Suit Challenges ‘Marsy’s Law’ Amendment

Milwaukee County Courthouse. Photo by Jeramey Jannene

In the April election Wisconsin voters approved an amendment to the state constitution, known as “Marsy’s Law,” that provided more rights for victims, but opponents of the amendment have filed a legal challenge, arguing that voters were not adequately informed as to full details and sweeping impact of the amendment.

The suit was filed by the non-profit Wisconsin Justice Initiative, led by Board President Craig Johnson and Treasurer Jacqueline Boynton, along with State Sen. Fred Risser (D-Madison), who contend that the ballot question was defective, voiding the election’s outcome. The plaintiffs are asking Dane County Circuit Judge Frank Remington to invalidate the amendment.

“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,” Johnson said.

The amendment is “deceptively sweeping,” the plaintiffs attorney Dennis Grzezinski said in a brief. He 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, his filing argues, 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, the accused and the alleged victims;
• 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.

Back in December, some of the same litigants had initiated a court challenge asking Judge Remington to keep the amendment off the April ballot. Remington declined in a February ruling, but said those challenging the law would have a chance to legally challenge it if voters approve it in the statewide referendum.

“Supporters of Marsy’s Law say it simply makes the rights of alleged victims just as strong as those of the accused” and that “U.S. constitutional protections for defendants as well as others included in the Wisconsin Constitution would still apply,” as the Wisconsin State Journal has reported

Marsy’s Law was named after Marsalee Ann Nicholas, a University of California-Santa Barbara student who was stalked and killed by her ex-boyfriend in 1983. Henry Nicholas III is Marsy’s brother, and the billionaire founder of the Marsy’s Law national campaign. “The national campaign for Marsy’s Law has spent about $102 million in at least a dozen states where ballot measures were approved between 2008 and 2018,” the story reported. “In Wisconsin, the state group spent nearly $1.2 million on lobbying in the 2017-18 legislative session and $384,500 more in the first six months of 2019.”

In 2019, the state Supreme Court in Kentucky ruled that the statewide amendment that passed Marsy’s Law was invalid because entire text of the proposed constitutional amendment wasn’t on the ballot, as the Louisville Courier Journal reported. “Our constitution is too important and valuable to be amended without the full amendment ever being put to the public,” Chief Justice John Minton, Jr. wrote for the court