Posted by
NOTLEGALROADKILLYET on Saturday, October 07, 2006 11:46:21 PM
When one reads a well documented study, it is often possible to learn as much or more from footnotes than the body. I learned a lot from both the body and the footnotes of "Shared Expectations:
Judicial Accountability in Context," by the Institute for the Advancement of the American Legal System.
Footnote 51 on page 18 is a note to a discussion about voters being asked to hold judges accountable:
In one of the most extreme examples, a 2006 South Dakota ballot initiative known as “JAIL 4 Judges” seeks to subject state judges to criminal and civil penalties for a host of vague offenses incurred while in office, including “blocking of a lawful conclusion of a case” and “deliberate disregard of material facts.” If convicted three times by a special grand jury, a judge would be automatically removed from the bench, and would lose half his retirement benefits. Not only would the initiative strip judges of immunity for their official actions – a tradition dating back centuries – but it would deny them the right to a public defender in any action brought before the special grand jury. To add an ironic twist, persons enforcing the findings of the special grand jury would themselves be immune from civil or criminal liability for their actions.
While I would have to think long and hard about voting for this initiative, if only based on its title "JAIL 4 Judges," I am not opposed to the concept of using the civil justice system to hold judges and lawyers liable for incompetent or intentionally malicious conduct. After all, they try to hold every other profession liable for incompetence and malicious conduct, so why should they be exempt? If they lost their immunity, and I filed a suit over what . has . happened, and continues to happen to me, my judge's and my opposing attorney's insurance companies would be on the phone ten minutes later trying to settle. They'd have no defense. Immunity only encourages outrageous conduct by both attorneys and judges, and for that matter, justices.