Wisconsin Supreme Court: Marsy's Law was valid ballot question, law stands
An amendment to the Wisconsin Constitution expanding crime victims’ rights was properly worded in a statewide referendum and legally adopted, the state Supreme Court ruled Tuesday.
The court voted 6-1 to overturn a Dane County judge's decision that the ballot description of the amendment, known as Marsy's Law, didn't adequately inform voters that it would diminish criminal defendants' rights.
The amendment adoption process outlined in the constitution doesn't require ballot descriptions to explain every consequence or element, Justice Brian Hagedorn wrote for the majority. In fact, a description of the amendment isn't necessary at all to pass legal muster, Hagedorn said.
“The overwhelming, indeed, uniform teaching of the text and history surrounding (the adoption process) is that an amendment only needs to be submitted to the people for ratification. It need not — as a constitutional prerequisite —contain any kind of description of the amendment’s substance,” Hagedorn wrote.
The constitution requires that amendments must pass consecutive legislative sessions as well as a statewide referendum before they can be added to the document. Voters ratified Marsy's Law in April 2020, adding it to the constitution.
The Wisconsin Justice Initiative, an organization that works to ensure that defendants are treated fairly, filed a lawsuit challenging the amendment before it was brought to voters. It argued that the ballot description amounted to one sentence describing a law that was twice the length of the U.S. Bill of Rights.
Dane County Circuit Judge Frank Remington ruled in 2021 that the ballot question didn't warn voters that the amendment would diminish defendants' rights. He allowed the amendment to stand pending appeal. The 3rd District Court of Appeals asked the state Supreme Court to take the case directly, saying it involved significant questions of constitutional law.
Marsy's Law for Wisconsin, which describes itself as a coalition working to ensure equal rights for crime victims, praised the ruling, saying it removes any uncertainty about the amendment.
Liberal Justice Ann Walsh Bradley was the lone dissenter on the court. She wrote that the amendment clearly reduces criminal defendants' rights by allowing victims to avoid interviews and evidence requests and the ballot question should have included mention of that.
"It can be a difficult exercise to distill a complex and multifaceted constitutional amendment down to a simple description that will fit on the ballot, yet still informs voters of the true nature of the question," Bradley wrote. “Nevertheless, the ballot question is the only text that all voters are guaranteed to see.”
Wisconsin Justice Initiative's attorney, Dennis Grzezinski, said he was disappointed with the ruling but knew he faced an uphill battle with the justices since everyone wants to support crime victims. The decision opens the door for vague, incomplete descriptions of future ballot questions, he said.
"We had hoped for a better result from the court, particularly from folks who pride themselves on textual analysis," Grzezinski said in phone interview.
The Wisconsin Constitution and state law provide a host of victim rights. The amendment largely duplicates that existing language but goes further in a number of areas.
For example, it grants victims a right to privacy, a right to the timely disposition of cases, a right to assistance in collecting full restitution and a right to be heard at plea and parole hearings. They also can opt out of participating in depositions conducted by defense attorneys or opposing attorneys in civil matters, making it harder for criminal defendants to sue them.
Nearly a dozen states have adopted similar laws expanding crime victims’ rights. Montana passed a version in 2016 but that state's Supreme Court later overturned it, citing flaws in how it was written.
Supporters have dubbed the amendments “Marsy’s Law” for California college student Marsalee Nicholas, who was killed by an ex-boyfriend in 1983. Her brother has funded efforts to put the amendments in place across the country.
In a separate decision Tuesday, the Wisconsin Supreme Court cited Marsy’s Law in overturning 30 years of precedent that gave a criminal defendant the ability to have a judge review the victim’s privately held, otherwise privileged health records.
The court, in a 5-2 decision, determined that the 1993 Wisconsin Court of Appeals ruling granting those rights was wrongly decided, unworkable and its rationale has been undermined by the adoption of Marsy’s Law and other laws protecting the rights of victims.
The court reached its conclusion in a case in which a Waupaca County man charged with several felonies for allegedly sexually assaulting his son and daughter had wanted the judge to review his son’s mental health and counseling records. The Supreme Court ruled that the circuit court must deny the defendant’s motion to have the judge review the records.
Justice Rebecca Dallet wrote the majority opinion, joined by justices Patience Roggensack, Hagedorn, Jill Karofsky and Rebecca Bradley. Ann Walsh Bradley and Chief Justice Annette Ziegler dissented.
“While the majority’s result is certainly protective of alleged crime victims, I question whether it impairs the truthseeking function of our courts,” Bradley wrote.