The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment.
WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued.
The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.)
Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.”
WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” 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, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect.
Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette.
The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.”
The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023.
“WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.”
WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard.
During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case.
"Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.”
“Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law."
In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser.
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