Time To Cut South Dakota Loose?

If the good people of South Dakota succeed in amending their constitution to permit citizens to sue judges, then I say let's disband the union and toss the state to the wolves. Call it social eugenics: I don't care to associate with people who druel on their chin, wipe it with a greasy finger and then call on ma' for more.

Apparently, 46,000 signatures have been gathered in South Dakota to place a measure permitting suit of judges on the ballot in 2006. That's 13,000 more signatures than necessary. The amendment calls for abolition of judicial immunity and would permit suit against judges post-judgment and post-appeal. The Jackass State?

I am no fan of the judiciary. I make my living arguing cases at both the trial and appellate level. Some days my head seems to split in wonder when I consider some of the fools who have crawled their way to a bench. And some days a court's ruling seems so wrong, so at variance with the constitutional principles I was taught, I want a new revolution. Consider, for example, Kelo.

But the notion that we should sue judges for doing their jobs is just plain idiocy. We need less, not more, litigation in this country. Permitting suit of judges means that conflicts will never end. Each and every aggrieved knucklehead who could not get it right the first time will come bulldozing their way into yet another court.

Every stupid idea in the United States has a constituency, so it is no surprise that those calling for suit of judges have a website all their own. See, JAIL. The group promises to make judges accountable.

Accountable to whom? Angry clients who lost a case? To juries free to nullify the law? To the results of the latest poll? It is bad enough that some states permit the election of judges, encouraging jurists to sink to the lowest common demoninator in their community.

On the civil side, a plaintiff or defendant can insist on trial, and get a verdict, either by court or jury. If a judge errs on the law, appeal is a remedy. In a court trial, a judge erring on facts can be appealed. When juries decide facts, well, there's the rub -- not alot that can be successfully done about that. And, of course, either party is always free to sue their lawyer for legal malpractice. A client with rage to spare can clog the courts for a decade.

And there are remedies on the criminal side, too. An errant legal ruling can be appealed. A bad lawyer can be sued or a habeas perfected. But, once again, a jury's decision on the facts is an almost immovable object.

My first instinct when reading about the effort to dispel judicial immunity was that it was some neopopulist impusle. A desire to make judges hew to the people's line, no matter where it led. But on consideration, I think the measure is pure elitism by folks who are persuaded they know best and won't be happy until they can shove their preferences down the rest of our throats. This is just another pitch for jury nullification -- only this time juries would be free apparently to nullify everything, even the rule of law.

Don't like a judge's ruling? Fine. Then sue him or her. Why not a call to sue juries who get it wrong, too? Let's just muck up the system entirely.

I have friends in South Dakota, so it pains me to say this: If the people of South Dakota want to return to the state of nature, let them. Close off the borders and let them be. Just don't let them take the rest of us down with them.