J.A.I.L.’s Central Flaws
I thought over the issue of grand juries and bringing bad judges and other gerps (government perps) to justice. Even though I endorsed the implementation of the Special Grand Jury provisions in basic intent and thrust, I sent Ron Branson a revision proposal explaining my difference of opinion. He didn’t exactly give me the middle finger. But essentially he called the amendment as it stands now a fait accompli and refused to change a thing. I disagreed then and do now, not so much because of the purpose, but because of the presentation and circumscribed application to judges only, rather than to all public officers.
J.A.I.L. as an initiative has a central flaw: it singles out judges as the target of the amendment. Even the name of the organization, “Jail 4 Judges” carries with it a message that dooms its efforts because it singles out judges to to go jail. Branson obviously thought it a cute name that reveals his purpose. That alone sealed its fate. So far. Promoting jail for judges amounts to political suicide for the initiative.
The name and acronym selection for the organization and the amendment underscore the obvious failure to do and heed well-crafted marketing surveys before formulating the amendment and launching it as a project.
J.A.I.L has other core flaws – It should:
· apply to ALL PUBLIC OFFICERS, not merely judges;
· stipulate that any violation of the loyalty oath or code of conduct/ethics makes a public officer subject to investigation and indictment, not allow bar members to serve on the SGJ;
· require that members of the SGJ have college degrees and pass a test showing basic knowledge of the Constitutions of the USA and State, particulary the people’s rights;
· Specify similar rules for all grand juries, particularly that grand jurors must have good educations and be upstanding members of the community (not just non-felon voters), that the state must have on empaneled in every judicial circuit/district at all times, and that it must facilitate presentation of evidence to in in person by anyone in the public who wants to submit that evidence, that citizens can bypass the state attorney with any criminal complaint (misdemeanor or felony) against a public employee, that all judges must sign a sworn criminal complaint presented to the court by anyone, and hand it to law enforcement to investigate and upon finding of probable cause make an arrest and hand the evidence to the grand jury AND state/district attorney, not just to the attorney.
I note that the Uniform Law Commission should have proposed a standardized set of grand jury laws, but (not surprisingly) it has not, and all the states should adopt them uniformly, as they have done the UCC. For some reason the legal community believes State/District Attorneys do just fine in determining whether to prosecute someone, but we all know they don’t, in large part because they assum prerogative to “plea bargain” in order to save government money, and this easily results in unreliability of the law, conviction of the innocent, and release of the guilty. J.A.I.L. doesn’t address this at all, but it needn’t if we had standardized grand jury laws.
I also note that the judiciary’s leaders seem to think themselves and their branch above the laws enacted by the legislature. They make their own rules (civ pro, crim pro, ev, admin, etc) that actually interfere with rights. And the fees they charge, and vexatious litigant classifications, amount to outragious defeats of the right of access to the court.
Marketing 101 Lessons
Okay, back to the marketing theme. Let’s examine the issue of crafting and marketing an initiative. J.A.I.L. ignores critical lessons from Marketing 101:
1. Always survey to determine:
a. Target audience
b. The product name that will appeal to them while creating brand awareness
c. The product formulation that they need and want
d. The emotional level on which to promote the product.
2. Always test-market the product on a small subset of the target audience
Survey Before Selling.
You get a bright idea about something you believe people really need and will support. You spend years developing and promoting it. It fails. Why? You never bothered to ask members of your target audience what they need and want, determine their emotional level, and communicate what they need and want to them on that level. Fatal to the campaign, you did not offer them what they need and want on a level they can tolerate and will embrace. Worse, you did not even accurately determine your target audience.
Whom NOT to Target and Why
Okay, so whom do you target with J.A.I.L.? Well for starters you DON’T target the DECIDED. You don’t target your avid supporters (people abused by judges) because they will vote for it no matter what. And you don’t target those who hate you and your ideas, for they will vote against it no matter what. Instead, you target the UNDECIDED. Ron Branson targeted only his supporters. And the noise you hear about the J.A.I.L. mostly comes from its detractors: jurists, members of the group he wants to put in jail. In the end, those behind the South Dakota J.A.I.L. amendment failed - did not succeed in getting it approved by voters. The noise-makers (like well-respected jurists like Sandra Day O’Connor) swayed the electorate into rejecting the amendment.
Purpose of Surveys
Surveys (polling) become vitally necessary to such initiatives because the results guide the promoters. Only with surveys can you find out what the voters need and want, and the emotional level on which to promote the solution. You cannot guess at this because if you do, you will typically suffer defeat.
Act (Promote and Sell) According to Survey Results
And you have to believe your survey results and act accordingly. If you find out that most people think of bad judges as just “naughty” and not truly heinous, then some high-profile jurist like Sandra Day O’Connor will convince them judges must enjoy immunity in order freely to exercise their judgment. I know of no test for judges that determines whether they do or don’t have what we might call judgment, much less “good” judgment, but I’ll save that argument for another article.
I have done a small survey of my own, and discovered that most undecided people don’t want judges in jail. They believe then we wouldn’t have anyone to toss the REAL crooks in jail.
You don’t CHOOSE a name and slogan till AFTER you do the survey and find out what the UNDECIDED voters perceive, need, want, and will support (and what they don’t want and won’t support). You then devise a campaign to inform the undecided that the existing situation gives them what they don’t want, and the proposed solution will give them what they do want. Then they’ll vote for it.
And so, you must promote proofs heavily to the UNDECIDED voters. The promo must make the problem and the solution REAL to them.
· You must show how judges abuse the public with bad rulings just because they enjoy that immunity, and that badly affects EVERYONE, the INNOCENT worst of all.
· You must explain the judicial oligarchy that exists in the states as a consequence of the bar belonging to the judiciary.
· You must show that judges control the legislature and government attorneys in every branch as their army of henchmen.
· You must show that they undermine the legislature and suborn the executive branch by incessantly flouting the laws and creating laws from the bench.
· You must make people fear the government in general and judiciary in particularly as an evil force against the interests of the people.
· You might even show how the wild growth of prison industries, and investment by governments of trust fund (mostly retirement system) money in them, encourages cops and sheriffs to arrest and incarcerate innocent people, and judges to convict them and leave them incarcerated.
· You must show how only the initiative can solve the problem by holding all public officers (not just judges) accountable for disobeying their sworn loyalty oaths and canons of ethics.
Then and ONLY THEN (thenn) can you get undecided voters to decide to support the initiative.
Pick a Name that Sounds Good to the Undecided
But why work extra hard to convince people of something when you don’t have to? With a different name and a different slogan (certainly not Jail 4 Judges) you don’t alarm the rank and file undecided voter. You make it easier to convince them of the sanity of the initiative and make them think of you as intelligent and noble citizens. You make it harder for them to think of you and the initiative as kooks, rabble rousers, and rebels.
I might, for example, knowing voters generally don’t want judges in jail, pick a name and acronym like
· Public Officers Supporting Honesty Amendment (POSH or POSHA) – this makes it seem that public officers stand behind it.
· Honestify Our Republic Amendment (HORA)
· Strengthen Our Grand Juries Amendment (SOGJA)
People already know POSH means “high class.” Upon reading/hearing the name they will automatically think of the proposed amendment as something good and classy, without knowing anything more about it. This uses the law of learning known as Association – people tend to remember something new by associating it mentally with something they already know, and if they consider the thing they know as “good,” they will consider the associated thing good too.
And, POSHA sounds like Porsche, the high-quality, high-performance sport car. It causes a similar mental association with something good.
Google HORA for its various meanings, none of which have anything bad associated with them. To Latinos “a hora” means “now.” In Greek mythology it means “at the correct moment” or one of three goddesses who bestow ripeness. Israelis and Balkans know the term as a form of circle dance.
Putting a vowel at the end of an acronym makes it more acceptable and friendly to Ibero-Americans, about 50 million people in the USA. That will more easily get the Latino vote, without any further explanation of the meaning.
Always Survey Before Selling
Take note that I have made suggestions without surveying them, and one should always survey the target audience before devising a name or campaign for final distribution, and test a campaign in a small subset of that target audience before launching. Regardless of what you think of my suggestions, they might work or not work, and you cannot know with relative certainty whether they will work until and unless you survey the target. Always survey before selling your product or service.
Oh, I didn’t survey YOU to find out if you need or want my comments about this, did I? Tell me… did I waste my time? If I did, then I feel thankful this only cost me time and not a bunch of money. Think of the enormous cost in time, money, and black P.R. of the failed J.A.I.L. amendment. You’ll see the sense of surveying BEFORE selling.
I realize that most lawyers don’t need surveys because people desperate for their help in the legal services monopoly will beat a path to their doors, thanks to UPL and the general hostility of judges to pro se litigants. Nevertheless, if you have an interest in learning how to craft a survey that works, let me know.
Bob Hurt ▪ 2460 Persian Drive #70 ▪ Clearwater, FL 33763 ▪ (727) 669-5511
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Judicial Accountability Initiative Law (J.A.I.L.)
(a) Preamble. We, the People of Florida, find that the doctrine of judicial immunity has been greatly abused; and when judges abuse their power, the people are obliged - it is their duty - to correct that injury, for the benefit of themselves and their posterity. In order to ensure judicial accountability and domestic tranquility, we hereby amend under Article I, Article V of our Constitution with these provisions, which shall be known as "The Judicial Accountability Amendment."
(b) Definitions. For purposes of this amendment:
1. The term "blocking" shall mean any act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of a void judgment or order.
2. The term "judge" shall mean justice, judge, magistrate, commissioner, judge pro tem, private judge, judicial mediator, arbitrator and referee, and every person shielded by judicial immunity.
3. The term "Juror" shall mean a Special Grand Juror.
4. The term "seat" shall mean a situs and facility that is suitable for usage by the Jury.
5. The term "strike" shall mean an adverse immunity decision.
6. Where appropriate, the singular shall include the plural.
(c) Immunity. Notwithstanding common law or any other provision to the contrary, no immunities shall be extended to any judge of this State except as is specifically set forth in this Amendment. Preserving the purpose of protecting judges from frivolous and harassing actions, no immunity shielding a judge shall be construed to extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of Florida or the United States.
(d) Special Grand Juries. There are hereby created within this State two twenty-five member Special Grand Juries with statewide jurisdiction having power to judge both law and fact. This body shall exist independent of statutes governing county grand juries. Their responsibility shall be limited to determining, on an objective standard, whether a civil suit against a judge would be frivolous and harassing, or fall within the exclusions of immunity as set forth herein, and whether there is probable cause of criminal conduct by the judge complained of.
(e) Professional Counsel. Each Special Grand Jury shall have exclusive power to retain non-governmental advisors, special prosecutors, and investigators, as needed, who shall serve no longer than one year, after which term said officers shall be ineligible. Notwithstanding the one year, a special prosecutor may be retained to prosecute current cases in which they are involved through all appeals and any complaints for judicial misconduct.
(f) Establishment of Special Grand Jury Seats. Within ninety days following the ratification of this Amendment, the Legislature shall provide a seat for each Special Grand Jury. No seat shall be located within a mile of any judicial body, and each seat shall be reasonably placed proportionately according to population throughout the state. Should the Legislature fail to so act within ninety days, its members shall permanently forfeit their salaries and per diem pay, beginning on the ninety-first day, until such time that it abides by the terms of this (f) section.
(g) Annual Funding. The Legislature shall cause to be deducted two and nine-tenths percent from the gross judicial salaries of all judges, which amount shall be deposited regularly into the exclusive trust account created by this Amendment in paragraph (k) for its operational expenses, together with filing fees under paragraph (h), surcharges under paragraph (i), forfeited benefits of disciplined judges under paragraph (q), and fines imposed under paragraph (r).
(h) Filing Fees. Attorneys filing a civil complaint or answer before the Special Grand Jury in behalf of their client, shall at the time of filing, pay a fee equal to the filing fee due in a civil appeal to the State Supreme Court. Individuals filing a civil complaint or answer before the Special Grand Jury in their own behalf as a matter of right, shall, at the time of filing, post a fee of fifty dollars, or file a declaration, which shall remain confidential, stating they are impoverished and unable to pay and/or object to such fee.
(i) Surcharges. Should this Amendment lack sufficient funding through its fines, fees, and forfeitures (including deductions in paragraph (g)), the Legislature shall impose appropriate surcharges upon the civil court filing fees of corporate litigants as necessary to make this Amendment self-supporting.
(j) Compensation of Jurors. Each Juror shall receive a salary commensurate to a Circuit Court judge, prorated according to the number of days actually served.
(k) Annual Budget. The Special Grand Juries shall have an annual operational budget commensurate to double the combined salaries of the fifty Jurors serving full time, which sum shall be initially deposited by the Legislature into an exclusive trust account to be annually administered by the State Controller. Should the trust balance within any budget year drop to less than an amount equivalent to the annual gross salaries of thirty Circuit Court judges, the State Controller shall so notify the Legislature which shall replenish the account, prorated based on the actual average expenditures during the budget year. Should the trust balance in any subsequent year exceed the annual operational budget at the beginning of a new budget year, the State Controller shall return such excess to the state treasury.
(l) Jurisdiction. Each Special Grand Jury shall have exclusive power to establish rules assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. The Special Grand Jury shall immediately assign a docket number to each complaint brought before it, unless such case is transferred to another Special Grand Jury to achieve caseload balance. A transfer shall not prejudice a docketing deadline. The Special Grand Jury first docketing a complaint shall have sole jurisdiction of the case. Except as provided in paragraphs (s) and (w), no complaint of misconduct shall be considered by any Special Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in this State within the immediately preceding six-month period. (Such six-month period, however, shall not commence in complaints of prior fraud or blocking of a lawful conclusion until after the date the Special Grand Juries become functional. This provision applies remedially and retroactively.) Should the complainant opt to proceed to the United States Supreme Court, such six-month period shall commence upon the disposition by that court.
(m) Qualifications of Jurors. A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United States, and have been an inhabitant of Florida for two years immediately prior to having his/her name drawn. Those not eligible for Special Grand Jury service shall include elected and appointed officials, members of the State Bar, judges (active or retired), judicial, prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious crime against persons.
(n) Selection of Jurors. The Jurors shall serve without compulsion and shall be drawn by public lot by the Secretary of State from names on the voters' rolls and any citizen submitting his/her name to the Secretary of State for such drawing.
(o) Service of Jurors. Excluding the establishment of the initial Special Grand Juries, each Juror shall serve one year. No Juror shall serve more than once. On the first day of each month, two persons shall be rotated off the Special Grand Jury and new Citizens seated, except in January it shall be three. Vacancies shall be filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror drawn to fill a vacancy shall complete only the remainder of the term of the Juror replaced.
(p) Procedures. The Special Grand Jury shall serve a copy of the filed complaint upon the subject judge and notice to the complainant of such service. The judge shall have twenty days to serve and file an answer. The complainant shall have fifteen days to reply to the judge's answer. (Upon timely request, the Special Grand Jury may provide for extensions for good cause.) The Special Grand Jury shall have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under oath. Each Special Grand Jury shall determine the causes properly before it with its reasoned findings in writing within one hundred twenty (120) calendar days, serving on all parties its decision on whether immunity shall be barred as a defense to any civil action that may thereafter be pursued against the judge. A rehearing may be requested of the Special Grand Jury within fifteen days with service upon the opposition. Fifteen days shall be allowed to reply thereto. Thereafter, the Special Grand Jury shall render final determination within thirty days. All allegations of the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the People of this State with the duty of restoring a perception of justice and accountability of the judiciary, and are not to be swayed by artful presentation by the judge. They shall avoid all influence by judicial and government entities. The statute of limitations on any civil suit brought pursuant to this Amendment against a State judge shall not commence until the rendering of a final decision by the Special Grand Jury. Special Grand Jury files shall always remain public record following their final determination. A majority of thirteen shall determine any matter.
(q) Removal. Whenever any judge has received three strikes, the judge shall be permanently removed from office, and thereafter shall not serve in any State judicial office, including that of private judge. Judicial retirement for such removed judge shall not exceed one-half of the benefits to which such person would have otherwise been entitled. Early retirement shall not avert third-strike penalties.
(r) Indictment. Should the Special Grand Jury also find probable cause of criminal conduct on the part of any judge against whom a complaint is docketed, it shall have the power to indict such judge except where double jeopardy attaches. The Special Grand Jury shall, without voir dire beyond personal relationship, cause to be impaneled twelve special trial jurors, plus alternates, which trial jurors shall be instructed that they have power to judge both law and fact. The Special Grand Jury shall also select a non-governmental special prosecutor and a judge with no more than four years on the bench from a county other than that of the defendant judge. The trial jury shall be selected from the same pool of jury candidates as any regular jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of any other prosecutor within this State. Upon conviction, the special trial jury shall have exclusive power of sentencing (limited to incarceration, fines and/or community service), which shall be derived by an average of the sentences of the trial jurors.
(s) Criminal Procedures. In addition to any other provisions of this Amendment, a complaint for criminal conduct of a judge may be brought directly to the Special Grand Jury upon all the following prerequisites: (1) an affidavit of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety (90) days of the commission of the alleged conduct; (2) the prosecutor declines to prosecute, or one hundred twenty (120) days has passed following the lodging of such affidavit and prosecution has not commenced; (3) an indictment, if sought, has not been specifically declined on the merits by a county Grand Jury; and (4) the criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any judicial process shall constitute a strike.
(t) Public Indemnification. No judge complained of, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amendment.
(u) Enforcement. No person exercising strict enforcement of the findings of the Special Grand Jury shall be held liable civilly, criminally, or in contempt.
(v) Redress. The provisions of this Amendment are in addition to other redress that may exist and are not mutually exclusive.
(w) Challenges to Amendment. No judge under the jurisdiction of the Special Grand Jury, or potentially affected by the outcome of a challenge to this Amendment, shall have any jurisdiction to sit in judgment of such challenge. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class-action, or by any adversely affected person.
(x) Preeminence. Preeminence shall be given to this Amendment in any case of conflict with statute, case law, common law, or constitutional provision. The foreperson of the Special Grand Jury shall read, or cause to be read, this Amendment to the respective Jurors semi-annually during the first week of business in January and July. Should any part of this Amendment be determined unconstitutional, the remainder shall remain in full force and effect as though no challenge thereto existed.
The original legislation was written by Ron Branson for California, but I, Sherree Lowe, adopted the legislation with the approval of Ron Branson and rewrote it to conform to Florida Constitution, and Statutes, so that it was approved by the Division of Elections, and assigned a bill number, 0206, so that the Initiative Petition collection could commence to put the legislation on the ballot.