Thursday, October 19, 2006

Prop [E]vil

Hey all, Casey here to try and give a voice to the 1L's, other than our anonymous poo flings. Here goes...

So there I was, driving to school on Wednesday, when out of nowhere comes a serious threat to the future of the legal world (at least the world according to South Dakota). On NPR was a story about a Proposition in South Dakota, Prop E. OK, good news is this crazy Prop isn't a California one. Bad news is, if it works in South Dakota it is coming here next. Take a look at this mess here. This prop is so bad that every single member of the SD legislature opposes it, as well as the ABA, the State Police, The PD and DA offices around the state, and in all likelihood, judges.

In a nutshell for those that are in class and have no time to follow a link, Proposition E will strip judges of their immunity to a civil suit involving a court decision. Read that again. Judges will be sued when people are upset at a decision. How many times is a party upset at a judicial decision? A good guess would be about half the time (minimum, I would imagine a few winners would want more). A special grand jury will be selected to serve as a screening board for complaints against the courts. This jury will have no Bar members, and is specifically told to liberally view complaints with respect to the petitioner.

While I am still a newbie at this whole "law" thing, it seems pretty clear to me that to make judges financially liable for decisions they make would flip the entire tort system on its head. There is already a system for grievances in our court system, it is called the Appeals Process(tm). Not only would judges have to worry about being recalled and re-elected, they also have to worry about being sued. Would the civil rights movement have happened if the C.J. could get taken to the cleaners by some cross-burning, bible-toting, moonshine-drinkin rednecks?

Now I have never been a big fan of popular votes in regards to constitutional amendments, but this is so far out there that something has to be done. The most amazing thing? Polls show this Prop as 50/50 among voters. So this November, vote NO on Prop Evil (I know we have at least one person from SD...maybe?).


Blogger Armen said...

Aren't the brackets supposed to be around "vil" as opposed to "E"? What the hell do they teach you in LRW?

10/19/2006 6:50 PM  
Blogger McWho said...

I actually thought about it, but when I tried it was hard to read. It looked a bit like elvil

10/19/2006 6:59 PM  
Anonymous Anonymous said...

Interesting questions: Does this proposed amendment violate the US Constitution's Republican Guarantee clause? Would that be a judiciable question post-New York v. US?

10/19/2006 10:32 PM  
Blogger Tom Fletcher said...

Or perhaps more interesting... will all of SD's judges quit if it passes? A mass resignation and a sudden glaring and unfillable vacancy may go a long way in convincing South Dakota to repeal the law. It will also provide a nice teaching moment for the rest of the nation on what not to do.

Sometimes the best way to learn is to screw up really badly. That's how most kids learn not to touch the stove. Maybe that's how SD will learn to respect the judiciary.

Re: republican guarantee... Anon., do you really consider judicial immunity a necessary part of a republican government? When I think of the guarantee, I mostly think that it requires some sort of legislature with elections by the people. I don't read a whole lot more into it myself. Obviously, I'm not the case law or the justices, but I don't personally feel there should be a constitutional bar to SD doing this. Just an intelligence bar. As I've heard it in the context of free exercise - they should have "the right to be wrong."

10/20/2006 1:02 AM  
Anonymous Anonymous said...

Civil liability for judges should be condemned wherever it is proposed and does theaten the independence and even viability of the judiciary.

However, the correct response is NOT to claim that judicial activism is not a problem and that judicial coersion of the electorate against all precedent is not also worthy of condemnation, and requires remedy. It should not suprise us that when such distorted notions and practices gain ground in the judiciary, irrational reactions continue to increase.

10/25/2006 5:25 PM  
Anonymous Alessandra said...

Thank Goodness for the forward thinkers in the Great State of South Dakota! I hope the idea catches on all over the country. Too bad it won't apply to the federal judiciary. With any luck, this effort will succeed and be the first step toward breaking judicial tyranny that pervades much of our legal system.
If you don't like Prop E, that's fine, but at least have the integrity to be truthful. The measure doesn't permit people to sue judges just because the judge rules against them in court. It targets negligent, corrupt and abusive "jurists" whose ethical lapses result in only pro-forma investigations and slaps on the wrist from their golfing buddies who frequently are responsible for conducting the "investigations". Further, appeals are decided by other judges who are often loathe to criticize the "brethern".
Why shouldn't judges be accountable directly to the public?
I've been a lawyer for nearly 20 years and can honestly say that once on the bench, many judges believe that they are above public scrutiny, are blatantly arrogant, disrespectuly and have no accountability.
Prop E is not only good for South Dakota, it would be good for all of the United States.

10/28/2006 10:41 AM  
Anonymous Anonymous said...

I'm of two minds on this idea.

Legally speaking, I think that the earlier posts are correct--litigation losers would sue a lot and there would be little incentive to be a judge there. I would also hate for this idea to spread to other states and/or the federal judiciary.

However, given the good old boys network that exists in a small state like SD(entire state has a population smaller than the Bay Area), I am actually not that opposed to the idea. OF COURSE the legislature, ABA and DAs office all oppose it--they all went to law school together and go golfing on the weekends.

Civil liability for judges in sodak is hardly the biggest initiative on the ballot there this year anyway.

The more serious initiative that really should pass is the one that makes abortion legal again... After the Governor signed the state legislature's abortion ban bill last spring, there's been a massive effort to undue the damage via initiative.

10/28/2006 9:53 PM  
Blogger McWho said...

Alessandra, if you think that the appeals process doesn't function the way it should, how will this help? Instead of simply making judges responsible for what they do, this proposition puts their jobs (and reputations) in the hands of a group of laymen that have no idea why the judge did what he did. Appeals take into account what the judge did with respect to law, not with respect to the anger of the layman.

What would happen to a justice that supported civil rights in the south in the 70's? This type of lynchmob mentality is already dangerous in regular juries, but when you put a jury above any control of the law you risk the law becoming useless. Juries are a key part of their system, but like all other components, they need to be regulated by reasonable judicial review.

I appreciate the idea of holding judges responsible for clearly unethical behavior, but this proposition applies to state judges that are already subject to recall and elections. I doubt very much that federal judges can be held to pay for this proposition. Even if technically possibe, the Feds would simply withold road money until the idea was dropped.

You may well disagree with the idea of federal judges being largely immune from public opinion, but I do not. Holding public officials financially responsible for trying to do their job serving our country can only serve do create a nation of public officials that are too scared to do the right thing, and will only do the popular thing.

11/04/2006 11:03 AM  
Blogger Clay S. Conrad said...

Alessandra is just plain wrong. It is judicial immunity that prevents judges from being sued; remove that and judges are subject to civil lawsuits whenever someone believes they deliberately misapplied the law.

Will there ever be a losing party who does NOT think a judge misapplied the law?

Instead of strengthening the jury system (the real citizen bulwark against officialdom), this amendment would eviscerate it, by making jurors (who are by definition judges) liable to civil suit, criminal prosecution, etc., whenever they exercised any independent judgment. A prosecutor could then prosecute the jurors who acquitted someone he had unsuccessfully charged with a crime.

This hatred of the judiciary the JAIL folks exhibit is really a hatred of the constitution. They want unabridged majority rule, without any inkling that the constitution is not necessary to protect the MAJORITY. It is the minority viewpoints, opinions, and decisions that the Constitution must protect, for this to be a free country. And a judiciary that is not free to protect the minority against the majority serves is worse than useless: it enrobes mob rule with the cloak of law and justice.

11/07/2006 8:07 AM  
Anonymous Anonymous said...

The constitution is not to protect the minority, it is to protect the majority. It's absurd that someone would think otherwise.

I think judges' feet should be held to the fire. Juries should have the final say in court, notwithstanding, the appeal process should be kept in place in case a defendant wishes to contest the decision of a jury.

Those who tout the new world order, the elite's evil plan to enslave the planet, use judges prevalently in furthering their dark agenda. Legislation such as this would make it more difficult for them to do so.

11/09/2006 9:13 AM  
Anonymous Anonymous said...

the purpose of the Constitution is to protect the majority? Ummm, isn't there this thing called voting for that?

9:13, I'm guessing you don't go to law school or never did. But glad to see you enjoy trolling law school blogs...very cool....

11/12/2006 10:12 PM  

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