Citing Vague Ballot Wording, Kentucky Supreme Court Strikes Crime Victims Amendment
By John Cheves
The Kentucky Supreme Court on Thursday struck down a voter-approved constitutional amendment known as "Marsy's Law" that would have established roughly a dozen rights for crime victims in state courts.
The high court unanimously ruled that the actual language of the 556-word amendment -- although dense and complex -- should have been presented to voters on the statewide ballot last November, rather than a brief question asking voters if they agreed crime victims should be treated with "dignity and respect."
The Kentucky Constitution does not allow for a terse summary of proposed amendments, the court said.
"The meaning of the phrase 'such proposed amendment or amendments shall be submitted to the voters' is plain and its direction is clear: The amendment is to be presented to the people for a vote," Chief Justice John Minton wrote for the court.
The Kentucky Association of Criminal Defense Lawyers, which challenged Marsy's Law, said it was pleased.
"Voters have a right to know what they're voting on, and the legislature failed them," said David Ward, a Winchester attorney who helped bring the lawsuit for the group.
The legislative sponsor of Marsy's Law, state Senate Judiciary Chairman Whitney Westerfield, R-Hopkinsville, said he hopes the 2020 General Assembly will agree this winter to put a version of the amendment back on the ballot. Westerfield is now running for a seat on the Supreme Court.
"Kentucky voters spoke loud and clear in support of crime victims on Election Day in 2018," Westerfield said Thursday.
"Like the majority of Kentuckians, I believe that crime victims deserve to be afforded the respect, justice, and equal rights that Marsy's Law would provide," the senator said. "It is troubling that, in order to reach this conclusion, the Supreme Court reversed years of established precedent and inserted an entirely new requirement for amending our state Constitution."
In a prepared statement, the group Marsy's Law for Kentucky said: "This is not the end of the line for Marsy's Law but merely a fork in the road. For we are now more than ever committed to delivering crime victims the equal rights they are owed. We look forward to working with the General Assembly again to put Marsy's Law back on the ballot for Kentucky voters in 2020 in a form that will pass legal muster as defined by the court."
Kentucky's version of Marsy's Law would have established assorted rights for crime victims, many similar to rights that have existed in state law since 1986. They include the right to be heard at court proceedings; for proceedings to be free from unreasonable delay; to be notified when a defendant is released or escapes custody; to have reasonable protection from the accused and those acting on behalf of the accused; to have consideration for their safety, dignity and privacy; and to consult with prosecutors.
Critics said Marsy's Law promised to sow confusion in the courts by giving one or more designated crime victims a formal say at every important hearing, even before a defendant is convicted and it hasn't necessarily been established that a crime has occurred. Existing law already gives crime victims the right to explain to the courts before sentencing how they were harmed and to request notification when an inmate is released from custody, among other legal protections, opponents said.
Marsy's Law was approved by about 63 percent of the voters following a $5 million promotional campaign underwritten by a California tech billionaire.
However, the Kentucky Association of Criminal Defense Lawyers previously had sued over the ballot language, arguing that it failed to accurately convey what Marsy's Law would do. On the ballot, voters simply were asked: "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?"
A Franklin Circuit Court judge sided with the defense lawyers on Oct. 15. As a result of that lower court ruling, the Nov. 6 votes on Marsy's Law were counted but were not certified by state elections officials.
The Supreme Court affirmed the lower court on Thursday.
Attorneys for the General Assembly, defending Marsy's Law in oral arguments, said legislators should have the authority to craft constitutional amendment language on the ballot as they see fit. Sometimes it's better to offer voters a summary that contains the "substance" of an amendment without going into legalistic detail, the lawyers said.
But the high court ruled Thursday that the state Constitution requires the actual language of a proposed amendment to appear on the ballot.
"We hold that Section 256 of the Kentucky Constitution requires the General Assembly to submit the full text of a proposed constitutional amendment to the electorate for a vote," Minton wrote for the court.
"Likewise, Section 257 requires the secretary of state to publish the full text of the proposed amendment at least ninety days before the vote. Because the form of the amendment that was published and submitted to the electorate for a vote in this case was not the full text, and was instead a question, the proposed amendment is void," Minton wrote.
(c)2019 the Lexington Herald-Leader (Lexington, Ky.)