There are two constitutional amendments on KY ballots. Here’s what you need to know.
Kentucky voters face two constitutional amendments on the Nov. 3 ballot.
Two long, densely worded constitutional amendments.
There is a reason for all that verbiage.
Last year, the Kentucky Supreme Court struck down a 2018 voter-approved constitutional amendment known as “Marsy’s Law” that would have established roughly a dozen rights for crime victims in state courts.
The court unanimously ruled that the entire 556-word amendment should have been presented on the ballot, rather than a brief question simply asking voters if they agreed that 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.
Very well, lawmakers said last winter, let’s try this again.
So this time, the Marsy’s Law amendment is being presented to voters in its entirety (and the text since has grown to 614 words). A second amendment that would require greater legal experience for district court judges and lengthen the terms of office for them and commonwealth’s attorneys likewise is appearing at full length and with the same formal language that would go into the state Constitution if voters approve.
Supporters of the amendments say they hope that everyone takes the time to wade through the questions.
“We do worry about people reading the whole thing and understanding it. That’s why we’re trying to get the word out now and educate them,” said Christian District Judge J. Foster Cotthoff, president of the Kentucky District Judges Association.
Cotthoff is an advocate for the second amendment, the one concerning district court judges and commonwealth’s attorneys.
“I’ve looked at ballots from several counties, and in most of those counties, the amendments are actually on the back, so you have to turn it over or you won’t even see them,” Cotthoff said. “And our amendment is Question no. 2.”
Marsy’s Law explained
Question No. 1 on the ballot is Marsy’s Law.
It would write into the Constitution 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 court 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 due consideration for their safety, dignity and privacy; and to consult with prosecutors as cases proceed.
Judges would have to protect victims’ constitutional rights under the amendment as vigorously as they do the rights of the accused. When victims and their attorneys came to the courthouse, judges and prosecutors would be required to listen to them.
The amendment is referred to as Marsy’s Law because of the man bankrolling such measures around the country: Henry T. Nicholas III, a California tech billionaire whose sister Marsy was murdered in 1983. In Kentucky alone, Nichols has spent several hundreds of thousands of dollars in recent years on political lobbying and public relations to get the amendment passed.
As of 2020, Kentucky is one of only 15 states to not have constitutional protections for crime victims, state Senate Judiciary Chairman Whitney Westerfield told his colleagues during last winter’s legislative session. Westerfield, R-Crofton, sponsored the amendment.
Supporters say Marsy’s Law is necessary because state courts sometimes don’t take crime victims’ concerns into account, moving cases along to conclusion without even communicating with the people who were most seriously hurt by a crime. Even where there are existing laws, such as victim notification before an inmate is released, mistakes happen, and when they do, victims don’t have much legal recourse, supporters say.
Writing specific crime victim rights into the state Constitution puts the justice system on notice that these procedures must be followed, supporters say.
However, opponents say Marsy’s Law would sow confusion in the courts and interfere with defendants’ right to a fair hearing.
They say the amendment would give one or more designated crime victims a formal say at every important hearing, influencing the process even before a defendant is convicted and it’s been established that a crime occurred. Kentucky law already gives 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 say.
“If the voices of complaining witnesses and victims are not being heard, it is because prosecutors and judges are not following the statutes that already protect these rights. The solution is not to create a constitutional amendment that weakens your constitutional rights if you, a friend or family member is accused of a crime,” the Kentucky Association of Criminal Defense Lawyers warns.
How long should court officials serve?
Question No. 2 on the ballot — with no nickname — would change the way Kentucky elects some of its state court officials.
Kentucky’s lower courts, which hear misdemeanors and minor lawsuits, are called district courts. Their judges serve four-year terms. The upper courts, which hear felonies and more serious lawsuits, are called circuit courts, and their judges sit for eight years at a time, as do family court judges and the state’s appellate judges on the Court of Appeals and the Supreme Court.
If passed, this amendment would double the district court judges’ terms to eight years so they match the others, starting with the 2022 election. It also would toughen the eligibility for district court judges, requiring them to have been licensed attorneys for at least eight years rather than the current two years.
The two-year requirement for district judges dates back to 1976, when Kentucky modernized and unified its justice system into the current district and circuit court structure, said Jefferson District Judge Stephanie Pearce Burke. As a compromise to county officials who previously wielded judicial power in lower courts, the legislature agreed to set lower standards for district court judges.
But nearly a half-century later, district courts perform far too many important roles in their communities to be overseen by novice lawyers, Burke said.
“This amendment really is about raising the public’s confidence in the district court bench,” Burke said. “District courts should not be seen as a training ground, not when you look at the issues that are tossed in our laps, like mental health, poverty, addiction, racial disparity and bail reform.”
There are 115 district court judges getting more than 700,000 new cases a year, said Cotthoff, the Christian District Court judge.
“We think it’s time to treat district court like the real court that it is and pay respect to what we do,” Cotthoff said.
The amendment also would lengthen the term of office for commonwealth’s attorneys, the prosecutors who handle felonies in circuit court, to eight years from the current six years. That change would begin with the 2030 election.
Not everyone is a fan of court officials going longer between elections.
During the 2020 General Assembly, state Sen. John Schickel said voters deserve to weigh in on the performance of their local court officials more frequently than once every eight years. If the goal is for all terms to be of the same length, Schickel said, that also could be accomplished by reducing the terms of all court officials to four years.
Northern Kentucky has seen scandals recently involving a family court judge and a commonwealth’s attorney, added Schickel, R-Union. Voters should be able to remove wayward officials sooner rather than later, he said.
“This is a time when the public demands more accountability, not less,” Schickel said.
This story was originally published October 7, 2020 at 9:16 AM.
