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Dispute over victim rights ballot measure hits Wisconsin Supreme Court

A state constitutional amendment to expand protections for crime victims passed in April 2020, but concerns have lingered about whether the ballot question put to voters was too vague.

MADISON, Wis. (CN) — A yearslong legal fight over a 2020 ballot question that amended the Wisconsin Constitution to expand victims' rights in balance against the rights of the accused landed in the Badger State's highest court for arguments on Tuesday.

In December 2019, the progressive nonprofit Wisconsin Justice Initiative, along with a state senator and three taxpayers, sued the Wisconsin Elections Commission, Secretary of State Doug LaFollette and Attorney General Josh Kaul to prevent the ballot question from being put to voters on the grounds that the vague question insufficiently explained what the proposed constitutional amendment would actually do.

Specifically, the group claimed the wording of the question does not do enough to explain to voters that they are voting to enshrine additional rights for victims in criminal proceedings at the expense of the rights of defendants. Bolstering crime victims’ rights in this way, it argued, presents numerous due process violations for the accused, including their presumption of innocence and right to a speedy trial.

The amendment is Wisconsin’s answer to what is known as Marsy’s Law, a statute first passed in California in 2008 and whose title references 1983 murder victim Marsalee Ann Nicholas. Today, around a dozen states have versions of the law, which, in part, expands who crime victims are under the law and gives victims the right to be notified of and present to speak at public proceedings in a criminal case, among over a dozen other protections.

Many of the victims’ rights now enshrined in the Wisconsin Constitution because of the Marsy’s Law amendment are addressed elsewhere in state statutes. A 2020 report from the state Legislative Reference Bureau explained that Wisconsin was the first state to enact a crime victims’ bill of rights in 1980 before voters then ratified a 1993 amendment further protecting victims’ rights.

The Marsy’s Law amendment passed through two sessions of the Wisconsin Legislature after it was introduced in 2017, then was given the green light to go to the ballot in 2019.

Dane County Circuit Court Judge Frank Remington ultimately allowed the ballot question to go to voters in February 2020, but that November—after the measure won approval from voters by a 3-to-1 margin—he ruled in WJI’s favor and said the ballot question should have actually been two questions more specifically illuminating how the measure affects the rights of both victims and defendants.

In December 2021, the Wisconsin Court of Appeals certified the WEC’s appeal to the state supreme court, finding that “these inquiries involve significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.”

On Tuesday, Assistant Attorney General Hannah Jurss argued to the justices that because the Wisconsin Legislature has extremely broad authority to amend laws and present ballot questions to voters, the court’s analysis must be limited and cannot entertain political questions involving the legislature’s discretion.

Jurss said the question as it appeared on the ballot presented voters with every essential element, and ballot questions do not need to lay out every detail and possible affect in any case because it’s not the only source of information about it for voters. However, multiple justices expressed concern about the “every essential” test, which stems from a 1925 high court decision, because the court has not applied it before and it is not in the text of the state constitution.

The state’s attorney also noted that “we’ve been asking for years to identify examples of how [the amendment] has actually affected defendants’ constitutional rights,” but WJI has not provided any meaningful examples.

Dennis Grzezinski, a WJI attorney appearing for the plaintiffs, argued that the question that went to voters misdirected them and that “for approximately 100 years this court has recognized that in order for the voters to have the information they need, the ballot question needs to be accurate, it needs to not be misleading or ambiguous and it needs to inform the voters of every essential element,” which he said the Marsy’s Law question did not do.

Justice Brian Hagedorn resisted that rationale, responding that if such requirements are necessary under the Wisconsin Constitution, then many decades of ballot questions that largely asked for yes-or-no answers could be unconstitutional. Justice Rebecca Grassl Bradley agreed, worrying that Grzezinski’s tack raises subjective questions “that would allow this court to intrude on the Legislature’s prerogative.”

Grzezinski ultimately said that the case before the court is not really about victims’ rights, “it’s about the integrity of the process of amending our state Constitution,” and the Marsy’s Law amendment was invalidly ratified because voters were not fully informed of what they were voting for.

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