Q & A on J.A.I.L. for Judges

Tom Barnett.

Tom Barnett, Executive Director of the State Bar of South Dakota, worked tirelessly to help defeat the “J.A.I.L. for Judges” ballot initiative, or Amendment E, in South Dakota. YourABA interviewed him about his success after the initiative was resoundingly defeated in November.

Q: First, for those who are not familiar with the so-called “J.A.I.L. for Judges” ballot initiative, would you give a brief explanation of what it would have done if it had passed? 

“J.A.I.L. for Judges” would have created a special grand jury with 13 people, with a quota of seven out of the 13 who could make any decision that it deemed appropriate.

The special grand jury would hear complaints from people about a decision, decide both the facts and the law of the case, and then determine whether to strip the judge or other government official of immunity and, additionally, would have the power to criminally indict the judge or official. Thereafter, the judge or official would have to hire his or her own lawyer to defend the case.

Judges, law enforcement employees and government officials—such as mayors and members of a school board— would be prohibited from serving on the special grand jury. Convicted felons were specifically allowed to serve so long as they were off parole if it was a felony against a person, or as soon as they got out of the penitentiary, even if they were on parole and not eligible to vote, if it was a crime against property.

Q: Why was the proposal so much of a danger to fair and impartial courts?

The provisions of the initiative would have made it impossible for judges to fairly and impartially apply the law to the facts of any case that came before them, without worrying about whether their decisions would be “popular” in the current political climate or with potential special grand jurors.

It had jury nullification—the special grand jury could judge both the facts and the law. It had the power to criminally indict. The members of the grand jury could simply strip the public official or judge of judicial immunity.

The system created under the initiative would have created a presumption of guilt against the person being dragged in front of it—the judge or whoever else is entitled to judicial immunity: jurors, school board members—because it provided that all of the allegations contained in the complaint were to be liberally construed in favor of the complainant. This is 180 degrees opposite, of course, of what we see in our court system, where the plaintiff in a civil suit or the prosecution in a criminal case has the burden of proof.

It would have provided for retroactive relief. So the person who had lost his or her case initially in front of the judge and jury, and who lost their appeal, could go to the special grand jury and have them act as a super-appellate court that would not only reexamine the facts, but also whether the law applied to the facts was a good law.

And finally, it superseded all case law in the history of the state, it superseded common law, it superseded all statutes, and in any conflict with provisions of the South Dakota Constitution, J.A.I.L. for Judges trumped it. Even our own Bill of Rights would have been subject to its provisions.

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Q: When the initiative was first introduced, the popular opinion was pretty much supportive of the measure. What changed?

I think 99.9 percent of the people who signed the petition when it was being circulated hadn’t read it. They were simply asked two questions, and this was very clever and very polished. They were asked, “Do you believe that nobody is above the law?” Everybody agrees with that. And they were asked, “Do you believe that judges should be accountable for their conduct?” Everyone agrees with that, too. The point of the matter, of course, is they already are.

Based on those two questions, the focus groups I conducted revealed a four-to-one favorable margin, and a baseline poll conducted throughout the state shortly after the focus groups revealed a three-to-one favorable margin.

What the baseline poll revealed was that, unlike most initiatives that proponents must sell to the people, this one sold itself. The burden this time was on opponents to go out and educate the public about how the court system works, the appellate system, the judicial qualifications commission, the screening of judicial applications, and all those kinds of safeguards. As early as the first week of February of this year we knew that we had our work cut out for us.

Q: Given the final outcome of South Dakotans opposing the measure by a margin of 9 to 1, who actually ended up supporting it?

That’s the $64,000 question. We were unaware of any identifiable group that was supporting it other than the J.A.I.L. for Judges people, and they never listed who their active members were. We understand, and this is based on anecdotal evidence including such things as letters to the editor, that there were a number of what I refer to as “Mad Dads” who felt they weren’t given a fair shake in their divorce, custody or child support cases, who were very vocal in their support. There were a lot of criminals or former criminals who, along with their families, were writing letters to the editor in support of Amendment E.

But that’s all anecdotal. It’s unheard of to have any ballot initiative end up with only 11 percent in favor. My rule of thumb is you get 13 percent that are going to always vote for the opposite of what common sense tells you how you ought to vote. And they didn’t even hit that.

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Q: What strategies did you use to educate voters about the dangers of this initiative?

Both the focus groups and the poll showed us that the worst people to be out front leading the charge against the initiative would be judges, and lawyers were the second worst. They were seen as being too close to the issue and as having a vested interest in the defeat of the initiative. However, judges had great credibility among people who knew judges personally—not that they were friends, but who knew them because their kids were on the same soccer team or because they showed up at the football game. And, likewise, there was great credibility for lawyers talking to their own clients. Strangers, not very credible; their own client, very credible.

The other thing we learned was that lay people had strong credibility. For example, in a group presentation—say, at the local Kiwanis or exchange club—a layperson getting up to speak about a legal issue attracted great attention, had great credibility, and was given lots of leeway. In contrast, a lawyer or judge would have to be highly polished and smooth, and would have to do an outstanding job, and still wouldn’t get quite the credibility that the layperson would get.

We also used the fact that this wasn’t just about judges, this was about all of us: judges, jurors, everyone who uses the court system. This would have had a devastating impact on everyone.

So, following the old rule of “ all politics is local,” we tried to identify the adverse impact of the measure on everyone— nobody would benefit except for lawyers who would benefit from the litigation, and how this would be a disaster. No group would benefit from J.A.I.L. for Judges except lawyers and those who wanted to shut down our system of justice, shut down our system of government.

Our strategy was to form strong coalitions with every identifiable group—business, agriculture, you name it—and then to have lay people directly involved and in fact leading the public presentations, with lawyers and judges acting as a safety net in case people in the audience had questions that the layperson couldn’t answer.

We provided folks not only with information about the initiative, but also with answers to the most frequently asked questions, which we knew from the focus groups. I can tell from my own experience, the laypeople took off. The first time we spoke to a group of about 50 or 60 people, the first question came up and my speaking buddy, the layperson, turned all the questions over to me, but he listened to all the answers. So, by the time we had done about five or six presentations, I could hardly get an answer in.

And he carried great credibility with the audience, because they recognized that he took the time to understand the issue, and he spoke from the heart. I think that was critical to our grass roots activity.

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Q: Now that it has failed so overwhelmingly in South Dakota, can we consider the issue as behind us?

Goodness, no. They are out polling this very week, trying to test messages and seeing whether, if they changed their language or restricted coverage, the outcome would change. They will try to bring it back, and so we will remain vigilant.

The advocates are extremely active on the Internet, and we watch them every day. They’re taking a long, hard look at other states in an attempt to get better organized; they will attempt to do it elsewhere.

I think the biggest thing that hurts them in other states is, because of the overwhelming loss in South Dakota, they’ll have great difficulty in raising money. I don’t think they can get something like this on the ballot in other states without using professional, paid circulators. Supporters will have to think long and hard about whether they’ll want to put real money into hiring the paid circulators, which nationally run about $2.50 per signature. That adds up pretty quickly.

But in saying that, I don’t think it’s dead by any means.

Much of what we learned in South Dakota can be used to help defeat other ballot initiatives that impede a fair and impartial judicial system.. The thing that caused this to catch on with our voters is what I call the perfect storm. We had had the Massachusetts and New Jersey decisions on gay marriage, the fiasco of the Terry Schiavo case, and the Supreme Court confirmation hearings where senators were grabbing nominees by the lapels saying, “I don’t want you to be overruling the will of Congress“ and “we don’t want any activist judges.“ All those things going on in a relatively short time helped to cause this. And the result of the mid-term elections doesn’t mean we’re going see an end to it— things such as controversy over presidential judicial nominations will continue.

That keeps at least the appearance of judicial activism in the public eye. So there are going to continue to be attacks on our judicial system in a number of jurisdictions. The bench and the bars need not only to remain vigilant, but I think they need to become proactive.

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Q: What lessons did you learn, and what can lawyers be doing to keep such initiatives at bay?

I think every state ought to do an inventory, right now, starting today. That inventory would cover such things as, How is our court system? How are our judges perceived? Are they perceived to treat jurors/witnesses/parties fairly? And if not, they need to fix it. Quite frankly, judges get blamed for how jurors are treated on their break time, whether they have enough parking spots. How difficult are we making it for them? How do judges treat witnesses? How do they treat parties to actions? They need to inventory that, and they need to fix problems right away.

The second thing is that we need to form coalitions. The old saying is that politics makes strange bedfellows. Here we had, helping to fund our campaign, some of the very entities we have fought with on numerous legislative items in the past. We had a number of tort reform organizations that sent substantial checks to help fight this. All of those people who are active in the court system, who use the court system, who count on a stable court system—even though they may disagree with an occasional court decision, when push comes to shove and there’s an attack that goes to the very core of the court system, all of our interests line up.

The bench and bar ought to be reaching out now to build those coalitions in anticipation of future attacks on the court system. Because it’s not a matter of if, it’s a matter of when and where.

The other thing that we need to do—and I think this is applicable to virtually every state in the country—is to improve the teaching of civics education. We have failed to teach an appreciation of our form of government, which is the best system in the world. It may be too late to get to someone near retirement age who has already formed an opinion of the court system, but we need to design a plan for our high school and middle schools, and maybe even elementary schools, and to start teaching that appreciation now so that 20 years from now we won’t have to worry about these things being put on the ballot.

When people were educated, they rejected J.A.I.L. for Judges overwhelmingly, 89-11 percent. But it took a huge effort and an awful lot of money. A lot of this could have been avoided had we done a better job in helping our schools in educating kids, and a better job of making regular appearances in the community and forming coalitions.

It’s not an easy thing to do, and it’s not a one-year project for a bar president. It takes a long-term commitment and an investment of time and resources. But the side benefit of the J.A.I.L. for Judges fight was that in every community, the public saw a layperson—whether it was a barber, banker, beautician, a bartender or the person who owns the local hardware store—standing up before them with a lawyer or judge, both talking the same message. I can’t imagine anything better, and we will reap the benefits of that in South Dakota because of the forged friendships that otherwise never would have happened.

I’m a history buff, and I went back to the old state bar records. In 1899, the number one complaint from the lawyers was, “What is the Bar doing to improve our image?” And that theme hasn’t changed much in over 100 years. As miserable as the fight was against J.A.I.L. for Judges, we have done something to improve the image of judges and lawyers in our communities, and that is because we were out there tag teaming with laypeople and we were all on the same side.

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Q: Anything else that we should carry from this?

Yes. Drop the phrase “judicial independence.” Get rid of it. Our focus groups and polls showed that people don’t want judicial independence. They equate that with activist judges who are making it up as they go along. What they want are courts that fairly and impartially apply the law. You and I know that is the same thing. But we have to learn the techniques of communication and what works—what is a positive in the eyes of the public.

When we talk about these measures—whether it be the ones on the ballot recently in Montana, Colorado, or other states —they are measures that interfere with the ability of our courts to fairly and impartially apply the law. If we couch it as such, we start to win over people’s hearts and minds. If we talk about judicial independence, we’re digging a hole and climbing into it.

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