Kentucky Defense Lawyers Sue To Block Marsy's Law From November Ballot

The Kentucky Association of Criminal Defense Lawyers is suing to block a constitutional amendment said to advocate for victims’ rights from appearing on the ballot in November.

The measure is called Marsy’s Law.It passed the Kentucky General Assembly this year, and if it's ratified by voters in the fall it will amend Kentucky’s constitution to require crime victims be notified of court proceedings, receive compensation from the convicted and more.

Last week, KACDL sued the Secretary of State’s office and Kentucky State Board of Elections, alleging the Marsy’s Law amendment is flawed due to its effects on the criminal justice system and the language representing the amendment on the ballot.

“Because this is a constitutional amendment, it would alter every other constitutional provision to which it is related,” KACDL said in a press release Monday. “It would fundamentally skew the balance in our system of justice. It is designed to effectively remove the presumption of innocence.”

Marsy's Law State Director Ashlea Christiansen said she's disappointed by the lawsuit. Kentucky Republican Senator Whitney Westerfield, who sponsored Kentucky's version of the bill, called the lawsuit unnecessary.

"Marsy’s Law has been fully vetted and debated in Kentucky for years and has overwhelming bipartisan support," Westerfield said in a statement. "I am absolutely confident that [KACDL] stand[s] alone — and will fail — in this effort to deny Kentucky victims of crime the equal rights they deserve."

The Law

Marsy’s Law is named after Marsy Nicholas, a Californian murdered by her ex-boyfriend in 1983. Her family saw the accused killer in a grocery store after he had been released on bail, pushing her family to launch the movement. In recent years, the group advocating victims' rights provisions has succeeded in getting language inserted into the constitutions of six states. Voters in six other states, including Kentucky, will have the opportunity to vote on the measure this November.

But the measure has been met with controversy. Montana ACLU Legal Director Alex Rate said the law deters due process by presuming someone’s guilty before they’re proven innocent.

“It flips this idea of due process and ‘innocent until proven guilty’ on its head,”Rate told WFPL in January. “What [people] don’t understand when they’re voting on these types of things is that they’re limiting the rights of everybody else.”

The Challenge

The lawsuit filed on August 7 by the Kentucky Association of Criminal Defense Lawyers is focused on the language of the measure slated to go before Kentucky voters in November.

KACDL president David Ward said the language is too vague. Voters would see this on that ballot:

“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?"

The lawsuit argues that the language leaves out too much information about what Marsy's Law would do:
The question does not inform the electorate that the Amendment (a) would impose a constitutional determination that a crime has occurred prior to a conviction in criminal cases and require judicial determinations of whether persons have been proximately harmed by an alleged crime prior to conviction; (b) only applies to certain, legislatively determined, "victims of crime;" (c) will reinstate legislative control over the Court of Justice and the procedural and substantive manner in which circuit courts try criminal cases; (e) creates an entirely new right of privacy for the exclusive benefit of those persons legislatively determined to be victims of crime; and, (f) provides no effective legal mechanism for enforcement of the rights created and in fact limits the avenues of relief available.
KACDL Legal Counsel James David Niehaus said the group’s lawsuit is to ensure the amendment is filed lawfully, but said he still questions the content of Marsy’s Law.

“Anybody who studies this proposal closely will find that there are a lot of questions that are unanswered,” Niehaus said. “The focus right now is on the amendment process itself. The question being: Should this matter go on the ballot at all on November 6?”

The lawsuit was filed in Franklin Circuit Court, and names Kentucky Secretary of State Alison Lundergan Grimes in her official capacity.

Kentucky Secretary of State spokesperson Bradford Queen responded in a statement, saying the office performed its duties filing the amendment, and would take no position on the content of Marsy’s Law.

Niehaus said the defendants have 20 days from the date they've been served to respond to the lawsuit. He expects the courts to rule on the suit before November, when Kentucky residents are slated to vote on it. If the amendment is blocked from appearing on this year’s ballot, it would be up to lawmakers to address the measure again during Kentucky’s next regular legislative session in January.