Marsy’s Law in Wisconsin

History of Marsy’s Law

Marsy Nicholas was the sister of Henry Nicholas, the co-founder and former co-chairman of the board, president and chief executive officer of Broadcom Corporation. In 1983, Marsy, then a senior at UC Santa Barbara, was stalked and murdered by her ex-boyfriend.  Kerry Michael Conley went to jury trial in the matter.  Eventually he lost and the court sentenced him to life in prison with the possibility of parole after 17 years.  That wasn’t enough for the family, Conley made it a personal goal to broaden victim rights throughout the country.

The Nicholas family was the main organizer of the campaign to pass Marsy’s Law, whom former California Governor Pete Wilson called the “driving force” behind the constitutional amendment. In late 2007, Nicholas convened a group, including Wilson, to consider putting a comprehensive victims’ rights constitutional amendment on the ballot in California. He recruited legal scholars and former prosecutors to draft, rework and write the final version of the bill.

Finally, voters enacted Marsy’s Law in California in 2008, the first state to proceed with the law.  Voters throughout the country have certainly followed a similar path.  Ohio, Illinois, and Wisconsin ratified versions of the law.  Georgia, Hawaii, Montana, Nevada, South Dakota, Florida, Maine, North Carolina and Pennsylvania are all at various stages of adopting some version.

Expansion of victim rights:

Marsy’s Law, as adopted in Wisconsin, expands victim rights in 16 areas:

a) To be treated with dignity, respect, courtesy, sensitivity and fairness
b) to privacy
c) to proceedings free from unreasonable delay
d) to timely disposition of the case free from unreasonable delay
e) upon request, to attend all proceedings involving the case
f) to reasonable protection from the accused throughout the criminal and juvenile justice process
g) upon request, to reasonable and timely notification of proceedings
h) upon request, to confer with the attorney for the government
i) upon request, to be heard in any proceeding during which a right of the victim is implicated including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon
j) to have information pertaining to the economic, physical and psychological effect of the crime or juvenile offense upon the victim submitted to the authority with jurisdiction over the case and have the information considered by that authority
k) upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death
l) to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused
m) to full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution
n) to compensation as provided by law
o) upon request, to reasonable and timely information about status of the investigation and the outcome of the case
p) to timely notice about all rights in this section and all other rights, privileges or protections of the victim provided by law, including how such rights, privileges or protections are enforced

Finally, the amendment includes a definition of the word victim:

• Any person a defendant commits a crime against, if the defendant is a competent adult, is the victim.
• If the individual listed above is deceased or physically or emotionally unable to exercise his rights under this section, his parents, spouse, sibling, child, roommate, or other lawful representative.
• In the case the victim is a minor, the victim includes the victim’s parent, legal guardian or custodian, or other lawful representative.
• If the person is legally incompetent, their legal guardian or other lawful representative is the victim.

This amendment impacts defendants

On its face this law seems rather innocuous.  Certainly increasing the rights for victims has no real impact on defendants, right?  Unfortunately this may not always be the case.  Rights such as a timely disposition of the case may directly conflict with the certain constitutional rights of the defendant.  Whereas the defendant has a right to file pre-trial motions and challenge certain actions of the government, that may come into conflict with the victim’s right to dispose of the case quickly.

Marsy’s Law goes to the Supreme Court of Wisconsin

On February 12, 2022 the Supreme Court of Wisconsin agreed to hear a challenge of Marsy’s Law.  After Marsy’s Law became effective, the Wisconsin Justice Initiative, Inc. (WJI) challenged the legal sufficiency of Question 1, which was the ballot question submitting Marsy’s Law to voters.  That question indicated:

Question 1: “Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

The Dane County Circuit Court agreed with WJI that the ballot question did not comply with the state constitutional requirements.  Specifically, the court found three problems:

• Firstly, the ballot question did not “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment.”  Case law refers to this as the “every essential” test.
• Secondly, the ballot question was misleading.  Specifically, it included incorrect information and did not mention its subject in accord with fact.
• Finally, under the “separate amendment” rule, the proposed amendment’s form should have been more than one ballot question because it encompassed more than one subject matter and accomplished more than one purpose.

Unfortunately, it’s impossible to determine exactly when both sides will submit briefs and the Supreme Court of Wisconsin decides the case.  But it’s safe to say that even if Marsy’s Law doesn’t survive this review, voters will see it on a ballot in the future.

Contact our criminal defense lawyers immediately for help

If you’re facing criminal charges it’s certainly important to hire a top criminal defense lawyer to help you.  At Van Severen Law Office, S.C., our criminal defense attorneys aggressively represent individuals facing all criminal charges.  These charges certainly include those involving alleged-victims.  We’re familiar with Marsy’s Law, along with the law involving victims, and can help.

Finally, don’t hesitate to contact us whenever you need help.  When we’re not physically within the office, our answering service immediately forwards messages directly to our criminal defense experts.  This allows us to respond to you 24/7, whenever you need help.  Call us: (414) 270-0202.