Judge tosses Marsy’s Law

Judge Remington noted flaws with the amendment and with the wording of the referendum

Press conference urging lawmaker's to pass Marsy's law.
Press conference urging lawmakers to pass Marsy's law.

Circuit Court Judge Frank Remington was right to toss out the victims’ rights amendment known as Marsy’s Law, which passed with 75% of the vote in Wisconsin in April.

The question on the ballot wasn’t the amendment itself, which is very long, but a summary of the amendment:  “Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

In a carefully reasoned 36-page decision, Judge Remington noted several flaws with the amendment, and the wording of the question.

The primary, substantive problem he cited was that voters weren’t informed that Marsy’s Law was taking away some of the fundamental rights of the accused, as guaranteed by the Wisconsin 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“The sole purpose of this opinion is to hold that if the provisions relating to the rights of the accused are to be repealed from the existing State Constitution it was constitutionally required that the voters be asked that question directly,” he wrote.

For instance, the voters weren’t told that Marsy’s Law took away the Wisconsin Constitution’s guarantee of “the right to a fair trial.” As Judge Remington noted: “There used to be an explicit reference in the State Constitution that persons accused of a crime had a State Constitutional right to a ‘fair trial.’ That language is gone. It is hard to view the change as only being symbolic.”

The accused also lost the right, guaranteed in the Wisconsin Constitution, “to exclude witnesses from hearing other witnesses testify,” which, he noted, “for generations has served the important interest of promoting truthfulness in witness testimony.”

“Reducing or eliminating existing constitutional rights required the informed approval and ratification by Wisconsin voters,” he ruled.

And he expressed the opinion that, had this been spelled out, the citizenry may have voted differently. “It is hard to imagine that when informed that the words in the State Constitution referencing a ‘fair trial’ were to be deleted, there would be anybody that would think that information was nonessential,” he wrote. “More likely, many voters might pause before voting to delete what should be a universally accepted proposition.”

Judge Remington also cited two procedural problems.

First, he ruled that the amendment should really have been split into two amendments, since it not only expanded the rights of victims but also reduced the rights of the accused. The State Constitution states: “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.”

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Second, he engaged in a little legal hair-splitting, ruling that the amendment’s language granting victims rights that are “no less vigorous” than those granted to the accused was not the same as the language in the summary of the amendment that was presented to the voters, which said the rights of victims “are of equal force” to those granted to the accused. (Don’t ask me…)

But his main point was that the proponents of Marsy’s Law needed to spell out the erasure of the rights of the accused. Judge Remington cited a Wisconsin statute that says amendments “must reasonably, intelligently, and fairly comprise or have reference to every essential of the Amendment.” 

That didn’t happen here, he said.

“Voters deserve to know what they are voting on,” he wrote.

He concluded: “IT IS HEREBY ORDERED AND ADJUDGED, that the question on the ballot did not meet all constitutional and statutory requirements as to the content and form necessary to adequately inform the public on the purpose of the amendments upon which they were voting.”

He then stayed his order, pending appeal.