PA Supreme Court hears arguments on Marsy's law

 After appearing on the ballot nearly two years ago, a constitutional amendment for victims’ rights went before the state’s highest court, reported the Pennsylvania Capital-Star.

The Pennsylvania Supreme Court heard oral arguments about whether the Marsy’s Law amendment, which appeared on the 2019 general election ballot, should have been presented in separate questions. Unofficial election results show that voters approved the referendum. However, it has yet to take effect due to ongoing litigation that argues the ballot question introduces too many changes to the state constitution at once.

Marsy’s Law is part of a national advocacy movement backed by a billionaire tech executive. Seventy-four percent of Pennsylvania voters approved it in the Nov. 2019 municipal election, following an expensive advertising campaign. The Republican-controlled General Assembly approved the language for the ballot question in near-unanimous votes in 2018 and 2019.

The state Supreme Court could move to put the ballot question into the constitution, adding 15 new constitutional rights for crime victims — including changes that would notify victims about the accused’s case and the right to attend and give input during plea hearings. The ballot question also allows for “reasonable notice” of any release or escape of the accused and “reasonable protection” from the accused.

Ahead of the 2019 election, the League of Women Voters of Pennsylvania filed a lawsuit against the state’s top election official, with support from the American Civil Liberties Union. In response, the state Supreme Court ruled that votes for the change would not be counted until the legal proceedings were complete.

In January, a state appellate court ruled 3-2 that the Marsy’s Law amendment was unconstitutional and invalidated referendum votes because the question violated a constitutional provision that limits individual ballot questions to one subject.

Mary Catherine Roper, a staff attorney with the ACLU, argued that the 15 changes are not sufficiently interrelated to be considered one objective. The ACLU and League of Women Voters of Pennsylvania also have argued that the language for the ballot question is vague and that it “undermines the rights of people who are accused of crimes.”

“The state constitution gives the people of Pennsylvania the power to amend that document,” Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a statement. “It also ensures that voters cannot be overwhelmed with too many changes at once, proposed by an overzealous Legislature. This case is about the right to vote, specifically the right of the people to consider multiple changes to the constitution as separate questions on which to vote. Instead, state lawmakers gave the voters a single choice — yes or no — on more than a dozen changes to the constitution.”

David Pittinsky, who represents the four voters who want to see the votes counted and the constitutional change take effect, argued that all 15 amendments pertain to victims’ rights. The ballot question, he said, gives victims of crimes equal rights to those who are accused.

“The important thing about Marsy’s Law is giving victims a voice in the criminal justice system,” Jennifer Riley, state director for Marsy’s Law for Pennsylvania, told reporters after oral arguments. “We have a legal argument that took place today, but what we don’t want to lose sight of is the fact that crime victims deserve to have a voice here in this state. And it’s all hinging upon whether or not crime victims should have constitutional rights in Pennsylvania.”

Pittinsky said the state Supreme Court could decide on the case by the end of the year.

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Marsy's Law on the Nov. 5 ballot in Pennsylvania

On Nov. 5, Pennsylvanians will vote on a ballot referendum known as Marsy’s Law, which proponents deem a crime-victim rights amendment to the Pennsylvania state constitution, reported the Pittsburgh City Paper. The referendum states the amendment would “grant certain rights to crime victims, including to be treated with fairness, respect, and dignity.”

In 1983, 23-year-old Marsalee Ann Nicholas, who went by Marsy, was murdered in Malibu by Kerry Conley, her ex-boyfriend. Conley was convicted of second-degree murder in 1985 and he died in prison in 2007. But in the period between his charges and his conviction, Conley was free after posting a $100,000 bail.

Marsy’s Law for All, the foundation that has the goal to get Marsy’s Law passed in all 50 states and eventually in the U.S. Constitution, was started in 2009 by Henry Nicholas, Marsy’s brother.

This funding dynamic has basically always been the case for Marsy’s Law. According to League of Women Voters of Pennsylvania, more than $102 million has been spent advocating other states to pass the law, and Nicholas has contributed 97 percent.

Nevada passed Marsy’s Law in 2018, as did Florida, Georgia, Kentucky, North Carolina and Oklahoma. According to campaign finance reports, Nicholas, either personally or through his foundation, funded virtually all of the cash for these efforts.

This is one of the reasons the League of Women Voters of Pennsylvania is skeptical of Marsy’s law, as well as concerns that the law is just repeating protections that already exists and that, if passed, victims could refuse to be interviewed or to turn over pertinent evidence or testimony.

The Pennsylvania ballot questions states in full: “Shall the Pennsylvania Constitution be amended to grant certain rights to crime victims, including to be treated with fairness, respect and dignity; considering their safety in bail proceedings; timely notice and opportunity to take part in public proceedings; reasonable protection from the accused; right to refuse discovery requests made by the accused; restitution and return of property; proceedings free from delay; and to be informed of these rights, so they can enforce them?”

Both the ACLU of Pennsylvania and the League of Women Voters of Pennsylvania brought a suit against Marsy’s Law on Oct. 11, alleging that the ballot initiative is too broad and should be instead broken up into two or three separate questions.

In the commonwealth, the Pennsylvania Crime Victims Act already affords victim’s protections and established rules that crime victims have to be notified about arrests and legal actions against the victim’s offender, but Marsy’s Law would extend some of those rules to the victim’s family members too.

According to WHYY, the ballot referendum doesn’t change very much about the state’s existing crime-victims protections laws, and really just codifies those laws into the state constitution, making it easier for the victim's and victim’s families to sue if those rights aren’t upheld.

However, Marsy’s law does make some significant changes to rules concerning the accused. One of the more contentious parts of the proposed amendment would allow victims to “refuse an interview, deposition, or other discovery request” made by the accused or the accused’s lawyers.

This is one of the main reasons the ACLU of Pennsylvania opposes Marsy’s Law. The ACLU says these changes could shift the scales too much in favor of the state, which is responsible for prosecuting the accused in criminal cases.

On paper, Marsy’s Law appears like an amendment worthy of approval, but opposition has always existed. Several newspaper editorials have been questioning whether Marsy’s law is necessary, including the Palm Beach Post in Florida and Indy Week in North Carolina.

North Dakota passed Marsy’s Law in 2016, but in 2018, North Dakota state Sen. David Hogue said the constitutional amendment didn’t “provide any meaningful protections for victims that isn’t otherwise in our statute,” according to the Grand Forks Herald. He said there were some negative consequences of Marsy’s Law, but added they were manageable but come with “obvious costs.”

Jack McDonald of the North Dakota Newspaper Association said one potential consequence would likely occur when legal challenges come about if someone is hindered in gathering information to defend themselves. Houge noted Marsy’s Law being embedded in the constitution makes it very difficult to undo.

“The problem is when you put it in Constitution, you make it more difficult,” Hogue said to the Herald. “You cannot readily amend or adjust it because it’s embedded within the Constitution.”

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