Constitutionality of Marsy’s Law challenged at Montana Supreme Court

The American Civil Liberties Union of Montana filed a lawsuit Tuesday in the Montana Supreme Court challenging the constitutionality of CI-116, more commonly known as Marsy’s Law.

The petition seeks a declaration from the Montana Supreme Court that CI-116 amends multiple sections of the Montana Constitution and therefore requires a separate vote for each amendment.  If the court agrees with petitioners that CI-116 was improperly enacted, it could void the law in its entirety and prohibit its application.

Petitioners include the Montana Association of Counties, Montana Association of Criminal Defense Lawyers, ACLU of Montana, Leo Gallagher and Adrian Miller.  They are represented by Kyle Gray and Brianne McClafferty with Holland and Hart, LLP, James Molloy with Gallick, Bremer and Molloy, P.C., and Alex Rate, Legal Director of the ACLU of Montana.

Gallagher is the county attorney in Lewis and Clark County. Multiple jurisdictions were approached to sign on as plaintiffs, but Great Falls was not one of them, according to city staff.

“My responsibility is to all the people of Montana and its Constitution.  Unfortunately, I’m not certain that Montana voters understood that CI-116 amends multiple sections in our declaration of rights. CI-116 will force me to make the impossible choice between seeking justice for all Montanans and enforcing long-standing constitutional protections or serving the narrow, competing interests of Marsy’s Law’s newly expanded pool of victims harmed or allegedly harmed by even the most petty of offenders,” Gallagher said in a release. “Moreover, the county must now secure around $95,000 from taxpayers by raising taxes or decreasing services, including the potential to diminish existing services to victims of serious, violent criminals.”

The Montana ACLU contends that Marsy’s Law amends at least eight sections of the Montana Constitution.

Marsy’s Law was created in California in 2008 and has since been passed in Illinois, North Dakota, South Dakota, and Montana. Efforts are underway to pass the legislation in Kentucky, Georgia, Nevada, North Carolina, Ohio, Wisconsin, Idaho, Oklahoma, and Maine.

Earlier this month, Great Falls Municipal Court Judge Steven Bolstad told the City Commission that if implemented, Marsy’s Law would have a significant impact on the city’s court.

Currently, on criminal misdemeanor cases like theft, defendants usually make an appearance five to 10 days after being charged. Under Marsy’s Law, they’d have to appear the next morning and victims would have to be notified of the appearance.

It will require court clerks coming in earlier to enter tickets from the previous evening and if the defendants don’t show up, warrants will be issued.

“That’s going to increase warrants,” Bolstad told the commission.

The court considers wishes of victims at sentencing, but under Marsy’s Law would have to involve them in every step of the process, adding time to an already overburdened court, he said.

“I don’t think we can add much more without losing trials on speedy trial basis,” Bolstad said.

The Great Falls Municipal Court handles a range of crimes types, but they are all misdemeanor cases, according to Sara Sexe, Great Falls city attorney.

Sexe’s office added an investigator/witness coordinator, partly in anticipation of Marsy’s Law, but “we needed the witness coordinator anyway,” she said.

That position was added administratively mid-budget year and will be included in the legal department’s upcoming budget request.

To prepare for Marsy’s Law, which is set to go into effect July 1, city prosecutors spent weeks at the police department at all three shift changes to train officers on the new procedure’s required by the law. That’s on top of their full case load at municipal court.

The city legal department has worked with the Cascade County Attorney’s Office in developing a legal sized sheet of paper that details the rights of victims and includes information on who to contact related to case notifications. It’s a multi-layer form, like many government forms, that gives a copy to the victim, one to the court and one to the police or sheriff’s office. The form indicates that victims have to take action in calling the 24-hour line to indicate they want to opt in to notifications, otherwise city and county prosecutors are free to assume the victim has waived those rights and negotiate with the defendant, Sexe said.

Even if victims skip the initial appearance, they can call the 24-hour line and opt back into the notifications later in the process.

Much of the victim notifications already existed in Great Falls and Sexe said, “our office always did the best we could in working with victims.”

Other than the witness coordinator, Sexe and Bolstad haven’t added specific budget requests this year related to Marsy’s Law, but both told commissioners if the law is implemented as is, both will likely need more staff.

Bolstad said if Marsy’s Law is implemented, the municipal court will likely need another judge and another courtroom, a second bailiff, as well as clerks, at least one more prosecutor.

The law would also consider businesses as victims in cases like theft. There are some businesses in town that are regularly the victim of theft and the law would require the city to notify those businesses every step of the way for every incident of theft or other crimes, Sexe said.

The city drafted letters to the companies that are frequently involved in those kinds of cases and asked the businesses to waive the notification rights and some had returned the letters earlier this month agreeing to waive rights, Sexe said.

The city will still prosecute those cases and seek restitution, but they’re also trying to administer cases as efficiently as possible with a small staff, Sexe said.

“We’re trying to anticipate as much as possible how to deal with it,” Sexe said of the changes required by Marsy’s Law, “but some we won’t know until it kicks in.”

Adrian Miller is one of the petitioner’s in the lawsuit and a victim’s rights advocate.

“CI-116 was promoted to voters as necessary to protect a victim’s rights. This is not accurate, particularly in domestic abuse and sexual assault cases. Contrary to the right of privacy that the Montana Constitution formerly guaranteed individual victims, the initiative defines family members as ‘victims’ with a group right to be fully informed and involved in every decision. CI-116 ultimately makes victims less empowered and less safe,” Miller said in a release. “Sometimes a victim wants privacy from her family, for example when a rape victim is deciding whether to obtain an abortion, or when family members pressure an abused spouse to drop charges and return home. Marsy’s Law robs victims of the decision whether and when to involve their families, and instead gives that power to the state.”