Judge Rules Against Marsy’s Law

In a ruling on Tuesday, Dane County Circuit Judge Frank D. Remington struck down “Marsy’s Law,” the 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.

The suit was filed by the non-profit Wisconsin Justice Initiative, led by Board President Craig Johnson and Treasurer Jacqueline Boynton, along with retiring State Sen. Fred Risser (D-Madison), who contended that the ballot question was defective, voiding the election’s outcome, as Urban Milwaukee has reported. The amendment is “deceptively sweeping,” the plaintiffs attorney Dennis Grzezinski argued. He contended 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.

Remington agreed, stating: “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… this is a problem. Reducing or eliminating existing constitutional rights required the informed approval and ratification by Wisconsin voters.”

Remington found the ballot question failed to communicate to voters the amendment 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.”

Plaintiffs argued the ballot question directly misled voters, because its language said the rights of a victim and the accused would be protected with “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Remington agreed, stating that the amendment’s language opened the door to unequal treatment. “Clearly, if something is to be done no less vigorous it can be greater to that which is equal,” he wrote.

The plaintiffs also argued the amendment contained more than one subject, in violation of the Wisconsin Constitution mandate 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: “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.”

Remington emphasized that his decision was solely about the process by which the amendment was passed, not the particular changes in the law it made. “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…. 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.”

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.

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 campaign for Marsy’s Law has spent big money, including more than $100 million in at least a dozen states where ballot measures were approved between 2008 and 2018. 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.

Marsy’s Law amendments have been invalidated in two states. The supreme courts of Kentucky and Montana struck Marsy’s Law due to violations of rules for constitutional amendments. The Kentucky high court 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.

There is also an ongoing challenge in Pennsylvania, where a court held that the ballot question in that state did not adequately set forth contents of the amendment and contained too many matters for one question. That decision is being reviewed by an en banc Pennsylvania appellate court, which heard arguments on the case in June.

The justice system in Wisconsin anticipates that passage of Marsy’s Law in Wisconsin will have significant costs for taxpayers. District Attorney John Chisholm has called in an “unfunded mandate” and County Executive David Crowley has proposed spending $224,000 to hire three victim witness advocates and a secretarial assistant to handle the additional workload Marsy’s Law is generating, as Urban Milwaukee has reported. And the Wisconsin Public Defenders Board has requested a bigger budget and 40 new staff partly to handle the demands created by Marsy’s Law.