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.
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