Montana Supreme Court strikes down victim’s rights law

November 1, 2017 GMT

BILLINGS, Mont. (AP) — Montana’s high court struck down a voter-approved victim’s rights law as unconstitutional on Wednesday, in a split opinion that said voters should have been able to consider the multiple aspects of the law individually.

The law, known as Marsy’s Law, sought to give crime victims and their families the right to participate in judicial proceedings and to be notified of key case developments. It also would have expanded their privacy rights.

But the Supreme Court said in a 5-2 opinion that the law’s multiple changes to the Montana Constitution should have been considered separately.


More than 65 percent of voters backed the law in an initiative last November. Before it could go into effect in July, the law was put on hold in response to a lawsuit from the Montana Association of Counties, the American Civil Liberties Union and others.

In striking it down, justices said their decision was based on how the law was presented to voters — not the merits of the changes themselves.

The state constitution “clearly grants the people the initiative power to popularly amend the Constitution,” Justice Laurie McKinnon wrote on behalf of the majority. “However, the procedure by which the Montana Constitution is amended must comply with existing constitutional requirements.”

McKinnon added that by requiring a single yes or no decision on multiple issues, “voters had no way to express their opinions as to each proposed constitutional change.”

The law was named after Marsy Nicholas, a California college student killed by her ex-boyfriend in 1983. Her brother, Broadcom Corp. co-founder Henry Nicholas, campaigned to pass Marsy’s Law first in California in 2008 and later in Illinois, North Dakota and South Dakota.

County officials in Montana had said they would have to add staff and equipment to comply.

Those who challenged the law cast the initiative as a “hostile takeover” of the Montana Constitution by outside interests. They said it would have forced prosecutors to choose between justice for the accused and the expanded rights of victims.

But the group that backed the initiative said Wednesday’s decision had stripped the state’s residents of changes that voters backed by an overwhelming margin.

“Crime victims in Montana deserve to have the same rights” as offenders, said Chuck Denowh with the Marsy’s Law for Montana group. “We’re going to continue to fight.”


Denowh said no decision had been made on whether to pursue new voter initiatives on a piecemeal basis to resurrect components of the law.

ACLU Montana legal director Alex Rate said such an approach would likely have a different outcome than the 2016 vote because voters would be more educated about the proposed changes.

“The voters would clearly understand that they are voting to amend our privacy provision or they are voting to amend our due process provision or they are voting to amend our right to know,” Rate said.

The office of Attorney General Tim Fox had defended the law on behalf of voters. Fox spokesman Eric Sell did not immediately respond to email and telephone messages seeking comment.

Dissenting Justices Jim Rice and Beth Baker said the law was not ready for review because it hadn’t been implemented and its effects would not be known until it was applied to particular cases.

Rice wrote that the court had overstepped its bounds in the decision, which could undermine or even eliminate the rights of Montanans to amend the Constitution by initiative.


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