Kentucky justices review ‘Marsy’s Law’ ballot language

February 8, 2019

FRANKFORT, Ky. (AP) — Kentucky’s Supreme Court heard arguments Friday on whether a nearly 40-word ballot question sufficiently informed voters about a proposed amendment that would add multiple protections for crime victims to the state’s Constitution.

At stake was whether last year’s statewide vote on the proposal will be certified. Lawyers faced a barrage of questions from the justices during a nearly hourlong session.

The amendment known as “Marsy’s Law” won approval with nearly 63 percent of the vote last November. Before the election, a state judge ruled the ballot question was too vague. He ordered state election officials not to certify the election results until the case could be resolved.

On Friday, an attorney for Marsy’s Law supporters told Kentucky’s high court that the disputed language met legal standards by reflecting the “essence” of the proposed amendment.

“In our democracy, what function does the ballot question serve?” said the attorney, Sheryl Snyder. “Is it supposed to be the Encyclopedia Britannica? Or is it a question formulated to state the substance, the essence, the essential nature of the amendment?”

Snyder said a ruling against the ballot language would be “negating the voice of the people.”

Attorney Robert Kenyon Meyer, representing those challenging the ballot language, responded that the language failed to inform voters of the content of the proposed amendment.

“The legislature doesn’t have the power to change the Constitution,” he said. “The people do. And they need to know and make an educated vote on this.”

Kentucky’s version of Marsy’s Law would guarantee crime victims have 10 constitutional rights, including the right to timely notification of all court proceedings, the right to be present for those hearings and the right to be heard in any hearing involving a release, plea or sentencing. It would also give victims the right to ask a judge to enforce those rights.

The question posed to voters on the ballot said: “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”

During the arguments, some justices wondered whether the phrasing reflected the due process and financial ramifications of the amendment.

Justice Michelle M. Keller said that when simply asking voters if they support crime victims’ rights, the overwhelming majority will vote ‘yes.’ But she added that “when you get down into what that means on our system ... I think it gets very, very complicated.”

When reviewing the ballot language, Deputy Chief Justice Lisabeth T. Hughes asked: “Does that convey the substance of all of this?”

Snyder said voters had opportunities to familiarize themselves with the issue at public forums, by reading media reports and by going on the Internet.

Kentucky was one of six states with Marsy’s Law on the ballot last year. Voters approved the law in all six states. The effort is backed by a California billionaire whose sister, Marsalee Nicholas, was slain in 1983. In Kentucky, Marsy’s Law was pushed by Republican state Sen. Whitney Westerfield, chairman of the state Senate Judiciary Committee.

Meyer told the justices on Friday that the “Marsy’s Law” case could set a “very dangerous precedent.” He noted that Kentucky’s proposed amendment was backed by a well-funded advocacy group that ran a “very sophisticated” advertising campaign.

“And the people vote on a question and never know, never see what they’re voting on,” he said.

In Kentucky, most of the rights asserted in the proposed amendment are already covered by state law. But supporters say adding them to the state Constitution would make them more secure. Critics, like the Kentucky Association of Criminal Defense Lawyers, worry about the courts granting legal status to a victim when the judicial system — which is rooted in the presumption of innocence — has yet to determine if a crime took place. The critics also raised concerns that the amendment would let the state legislature, not the courts, set rules for criminal proceedings.