Revised 2/6/23
By Gretchen Schuldt The Milwaukee County District Attorney’s Office is appealing a contempt of court finding against a prosecutor who defied a judge's ruling barring a victim from watching the trial of her alleged assailant until after the victim testified. The prosecutor, Assistant District Attorney Thomas L. Potter, sent an email to the primary victim in the case – there were two victims – acknowledging that Circuit Judge Kori Ashley issued the sequestration order, then added, “I am nevertheless inviting you to attend the opening statement because I believe Judge Ashley’s order to be inconsistent with Wisconsin law, and wish to have it reviewed by an appellate court.” Potter argued before Ashley that state law and “Marsy’s Law,” a victims' rights amendment to the Wisconsin Constitution adopted by voters in April 2020, gave victims the right not to be physically excluded from the courtroom, according to a brief filed Wednesday by District Attorney John Chisholm and Assistant District Attorney Julie Knyszek. Specifically, Marsy’s Law gives victims the right to “attend all proceedings involving the case” if they ask to do so. It also states that rights given to victims will not infringe on defendants’ federal constitutional rights, such as the right to due process. Defendant Arielle A. Simmons, represented by attorney Colleen Cullen, argued that sequestration was justified because the victims were criminal defense lawyers and would be more likely to shape their testimony to fit the state’s theory of the case, according to the brief. Simmons was charged with misdemeanor assault and misdemeanor disorderly conduct in the case. Ashley, according to the brief, ruled that the “defense theory of the case” made sequestering the victims until after they testified necessary. After Potter sent the email, he assured Ashley that he was simply trying to preserve the issue for appeal and did not mean to show disrespect. She found him in contempt, as he wanted her to do, and fined him $500. She stayed the fine pending the appeal, according to online court records. Ashley, the brief said, did not rule on the exclusion issue until right before the start of the trial. “Only through the finding of contempt was an opportunity for review of victim exclusion made available,” Chisholm and Knyszek wrote. “The release of incriminating information at trial cannot be undone; likewise the improper exclusion of a victim causes irreparable harm, regardless of the outcome of that trial.” The reason Ashley gave for sequestering the victims was not specific enough, the brief said. “The only basis for these assertions was that both victims were criminal defense attorneys who have tried cases and were thus aware of the court system,” Chisholm and Knyszek wrote. “Their knowledge and experience in trying criminal cases somehow meant they could not be trusted to testify truthfully. As Potter would argue, the fact that the victims were officers of the court was hardly reason to deny their right to attend the trial; such an ‘employment status’ argument presumed bad faith and made no sense.” State law also gives victims certain rights to attend proceedings during the testimony of others, they said. Physical sequestration, while it can be useful, “has been strictly limited for excluding victims.” “Neither Simmons nor the circuit court cited to a single case, from any court, which held that a witness sitting through a trial, and then testifying, violated a defendant’s federal constitutional right to due process,” they said. No opposing brief has yet been filed. Simmons ultimately took her case to trial. A jury acquitted her of misdemeanor battery and convicted her of disorderly conduct, also a misdemeanor. Ashley fined her $400 and made her record eligible for expungement.
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Wisconsin Supreme Court takes appeal of WJI's legal challenge to the Marsy's Law amendment2/17/2022 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 Margo Kirchner The Wisconsin Court of Appeals said Tuesday the State Supreme Court should decide the fate of the victims’ rights constitutional amendment known as Marsy’s Law that voters approved last year. A District III Court of Appeals panel on Tuesday certified the appeal to the Wisconsin Supreme Court because Wisconsin Justice Initiative’s challenge to the amendment involves “significant questions,” the answers to which “will have a sweeping effect on our criminal justice institutions and those operating within them.” WJI, three individual voters, and Sen. Fred Risser successfully challenged the wording of the ballot question presented to voters for amendment approval. Dane County Circuit Judge Frank Remington ruled in November 2019 that the 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. He stayed his ruling pending appeal, which allowed the question to appear on the ballot. Marsy’s Law, WJI President Craig Johnson said Tuesday, “runs the risk of negatively affecting the constitutional rights of the accused in a way that the original proponents always denied was their intention. Yet that's the stark reality, and voters were never informed about this. The ballot question did not explain the issue fully and fairly, and left people to vote in the dark." Johnson also is an individual plaintiff in the case. The Supreme Court now must choose whether to decide the appeal itself (skipping the Court of Appeals) or tell District III to consider the matter first. The District III panel judges were Lisa K. Stark, Thomas M. Hruz, and Jennifer E. Nashold, who usually occupies a seat on the District IV appeals court. Tuesday’s 20-page explanation of the certification was issued without an identified author. The appeals court said that certification would speed up the important final decision. It would be in the best interests of those involved in the criminal justice system and Wisconsin voters generally “to have a timely and final decision on the sufficiency of the ballot question producing the amendment to our state constitution,” the court wrote. The appeal has been fully briefed before District III since early April 2021. Attorney General Josh Kaul appealed the trial court’s judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The defendants chose to venue the appeal in District III. Dennis Grzezinski, lawyer for the plaintiffs, noted the court of appeals’ summary of WJI’s arguments that the ballot question was misleading and legally insufficient, “which led the Circuit Court to rule that the proposed amendments to the Wisconsin Constitution were not validly ratified.” “We look forward to having the Wisconsin Supreme Court address these issues,” said Grzezinski. By Margo Kirchner The state relied on the wrong legal standard in arguing that the “Marsy’s Law” ballot question approved by voters a year ago was proper, the Wisconsin Justice Initiative said in a new court filing. “Marsy’s Law” is a victims’ rights amendment approved by voters in April 2020. The amendment itself is more than twice as long as the U.S. Bill of Rights. It was presented to voters, however, as a single, short question on the ballot. WJI and four individuals successfully challenged the amendment in Dane County Circuit Court, arguing that the ballot question violated constitutional requirements. On Nov. 3, Circuit Judge Frank D. Remington agreed, finding that the ballot question failed to fully inform voters of the changes being proposed, was inaccurate and affirmatively misleading, and encompassed more than one amendment so multiple questions were needed. Remington declared the amendment invalid due to the ballot question’s defects. However, he stayed the effect of his ruling in case the defendant state officials appealed, which they did on Dec. 2, 2020. Attorney Josh Kaul appealed on behalf of the Wisconsin Elections Commission and its chair, Ann Jacobs; Secretary of State Douglas La Follette; and himself. Kaul filed the appeal in District III of the Court of Appeals, which is located in Wausau. Attorney Dennis Grzezinski, representing the plaintiffs, argued in his appellate response brief that Remington was correct and his ruling should be affirmed. “What is at stake in this case is the right of Wisconsin voters to be properly informed, and to not be misled by a ballot question when voting on proposed amendments to the Wisconsin Constitution,” Grzezinski wrote. After pointing out errors the defendants made regarding the legal standard the court should apply, Grzezinski homed in on important language the amendment deleted from the state Constitution. Prior to April 2020, the Wisconsin Constitution’s victims’ rights section provided that victims must be given “an opportunity to attend court proceedings unless sequestration is necessary for a fair trial for a defendant.” Marsy’s Law deleted the italicized phrase. Further, the prior language concluded with the sentence that “[n]othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.” Marsy’s Law deleted that sentence as well. By striking the first provision the amendment “deleted a defendant’s right to have a victim witness sequestered, and it deleted the only reference in the state Constitution to a defendant’s right to a ‘fair trial....’ Striking the final sentence...altered the balance between victims’ rights and the rights of the accused under the State Constitution....” The Wisconsin Constitution specifies that if two or more amendments are submitted to voters, they must be submitted in such a way that voters may consider each amendment separately. The Marsy’s Law ballot question asked voters to approve an amendment “to give crime victims additional rights” beyond those already in the Constitution. Voters were not presented with a second question asking whether they also approved of the reduction in the rights of an accused. WJI and the other plaintiffs argued that a second question was constitutionally required because, as Remington wrote, “[s]ubtracting from the defendants’ rights is fundamentally different than adding to victims’ rights.” In fact, the plaintiffs argued, three questions were required, because Marsy’s Law also contains a third subject creating a victim’s right to Supreme Court mandatory review of any circuit court decision. By Margo Kirchner The state this week appealed the decision invalidating the Wisconsin Constitution amendment known as “Marsy’s Law.” Dane County Circuit Court Judge Frank D. Remington declared last month that the April ballot question asking whether the amendment should be adopted 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. Wisconsin Justice Initiative, three individual voters, and Sen. Fred Risser successfully challenged the ballot question and amendment in the trial court and obtained a permanent injunction against the amendment’s implementation. Remington, though, stayed the injunction pending appeal. 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. 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.” “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.” – Dane County Circuit Judge Frank D. Remington "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). |
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