By Lee Newspapers, Jayme Fraser [email protected] June 28, 2017
A group of Montana newspapers has been allowed to join a challenge to Marsy’s law as a friend of the court. The law, a so-called victims’ bill of rights, was passed by voters in November and is supposed to take effect July 1.
The American Civil Liberties Union of Montana, Montana Association of Counties, Montana Association of Criminal Defense Lawyers, a county attorney and a victims’ rights advocate, asked the Montana Supreme Court on June 20 to void the law created when Constitutional Initiative 116 passed 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.
On Tuesday, the court kept that lawsuit alive, ordering Montana’s attorney general and secretary of state to file a response to the effort to strike down the law within 30 days.
Lee Newspapers argued in its filing Monday that “Marsy’s Law” will limit the right to know and right to participate under the Montana Constitution, as well as state and federal freedom of the press rights. The company’s five Montana newspapers — The Billings Gazette, Missoulian, Montana Standard, Independent Record and Ravalli Republic – filed the amicus brief.
“This would really put a freeze on information and make it onerous, if not impossible, to report on or observe public courts,” Billings Editor Darrell Ehrlick said, noting the law could effectively remove the ability of the press and wider public to observe its government in action – a critical tool to hold it accountable.
“We don’t want to revictimize people. That’s the last thing we want,” Ehrlick said. “But you can’t trade away the public’s right to observe the system or to know what’s happening. The public’s right to know provides a check on the system.”
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. The suit contends the law is unconstitutional.
The brief filed by the newspapers Monday raised new concerns about how the law could dramatically limit the information police and prosecutors release to the public. Billings Attorney Martha Sheehy wrote that those effects are “not merely hypothetical” and that “newspapers have already encountered difficulties in Montana when gathering news regarding criminal matters.”
One county attorney told a Lee Newspaper that he was not sure if he could release basic information about a crime because of the new law. Others have speculated that law enforcement or prosecutors might not release any information, or might significantly delay its release, out of fear that they do not know all the victims and could be sued for inadvertent notification failures.
Ehrlick said the news media play a critical role in keeping the public informed about their government and public safety concerns, including how well law enforcement serves crime victims.
For instance, a recent story in the Missoulian and Billings Gazette highlighted that 60 rapes were reported to Billings police in 2016, yet none of them resulted in criminal charges. It detailed why investigators and prosecutors failed to file charges and compared those figures to Missoula, where an increased number of reports resulted in prosecutions after years of reform. Reporter Ashley Nerbovig used public court and police records to develop the tally as well as to document the reasons none of the perpetrators faced punishment.
“I don’t think that story is going to be possible with the new law, or at least it would be a lot harder,” Ehrlick said. “How would the public be able to hold law enforcement accountable – the investigative arm, the cops, or the prosecuting arm, the county attorney’s office – if we could not get that information?”
Ehrlick described Montana’s constitutional rights to know and to observe as “foundational” and “fundamental” beyond just the impacts to newsgathering.
“You as a taxpayer, you pay for this criminal justice system and you have a right to know if your neighbor is accused of something and you have a right to sit in on any open court proceeding,” he said. “That’s the basis of our justice system. That there’s no secret parts of the court that are hidden.”