Marsy’s Law shot down by Montana Supreme Court

Fergus County Attorney Kent Sipe

By: 
CHARLIE DENISON
Reporter

There will be no Marsy’s Law.

The controversial constitutional initiative Montana voters passed into law last November was declared “void in its entirety” by the Montana Supreme Court Wednesday.

“There is a rule that an amendment can only amend one section at a time,” Fergus County Attorney Kent Sipe said. “Amending multiple sections is unconstitutional.”

Created in 2008 by Dr. Henry T. Nicholas, Marsy’s Law (CI-116) is designed to protect crime victims. According to www.marsyslaw.us, Marsy’s Law “would ensure that victims have the same co-equal rights as the accused – nothing more, nothing less.”

Nicholas brought the bill forward in California after his sister, Marsalee Nicholas, was stalked and killed by her ex-boyfriend in 1983. Marsalee’s boyfriend had been released from prison. She wasn’t notified, nor was her family.

Sipe said he believes the justice system has more of a focus on victims now than in the 80’s. The justice system, he said, is active, and many involved believe in restorative justice, or  “a theory of justice that emphasizes repairing the harm caused by criminal behavior,” according to www.restorativejustice.org.

“I think we’ve done a good job, and recognize victims have a say,” Sipe said. “It just becomes a problem when it creates a constitutional conflict between victims rights and defendants.”

Constitutional conflicts have plagued Marsy’s Law from the beginning. Some even spoke out against the bill before voters went the polls.

In October of 2016, retired Montana Supreme Court Justice Jim Nelson wrote an editorial in the Missoulian warning voters about the initiative, considering it a “solution in search of a problem” as “Montana’s legislature has already enacted a comprehensive body of laws that provide virtually the same victims rights as does CI-116.”

But the worst problem, Nelson wrote in the Missoulian, is that, by “enforcing the victims’ constitutional rights, the defendant’s constitutional rights may be violated,” such as a right to a fair trial, due process or effective assistance of counsel.

“Marsy’s Law is, in many respects, illusory,” Nelson wrote. “It is going to create more problems – and expensive ones – than it solves.”

Sipe said Nelson appears to be accurate. Marsy’s Law has spent much time in court ever since being passed, as there was litigation right away to determine when it should take effect.

“Rights can sometimes conflict with each other,” Sipe said. “In this situation we had victims’ rights in conflict with defendants’ rights.”

Marsy’s Law was expected to take effect immediately, but the Supreme Court pushed the date to July 1.

However, when July 1 arrived, there was no Marsy’s Law, as multiple lawsuits were filed by the American Civil Liberties Union, the Montana Association of Counties, Montana Criminal Defense Lawyers and others.

“The potential litigation and burden on the courts has been substantial,” Sipe said. “

On Wednesday, the Supreme Court ruled in favor of the ACLU, thus stripping Marsy’s Law from the Constitution.

Such a result was not intentional, Sipe said, but it was still unconstitutional, in a way that’s happened before. According to Sipe, in 1999, the case Marshall vs. Cooney determined multiple parts of the constitution couldn’t be amended by one vote.

This was the situation caused by Marsy’s Law, as well.

“Because voters were asked to cast a single vote on substantive and unrelated changes to the constitution, the Court held that CI-116 was unconstitutionally submitted to Montana voters...,” the Supreme Court summary states.

Five of the seven Supreme Court justices concurred with the decision. It is unknown at this time if supporters of Marsy’s Law will attempt another initiative.

In the meantime, Sipe said there are many elements in Marsy’s Law the justice system can implement without violating the Constitution.

“The provisions are very admirable, but when you get into the details, it becomes problematic,” Sipe said. “We are certainly going to try to implement the positive elements of Marsy’s Law. “We want victims to have a say in the proceedings and we want them to have a voice. We believe they should have equal rights.”

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