Judges in S.D. May Lose Lawsuit Immunity
By THE ASSOCIATED PRESS
Published: November 14, 2005
Filed at 10:48 p.m. ET
PIERRE, S.D. (AP) -- A movement is under way in South Dakota to turn the
tables on members of the bench.
Activists are trying to put a radical measure on next year's ballot that
could make South Dakota the first state to let people who believe their
rights have been violated by judges put those judges on trial. Citizens
could seek damages or criminal charges.
The measure would overturn more than a century of settled law in the United
States by stripping judges of their absolute immunity from lawsuits over
their judicial acts.
''The current system doesn't work because there is no adequate way to hold a
given judge accountable for improper behavior or to prevent them from
judicial misconduct if they choose to do so,'' said businessman William
Stegmeier, a leader of the movement.
Legal experts warned that such a provision could dangerously undermine the
independence of South Dakota's judiciary, plunge the court system into
anarchy, and run afoul of the U.S. Constitution.
And they noted there are already remedies available to the public: Bad
rulings can be overturned on appeal, and judges who break the rules can be
punished by state disciplinary boards and, in South Dakota and other states,
voted out of office.
Marie Failinger, a law professor at Hamline University in St. Paul, Minn.,
said judicial immunity is seen as a way to protect judges' independence so
they decide cases on the merits, not in response to pressure from the
community or individuals.
''Judges are kind of the last barrier we have between government oppression
and the individual, so if they can't be independent, that could be a
problem,'' Failinger said. She added: ''Judges will be chilled from making
the right decision because they don't know what crazy litigant is going to
decide they are going to sue them.''
Stegmeier, owner of a company that manufactures livestock-feed grinders,
turned in 46,800 signatures last week to put the proposed state
constitutional amendment on the ballot in November 2006. That is about
13,000 more than needed. The state is still verifying the signatures.
Judicial immunity, the doctrine that says judges cannot be sued over their
judicial acts, was established by the U.S. Supreme Court in an 1871 case.
The South Dakota amendment would eliminate state judges' immunity in cases
involving deliberate violations of the law or someone's constitutional
rights or deliberate disregard of the facts.
People could file complaints against judges after the traditional appeals
process has concluded. A special grand jury would handle complaints,
deciding whether a judge could be sued or face criminal charges.
If the grand jury decides on criminal charges, it could indict the judge and
create a special tribunal that would act as both judge and jury, deciding
guilt and any sentence. The measure would not apply to federal judges.
Stegmeier said he has never had a bad experience in court. In fact,
supporters of the measure have no examples of any problems in South Dakota.
But Stegmeier said the amendment could help curb the abuses he has heard
about across the country.
On its Web site, the group promoting the amendment, South Dakota Judicial
Accountability, cites an Indiana case from the 1970s involving the
sterilization of a 15-year-old girl, and argues that stripping judges of
immunity would also help prevent decisions such as the recent U.S. Supreme
Court ruling that allowed homes to be seized for private development.
''We didn't throw the yoke of the king off to get under the yoke of the
judges,'' said Gary Zerman, a Valencia, Calif., lawyer who is a spokesman
for the South Dakota ballot effort.
Tom Barnett, secretary-treasurer of the State Bar of South Dakota, said
inmates would quickly figure out that they could harass the judges who put
him behind bars by filing a complaint.
''You don't think there aren't going to be hundreds and hundreds of them,
everybody giggling up in the penitentiary?'' he said.
Georgetown University Law School professor Roy A. Schotland, who studies
judicial elections and constitutional law, said the measure could violate
''It at least erodes and may go so far as to destroy judicial independence,
which means it erodes and perhaps destroys the rule of law and fair
judging,'' Schotland said. ''Having this come in would be big trouble.''