8, 2005 Meeting “Minutes.” There it is stated that you were in attendance at that meeting. It further states that “The purpose of the meeting was to consider a draft campaign plan prepared by Tom Barnett to respond to the J.A.I.L initiative.” It further states that you “commented briefly” at the meeting. It further states that “Barnett [Tom Barnett, State Bar Secretary-Treasurer] informed the Commissioners that the campaign would be very expensive, perhaps costing as much as $1-million.”
Chief Justice Gilbertson August 7, 2006 Page two
Regarding an independent judiciary and a fair election, you wrote in Hoogestraat v. Barnett (199 ) 199 S.D. 104; 583 N.W. 421, which concerned the issue of whether the South Dakota Attorney General had exceeded his authority in a ballot statement he had prepared for an initiative measure:
“At stake here is the impartiality of the voting booth. We fully join in the Court’s opinion. We write only to stress a few additional points germane to the decision on this expedited case.
“While in a generic sense, the Attorney General is the lawyer for the citizens of South Dakota in that he is a public official who is paid with taxpayers’ funds, like all public officials his duties are defined by the South Dakota Constitution and our statutes. We do not read his general duties as set forth in SDCL 1-11-1 or any code section (exclusive of the disputed 12-13-9) to authorize the giving of a legal opinion on the face of the ballot. Thus we are presented with the narrow question now before us as to whether the disputed language may be authorized by SDCL 12-13-9. For the reasons set forth in the Court’s opinion, we conclude it is not. This is not to say that the Legislature may not authorize such action if it chooses to do so in the future, only that it has not done so at the present time.
“… we are cited to decisions from other courts which have upheld limitations on corporate farming in varying degrees. See Omaha Nat. Bank v. Spire, 389 NW2d 269 (Neb 1986); MSM Farms v. Spire, 927 F.2d 330 (8th Cir 1991); Asbury Hospital v. Cass County, 326 US 207, 66 S.Ct 61, 90 L.Ed 6 (1945). ‘It is up to the people of the State of Nebraska, not the courts, to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process.’ MSM Farms, 927 F.2d at 333. Therefore, we leave any questions as to the constitutionality of Amendment E for such time as it is properly brought before us to determine that issue.
“This is one of those rare cases when the Court must act to protect the integrity of the ballot box. We can take no side in the debate between corporate and family farm interests, but we must ensure that the debate remains outside the voting booth.
“In this case, the Attorney General’s statement that Proposed Constitutional Amendment E ‘could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution’ goes beyond the narrow authority granted by SDCL 12-13-9 and clearly exceeds the purpose of a ballot explanation. It is not a statement of how Proposed Constitutional
Chief Justice Gilbertson August 7, 2006 Page three
Amendment E would change existing law. Rather it is
conjecture as to possible consequences of a change in existing law. As such, it has no place in a ballot explanation appearing on the general election ballot. It is purely a statement of opinion which is more appropriate to the political campaign and education process leading up to the election.”
You stated there: “… We [the court] can take no side in the debate …” Yet your attendance at the December 8, 2005 State Bar campaign meeting seems quite at odds with what you wrote in Hoogestraat.
Likewise, Chief Justice Gilbertson, your attendance at the December 8, 2005 State Bar campaign meeting seems quite at odds with the following language that appears on the official website of the South Dakota Unified Judicial System – which you head.
Judicial Discipline Information – General Information
South Dakota judges are governed by high standards of conduct which define proper and improper conduct for judges in both their professional and personal capacities. These standards are set forth in the South Dakota Code of Judicial Conduct. SDCL ch.16-2, Appx. Under those standards of conduct judges must:
1. uphold the integrity and independence of the judiciary;
2. avoid impropriety and appearance of impropriety in all of their activities;
3. perform the duties of judicial office impartially and diligently;
4. conduct their extra-judicial activities as to minimize the risk of conflict with judicial obligations; and
5. refrain from inappropriate political activities.
Chief Justice Gilbertson, clearly your attendance at the December 8, 2005 State Bar campaign meeting is a matter of public concern. (See Landmark Communications, Inc., v. Virginia, 435 U.S. 829 (1978), where Chief Justice Burger wrote for a unanimous Court at 838: “… The operations of the courts and the judicial conduct of judges are of the utmost public concern.”)
Therefore, Chief Justice Gilbertson, as a matter of public concern, could you please be kind enough to answer the following questions for me, all of the backers of Amendment E, and the citizens and voters of the state of South Dakota. ....
Is it true that you attended the State Bar December 8. 2005 meeting? Yes_______
Chief Justice Gilbertson August 7, 2006 Page four
A. If you did attend the meeting, why were you there?
A. As the Chief Justice? Yes____ No____
B. A private citizen? Yes____ No_____
C. Or some other capacity? If some other, please explain.
Under what authority did you attend that meeting?
How did you come to attend that meeting?
Was your appearance solicited by others? Yes_____ No______
A. If so, by whom?
C. Is there any written record of such? Yes____ No_____
D. If so, would you provide copies of such? Yes____ No____
E. If not,
will you identify such, so that it could be formally requested?
F. Was this event put on your official calendar? Yes____ No_____
G. If not, why not?
Chief Justice Gilbertson August 7, 2006 Page five
H. If so, how is it listed?
I. If you were not solicited by others to attend the meeting, did you (or your staff on your request) initiate to be there on your own?
J. Are there any writings regarding any discussions with others concerning your attendance of this meeting? Yes___ No ___
K. If not, why not?
L. If so, would you provide copies of such? Yes____ No____
Did you in fact “comment briefly” at the meeting? Yes____ No____
comments took and provide in detail what you stated)
Is there in fact any recording or writing of what you stated at the meeting?
(Audio, your notes, minutes, etc.) Yes____ No____
Chief Justice Gilbertson August 7, 2006 Page six
10. If there is such a recording or writing, will you provide us with a copy?
11. How long were you in attendance at the December 8, 2005 meeting?
12. Do you believe your attendance at this December 8, 2005 meeting, provided the public with any appearance of impropriety? Yes___ No____
13. Do you believe your attendance at this December 8, 2005 meeting, showed the public that the judiciary is not as independent as it claims?
14. Did your attendance at this December 8, 2005 meeting violate any Judicial Canons of Ethics? Yes____ No____ (If so, please identify which ones and state how such was violated.)
15. Since you have been the Chief Justice have you ever attended any other State Bar Board of Commissioners meetings? Yes____ No____ (If so, could you identify each meeting date and its purpose/topic.)
Chief Justice Gilbertson August 7, 2006 Page seven
16. Did you attend any State Bar Board of Commissioners meetings as an associate justice of the South Dakota Supreme Court? Yes___ No____(If so, could you please identify each meeting date and its purpose/topic.)
17. Have you attended any other meetings, since the December 8, 2005 meeting, concerning the campaign to respond to the J.A.I.L. initiative?
18. If so, identify such meetings. Please provide the date, location, who attended and the specific agenda, purpose or topic of such meeting(s).
19. You are the head of the Unified South Dakota Judicial System and in total control of it. Do you believe that, in the event of passage of Amendment E in November, the Judges under your control will be unable to obey the law? Yes_____ No_____
20. If No, why not?
21. If Yes, then what is the problem with Amendment E?
Chief Justice Gilbertson August 7, 2006 Page eight
22. The State Bar, or at least its executives and some of its members, seem to believe that they have some reason (1 Million dollars' worth) to oppose Amendment E to the point where they are willing to lie to the press about its content and implications. Could you please explain to me what you believe the various individuals, who have made comments in the local papers which are at the best misleading, are so concerned about.
* * *
I am sorry we have had to write this letter, Chief Justice Gilbertson. But like you, we (the People of South Dakota) want to ensure that “It is up to the people …, not the courts, to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process” and we want to ensure that those in government officially do not “take no side in the debate” on Amendment E. Moreover, as stated by a unanimous U.S. Supreme Court in Landmark “The operations of the courts and the judicial conduct of judges are of the utmost public concern.”
Please provide your answers in writing within the next ten (10) days. We thank you for your anticipated cooperation, Mr. Chief Justice. ... Also if you have any questions or seek further information, please feel free to call or write.
I have enclosed copies of some news articles and some e-mails regarding Brandenburg's, obviously politically motivated, (news?) article.
In my opinion these documents reflect the opinion of a great number of the people in this entire country. I would think that you would be in favor of Amendment E with the hope that it would do what you are obviously unable to do with this State's legal system.
I believe that we will look back on this vote with the proud realization that South Dakota was the starting place for the saving of our country.
A constitutional republic, like the Founders intended this country to be, will not be sustainable if we abandon our Constitution at the whim of political majorities. We have hundreds of laws in this state that are unconstitutional that have been passed because someone with political or financial clout wanted it done.
10454 1st St.
Rosholt, SD 57260
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