WJI: State used wrong standard in "Marsy's Law" defense

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.

Grzezinski made two other arguments. First, he said, the ballot question failed to fully inform voters of the amendment’s contents. Under State Supreme Court precedent a ballot question for amending the Constitution “must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment.” The Marsy’s Law ballot question failed this standard because it did not tell voters that the definition of “victim” was being expanded, that rights of the accused were being limited, and that Supreme Court jurisdiction was being altered, he wrote.

Second, the ballot question misstated the contents of the amendment and misled voters, he said. The ballot question told voters the amendment would protect the rights of crime victims “with equal force to the protections afforded the accused.” But the amendment actually states that crime victims’ rights are to be protected at a level equal to or greater than a defendant’s rights, plaintiffs said. 

In addition, the question told voters the proposed amendment would leave federal constitutional rights of an accused intact, misdirecting voters’ attention away from the fact that an accused’s rights under the Wisconsin Constitution were being eliminated, Grzezinksi said. 

Although the U.S. Constitution provides a minimum level of rights and protections, the Wisconsin Constitution can, and at times does, provide more. 

Grzezinski wrote that “[d]efendants’ approach denigrates the purpose and role of the Wisconsin Constitution....Defendants apparently view state constitutional provisions protecting defendants’ rights (or protecting any other rights, perhaps), as mere surplusage that can be deleted from our Constitution in whole or in part, without even being mentioned in a ballot question....” 

In the state’s appeal brief, Assistant Attorney General Jennifer Vandermeuse contended that Remington speculated about the legal effects of the amendment. She argued that any legal effects should be determined in future cases brought by individual defendants. 

Vandermeuse also characterized the case as an attack on the contents of the Marsy’s Law amendment, saying that Remington “conflated the Ballot Question’s sufficiency with the legal and policy merits of the amendment itself.”

Grzezinski countered that the plaintiffs’ challenge relies on the text of the ballot question and amendment, not the ramifications of the constitutional changes. “The issues in this case do not include whether such changes are or are not wise or desirable — that is for the Legislature to propose and for the voters to determine....This case is about whether the ballot Question adequately and accurately informed voters of the contents of the amendments,” he said.

The state on appeal relied frequently on the argument that the Wisconsin Legislature possesses broad discretion when drafting amendment ballot questions. The state said a court’s review is narrowly confined to “whether the ballot question was so detached from the amendment itself” that it fell outside the Legislature’s authority and that Remington did not respect proper separation of powers. Vandermeuse noted that a constitutional amendment ballot question has been invalidated only once in Wisconsin’s history.

Further, she said, the ballot question sufficiently “served to help the voter identify the question to be voted on” and only needed to inform voters of the subject of the amendment. She referenced official notices providing the ballot question, the full text of the amendments, and an explanatory statement by Kaul of the effects of a yes or no vote. In the state’s view, “our system expects the voters to independently educate themselves on the legal and policy implications of an amendment — that is not the work of the ballot question.” 

Grzezinski, though, argued that the state misinterpreted Wisconsin Supreme Court precedent and that the Legislature’s discretion is not unbounded. The “so detached” standard is not found in Supreme Court cases and would grant the Legislature discretion beyond that described in precedent, Grzezinski said. Further, Grzezinski said that the defendants relied on case law concerning municipal referendums, but the standard for constitutional amendments is stricter. 

“It is, after all, a Constitution that was being amended here, not a municipal ordinance,” he wrote. “The Question here needed to do more than ‘help’ the voter to identify what they are voting on — it needed to refer them to every essential of the amendment, and describe its contents accurately and without misleading.” 

As for differences between the ballot question and the actual amendment, the state said those differences are “hypercritical.” 

In response, Grzezinski pointed the Appeals Court back to the proper standard from case law. As the Wisconsin Supreme Court stated decades ago, he wrote, “[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.”