Rushmore to Judgment
South Dakota ups the ante in the national war over judges.
America's judges would like to write off last year's anti-court orgy as a political spasm. Tom ("Judges need to be intimidated") DeLay is on the back bench, the testy Supreme Court confirmation hearings are over, and the judge in Terri Schiavo's case no longer needs a deputy to escort him every time he walks his dog.
But better times aren't coming back soon. The newest front in the war on the courts is being fought in South Dakota, where, in the shadow of Mt. Rushmore, a group called "J.A.I.L. 4 Judges" is promoting one of the most radical threats to justice this side of the Spanish Inquisition. It's extreme and it's incoherent, but it's got more than 40,000 petition signatures—and it will go to the state's voters as a constitutional amendment in November. A national network of supporters is waiting in the wings, threatening to export the revolution to other states if they do well this fall.
The group's proposed measure would wipe out a basic doctrine called judicial immunity that dates back to the 13th century, protecting judges from personal liability for doing their job ruling on the cases before them. A special grand jury—essentially a fourth branch of government—would be created to indict judges for a string of bizarre offenses that include "deliberate disregard of material facts," "judicial acts without jurisdiction," and "blocking of a lawful conclusion of a case," along with judicial failure to impanel a jury for infractions as minor as a dog-license violation. After three such "convictions," the judge would be fired and docked half of his or her retirement benefits for good measure.
J.A.I.L. 4 Judges is an Internet-era creation, pulling together a disparate national network of tax protesters, conspiracy theorists, jury-nullification supporters, and assorted others with grievances against the courts and modern government. Its Web site claims to have 50 state chapters, whose leaders sport the rank of "Major General" or "JAILer-In-Chief." The Alaska JAILer in chief has been known to parade around dressed in black robes, with a noose around his neck and scaffolding above his head, before shedding the robes and burning them. J.A.I.L.'s supporters have picketed the homes of offending judges and generated e-mail campaigns—sometimes laced with electronic viruses and worms—against the Anti-Defamation League, reporters, and legislators over statements that upset them. Supporters and like-minded groups have filed hundreds of Freedom of Information requests seeking information about judges' personal lives and property, along with challenges claiming that judicial oaths are invalid or not properly filed.
This movement is the brainchild of a Californian named Ronald Branson with a history of suing state and federal officials for alleged conspiracies (including his own trials for burglary and a traffic offense). After being rebuffed by the courts—including the U.S. Supreme Court on 14 separate occasions, even to appeal a parking ticket—and attorneys general and legislatures in Sacramento, Calif., and Washington, Branson failed three times to get enough signatures to put the measure on the California ballot.
J.A.I.L.'s supporters have a broad list of grievances. Branson (the "Five-Star National J.A.I.L. Commander-In-Chief") has written that judges have a duty to stop a New World Order conspiracy involving bankers, the United Nations, and the Federal Reserve. He calls government-issued marriage licenses "blasphemy," adding that, "I believe I have been called of God to lead in the cause of judicial accountability." Traffic tickets loom large on his political agenda: Branson hopes that J.A.I.L. supporters will drive through South Dakota "just for the privilege of getting a traffic ticket so you can demand a jury trial."
How did this Internet-age fun house turn into South Dakota's headache? In part because it took fewer than 34,000 signatures to get on that state's ballot, and initiative states are the logical playgrounds for fringe groups. But J.A.I.L.'s organizers don't even pretend to have grievances with South Dakota judges. Instead, they paid door-knockers to ask people if they were mad about Roe v. Wade or last year's Kelo decision upholding local eminent-domain powers—or if they just wanted to hold judges accountable. (Never mind that state judges can't overturn Roe, or that in Kelo the Supreme Court deferred to legislators to set their own land-use policies.)
In other words, J.A.I.L. 4 Judges seeks to capitalize on the incessant talk-radio hate-in against the courts, where America's 11,000 judges are caricatured as godless, flag-burning, property-seizing, gay-marriage missionaries. J.A.I.L. is just the latest in a parade of groups twisting the notion of judicial accountability beyond recognition. J.A.I.L. may be rough around the edges, but they're taking their cues from a finely polished political script. Indeed, former Supreme Court Justice Sandra Day O'Connor has started taking on these judge-bashers for trying to intimidate courts into answering to special interests instead of the Constitution.
Like any insurgency, J.A.I.L. works hard to get attention. As their founder writes: "We at J.A.I.L. get unlimited kicks at the judges' crotches and shins, and the judges must keep a straight face and pretend we don't exist. … If they assault us, they advertise for us and promote J.A.I.L." Their own goal is nothing less than to establish crotch-kicking grand juries in all 50 states, with Branson as czar, since he claims "final authority by operation of law as to what these words mean and that all courts throughout the future must look to the author's definition"—an intriguing theory for a movement vowing to restore power to the people.
In South Dakota, a "Good War" coalition of political parties, business leaders and the civic sector is coming together to deal with J.A.I.L. (Since J.A.I.L. 4 Judges has it out for the Uniform Commercial Code, business executives ought to be especially worried.) The state legislature unanimously passed a resolution noting that judges are already adequately disciplined for misconduct, taunting J.A.I.L. for hiring an out-of-state firm to gather signatures and warning South Dakotans that the measure would cost taxpayers millions and lead to an epidemic of frivolous actions, including suits by convicted felons against the judges and prosecutors who put them behind bars. J.A.I.L. 4 Judges responded by sending each lawmaker a 14-page letter calling the resolution unlawful and demanding a retraction. It's now threatened to sue and arrest all 105 members.
J.A.I.L. is also busy selecting its next target. "We have an interest in taking this to Nevada, where we have no doubts a failure to hold judges accountable is crippling the legal system," a J.A.I.L. supporter recently told the Las Vegas Sun. They may find pockets of fertile ground: In 1994, a Nevada rancher broke into a national forest with a bulldozer, briefly sparking a "county supremacy" rebellion, insisting that federal ownership of land was illegal.
Indeed, JAILers are brimming with confidence that they'll win in South Dakota this fall, and around the country beyond. Writes Branson's wife, associate commander in chief of J.A.I.L: "The People are slowly waking up to realize who the Enemy is—and it isn't Bin Laden."*
Correction, April 7, 2006: This quote was mistakenly attributed to J.A.I.L. founder, Ronald Branson. In fact, it was a blog quote written by Branson's wife, Barbie, who is an authorized spokesperson for the organization.
Bert Brandenburg is the executive director of the Justice at Stake, a nonpartisan national organization.
Illustration by Robert Neubecker