The constitutional hot potato that is Marsy’s Law could be headed directly to the state Supreme Court.
Marsy’s Law is an amendment to the state constitution that voters approved in April 2020. It meant to expand and strengthen the rights of crime victims, which were already recognized in the state’s constitution.
A Dane County judge later agreed with challengers that the wording of the statewide ballot referendum about the amendment was unclear and legally insufficient, and that the amendment also restricted defendants’ rights. The judge struck down the law, but stayed his decision, pending appeal by the Wisconsin Elections Commission, the secretary of state and attorney general.
Just before Christmas, the District III Court of Appeals decided it makes more sense for the issue to go directly to the Supreme Court, and certified the case to the high court, which has not yet indicated it will agree to the fast-track approach.
How the issues are resolved “will have a sweeping effect on our criminal justice institutions and those operating within them,” the Court of Appeals wrote, and so a timely, final decision would be in everyone’s interest.
It suggested if the Supreme Court agrees the ballot initiative wording was flawed, it would allow the Legislature more time to draft and offer a new ballot referendum.
The Wisconsin Justice Initiative tried to have the question removed from the ballot before the April 2020 vote, and also brought the legal challenge after it passed.
WJI President Craig Johnson applauded the certification request. “This is an example of good intentions causing unintended chaos in our justice system,” he said.
“Marsy’s Law has confused courts, prosecutors and the general public about when and how it applies and what ‘rights it confers. It runs the risk of negatively affecting the constitutional rights of the accused in a way that the original proponents always denied was their intention.”
Noted criminal defense attorney Jerome Buting, another plaintiff in the challenge, called the ballot question’s wording “sleight of hand,” and expects the Supreme Court to strike the current amendment.
“It’s a win for the voters of Wisconsin and provides a lesson to the Legislature not to trifle with our state constitution by hoodwinking voters,” Buting said.
Myranda Tanck, a spokesperson for Marsy’s Law, told Wisconsin Public Radio supporters expect the amendment, approved by a 3-to-1 margin by voters, will be upheld.
MORE:You’ve seen commercials for Marsy’s Law. Here’s the story behind the proposed Wisconsin constitutional amendment.
In 1980, Wisconsin became the first state in the country to adopt a “crime victims bill of rights” and in 1993 adopted a constitutional amendment to afford victims’ privacy and ensure they are kept abreast of their cases.
Marsy’s Law is named after Marsy Nicholas, who was murdered by her former boyfriend in 1983. He confronted her family a week after she died, when the family was unaware he’d been released on bail. Her billionaire brother started efforts to expand victims’ rights which became the national Marsy’s Law movement.
Here’s the question that appeared on ballots:
“Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”
The Dane County judge found the wording didn’t address “every essential” of the amendment, was misleading and should have presented as more than one question. The line, “while leaving the federal constitutional rights of the accused intact,” implies that the accused’s state constitutional rights and statutory protections could be overridden by a victim’s concerns, according to critics of the law.
Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.
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