Marsy’s Law, so-called victims’ bill of rights, is unconstitutional, lawsuit says


A lawsuit filed with the Montana Supreme Court on Tuesday says Marsy’s Law, a so-called victims’ bill of rights passed by voters in November, is unconstitutional.

The ACLU of Montana, joined by the the Montana Association of Counties, Montana Association of Criminal Defense Lawyers, a county attorney and a victims’ rights advocate, are asking the state’s highest court to void the law about a week and a half before its July 1 implementation date.

Voters approved Marsy’s Law, also known as Constitutional Initiative 116, last November with 66 percent of the vote. It creates a new section of the state Constitution enumerating 18 rights for crime victims, including the right to refuse an interview or deposition and to receive notification for all steps of a criminal proceeding. Cities and counties around the state are concerned about the costs of complying with the new law, saying they don’t have enough staff to do what will be required.

ACLU of Montana, in the lawsuit, argues that since the initiative amended multiple sections of the Montana Constitution, it required a separate vote for each amendment. The lawsuit asks the court to void the enactment of Marsy’s Law, halt all enforcement and decertifiy its passage.

Alex Rate, ACLU of Montana’s legal director, said the lawsuit was filed so close to the July implementation date because it took a significant amount of time to gather a diverse group of petitioners. It’s also taken a chunk of time to understand all the unintended consequences of Marsy’s Law, he said.

In a press release sent Tuesday, Caitlin Borgmann, executive director of the ACLU of Montana, said the ACLU supports “rigorous enforcement of existing legal protections for victims, but CI-116’s expansive redefinition of ‘victim’ gives new rights to family, friends, corporations and other non-human entities at the expense of constitutionally enshrined rights.”

Chuck Denowh, spokesperson for Marsy’s Law for All, said Tuesday simply that “there will always be a handful of people that simply don’t believe crime victims should have equal constitutional protections to their offenders.”

Lewis and Clark County Attorney Leo Gallagher, a petitioner in the lawsuit, said in a release that he didn’t think Montana voters understood the initiative amended multiple sections of the state Constitution and that the new law is expensive to enact, in some counties costing about $95,000.

Marsy’s law “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,” he said.

Adrian Miller, another petitioner in the suit, said the initiative was inaccurately promoted to voters as necessary to protect victims’ rights. California millionaire Henry Nicholas, a founder of Broadcom, spent $2.4 million in support of Marsy’s Law last fall, promoting it as a victims’ bill of rights.

Rate said while the ACLU fully supports the rigorous enforcement of laws already on the books, voters didn’t understand the unintended effects of Marsy’s Law.

“From our prospective there was minimal discussion in the press or with various constituencies that are impacted about what the unintended results of the amendment would be. We don’t believe local victims organizations or victims’ rights groups were adequately consulted. I don’t think the title of the constitutional amendment adequately described what the impact would be. I don’t fault the voters for voting for something like this, but I do believe nobody quite understood exactly how this would fundamentally rearrange the Montana Constitution.”

In December, the ACLU filed a suit with the Montana Supreme Court asking the law take effect in July and not immediately. That lawsuit came over confusion between the ballot, which called for an immediate start date, and the language of the initiative itself, which did not set a start date. In that case, the court sided with the ACLU on a 5-0 vote. That same month the state Board of Canvassers twice delayed validating the passage of the initiative over concerns about the ballot title language and counties not being able to comply with the law immediately.

The Legislature this spring passed a law that limits the applicability of Marsy’s Law to certain crimes, allowed victims to waive their rights and standardized what must be on a Marsy’s Law card handed out to victims.

The law also limited the types of crimes that fall under Marsy’s Law to those under a specific section of Montana code that includes homicides, assaults, sexual assaults, burglary, theft, robbery, arson and kidnapping, as well as certain discrimination laws, elder abuse, abuse of the developmentally disabled, child labor laws and securities fraud.

Notably, the new law removed any traffic crimes from falling under Marsy’s Law, something Denowh opposed.

The group who filed the lawsuit is represented by Kyle Gray and Brianne McClafferty with Holland and Hart, LLP, James Molloy with Gallick, Bremer and Molloy, P.C., and Rate.