The Inherent Right of ALL People to Alter
or Reform Abusive Government.
The Right Upon Which All Other Rights
Understanding The Term "Judge"
(By Ron Branson - J.A.I.L. Author)
There has arisen within the national
movement to acquire judicial accountability, known as J.A.I.L. (Judicial
Accountability Initiative Law), a concern as to the precise definition
and meaning of the term "judge." This treatise is written to establish
the official position of J.A.I.L. that may be relied upon and applied to
as the ultimate and final authority upon this subject.
The phrase in question, as found
in Amendment E, scheduled for the November 7th South Dakota ballot,
states: "(b) Definitions. ... the following terms shall
mean: ... 2. Judge: Justice, judge, magistrate judge,
judge pro tem, and all other persons claiming to be shielded by judicial
Inquiries from the media are asking for
an explanation of the definition of the term "judge" particularly as to
the words, "... and all other persons claiming to be shielded by
judicial immunity." This concern brings to light that since I am the
author of this terminology, and penned these words, I am the final
authority by operation of law as to what these words mean, and that all
courts throughout the future must look to the author's definition
The words, "...and all other persons
claiming to be shielded by judicial immunity," are penned specifically to prevent
titles from being altered or changed to
elude the provisions of paragraph (c), to wit, "(c) Immunity.
No immunity shall extend to any judge of this
State for any deliberate violation of law, fraud or conspiracy,
intentional violation of due process of law, deliberate disregard of
material facts, judicial acts without jurisdiction, blocking of a lawful
conclusion of a case, or any deliberate violation of the Constitutions
of South Dakota or the United States, notwithstanding Common Law, or any
other contrary statute." [Italics bold emphasis added]. That
phrase funnels everyone, whoever that might be, down to the subject of
"judicial immunity," which is the crux of the J.A.I.L. Amendment
(designated "Amendment E" in South Dakota). In the final analysis, it
isn't who, but what with
which J.A.I.L. is concerned.
These words, "...and all other persons
claiming to be shielded by judicial immunity," thus cover such other
persons, should the State Legislature expand or add newly named judicial
offices in the future. For example, in California the Legislature failed
to provide for future positions within the judicial branch, and they did
indeed add the position of "Commissioner." The practical result was that
there existed no disciplinary body, board or entity to
hold "Commissioners" accountable because they were not recognized as
"judges." It was at first established that "Commissioners" were to be
subordinate judicial officers accountable to the judges that
appointed them. However, as a practical matter, Commissioners were
regarded by those judges not as "subordinate judicial officers" but
as independent adjudicators of the matters before them; and said judges
declined to override or reverse Commissioners' decisions because it
placed the appointing judges in an appellate capacity.
In an actual case regarding the
jurisdictional conduct of a Commissioner in California directed to the
supervising judge, that judge ruled he could not interfere with,
or override, the Commissioner's independent decisions because the
Commissioner was free to exercise his own discretion. Hence, as a
practical matter, there existed no forum in which a citizen could
possibly complain about a Commissioner's conduct. What's more, everyone
who submitted a complaint to the Commission on Judicial Performance was
informed "We have no jurisdiction because a Commissioner is not a
judge." The Legislature thereafter had to provide
that Commissioners, in their own right, are now subject to the
Commission on Judicial Performance.
Additionally, "private judges,"
theretofore unknown, came into existence from among retired judges, and
began to adjudicate cases independently from the judicial branch of government.
Again, there was no provision that applied to accountability of these
"private judges." This was cause for concern of the California Chief
Justice, Ronald George, who acknowledged the problem and criticized the
current system of non-accountability. To date, I am unaware of any
resolution of that problem which J.A.I.L. would resolve by its
definition of judges, to wit, "all other persons claiming to be shielded
by judicial immunity." Amendment E will prevent
these problems in California from coming to South Dakota.
Obviously if a measure, such as Amendment
E in South Dakota, required a new amendment every time new legislation was
passed, or practices changed, it would require repeated future
Initiatives to correct it, which would be impractical. Thus, it is best
to prevent this potential problem by including in the definition of
judge, "and all other persons claiming to be shielded by judicial
immunity." Instead of referring to titles of judicial officers, the
Amendment focuses upon their claimed immunity.
By way of another actual example, statute
provides that default clerks are required to enter a default after a
process server files a sworn declaration of service upon a defendant,
and the requisite number of days have expired without a response filed
in the action. The County of Los Angeles, who was also a named defendant
in the same case, and was also the employer of the default clerk,
directed the clerk not to enter the default
because "the defendant was not served." The default clerk's duty, under
law, was to administratively enter the default and have the dispute of
service adjudicated by the judge in the case.
However, what actually happened was the default
clerk, in following the directive of her employer County,
effectually adjudicated the matter in favor of her employer, and refused
to carry out her ministerial duty under law. She was therefore sued for refusal to
perform her duty as prescribed by law. Her employer County, a
co-defendant in the case, argued before the judge that she was immune
from lawsuit because she worked for the judicial department. The judge
granted the County's argument, and the default clerk was immediately
dismissed stating that she was covered by judicial immunity. All appeals
on this clear violation of law provided no remedy.
Applying J.A.I.L. to this actual
scenario, the judge granting the clerk
judicial immunity and appellate judges upholding the act would be
subject to J.A.I.L. scrutiny should this issue not be reversed on
J.A.I.L. would not deal with the clerk.
The clerk would be independently liable because she refused
to perform her ministerial duties required by law, and not
because she claimed to be covered by judicial immunity and thus made a
"judge" under J.A.I.L.'s definition, to wit, "all other persons..."
Only the Legislature can establish the office of judges, which positions
are determined either by appointment or by election, not by judicial
declaration. By granting the default clerk judicial
immunity, the judge thereby "legislated" a new "judge" into existence without the
benefit of either an appointment by law or an election.
One newspaper reports a senator as having
said, "It [Amendment E in South Dakota] would subject county
commissions, school boards, city councils, township boards and a host of
others to frivolous legal action if the supporters of J.A.I.L. did not
like a decision that is contrary to their belief."
The above application regarding the default clerk would also apply
to these administrative agencies, such as boards, commissions, and
councils. J.A.I.L. deals only with the judge(s)
granting or upholding the grant of judicial immunity to a party,
whether an agency, employee, or official. These examples of
liability are not intended to be exhaustive.
This senator fails to understand "lesson
101" in law. Anyone can look in the register of actions of any city in
the United States and find a long list of lawsuits that have been filed
over the years against these prescribed entities, and Amendment E had
nothing to do with these lawsuits. The basics of law is "Sue and be
sued." That's life. Somehow, the senator is delivering the false impression
that Amendment E, if passed in South Dakota, will open up a Pandora's
box of lawsuits against these entities, never before done.
All of these entities, at best, are but
administrative agencies. "Administrative Law" is but a euphemism for
"Contract Agreement." These administrative agencies can adjudicate only
on subjects of contracts, not law. There are none of the trappings of
law. For instance, there are no magisterial proceedings, no
determination of Probable Cause, you have no right to counsel, and never
a right to a jury trial. So what gives? If administrative agencies were
dealing in law, instead of contract, every decision of an administrative
agency could be overturned on appeal for lack of constitutional due
process. But the Constitution has no bearing over contracts. The issue
is only, did you abide by the contract, or did you not? And after the
administrative process is exhausted, you may go to court. However, even
in court the only issue is whether the administrative agency followed
all the procedures established in the contract (administrative
procedures) --no constitutional challenges, again because the
Constitution does not apply to contract agreements.
operating at law, can hear and adjudicate constitutional challenges and
questions wherein administrative hearing boards and officers lack
such jurisdiction. So the above senator totally shows his ignorance
regarding administrative agencies in asserting that Amendment E will
make these entities "judges" or "courts" that are liable under J.A.I.L.
Despite his raving to the contrary, administrative hearing officers are
neither judges, nor can they be jurisdictionally.
Should the Legislature declare
administrative hearing officers to now be judges having jurisdiction to
adjudicate constitutional issues under law, then of course, they would
no longer be administrative hearing officers but "judges" for purposes
of Amendment E. But no judge can "legislate"
them to be judges, giving them jurisdiction wherein there is none.
Further, there cannot possibly be a mixing of the two jurisdictions, for
if it be contract, the Constitution cannot apply; and if the
Constitution controls, then the contract is overcome by the Constitution
and is null and void. Indeed, our Constitution recognizes the inherent
right to contract, "No state shall...make any...law impairing the
obligation of contracts." Article I, Sec. 10, Clause 1. So if the
controlling document is made by reason of contract agreement, which all
men may freely exercise, then government can make no law that impairs
The words "...and all other persons
claiming to be shielded by judicial immunity" are very simple, and can
only constitutionally apply to judges in the
conventional sense. There are no secret or esoteric meanings. J.A.I.L.
means what it says, and says what it means. As Bill Stegmeier said in
his speech before the South Dakota Senate 2/10/06, "Is" means "is."
Author of J.A.I.L. (Amendment E in South