The Wisconsin Supreme Court on Thursday accepted the appeal in Wisconsin Justice Initiative’s challenge to the victims’ rights constitutional amendment.
The Supreme Court’s acceptance of the appeal includes consideration of all issues in the case. The parties will be notified of an oral argument date “in due course,” said the court’s order.
WJI and four individual plaintiffs won the case at the trial-court level. Dane County Circuit Court Judge Frank D. Remington declared that the ballot question used in April 2020 to pass what is known as the Marsy’s Law amendment failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. Remington enjoined implementation of the amendment but stayed his injunction pending appeal.
Attorney General Josh Kaul appealed the judgment to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette.
The appeal was fully briefed in District III in April 2021 but the appeals court judges asked the Supreme Court to take the case (skipping a court of appeals decision) because WJI’s challenge to the constitutional amendment involves “significant questions” the answers to which “will have a sweeping effect on our criminal justice institutions and those operating within them.”
Thursday’s Supreme Court order allows the parties to submit new briefs or to stand on the briefs already filed. Any new briefing is scheduled to finish by mid-April 2022.
Attorney Dennis Grzezinski, representing the plaintiffs, responded to the certification by saying that the plaintiffs “look forward to the Wisconsin Supreme Court's review of the Dane County Circuit Court's well-reasoned and thorough decision protecting the right of all Wisconsin voters to be presented with adequate ballot questions when they are faced with voting on proposed amendments to the Wisconsin Constitution. Judge Remington properly found that the ballot question regarding the Marsy's Law amendments was legally inadequate — more than one ballot question was needed, and the single question on the ballot misled and misstated how the amendments changed our Constitution.”
After learning of the Supreme Court order WJI President Craig Johnson, also an individual plaintiff in the case, remarked “we've argued since the beginning that voters were not informed of the far-reaching effects this law would have on the justice system. We've now seen the chaos and confusion that has resulted. We look forward to making the case to the Supreme Court that the referendum failed to fully and fairly inform the voters what they were voting on."
"We look forward to making the case to the Supreme Court that the referendum failed to fully and fairly inform the voters what they were voting on."
By Gretchen Schuldt
State Attorney General Josh Kaul supports the proposed Marsy's Law amendment to the State Constitution even though it clearly would violate the U.S. Constitution Kaul swore to uphold.
The attorney general has been pretty quiet about the proposed amendment. His scant comment includes this unenlightening sentence. "We must do all we can to protect victims of crime."
He's not said anything about the ballot question that tells voters virtually nothing about what they actually are approving or disapproving, nor has he spoken about the very unsavory character Henry T. Nicholas III, who is bankrolling the Marsy's Law countrywide steamroller and who used his wealth to buy his way out of some real legal trouble.
So we wrote to Kaul to get some answers to a few questions about Marsy's Law. They are not all the questions we have about the law, but they are some important ones. We will be sending questions to other supporters as well.
Marsy’s Law would grant a victim the right “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” How does this proposed right reconcile with the Sixth and Fourteenth Amendments to the U.S. Constitution? Those amendments guarantee defendants a right to exculpatory information and evidence, at a minimum. Do you support allowing victims to withhold this information from defendants?
Marsy’s Law provides several new rights to victims. Among them is a right, “upon request, to attend all proceedings involving the case.”
Some crimes have multiple victims. Let’s say a crime involves 10 victims. What happens if just a few of those people ask to attend all the proceedings? What happens if they have different work or school or child-care schedules and they can’t all make proceedings at the same time?
Another proposed right is to be provided “with timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.” Who makes sure that victims get this notice? The police? The district attorney? When would it happen? Again, many crimes have multiple victims. In addition, the crime may be relatively minor and the scene chaotic (an example may be indecent exposure on a crowded city bus). How could anyone ensure that all victims are provided notice? What would happen if all victims are NOT notified?
Stay tuned. When we get Kaul's answers, so will you.
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