[¶1.] This petition for a writ of certiorari was filed by Stegmeier on August 14, 2006, and was tried to the court on August 17, 2006, on an expedited basis due to the exigent nature of the impending election.

[¶2.] The people have initiated a proposed constitutional amendment which has been placed on the ballot as Amendment E. Amendment E is popularly referred to as the JAIL amendment. The proponents say that JAIL is an acronym for Judicial Accountability Initiated Law. They also refer to it as JAIL for Judges. Generally the initiated amendment to the state constitution would eliminate judicial immunity and allow judges to be sued for civil damages and to be indicted by a special grand jury for crimes. In addition, if the special grand jury indicted a judge, a petit jury would be impaneled to try the judge. A conviction by the petit jury would be a "strike" and a judge with three strikes would be removed and the judge would lose half of the judge’s retirement. The process would be funded by taking 1.9% from the salary of all of the judges in SD.

[¶3.] The full text of the proposed initiated JAIL constitutional amendment follows:

[See Amendment E as reprinted here or as PDF.]

[¶4.] Attorney General Larry Long is charged by law with the duty to write a ballot statement describing the proposed constitutional amendment and the effect of a yes or no vote. SDCL 12-13-9, amended in 2006, provides the following:

Before the third Tuesday in May, the attorney general shall deliver to the secretary of state an attorney general's statement for each proposed amendment to the Constitution and each initiated measure. The attorney general's statement for each referred measure shall be delivered to the secretary of state before the second Tuesday in July. The attorney general's statement shall consist of the title, the explanation, and a clear and simple recitation of the effect of a "Yes" or "No" vote. The explanation shall be an objective, clear and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. The attorney general shall include a description of the legal consequences of the proposed amendment, the initiated measure, or the referred law, including the likely exposure of the state to liability if the proposed amendment, the initiated measure, or the referred law is adopted. The explanation may not exceed two hundred words in length. On the printed ballots, the title shall be followed by the explanation and the explanation shall be followed by the recitation.

[¶5.] Attorney General Long wrote the following ballot statement:

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.

[¶6.] Stegmeier complains that the attorney general’s ballot statement is deficient in the following particulars:

[¶7.] First, Stegmeier faults the attorney general for saying that the abolition of judicial immunity extends to "[c]itizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors" as well as judges.

[¶8.] Second, Stegmeier faults the attorney general for saying that "[t]he proposed amendment . . . 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." (Emphasis added.) Stegmeier objects to the word "volunteers" and the negative connotation of "strip" in relation to the loss of insurance and retirement benefits.

[¶9.] Third, at the hearing, Stegmeier asked the court to point out that decision makers need only fear reprisal if their actions are "deliberate."

[¶10.] Fourth, at the hearing, Stegmeier urged the court to require the attorney general to use the word "accountability" in connection with the abolition of judicial immunity.

[¶11.] Ironically, Stegmeier wants a judge to help him make it easier to sue judges. Stegmeier must have more confidence in the courts than he lets on in his public statements and his proposed constitutional amendment.

LACHES

[¶12.] The attorney general pleads laches. He asserts that it is too late for Stegmeier to bring this action because the Secretary of State will not be able to get the ballots to the county auditors in time for absentee voting to begin on September 26, 2006. The attorney general posted the ballot statement on July 10, 2006. Stegmeier admitted he knew what the ballot statement said on July 13, 2006, but waited until the last day for certifying ballots to bring his lawsuit.

[¶13.] On July 26, 2006, within 13 days of the attorney general’s posting of the ballot statement, Stegmeier wrote to the attorney general seeking redress. Stegmeier should not be faulted for first attempting to resolve the matter short of litigation. Only when that failed, did Stegmeier file this petition for certiorari. I find that Stegmeier was expeditious in his efforts to bring this matter to the court.

[¶14.] The Secretary of State complains that there is not enough time to complete the process of printing the ballots before September 26, 2006, if this matter is not resolved by August 18, 2006, leaving this Court with less than 24 hours to make a decision. However, accuracy should not be sacrificed on the alter of expediency.

[¶15.] When it comes to the public’s right to vote, it is never too late to seek redress in the courts. The "open courts" provision of the SD Const. provides:

All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

§20 of Article VI of the South Dakota Const. (emphasis added). In addition, state law provides:

The circuit court is always open for the purposes of hearing and determining all actions, special proceedings, motions, and applications of whatever kind or character, and whether of a civil or criminal nature, arising under the laws of the state . . . .

SDCL 16-6-16 (emphasis added). Anything can be fixed until they run the juice through your client. Now, with modern medicine, that might even be able to be fixed.

[¶16.] Therefore, the attorney general’s motion to dismiss for laches is denied.

[¶17.] With an eye toward the future and a hand on the throttle, perhaps the Legislature should look to Montana which has a statute that allows 10 days for parties aggrieved by the ballot statement to appeal to district court and 5 days to appeal to the supreme court from district court. Montana Code Annotated 13-27-316. At least then there would be an admonition for expedition and a standard for compliance.

DISCUSSION

[¶18.] SDCL 12-13-9 requires in part that "The explanation shall be an objective, clear and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution . . . ." SDCL 12-13-9 (emphasis added).

[¶19.] SDCL 12-13-9 can be distilled into four elements as it relates to this case: the explanation must 1) be objective, 2) be clear and simple, 3) educate the voters of the purpose and effect of the proposed amendment and 4) describe the legal consequences.

1. OBJECTIVE

Description of Who Would Lose Judicial Immunity

[¶20.] Stegmeier objects to the attorney general’s statement that the abolition of judicial immunity extends to "[c]itizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors." Stegmeier claims the proposed JAIL amendment only applies to judges.

[¶21.] Usually, objective means that something can be measured by a definite standard. For example, if fishermen can keep a walleye which is more than 14 inches long, this is an objective standard. Get out a ruler and the walleye is either too short or long enough. The only truly objective standard in SDCL 12-13-9 is that the statement cannot exceed 200 words. I count 185 words in the statement; therefore, it is within the 200 word limit.

[¶22.] If the ballot statement is true, it goes a long way toward being objective. Stegmeier first complains that the proposed amendment only applies to judges and not to "citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors" as stated in the attorney general’s ballot statement.

[¶23.] The amendment includes the following in the definitions in subdivision 1 of section 1:

Judge: Justice, judge, magistrate judge, judge pro tem, and all other persons claiming to be shielded by judicial immunity.

(Emphasis added.)

[¶24.] Stegmeier once thought it was true. In an answer to an article in the Madison Daily Leader which said the JAIL amendment applied to school boards, city councils, county commissions, professional licensing boards and every citizen board performing quasi-judicial functions, Stegmeier took out a paid political announcement in which he agreed with the author of the article and said:

[A]ny governmental employee (of any stripe, shape, or flavor) previously accustomed to violating the rights of South Dakota citizens while hiding behind the bogus doctrine called "judicial immunity", will now have to shape up or ship out.

Stegmeier cannot claim a better version of the facts than he previously claimed. McElhaney v. City of Edgemont, 2002 SD 159, ¶14, 655 NW2d 441, 445.

[¶25.] The question, however, is not what Stegmeier thinks or says, but whether judicial immunity applies to persons other than judges.

[¶26.] Judges have judicial immunity.

[¶27.] "[F]or the purposes of absolute judicial immunity, judges and their law clerks are as one." Mitchell v. McBryde, 944 F2d 229, 230 (5thCir 1991); Fariello v. Campbell, 860 FSupp 54 (EDNY 1994).

[¶28.] "Other officials who have been afforded judicial immunity include: hearing examiners employed by administrative agencies, see Butz v. Economou, 438 US 478, 516-17, 98 SCt 2894, 2914, 57 LEd2d 895, 922; attorneys in the course of activities 'intimately associated with the judicial phase of the judicial process,' see Imbler v. Pachtman, 424 US 409, 430, 96 SCt 984, 995, 47 LEd2d 128, 143 (1976); and witnesses who testify in judicial proceedings, see Briscoe v. LaHue, 460 US 325, 333-34, 103 SCt 1108, 1112-13, 75 LEd2d 96, 106-07 (1983)." (Emphasis added.) Hansen v. Kjellsen, 2002 SD 1, ¶9 n1, 638 NW2d 548, 550 n1.

[¶29.] In South Dakota, court service officers have judicial immunity when preparing pre-sentence investigations. Hansen v. Kjellsen, 2002 SD 1, 638 NW2d 548.

[¶30.] Jurors have judicial immunity. "[J]udicial immunity extended not only to public officials but also to private citizens (in particular jurors and arbitrators); the touchstone for its applicability was performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights." Burns v. Reed, 500 US 478, 499-500, 111 SCt 1934, 114 LEd2d 547 (1991).

[¶31.] Grand jurors [1] have judicial immunity. Imbler v. Pachtman, 424 US 409, 424, 96 SCt 984, 47 LEd2d 128 (1976); Lomtevas v. Cardozo, 2006 WL 229908 (EDNY 2006); Bliven v. Hunt, 418 FSupp2d 135 (EDNY 2005).

[¶32.] Bailiffs have judicial immunity. Robinson v. Freeze,15 F #2nd (8th Cir 1994).

[¶33.] Prosecutors have judicial immunity. Imbler v. Pachtman, 424 US 409, 424, 96 SCt 984, 47 LEd2d 128 (1976).

[¶34.] The absolute privilege applies to judges, jurors, attorneys, parties, witnesses and any others involved in the litigation. Kachig v. Boothe, 22 CalApp3d 626, 641, 99 CalRptr 393 (CalCtApp 1971); Christonson v. US, 415 FSupp2d 1186, 1195 (DId 2006).

[¶35.] Parole board officials who "serve a quasi-adjudicative function in deciding whether to grant, deny or revoke parole." Montero v. Travis, 171 F3d 757, 761 (2d Cir 1999); Scotto v. Almenas, 143 F3d 105, 111 (2d Cir 1998).

[¶36.] Absolute quasi-judicial immunity is afforded to state government officials as well. Lomtevas v. Cardozo, 2006 WL 229908 (EDNY 2006). See, eg., Imbler v. Pachtman, 424 US 409, 420-24, 96 SCt 984, 47 LEd2d 128 (1976).

[¶37.] In Forrester v. White, 484 US 219, 108 SCt 538, 98 LE2d 555 (1988), the United States Supreme Court adopted a "functional approach" to judicial immunity. Under the functional approach, the Court examines the following:

[T]he nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy ....

484 US at 224, 108 SCt at 542, 98 LE2d at 563. The Court acknowledged that there are difficulties attempting to draw the line "between truly judicial acts, for which immunity is appropriate, and acts that simply happened to have been done by judges." 484 US at 227, 108 SCt at 544, 98 LE2d at 565. Immunity is only justified by the functions it protects, and not by the person to whom it is attached. Id.

[¶38.] It is the function performed not the title of the official that determines whether the citizen is protected by judicial immunity.

[¶39.] Consequently, judicial immunity may extend to any decision maker who exercises judicial functions: petit jurors, grand jurors, school boards, county commissions, city councils, professional and occupational licensing boards, prosecutors and other attorneys.

[¶40.] The attorney general’s statement about who has judicial immunity is true and is objective.

CHOICE OF WORDS

"Volunteers"

[¶41.] Stegmeier objects to the use of the word "volunteers" to describe the members of the special grand jury.

[¶42.] Use of the term "volunteers" implies that the special grand jury envisioned by the proposed amendment is a group of hooded vigilantes riding the range with rope looking to hang the first judge they find. This is patently not true. The JAIL amendment does not authorize capital punishment. Nor does Stegmeier wear a hood. Instead, Stegmeier wears the two stars and uniform of a major general [2] as South Dakota’s "Jailer in Chief."

[¶43.] The special grand jury created if the proposed amendment is adopted "shall be publicly drawn at random by the Secretary of State from the list of registered voters and any citizen submitting his/her name." Paragraph 13 of the proposed constitutional amendment (emphasis added). The petition to amend the constitution with the JAIL provision was signed by more than 40,000 persons. Assuming that every signatory of the petition volunteered for special grand jury service, that would constitute only 10% of the prospective panel of 488,934 registered voters (as of the 2006 primary election) plus any volunteers from which the special grand jury would be drawn. The chance of all thirteen special grand jurors being volunteers when drawing would be small since presumably all 40,000+ who signed the petition were registered voters subject to summons to the special grand jury anyway.

[¶44.] Nor are the special grand jurors volunteers in the ordinary sense of the word. Volunteers frequently serve without pay and the special grand jurors will be paid the same salary received by a circuit judge.

[¶45.] The attorney general should change the word "volunteers" to "special grand jurors" which is a more accurate, objective, clear and simple term.

"Strip"

[¶46.] Stegmeier characterized the term "strip" as an "Oooohhh-word [3]" with a negative connotation in connection with the portion of the attorney general’s statement that says the special grand jury is allowed "to strip [decision makers] of public insurance coverage and up to one-half of their retirement benefits." (Emphasis added.)

[¶47.] The attorney general’s description is entirely accurate, and the court approves of the use of the term "strip" in connection with the special grand jury’s authority under the proposed JAIL amendment.

"Deliberate"

[¶48.] At the hearing, Stegmeier asked the court to point out that decision makers need only fear reprisal if their actions are "deliberate." Stegmeier asserts that judges will only be "jailed" if they deliberately violate the law, deliberately ignore material facts or deliberately violate the state or federal constitution.

[¶49.] Stegmeier’s argument is disingenuous at best. Judges do not accidentally decide a case or accidentally sign an order or accidentally send someone to prison. Judges do not accidentally do anything. Every act a judge does is deliberate. Deciding a case is called "the deliberative process" and juries are sent out to "deliberate."

[¶50.] It is facetious to suggest that judges need only fear reprisal for deliberate acts when all judicial acts are deliberate. The supreme court does not reverse a judge for accidentally committing an error. A judge is reversed for abuse of discretion, not lack of discretion. A judge is reversed for being clearly erroneous, not accidentally erroneous.

[¶51.] The attorney general need not include the term "deliberate" in the ballot statement.

"Accountability"

[¶52.] At the hearing, Stegmeier urged the court to require the attorney general to use the word "accountability" in connection with his description of the abolition of judicial immunity.

[¶53.] The attorney general could have said with a straight face that the real purpose and effect of the proposed JAIL amendment is to destroy justice in South Dakota by harassment of public decision makers with lawsuits, but he did not. His actual description is quite tame.

[¶54.] Stegmeier’s saying the proposed JAIL amendment is about accountability does not make it so. Thompson v. Mehlhaff, 2005 SD 69, ¶30, 698 NW2d 512, 521.

[¶55.] The attorney general need not include the term "accountability" in the ballot statement.

2. CLEAR AND SIMPLE

[¶56.] The attorney general’s statement contains four paragraphs. The first describes judicial immunity and who is protected by judicial immunity. The second paragraph describes what will happen to decision makers if judicial immunity is abolished. The third paragraph describes the retroactive effect of the proposed amendment. The fourth paragraph describes probable court challenges and potential costs to the state.

[¶57.] The explanation says who has immunity, what happens if they lose it, that it is retroactive and may cost the state money. The explanation is clear and simple.

3. PURPOSE AND EFFECT

[¶58.] The purpose is to eliminate judicial immunity and the effect is to expose decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits. In addition, the effect of the amendment may expose the state to lawsuits and expense.

[¶59.] The attorney general has clearly and simply stated the purpose and effect of the proposed amendment.

4. LEGAL CONSEQUENCES

[¶60.] The attorney general explained that the proposed amendment may be challenged in court and may be unconstitutional. The state may be required to pay attorney fees and costs. The attorney general clearly and simply stated the legal consequences.

CONCLUSION

[¶61.] Excepting use of the word "volunteers," the attorney general’s ballot statement is 1) objective and 2) clear and simple and it states 3) the purpose and effect and 4) the legal consequences of the proposed JAIL constitutional amendment. The word "volunteers" should be replaced by the words "special grand jurors" and then the ballot statement is good to go.

[¶62.] Order by Hallem.

[1] A member of the special grand jury envisioned under the JAIL amendment could be subject to proceedings by the special grand jury since the amendment abolishes judicial immunity which protects grand jurors from lawsuits and harassment. No immunity is extended to special grand jurors under the proposed JAIL amendment.

[2] Stegmeier’s mentor, Ron Branson from California, styles himself a five star general.

[3] In court, counsel wrinkled up her face and said "Oooohhh" when she described the impression that the word "strip" gave her.