Mainstream media outlets (ABC, Seattle P.I.) are reporting today on a group in South Dakota pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.
The group, South Dakota Judicial Accountability, says little about itself on its website and does not disclose its backers apart from Bill Stegmeier, the small business owner who founded the organization. The group's website decries "judicial activism" but does not specify the particular harms they hope to remedy by means of their "Judicial Accountability Initiative Law".
The J.A.I.L. Amendment, among other things, would amend the South Dakota Constitution to create a "Special Grand Jury" to judge both "issues of law and fact" in complaints against South Dakota judges. The Special Grand Jury would have the power to remove judges from office and to refer judges for criminal prosection.
The J.A.I.L. Amendment purports to strip all South Dakota judges of any claim to immunity for civil suits brought against them (see paragraph 2, "no immunity shall extend to any judge of this state") but a later provision (see paragraph 15) purports to empower the Special Grand Jury to determine, "whether or not immunity shall apply as a defense to any civil action that may thereafter be pursued against the judge."
Importantly, the J.A.I.L. Amendment suggests that South Dakota judges would have both civil and criminal liability for the "deliberate disregard of material facts" as well as "blocking a lawful conclusion of a case." Presumably, any judicial decision (granting or denying a motion for summary judgment, for example) might qualify.
While the motives of this citizens' group may have the sympathies of some who read this column, the J.A.I.L. Amendment is one of the worst reform ideas ever.
Setting aside the procedural problems with the J.A.I.L. Amendment (which are legion) the concept of judicial immunity is fundamental to judicial independence which, in turn, is indispensible to an effective judiciary.
If any litigant could sue the judge presiding in his case for the "deliberate disregard of material facts" (J.A.I.L. Amendment, paragraph 2) then every litigant in every case would sue the presiding judge as soon as the judge denied the litigant's summary judgment motion.
If judges were personally liable for errors of law (note that the J.A.I.L. Amendment purports to prohibit the state treasury for paying the attorneys' fees of judges who must defend themselves) then no individual could ever afford to be a judge. Every case decided by a judge would carry with it the potential for the judge to become a defendant in a civil suit brought by the losing party.
The appellate courts, for better and worse, must be the sole recourse of litigants to hold judges accountable to the law in routine matters. (I exclude those rare and notorious cases of judicial misconduct that bring into play judicial misconduct comissions (on the state level) and impeachment for federal judges).
If the appellate courts are ineffective, the only remedy must be to improve them. If trial judges are ineffective, reformers should look at ways to elevate better judges. If South Dakota determines to create an independent body to judge the judges, the outcome will be endless litigation -- not the end of excessive litigation.