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."

​Attorney General Josh Kaul appealed the judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The appeal will be heard by the District III appeals court. The state is allowed to choose the appeals court district as long as it is not the district that includes the court that issued the original decision.
District III is located in Wausau and consists of judges Lisa K. Stark , Thomas M. Hruz, and Mark A. Seidl.

In the trial court, WJI and the individual plaintiffs argued that the ballot question failed to warn voters that they were striking the state constitution’s only reference to a defendant’s fair trial, eliminating a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altering defendants’ rights set forth in other sections of the Wisconsin Constitution and state statutes.

Remington agreed, writing that the question at hand was “about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on.” 
Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Again, Remington agreed.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring multiple ballot questions. Remington agreed again, holding that under the Wisconsin Constitution two questions were required: one for expanding victims’ rights and one for narrowing rights of the accused.

Remington did not comment on the public policy of Marsy’s Law. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.
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Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters.

By Margo Kirchner

In a decision with statewide impact, Dane County Circuit Judge Frank D. Remington on Tuesday struck down the “Marsy’s Law” constitutional amendment adopted by voters in April. 

Remington permanently enjoined the amendment, but ordered that it stay in effect pending appeal. His decision is here.

WJI, three individual voters, and Sen. Fred Risser brought the case, arguing that the April 2020 ballot question failed to fully and fairly inform the public of the essential components of the alleged victim’s rights amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject.

“Plaintiffs are pleased by the court's decision,” said their attorney, Dennis Grzezinski.  “It protects Wisconsin voters' important right not to be misled by a ballot question when they vote on proposed amendments to the state constitution.”

The suit named as defendants the Wisconsin Elections Commission and its chair, Dean Knudson; Secretary of State Douglas LaFollette; and Attorney General Josh Kaul. Kaul’s office represent the defendants.

The plaintiffs argued that although Wisconsin Supreme Court case law gives the Legislature discretion in formulating a ballot question, that discretion is not limitless.

The Supreme Court has said that a constitutional ballot question must “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” so the public “may be fully informed on the subject” on which it is voting. 

The plaintiffs argued that the April 2020 ballot question failed this test. They contended that the question failed to warn voters that the amendment struck the state constitution’s only reference to a “fair trial for the defendant,” eliminated a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altered defendants’ rights set forth in other sections of the Wisconsin Constitution or state statutes. 

Remington agreed, finding that the “question presented to the voters was insufficient because it did not reference the effect on the existing constitutional rights of the accused.”

Remington stated: “If the amendments to Wisconsin’s Constitution had just given crime victims meaningful and enforceable constitutional rights equal to the rights of the accused, (as suggested in the ballot question), this case would easily have been resolved. But, in this court’s opinion, the amendments went further and reduced and in some ways eliminated existing State Constitutional rights. From a constitutional perspective, this is a problem. Reducing or eliminating existing constitutional rights required the informed approval and ratification by Wisconsin voters.”

Remington found that the ballot question failed to communicate to voters that the amendments would eliminate the rights of those accused of a crime of their right to a fair trial and affect other existing rights in the Wisconsin Constitution. “The question today is about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on,” he wrote.

Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives.

Again, Remington agreed, stating that the question presented “did not accurately correspond to the language in the proposed amendments regarding the standard ‘no less vigorous.’”

“Clearly, if something is to be done no less vigorous it can be greater to that which is equal,” he said.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring separate ballot questions. The Wisconsin Constitution mandates that “if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.”

Remington agreed again: “These amendments, taken as a whole, required two questions because the portion of the amendments that affected the rights of the accused did not sufficiently relate to the principal purpose behind the changes being driven by Marsy’s Law to create rights for crime victims.”

"This is a great victory for the citizens of Wisconsin and our criminal justice system,” said Craig Johnson, WJI president and an individual plaintiff in the case. “Since this referendum passed in April, confusion has reigned in the courts as prosecutors, judges and attorneys for the accused have tried to decipher the meaning of undefined terms and confusing procedural requirements. It has undermined protections for the accused and has not improved justice for victims.”

“Prior to this amendment's passage, we had a system that worked and provided meaningful protections for victims in this state. We don't need a 'one-size fits all' solution to a problem that doesn't exist imposed on us by a billionaire from out of state," Johnson added.

Remington made clear his decision was not about the merits of the victim's rights or defendant's rights as affected by the amendment. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

"Nothing in this opinion should suggest that the provisions relating to the rights of the accused should or should not be deleted," he wrote. "Nothing in this opinion should suggest that the provisions relating to victims and victim rights should or should not be made part of the State Constitution. The sole purpose of this opinion is to hold that if the provisions relating to the rights of the accused are to be repealed from the existing State Constitution it was constitutionally required that the voters be asked that question directly.

"In the end, it is ultimately up to the voters to determine what changes are to be made to the State Constitution."

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.

Remington’s decision means that Marsy’s Law amendments have been invalidated in three states.  The supreme courts of Kentucky and Montana struck Marsy’s Law due to violations of rules for constitutional amendments, but Kentucky adopted the measure again Tuesday. A court in Pennsylvania held that the ballot question for voters there did not adequately set forth contents of the amendment and contained too many matters for one question. An en banc Pennsylvania appellate court heard arguments on the case on June 10.

Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters. ​

By Gretchen Schuldt

Alleged crime victims can intervene in at least some criminal court cases if the victims disagree with defendants' motions and want to formally oppose them, the State Court of Appeals said in a decision released Thursday.

Previously, a criminal case was between the state and the defendant, but voters in April approved a victims' rights amendment to the state constitution that granted alleged victims new rights. Those include the right "to be heard in any proceeding during which a right of the victim is implicated...."

The amendment also gives the alleged victims the right "to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused" and eliminates the only mention of a defendant's right to a fair trial.

Thursday's ruling means that criminal defense lawyers may have to fight for their clients both against prosecutors and against interventions by alleged victims.  Prosecutors, if they disagree with an alleged victim's position, may be put in a similar position.

The District IV Court of Appeals panel also said the amendment applies to cases in which the crime occurred before the "Marsy's Law" amendment was ratified  in April.

Full disclosure: WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question 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. A decision in the case is pending.

Thursday's ruling reversed a decision by Waupaca County Circuit Judge Raymond S. Huber, who said the victim in the case, identified in the decision only as "T.A.J."  and "T.," did not have a right to intervene in a battle over whether Huber should privately review T.'s medical records to determine whether they should become part of the court case.

The appeals panel, in a decision written by Appeals Judge Michael R. Fitzpatrick, said it was "manifest" T. has the right to be heard in a circuit court proceeding that implicates his rights or privileges.

Fitzpatrick was joined in his decision by Appeals Judges Brian W. Blanchard and JoAnne F. Kloppenburg.

The defendant in the case, Alan S. Johnson, was charged with multiple crimes stemming from his alleged sexual assault of T. As part of his defense, Johnson asked to review T.'s records.

The state did not oppose Johnson's request, but T. hired a lawyer and sought to intervene, arguing that T. had standing to oppose Johnson's motion and that Johnson's argument was not strong enough win the in-camera record review.

Huber, relying on previous case law, ruled that T. did not have standing. T. appealed; the state supported the appeal. 

The appeals panel found that Marsy's Law overrides the case law precedent. The court also found that the amendment is retroactive, although Marsy's Law does not contain language to that effect.

​"We agree with the State that...provisions (of the amendment), read together, express the intent that the 2020 constitutional amendment applies to pending motions in cases initiated prior to passage of the amendment," Fitzpatrick wrote.

Johnson also argued that allowing T. to oppose the records review motion essentially made him part of the prosecution team, but the panel said the matter "does not implicate hallmarks of substantive criminal law."

Marsy's Law, the panel noted, mandates that victims' rights be "protected by law in a manner no less vigorous than the protections afforded to the accused."

​Left unanswered by Thursday's decision is whether the state is obligated to provide a lawyer to represent indigent victims, as it does for indigent defendants.

By Gretchen Schuldt

​The new "Marsy's Law" victims' rights amendment to the state constitution is driving up costs for Milwaukee County at the same time state funding for victim-witness services is declining, according to District Attorney John Chisholm.

"In effect it is an unfunded mandate on the county,"  Chisholm told the County Board's Finance Committee during a budget hearing.

WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question 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. A decision in the case is pending.

Chisholm, during the committee meeting, said the full impact of Marsy's Law is unclear. Marsy's Law allows alleged crime victims a variety of specific rights, including the right to be involved in every court proceeding.  

​"To be cautious, that means they've got they've got to be notified of every single hearing," he said in an interview. That includes purely procedural hearings that do not address the merits of the case.

The right to be heard is the only new right specifically granted to alleged victims, he said. Others included in the amendment were already in state law. 

County Executive David Crowley has proposed spending $224,000 to hire three victim witness advocates and a secretarial assistant to handle the additional workload Marsy's Law is generating.

"The time commitment for our victim advocates and prosecutors has risen exponentially," Chisholm said.

Meanwhile, the state reimbursement rate for victim-witness services has been dropping for years. State statute provides for up to 90% reimbursement of qualified costs, but actual reimbursements peaked at 61% in 2010-2011, according to a 2019 Legislative Fiscal Bureau paper.  It now is 42%, Chisholm said.

​To qualify for reimbursement, counties must provide numerous services to victims and witnesses, including notification services, compensation and social service referrals, escort and transportation services if necessary, employer intercession services, and protection services.

Victim-witness reimbursements to counties are entirely funded from surcharges levied on people convicted of crimes. The money those surcharges generate is falling increasingly short of the reimbursable expenses counties around the state are incurring. 

The logical step, Chisholm said in the interview, would be to "disassociate (reimbursements) from court fees."

The county also is facing an unexpected $511,00 cut in state-administered federal funding under the Victims of Crime Acts grant, according to Chisholm and budget documents. The county is expecting about $451,000 next year, according the proposed budget. Chisholm said his office was initially informed that there would be more funding available next year, but the state decided instead to direct additional funding to nonprofit groups.

Total revenue for the District Attorney's office is expected to drop by $867,401 next year. Crowley is proposing to close the gap by increasing tax levy support by $525,479 and cutting spending by $341,922. Most of that savings would come from cutting personnel spending, although the number of full-time positions would increase by two, to 164.

The overall budget would decrease from $12,608,664 this year to $12,266,742 under Crowley's proposal, a decline of 2.7%.

By Margo Kirchner

​Oral argument on WJI’s challenge to the victims’ rights constitutional amendment known commonly as “Marsy’s Law” is set for 9 a.m. Thursday.

The hearing will be conducted virtually, and the public may watch on YouTube using this link: https://www.youtube.com/channel/UC5SDXzrIBTLO0a0I8iz2P9w. 

Dane County Circuit Judge Frank D. Remington presides over the case. WJI and four individuals allege that the April 2020 ballot question asking voters to approve the amendment to the Wisconsin Constitution was invalid.

Attorney Dennis Grzezinski will represent WJI and the other plaintiffs at the hearing.

As reported previously, the plaintiffs contend that the ballot question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the proposed amendment, and improperly encompassed more than one subject.

Although under Wisconsin Supreme Court cases the Legislature has discretion in formulating a ballot question, the question must nevertheless “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” so the public “may be fully informed on the subject” on which they are voting.

The plaintiffs contend that, among other things, the amendment struck the state constitution’s only reference to a “fair trial for the defendant,” eliminated a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altered defendants’ rights set forth in other sections of the Wisconsin Constitution or state statutes. Yet the ballot question failed to tell voters of such changes.

The plaintiffs argue that the ballot question told voters the amendment would protect a victim’s and an accused’s rights “with equal force,” but the amendment’s actual text permits giving a victim greater protection of rights than an accused receives.

Also, the plaintiffs say, the amendment contains more than one subject, requiring separate ballot questions. The Wisconsin Constitution mandates that “if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.” The plaintiffs charge that the amendment created a new category of victims, including roommates or live-in caregivers of deceased individuals, but the ballot question failed to reference that change.

The plaintiffs' brief in support of striking th eamendments is here; the state's brief in opposition is here; and the plaintiffs' reply is here. 

By Gretchen Schuldt

State Sen. Kathleen Bernier (R-Chippewa Falls) is a sponsor of the ill-conceived Marsy's Law amendment to the State Constitution that would give victims the right to attend every court proceeding in their case. 

Allowing anyone interested to attend court proceedings is a good thing. Elevating such access to the level of a constitutional right can create logistical nightmares for court officials and create long delays in cases. (Visit our Marsy's Flaws page to learn more.)


​WJI's questions for Bernier are about former Eau Claire County Treasurer Larry Lokken and his assistant, Kay Onarheim, who embezzled more than $600,000 from the county. The theft enraged county residents. Bernier represents part of the county.

Marsy's Law defines "victim" generally as "a person against whom an act is committed that would constitute a crime if committed by a competent adult." 

Stealing public funds is clearly stealing from the folks who pay into the treasury. 

WJI wrote to Bernier to ask a few questions about how, under Marsy's Law, Eau Claire County Circuit Court officials would manage likely demand from people to attend Lokken/Onarheimcourt proceedings. 

A few details about Eau Claire County: its population is 104,534, according to the U.S. Census Bureau, and most of those people pay some sort of tax or fee to the county, which also gets state and federal money.

Our questions for Bernier:

If Marsy’s Law was in effect at the time the two were arrested, would each and every victim have a right to attend all court proceedings? How do you propose requests be coordinated?  
 
Let’s say only 100 county residents requested to attend the court proceedings. Who would be responsible for finding dates when 100 people could be in court at the same time? Would the cost of that coordination fall to the District Attorney’s Office and the state? Or would the county be asked to pick up the tab?
 
Would the right of victims under Marsy’s Law to attend proceedings override the defendants’ right to speedy trials? 

WJI will report on any response Bernier provides. We're still waiting on State Attorney General Josh Kaul and State Sen. Van H. Wanggaard (R-Racine).