Fixing the Marsy’s Law Mess
By Senator David J. Hogue and Mark A. Friese
In November 2016, voters in Montana, North Dakota, and South
Dakota overwhelmingly approved a constitutional initiated measure
known as Marsy’s Law. While constitutional provisions generally
set forth broad principles defining rights between a government and
its citizens, this measure engrafted numerous statute-like victims’
rights onto the constitution of all three states, creating conflicts with
existing statutes and rules. Since the 2016 election, the Montana
Supreme Court struck down the Montana version of Marsy’s Law
as unconstitutional, and after initial efforts to repeal the South
Dakota version, voters approved a scaled back version of the law in
the June 2018 elections. North Dakota’s version remains unaltered,
and a continued source of uncertainty for our criminal justice
system.
The North Dakota measure passed despite uniform opposition from
victims’ rights groups, prosecutors, defense attorneys, the Fraternal
Order of Police, retired and active judges, and others. The measure
passed notwithstanding existing well-functioning, longstanding
victims’ rights statutes in effect at the time. News accounts have
outlined “frustration” of police and governmental officials who have
been saddled with the costs and taxed with implementation. Equally,
lawyers, courts, and lawmakers are, as predicted, picking up the
pieces.
The North Dakota Supreme Court has now twice addressed
Marsy’s Law – both times in the context of a victim’s right to “full
restitution.” In State v. Kostelecky, 2018 ND 12, 906 N.W.2d 77,
the court unanimously held the district court erred by imposing
restitution beyond that necessary to make a victim whole. After
the defendant pleaded guilty to damaging a school photocopier,
the state presented evidence of replacement cost of $3,790 and
depreciated value of $400. The defendant agreed with the $400
depreciated value, presenting evidence a refurbished machine could
be purchased for approximately $1,100 to $1,800. The district court
awarded “full restitution” of $3,790. The Supreme Court reversed,
holding improper a restitution order beyond that necessary to
make the victim whole. Because the issue was not raised, the court
declined to address the clear conflict between Marsy’s Law’s “full
restitution” and existing statutory law requiring a court’s restitution
order must consider a defendant’s ability to pay along with the
rehabilitative purpose of restitution.
In State v. Blue, 2018 ND 171, 915 N.W.2d 122, the clear conflict
appeared to be squarely presented. Following guilty pleas to two
counts of terrorizing, Blue stipulated to a restitution claim of
approximately $2,700, but argued under statute the district court
must assess whether he possesses the ability to pay. Noting the clear
conflict, the trial court declined to consider the defendant’s ability
to pay, ordering full restitution. Avoiding the conflict under the
guise, the issue was raised by the trial court and not the parties, in
a 3-2 decision, the court remanded the matter for the district court
to consider Blue’s ability to pay. Dissenting, two justices noted the
constitutional amendment requiring “full restitution” is unambiguous
and argued the majority erred by remanding.
Trial courts are equally struggling with the uncertainty created by
Marsy’s Law. Anecdotal reports of practitioners include instances
where judges have declined to issue search warrants for DNA from
an accused rapist because the complaining witness refused to be
identified. The law has long required judges to assess credibility of an
informant in probable cause determinations – a near impossible task
without an identity. Because some victims refuse to be identified or to
provide their home and work addresses, judges have issued dozens of
ineffective orders prohibiting contact. Lacking specificity and teeth,
an order prohibiting contact with “John Doe” or “J.D.” denies the
victim meaningful protection and subjects the accused to additional
criminal penalties for unwitting conduct.
Other instances include reports of divorce litigants intervening
in criminal cases to gain advantage in family law cases. Witness
testimony is being tainted and conformed by witnesses receiving
reports in advance of hearings, and by courts denying sequestration
requests, permitting witnesses to remain in the courtroom to overhear
testimony. Victim support and advocacy organizations, denied victim
identities and contact information, are unable to reach out to offer
services. Criminal charges are even being dismissed because victims
refuse to be identified. As practitioners predicted, the consequences
of Marsy’s Law include hurting those purportedly protected.
The law has long-recognized the initiated measure process as “part
of the fabric of our liberty as North Dakotans.” Equally, the people
“are in effect coordinate legislative bodies with coextensive legislative
power.” But as lawyers, we ought to recognize and articulate what
David J. Hogue is a shareholder with Pringle &
Herigstad, P.C., in Minot. He has served in the
North Dakota Senate since 2008 and is currently
the Majority Caucus Leader. He currently serves
as the Interim Judiciary Committee Chair.
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THE GAVEL
Mark A. Friese is a shareholder with
the Vogel Law Firm in Fargo and
has served as a citizen member for
interim legislative committee review
of criminal justice issues.