Guess what other proposed issue on the ballot the AG said might subject the state to a lawsuit: Amendment E (and that stands for Extra Litigious)

(HT to Brian)

One of the commenters noticed that the AG also provided his opinion on Amendment E. I'm not going to say this one was written in a tongue-in-cheek manner, but some of the assertions are so ludicrous, they're laughable:
Constitutional Amendment E
Title: An Amendment to Article VI of the South Dakota Constitution, relating to judicial decisions.

Attorney General Explanation:

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 volunteers 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 volunteers. Volunteers are drawn from those who submit their names and registered voters.

The proposed amendment is retroactive. The volunteers may penalize any decision-maker still alive for decisions made many years ago.

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.

A vote “Yes” will change the Constitution.

A vote “No” will leave the Constitution as it is.

Full Text of Constitutional Amendment E: View full text of petition.

The sad thing is, it might be funny if it wasn't so true. "The proposed amendment to the State Constitution would allow thirteen volunteers 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 volunteers." AS DEFINED BY THE VOLUNTEERS. That alone should scare the pants off of any South Dakotan (at least those who prefer not to prepare for rising up for a domestic war by posing with masks and assault rifles).

And the goofiest part, it's completely retroactive. Forget prohibitions against ex post facto laws ("after the fact" for the latin impaired, such as I) "The volunteers may penalize any decision-maker still alive for decisions made many years ago."

A former county commissioner could be 102 years old, living in a nursing home, and someone with a burr under their saddle could haul a drooling shell of a man in on his hospital bed because he didn't like the way this person drew county voting precincts sixty years ago.

Sound farfetched and maybe funny? Don't laugh. It's scary, and it is so because it's the truth.

Comments

Anonymous said…
Hypertechnical question - why doesn't a statute of limitations apply (SDCL Ch. 15-2) to these claims and why is the money damages claim limited to living folks? Can't their estate be sued?
Anonymous said…
It would be a constitutional amendment. The constitution would trump any statute of limitations found in South Dakota's codified laws.

Also, once an individual dies, the personal representative distributes the decedent's property in accordance with the will (or laws of the state if there is not a will) and closes the estate. Unless the monetary judgment is given to the presonal representative to pay out of the estate before the estate is closed, I don't know how a payment could be collectd from the closed (non-existant) estate.

That's my non-legal anaysis anyways.

Since I was kind enough to try to help, I was hoping PP would help me and explain what this "orgin of species" resolution is that I have seen repeatedly in the posted comments.

Thank you.
PP said…
Actually I'm trying to chase that one down (I threw my copy away) as that's a misnomer.

I believe it was a resolution that mentioned that there are other theories besides evolution, or something like that.

I have a request into the GOP for a copy, and as soon as i have it, I'll post it.
Anonymous said…
The AG's explanation is necessarily general for brevity. If you want to be hypertechnical, and literally read the plain meaning of the proposed amendment, there are NO RESTRICTIONS on any claims that this procedure could allow - dead or alive, or past any reasonable time limits. Here's how:

Even constitutional provisions are subject to statutes of limitations for the enforcement of rights - probably would be 3 years per SDCL 15-2-14 and similar statutes. Problem is that the constitutional amendment purports to give the Special Grand Jury the power to determine law and facts, with the statute of limitations for any civil suit commencing to run only upon final judgment of the all-powerful Special Grand Jury (Section 15) which just happens to also be granted "Preeminence" powers to trump any statute or constitutional providion (Section 23). In other words, they get to say what the rules are and can even make them up as they go along.

As to the estate of some judge, you bet they can be sued under this nightmare of a system. Why can't they abrogate probate laws which shield a judge from all claims under "Preeminence" and the theory that probate laws and statutes of limitations, prohibitions against claims of creditors after death and other statutes are invalid? Even under existing law, claims of creditors are not barred against the estate unless there is a probate action or the statute of limitations runs out. That could lead some ingenious Special Grand Jury to find no reason to restrict an otherwise untimely claim. And with that handy Section 15 power to start the statute of limitations clock all over again from the date of a final judgment, the Special Grand Jury need only decide a lawsuit is not frivolous or harassing and the judge is supposed to be subject to suit.
Anonymous said…
I understood the initial question as asking wouldn't the statute of limitations in SDCL ch. 15-2 prohibit claims against judges or board members that were made years ago (not in the future).

The amendment states that it is both remedial and retroactive. Thus, if it passes, the statute of limitations in SD's codified laws would not apply to decisions made in the past because the SD CONSTITUTION would actually state that it is retroactive. As a result, actions could be brought against judges for decisions they made decades ago because it is specifically provided for in the constitution. Therefore, the special grand jury would not have to use its preeminence power in order to avoid the statute of limitations.

I do, however, agree with your analysis regarding the jury's preeminence power to abrogate probate laws. It would be interesting to see how a judgment would be collected from an estate that has been closed for decades. However, I hope we never find out.
Anonymous said…
If all the views on the retroaction aspects of JAIL are true, and I believe Anon is correct, does that means we could bring Judge Rodney Steele before the JAIL committee to bash him for letting Janklow off with a slap on the wrist?

Hmm, maybe I'll reconsider my stance on E . . .

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