MADISON, Wis. (CN) – A Wisconsin judge on Friday declined to block a ballot question aiming to enhance crime victims’ rights, finding it should be decided by voters in the April primary election.
The underlying lawsuit was brought in Dane County Circuit Court in December by three taxpayers, a state senator and the Wisconsin Justice Initiative, a group advocating for progressive changes in the state’s justice system.
The suit claims the ballot question asking voters whether to expand the statutory rights of crime victims under the state constitution does not clearly detail what the constitutional amendment would do.
The plaintiffs take issue with the allegedly vague wording of the question and the enshrinement of additional rights for victims at the expense of the rights of the accused. The Wisconsin Elections Commission, Secretary of State Doug LaFollette and Attorney General Josh Kaul were named as defendants in the complaint.
According to the lawsuit, this kind of bolstering of crime victims’ rights, under what is known as Marsy’s Law, infringes upon the accused person’s presumption of innocence and their right to a bail hearing and a speedy trial, as well as other due process protections.
Marsy’s Law, in part, expands who crime victims are under the law, notifies them of all proceedings in a given case and allows them to refuse to sit for some depositions, among over a dozen other protections intended to give victims footing equivalent to the accused in criminal proceedings. The law, which gets its title from 1983 murder victim Marsalee Ann Nicholas, was first passed in California in 2008 and there are now versions of it in more than 10 states.
A Friday hearing in Dane County focused mostly on whether the wording of Wisconsin’s ballot question is sound enough to fully apprise voters of what they are deciding on such that it can be included on the ballot for the April 7 primary election.
Dennis Grzezinski, appearing on behalf of the plaintiffs from his namesake Milwaukee firm, argued the allegedly misleading question does not adequately inform voters of what the measure would amend, stating that it “claims to require equal balance” protecting both the accused and the victims “but it actually does not.”
Dane County Circuit Court Judge Frank Remington conceded early on that he did not know if the parties were “dancing on the head of a pin” in needling over the differences in the wording of the question.
Nevertheless, one of the main focuses of arguments was on the difference between protecting crime victims and the accused “with equal force” to each other or “no less vigorously” than one another. The ballot question features the former phrasing.
Grzezinski offered that “the words of this question free the Legislature from restraint in any direction.”
Assistant Attorney General Jennifer Vandermeuse, appearing on behalf of the state, argued that the question serves its purpose “to be a reasonable summary so that the voters know what they’re voting on.” She argued it is well within the Legislature’s discretion to amend the state constitution in such a way.
The process for the question up to this point followed the letter of Wisconsin law related to amending the state constitution. The amendment first came up in November 2017, went through two sessions of the full Legislature, and in May 2019 the ballot question was given the green light so voters can decide whether to ratify it.
Vandermeuse waved off concerns about nitpicking the question’s wording, stating it had a de minimis, or trivial, effect and that voters would not be misled.
She also argued that “overturning two legislative sessions over this language would be extraordinary.”
The step of enjoining legislative action from the bench hit home for Remington, who mentioned the recent legal drama in the state over lame duck laws passed by the Republican-controlled Legislature in December 2018 just after the election of Democratic Governor Tony Evers. Those laws reined in the powers of both the governor and attorney general in a number of rule-making procedures and gave the Legislature many sign-off powers it did not have before.
Remington presided over one of the original suits challenging the lame duck laws, which was brought by a local union arguing that the Legislature violated the state constitution by upping its powers to intervene in settlements and state lawsuits.
The Wisconsin Supreme Court overturned Remington after he blocked a portion of the laws. The suit was eventually argued before the high court, where it awaits a final ruling.
Remington had this in mind when he decided Friday to leave the ballot question in place, saying the current high court holds that “when a circuit court judge enjoins a statute, the public suffers irreparable harm” and that “this court should be wary of weighing in on legislative functions.”
Part of Friday’s arguments centered on whether the implementation of the joint resolution in the form of a ballot question was a legislative act equivalent to a statute, which Vandermeuse argued was the case.
Citing the timeliness of the matter, Remington issued his ruling from the bench after arguments, leaving the ballot question in place and setting a briefing schedule going forward so the plaintiffs can fight the amendment if voters give it the thumbs up.
The parties are set to meet for further arguments on Aug. 13 in Madison.
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