The Kentucky Supreme Court was asked Friday to overturn statewide election results from last November that would grant new constitutional rights to crime victims.
Although 63 percent of Kentucky voters approved Marsy’s Law, a proposed constitutional amendment, the lengthy and complex language of the amendment did not appear on the ballot or in state-paid newspaper advertisements in advance of the election.
Instead, legislators crafted a ballot question about treating crime victims “fairly” that was so vaguely worded that voters had no idea what they were being asked to support, according to a lawsuit filed by the Kentucky Association of Criminal Defense Lawyers.
A Franklin Circuit Court judge agreed with the criminal defense lawyers Oct. 15, ordering the amendment election’s votes to be counted but not certified. During oral arguments in the case Friday, several Supreme Court justices sounded skeptical that voters were given a clear understanding of what was at stake with Marsy’s Law.
Sign Up and Save
Get six months of free digital access to the Lexington Herald-Leader
“If you ask the voters if they’re for crime victims’ rights, who other than a sociopath is going to answer any way but ‘yes’ to that question?” asked Justice Michelle Keller of Covington. “But when you get down to what that means for our system and how crimes are processed, then I think it gets very, very complicated.”
Kentucky’s version of Marsy’s Law would establish a dozen constitutional 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.
However, the Nov. 6 ballot question simply 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?”
Newspaper advertisements published by the Kentucky Secretary of State’s office to inform voters in advance of the election, as required by law, likewise included the short ballot question, not the actual text of the amendment.
A well-funded interest group promoted the passage of Marsy’s Law in Kentucky by not truly explaining what it was doing, attorney Kenyon Meyer told the Supreme Court Friday on behalf of the criminal defense lawyers.
Henry T. Nicholas III, a California tech billionaire, paid about $5 million during the 2018 election cycle to bankroll the Marsy’s Law campaign in Kentucky, as part of his larger $45 million effort in a half-dozen states.
“I think the danger is that it takes away the power to amend the constitution from the people,” Meyer told the justices. “I think it sets a very dangerous precedent.”
Arguing for Marsy’s Law, attorney Sheryl Snyder said state law does not require the full text of proposed constitutional amendments to be published on ballots as long as the ballot questions contain the “substance” of the amendments. In some cases, amendments are too long and complicated reasonably to be published on a ballot, making a summary necessary, Snyder said.
“I think the law is very clear that stating the substance of an amendment does not mean having to state every detail of the amendment,” Snyder said.
In a statement released Friday, the Marsy’s Law for Kentucky campaign said: “In November 2018, more than 800,000 Kentucky voters went to the polls and supported equal rights for crime victims. Their voices deserve to be heard, not dismissed because of a supposed technicality raised at the eleventh hour by self-serving criminal defense lawyers.”
The lead plaintiff in the lawsuit is David Ward, president of the Kentucky Association of Criminal Defense Lawyers, and the lead defendant is the legislative sponsor of Marsy’s Law, state Sen. Whitney Westerfield, R-Hopkinsville. Both sides asked the Supreme Court to take the case directly from circuit court, bypassing the Court of Appeals.
Critics say Marsy’s Law promises to sow confusion in Kentucky’s 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. Crime victims might also be given the right to court-appointed counsel at state expense and the right to appeal rulings in cases, they say.
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, the critics say.
A decision is expected from the Supreme Court in the coming months, but no timetable has been set.