"Marsy's Law" amendment kills fair trial safeguard; brief calls measure "deceptively sweeping"

By Margo Kirchner

​Voters who approved an amendment to the state constitution that killed a safeguard for fair trials in criminal cases were not adequately informed by the amendment's wording what voting “yes” on the referendum would actually do, the Wisconsin Justice Initiative and others argue in seeking to have the amendment invalidated.

The “Marsy’s Law” amendment eliminates a defendant’s right to have an alleged victim kept out of the courtroom if that is necessary to ensure a fair trial. Marsy’s Law allows the alleged victim to attend all proceedings, even if that clearly jeopardizes the possibility of a fair trial.

WJI and fellow plaintiffs WJI Board President Craig Johnson, WJI Treasurer Jacqueline Boynton, attorney Jerome Buting, and State Sen. Fred Risser (D-Madison) recently filed their motion and supporting brief to strike the new amendment from the state constitution.  The plaintiffs contend that the ballot question was defective, voiding the referendum's outcome.

The plaintiffs are asking Dane County Circuit Judge Frank Remington to invalidate the measure, approved by voters in April.

“WJI made the point … in our filing that the question voters confronted on the ballot in April didn’t give them a clue as to the far-ranging and potentially devastating effects that Marsy’s Law will have on our criminal justice system,” WJI’s Johnson said.

The amendment is "deceptively sweeping," Attorney Dennis Grzezinski, representing the plaintiffs, said in a brief.

The ballot question asked simply whether a section of the constitution already setting forth victims’ rights should “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.”

State Attorney General Josh Kaul will defend the elimination of a fair trial protection and the vague, misleading wording of the Marsy's Law ballot question.

The plaintiffs argue in their brief that the question violated the constitution and Wisconsin Supreme Court precedent in at least three ways.

First, they say, the question failed to fully and fairly inform voters of every essential element of the amendment.

Pointing to long-standing case law, the plaintiffs argue that the Supreme Court allows the Legislature discretion in formulating a ballot question, but that discretion has limits. The court has said a 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 they are voting.

Grzezinksi argues that not all the essentials of the Marsy’s Law amendment — which runs more than twice the length of the U.S. Bill of Rights — were included in the ballot question. Among other things, say the plaintiffs, the amendment also

• added to the constitution 16 new or expanded victims’ rights in criminal cases not listed or explained in the ballot question
• converted a case between the state and an accused person into a three-way contest between the prosecutor (whose duty is to achieve justice, not conviction), the accused (who seeks to demonstrate innocence or mitigating evidence), and alleged victims (who may be motivated by revenge or desire for compensation)
• struck from the constitution its only reference to a “fair trial for the defendant”
• eliminated protections for those not yet formally charged with crime and any protections in other sections of the Wisconsin Constitution or state statutes
• expanded the definition of “crime victim” to include the relatives or roommates of those who are dead or physically unable to exercise their own rights, and
• gave victims a unique right to immediate Supreme Court review of any adverse decisions during their cases case, meaning that alleged victims can skip the State Court of Appeals.

Second, the plaintiffs contend, the ballot question “was not merely insufficient by omission, but was misleading and fatally defective, by affirmatively misstating the contents and impact of the proposed amendment.”

Under Supreme Court precedent, “[i]f the subject is important enough to be mentioned on the ballot it is so important that it must be mentioned in accord with the fact.”

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 itself authorizes protection of victims’ rights with equal or greater force than the rights of an accused.

The ballot question further misled the public by stating that an accused’s rights remain intact when the amendment mentions only a defendant’s rights remaining intact, leaving out those not yet formally charged with crime.

Third, the plaintiffs say, the amendment contains more than one subject, mandating separate ballot questions.  The full Marsy’s Law proposal actually contained four separate amendments: (1) additional rights for victims; (2) new categories of victims; (3) elimination of certain rights of the accused under the state constitution and statutes; and (4) new rights for victims to secure review of adverse decisions in the Supreme Court.

The Wisconsin Constitution specifies 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.”

WJI’s brief is available here.

The suit names as defendants the Wisconsin Elections Commission and its chair, Secretary of State Douglas LaFollette, and Attorney General Josh Kaul. Kaul’s office represents the defendants. Kaul publicly supported Marsy’s Law before its ratification by voters.

The plaintiffs filed the case in December, but Remington allowed the referendum question to remain on the April ballot and deferred briefing on the merits until this spring and summer. 
The defendants’ response brief is due July 15. The case is set for oral argument before Remington on Aug. 13.

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 California, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Maine, Mississippi, Montana, New Hampshire, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, and South Dakota. 

Nicholas

Marsy’s Law advocates have now taken their cause to Tennessee. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organizations aim to be “ultimately successful at the national level” as well.

The supreme courts of Kentucky and Montana struck down Marsy’s Law adoption in those states for violation of rules regarding constitutional amendments. The Pennsylvania Supreme Court upheld an injunction barring tabulation and certification of votes on the amendment because the question presented to voters did not adequately inform them about contents of the amendment and the amendment likely contained separate parts that could not be passed with a single ballot question. The Commonwealth Court of Pennsylvania 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, according to the Eye on Lobbying website. Marsy’s Law for Wisconsin ran a television advertising campaign before the April vote.