PIERRE, S.D. – 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 proper 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," Fail 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 the Constitution.
"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."