Defense Lawyers Group Says They’ll Sue To Keep Marsy’s Law Off Ballot

Jun 14, 2018

Credit Marsy's Law for Kentucky

Along with elections for the state legislature and Congress, this November Kentuckians will weigh in on Marsy’s Law, which would amend the state constitution to create new rights for crime victims. But a group of criminal defense lawyers says they’ll sue to keep Marsy’s Law off the ballot, saying the language Kentuckians will see on Election Day is too vague. 
“I got online and found out where Johnny was, the gentleman who murdered my grandson, just by accident.” 
Catherine Milliner’s grandson Tony died when he was four years old. Her daughter’s boyfriend was charged with murdering him. And as a three-year trial unfolded, she wanted to keep tabs on every step of the case, including the whereabouts of the accused. 
She eventually got permission to testify. 
“I wanted him to think every day about what he did to my grandson. I wanted him to have nightmares, wake up in a cold sweat, of how he left that baby.” 
Milliner is advocating for an amendment to the Kentucky Constitution called Marsy’s Law. 
It would require courts to notify victims when a defendant is released from custody, give them the right to testify at court proceedings and the right to restitution from those convicted of committing a crime against them. 
Marsy’s Law has been added to the constitutions of six other states and will be on the ballot in five states this fall. 
In November, all Kentucky voters will see this one-sentence question on the ballo.“Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?” 

But some people say that language is too vague. 
David Ward is the President of the Kentucky Association of Criminal Defense Lawyers. His organization is suing to keep Marsy’s Law off the ballot this fall, arguing that the ballot question doesn’t adequately represent what changes would be made to the constitution. 
“When they are asked whether victims should be treated with dignity and respect, I mean heck, everybody agrees with that. I certainly agree with that.” 
One of the most significant parts of Marsy’s Law would give crime victims standing in court. That means victims can hire personal attorneys to participate in the proceedings to make sure their rights are being recognized. 
But Ward says that creates an equal protection issue, because poor people won’t be able to afford attorneys to speak for them. 
“Why should this just be rights for rich folks, why should only people with money be able to hire their lawyers to go in and advocate on their behalf in a criminal case as victims.” 
He also says it’s duplicative, because some of the rights included in Marsy’s Law—like right to restitution and notification of court proceedings—are already enshrined in regular state law, just not in the constitution. 
But Ashlea Christianson with Marsy’s Law Kentucky says putting it into the state constitution will make sure those rights are recognized. 
“The statutory bill of rights that we have in place right now is unenforceable. So although it’s a good bill of rights, it doesn’t do a whole lot of good when it can’t be enforced.” 
Ward says the legislature doesn’t need to amend the Constitution to make that enforcement happen. Lawmakers just need to put more money towards those programs. 
“The legislature doesn’t give them the money in order to properly carry out what amounts to an unfunded mandate.” 
Marsy’s Law, was named for a Californian murdered by her ex-boyfriend in 1983. Her family pushed for the measure after running into the accused killer in a grocery store —he had been released on bail. 
The bill passed the Kentucky General Assembly overwhelmingly this spring, and bill sponsor Sen. Whitney Westerfield says the language clearly describes how the amendment would alter the state constitution. 
“I think that matches up pretty darn close. Short of reciting every single right, which I would be happy to have done. But that’s a lengthy question.” 
Westerfield says the ballot question has been properly vetted and no one raised concerns over its clarity. 
“No one has ever said ‘hey you should expound and elaborate on the ballot question and go into more detail and lay out each of the rights. No one has ever asked me that. I would have considered that.” 
The most common way to try and keep an amendment question off the ballot is to argue that the proposal addresses multiple subjects, which is not allowed under the state Constitution. 
But University of Louisville Law professor Sam Marcosson says he doesn’t think the Marsy’s Law question has that problem. 
“It’s about one particular subject. Whether they could try to argue that it’s inherently vague, whether they could try to argue that it does not give the voters enough information about what they’re actually voting on, they might try to argue that.” 
And as for arguing that the question is too vague? 
“My guess would be it would be an uphill climb. Because the courts are very reluctant, the courts are reluctant to stand in the way of the voters’ right to express themselves using the constitutional amendment process." 
If the ballot language survives a legal challenge, a majority of Kentuckians have to vote in favor of it on Election Day for Marsy’s Law to become part of the Constitution.