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Judge: Marsy's Law ballot question was improper, voters were not told of its full impact
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Judge: Marsy's Law ballot question was improper, voters were not told of its full impact

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A Dane County judge on Tuesday said the statewide ballot question on “Marsy’s Law,” the state constitutional amendment approved by voters last year that gave greater rights to crime victims, was improperly worded, but he did not immediately nullify the law.

Instead, Circuit Judge Frank Remington put his ruling on hold pending an inevitable appeal that could wind up before the state Supreme Court, and the law as approved by voters will, for now, remain in effect.

In his 36-page ruling, Remington wrote that as presented to voters, the ballot question inadequately spelled out the effect the constitutional amendment would have on the rights of people accused of crimes, and said that had the question been broken into two parts — one addressing greater rights for victims and another on the diminishment of the rights of the accused — the voters would have been better informed.

Frank Remington

Remington

“Voters deserve to know what they are voting on,” Remington wrote. “Only by framing a question that reasonably, intelligently and fairly comprised or referenced every essential (element) of the amendment, could the voters decide whether and how to change the rights of persons accused of crimes.”

Remington wrote that while crime victims deserve to have their rights clearly stated, that could have been accomplished by leaving alone parts of the former victims’ rights amendment that applied to persons accused of a crime, or asking the question in two parts.

He called the wording of the issue in a single question, instead of two separate questions, “a mistake of constitutional proportions.”

Wisconsin’s version of Marsy’s Law was approved by voters in April with 75% of the vote. It is named for Marsalee “Marsy” Nicholas, a California woman killed in 1983 by her ex-boyfriend, who was released from jail without notification to Nicholas. Versions of the law have been enacted in several states.

In February, Remington declined to remove the question from the ballot, ruling that the Wisconsin Justice Initiative had not shown the group would be irreparably harmed by its placement on the ballot. Since Marsy’s Law has taken effect, public records advocates have raised concerns that it is being used to curtail access to public information.

Gillian Drummond, spokesperson for the state Department of Justice, which is representing the Wisconsin Elections Commission in the lawsuit, said DOJ is studying Remington’s decision.

But the group Marsy’s Law for Wisconsin called the ruling a “decision to subvert the democratic process and nullify the will of more than one million Wisconsin voters who overwhelmingly supported Marsy’s Law for Wisconsin this April.” The group said, though, that it expects the setback to be only temporary as the decision is appealed.

Craig Johnson, president of the Wisconsin Justice Initiative, which filed the lawsuit last year challenging the ballot measure, said the decision is “a big victory not only for those involved in the criminal justice system but the voters of Wisconsin” to be fully informed about what they are voting on.

“We always argued it would affect the due process rights of accused persons,” Johnson said. “That’s an aspect that proponents of Marsy’s Law have glossed over.”

Marsy’s Law, in changing the existing victims’ rights law, removed a provision allowing victims to be kept out of a courtroom if necessary to assure a fair trial for an accused person. The previous victims’ rights provision in the state Constitution also had said that nothing in the provision limited any right of the accused provided by law, but that wording also is now gone.

“How the accused were affected by the repeal of these two provisions was not separated into a separate ballot question which would have enabled the voter to approve giving crime victims additional rights and still disapprove of changes in the constitution that would affect rights possessed by persons accused of a crime,” Remington wrote. “Indeed, the question on the ballot gave voters the wrong impression that they were only approving amendments relating to the creation rights of crime victims.”

As amended by Marsy’s Law, the state Constitution now states that the rights of crime victims should be protected by law in a manner “no less vigorous” than the protections given to those accused of crimes. That in itself is problematic, Remington wrote, because the ballot question had asked voters whether victims’ rights should be protected “with equal force” to those granted the accused. “No less vigorous,” Remington said, implies a greater measure of protection to be given to the rights of victims than those of the accused, which he noted is not what was intended when the changes to the law were drafted.

The amended text says nothing about “equal force.” Why the wording differed between the question and the amendment, he said, “is not apparent.”

“It would have been best had the ballot question avoided the misleading notion that victims’ rights would only be equally protected, wherein the constitution would require that they be protected in a manner ‘no less vigorous’ than the protections afforded to the accused,” Remington wrote.

He also noted the ballot question said there would be no impact to the federal constitutional rights of the accused, but said nothing about the impact on their state constitutional rights.

The deletion of the phrase “fair trial” from the original constitutional language, he wrote, might have given voters pause “before voting to delete what should be a universally accepted proposition even notwithstanding the legal complexity relating to the difference between state versus federal constitutional rights.”


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