Wisconsin Supreme Court finds victim rights law was properly passed

MADISON, Wis. (CN) — Wisconsin’s Supreme Court upheld a victims’ rights amendment to the state’s constitution Tuesday, dismissing opponents’ arguments that voters did not receive an adequate explanation of the amendment on their 2020 ballots.

Wisconsin’s process for adoption of constitutional amendments, Justice Brian Hagedorn wrote in the court’s lengthy opinion, doesn’t include any requirement that ballot initiatives fully explain the amendment being proposed. In fact, Hagedorn noted, “no ballot question in the first 22 years after the constitution was adopted contained any substantive description of the amendment at all. So far as we can tell, no one questioned the validity of this process.”

The court’s 6-1 decision overruled a Dane County judge’s decision that the ballot description of the amendment did not adequately inform voters of the proposed constitutional amendment that would diminish the rights of criminal defendants. The Wisconsin Justice Initiative, an organization dedicated in part to ensuring fair treatment for criminal defendants, challenged the ballot initiative almost a year before its passage on the grounds that its wording didn’t explain impacts on defendants’ rights.

The amendment is Wisconsin’s version of Marsy’s Law, a statute first passed in California in 2008 which has since been replicated in a handful of other states. Wisconsin’s amendment updates a previous constitutional amendment passed by voters in 1993.

The update assures victims of crimes a right to privacy, to the timely disposition of cases against the accused, a right to assistance in collecting restitution and a right to be heard at plea and parole hearings. It also allows them to opt out of depositions conducted by defense attorneys or opposing attorneys in civil cases – a provision that opponents argue makes it difficult for those accused of crimes to sue those who accuse them, even if they are never convicted.

While those issues saw limited discussion at oral arguments last September, the high court didn’t address them in its ruling, which agreed with Assistant Attorney General Hannah Jurss’ contention that the court’s analysis should be limited in scope to the issues of whether the ballot question was properly proposed. Hagedorn also rejected the Wisconsin Justice Initiative’s argument that the amendment should have been divided into multiple ballot initiatives.

“The amendment broadly protects and expands crime victims’ rights. This is plain from the text and history of its adoption,” Hagedorn wrote. “Even if WJI is correct that it will impact those accused of crimes as well (an issue we need not decide), all of the changes relate to the same, general purpose of expanding and protecting the rights of crime victims.” (Parentheses in original.)

The California law and its imitators are named for California college student Marsalee Nicholas, who was killed by an ex-boyfriend in 1983 and whose family, including her brother and semiconductor tycoon Henry Nicholas, have advocated for the laws across the U.S..

Margo Kirchner, WJI’s Executive Director, said that the organization was both disappointed with the decision and alarmed at its constitutional implications.

“We received today a decision with a lot of discussion of originalism and original intent," she said, “and then… our case failed under a new test that we didn’t even know was going to exist.”

She added that the court’s stripping of standards for ballot initiative language would enable future amendments to be framed deceptively. “The legislature has now been given carte blanche, unfettered power, to frame and word out amendment questions without important information.”

Kirchner pointed to a dissent penned by Justice Ann Walsh Bradley, saying “we very much agree with what she said, and we think she got it right.”

Bradley wrote in that dissent that “rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party.” The ballot question at issue, she noted, “gave no hint that a defendant’s rights were being diminished,” and the majority’s opinion ignored “several shortcomings” found by the Dane County Circuit Court in the ballot question’s language.

Kirchner said WJI hadn’t yet decided what, if any, future steps it would take on the action, but noted that defense attorneys would likely provide the next tests for the law.

Marsy’s Law for Wisconsin, an organization which campaigned for the amendment and filed an amicus brief in its favor with the Supreme Court, said in a statement Tuesday it was grateful for the court’s decision.

“Today’s decision by the Wisconsin Supreme Court removes any uncertainty about Marsy’s Law in our state and ensures future generations of Wisconsinites, who find themselves in the criminal justice system through no fault of their own, will have access to some of the strongest victims’ rights in the country," the group said.