Attorneys urged to be prepared for the fight
By Gary Blankenship
If backers of an amendment known as J.A.I.L.4Judges succeed in getting their constitutional amendment on the Florida ballot, the state’s lawyers should be ready to lead a campaign to defeat it.
The public face of that campaign should not be judges and lawyers, but rather regular citizens who would be adversely affected by the amendment that nominally seeks to strip civil and criminal immunity from the judiciary in cases where a special grand jury decides they have acted improperly.
Tom Barnett, executive director of the State Bar of South Dakota, gave that advice to the Bar Board of Governors at its December meeting. Barnett led the campaign last year that resulted in the defeat of a J.A.I.L.4Judges initiative in South Dakota that wound up failing by an 89-to-11 percent margin.
“When we planned our campaign, we immediately decided that the worst people to talk about attacks on judges were judges and the second worst people were lawyers,” Barnett said. “What we needed were people on the street.”
He identified those people as the “four B’s” – bankers, beauticians, barbers, and bartenders, or “people who talk with people every day.”
“The whole central theme to this campaign was to build coalitions and for the good of us all, let’s try to maintain those coalitions,” Barnet said. “Build your coalitions now, because J.A.I.L.4Judges has announced that the next two target states are Nevada and Florida. Michigan is third.”
The Florida chapter of the organization (its Web site is http://floridajail4judges.org) is already trying to get signatures for an initiative petition. It provides that judges and those who act in a judicial capacity can lose immunity from civil and criminal prosecution in some cases. Under the amendment, the losing party in a case, civil or criminal, can file a petition with a special statewide grand jury once all appeals have been exhausted. The grand jury can overturn the outcome of the case and, if it decides a judge acted improperly, make the judge subject to civil or criminal liability.
While judges might be unpopular, Barnett noted the amendment would have far-reaching impacts. One is that many locally elected officials, including city and county commissioners and school board members, can have judicial duties, and hence be covered under the amendment. So can ordinary residents when they serve on juries — a fact the South Dakota anti-amendment campaign highlighted as ad after ad hammered that criminal defendants would be able to harass or sue jurors.
Barnett said one poll showed that allowing jurors to be sued was opposed by 86 percent of the voters. “It’s a very, very powerful message,” he said. “That’s why we used that.”
In seeking support for its campaign against the amendment, he said opponents looked to the users of the court system, particularly the business community.
Barnett said he explained the consequences of the amendment, including that relatively simple matters like repossessions of cars and mortgage foreclosures could become much more complicated and expensive if the debtors decided to fight their cases through the special statewide grand jury. That jury, he added, would be able to nullify contracts which could leave lenders with an empty bag.
The consequences? Car dealers might find lenders unwilling to finance automobile purchases and banks might be unwilling to issue mortgages, he said.
Hence, the anti-amendment campaign was able to get financial and political support from bankers, insurance companies, car dealers, and even the U.S. Chamber of Commerce and tort reform groups that recognized the potential mayhem from the amendment, Barnett said.
In Florida, Barnett said a key factor will be whether the J.A.I.L.4Judges campaign hires professionals to gather signatures to get its initiative on the ballot. In South Dakota, he said the effort was headed nowhere until backers hired professional signature gatherers. The same is likely to happen in Florida.
He advised the Bar to begin preparing early for the potential campaign, and outlined how the anti-amendment campaign was waged in South Dakota.
The first phase of the campaign, when resources were scarce, was a public outreach that paired lawyers and judges with laypeople for appearances at civic and community groups. The emphasis, Barnett said, was on having the nonlawyers speak, with the legal professionals available to provide detailed answers if needed.
“Lawyers are very poor explainers of legal issues,” he said. “People expect the lawyer to be very glib and polished . . . But the hardware store owner they listened to, he’s not very polished, but people leave persuaded.”
Early last year when Barnett geared up the campaign against the amendment, initial polls showed that voters had a favorable impression of the measure by a 3-1 to 4-1 margin.
Initially short on funds, Barnett launched the local outreach program and began building coalitions with various groups. By the early fall, when more money began coming in, the local outreach program had shifted sentiment to 3-1 against the amendment, but still with over half the voters undecided.
With more money, Barnett was able to begin television and radio ads. Those emphasized that convicted criminals could use the amendment to harass jurors and try to get out of jail, and that the amendment did not spring from South Dakotans but rather was imported from a California group.
In building coalitions, Barnett said he got every major town and city in the state to pass a resolution opposing the amendment. He reached out to doctors, hospitals, bankers, insurance companies, accountants, and others and explained how the amendment could upset the legal system and even allow the reopening of previously settled and decided cases since the amendment applied retroactively.
“When it comes to a full-scale attack on our court system, they have to be on our side because they use the court system,” Barnett said.
He estimated that the personal outreach campaign got 60 percent of the voters to oppose the amendment, and the media campaign raised that to nearly 90 percent. Indeed, the campaign was so successful that while it required 47,000 signatures to get the amendment on the ballot, it got only about 36,500 votes even though 72 percent of the state’s voters went to the polls.
Even if it appears the J.A.I.L.4Judges organization is weak in Florida, Barnett advised gearing up for a campaign because of the seriousness of the issue.
“Start building coalitions today,” he said. “Who uses the court system? Business. Who has the money to do appeals? Business. Tell them this will hurt the court system.”