The Wisconsin Justice Initiative will continue to challenge Marsy’s Law in court and oppose its adoption by voters, WJI President Craig Johnson said Friday.
“It’s a bad proposal that carries consequences its supporters don’t really want to talk about,” Johnson said after Dane County Circuit Judge Frank Remington declined to issue a temporary injunction that would block the proposed constitutional amendment from the April 7 ballot.
"Voters really shouldn't have to vote in the dark, and that's the problem with the question and the way it's worded," Johnson said. “The ballot question simply does not tell voters what they are actually approving.”
Besides WJI, plaintiffs in the suit include Johnson, who is a lawyer; attorney and WJI Treasurer Jacqueline Boynton; attorney Jerome Buting; and State Sen. Fred Risser (D-Madison).
Dennis Grzezinski, attorney for the plaintiffs, argued in court that the language on the ballot would mislead voters and does not accurately or adequately explain what is in the amendment.
Oral argument about the proposed ballot question largely focused on Remington’s concerns about alleged direct misrepresentations in specific language of the ballot question.
Supporters of the Marsy’s Law amendment contend it would give victims an even playing field in the criminal justice system.
Grzezinski argued in court that while the ballot question says the amendment merely gives victims’ protections “equal force” to those of an accused, the actual amendment allows a victim’s rights to exceed the rights of a defendant, and the ballot question tells voters that an accused’s rights remain intact, when the amendment actually strips rights from persons accused but not yet charged.
Remington grilled counsel for the defendants on whether the language used in the ballot question adequately reflects the language in the amendment.
In briefing, WJI and the individual plaintiffs also argued that the amendment misleads voters through errors of omission, in particular the failure to inform the public that the amendment greatly expands who is considered to be a crime victim (extending rights to roommates and live-in help in certain instances) and amends an accused’s protections under other provisions of the Wisconsin Constitution. Remington indicated that the parties’ briefs sufficiently discussed those matters.
In denying the motion for temporary injunction, Remington noted that WJI’s case involves “novel questions . . . not fully developed in the caselaw.” While noting that plaintiffs’ arguments regarding direct misrepresentations in the ballot question gave him pause, Remington found that plaintiffs would not suffer an irreparable harm if the ballot question goes forward that would outweigh the irreparable harm to the state if the ballot question was enjoined.
Remington pointed to language in an order of the Wisconsin Supreme Court in SEIU v. Vos (the lame-duck litigation) last summer stating that the Legislature “suffers a substantial and irreparable harm of the first magnitude” when its work is enjoined. Further, Remington said, a temporary injunction is not necessary, as any vote approving the amendment may be invalidated through a permanent injunction later.
Attorneys for the state agreed to withdraw their motion to dismiss. Remington set full briefing on the merits of the case to occur over the summer, with a motion hearing on August 13.
Grzezinski said after the hearing that the plaintiffs won't need further arguments “if the voters become sufficiently educated to decide that they don’t want to vote for the things that are in the amendment, despite what the question says.”
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