State elections officials today officially certified the passage of a constitutional amendment giving more rights to crime victims known as "Marsy’s law," but it’s still unclear when the law will take effect.
A petition filed Friday by the American Civil Liberties Union of Montana and county attorneys aims to hold the constitutional change off until July. Advocates for the law say it should be implemented immediately.
The Constitutional amendment, known as Marsy’s Law, was approved by voters on election day. It won 66 percent of the vote, one of the most popular items on this year’s ballot.
The ACLU says organizations need time to comply with new policies mandated by the constitutional initiative, but others say the law is effective immediately.
Charles Denowh, state director for the campaign that passed Marsy's Law in Montana, says the main objective is to change how victims of crimes are treated in the justice system.
"Marsy’s Law gives stronger rights to crime victims, it puts them on an equal level with offenders," Denowh said.
While the overall aim of Marsy's Law is understood, it not clear yet how those victim rights will impact the justice system, how much it will cost, or when the constitutional amendment takes effect.
Last week, Montana’s Board of Canvassers, who certify elections results, couldn't agree on the effective date of the crime victims rights, because of different interpretations of how the amendment was written.
The Canvassers Board includes the Department of Justice, Office of Public Instruction and the State Auditor office.
Charles Denowh says although the language in Marsy's Law didn’t include an exact date, the intent is for it to start as soon as possible.
"And as soon as the election is certified, Marsy's Law is in effect," he said.
But, a number of other groups are arguing that constitutional changes can only be implemented in July of the following year.
Jim Taylor is with the American Civil Liberties Union of Montana:
"The ACLU of Montana is working with The Montana Association of Counties, The Montana County Attorneys Association, and the Montana League of Cities and Towns. So I want to be clear that on the effective date all of those organization are in accord on when the effective date should be and that’s July 1 2017."
Taylor says that aside from the argument over Marsy’s Law’s effective date, there are what he calls ‘a lot of problems’ with the constitutional initiative.
The ACLU calls Marsy’s Law an "overreaching addition to Montana’s Constitution," and says it will consider legal challenges to the expansion of victim rights.
The effort to add Marsy's Law to Montana’s constitution was funded almost exclusively by a businessman who lives in California. After Henry Nicholas’ sister was murdered in the 1980s, he became an advocate on criminal justice reform around the country, with the goal of eventually changing the United States Constitution. Nicholas spent around a $1.5 million to bring Marsy’s Law to Montana.
According to campaign finance reports, no ballot group formed to oppose Marsy’s Law.
Opposition to the criminal victim rights expansion did show up in newspaper editorials.
The Marsy’s Law constitutional change was approved by just over 325,000 Montana voters, roughly a third of the state’s population.
“This is probably actually the best example of the innovative process going haywire,” said Chris Abbot, Helena Public Defender who represents the accused.
"This is something where someone who is not from here, who has a lot of money at their disposal and therefore able to organize, was able to get something through without a lot of substantive public debate," he said.
Marsy’s Law expands the definition of what a victim is, and raises victim rights from statutory law into the constitution, similar to the rights of the accused. But, Abbott says that the way the justice system works, it might not make sense for those rights to be on the same level.
"And those rights are there to protect from the power of the government, and I don't think there is that same concern with victims. But with a criminal defendant there really is. People get really ripped up over crimes, and historically have, and even to this day do, and a lot of times those constitutional amendments prevent someone from getting wrongly convicted or over punished because the flavor of the moment is this person is already in our eyes guilty," Abbot said.
Charles Denowh with Marsy’s Law for Montana says voters had enough information to make an informed decision about this constitutional change. And he says victims need these rights to ping their voices back into the justice system.
"There was a time in this country when prosecutors directly represented victims and over time that shifted," Denowh said. "Now prosecutors represent the state and represent society. And that is the way it should be, but in that transition from prosecutors representing individual victims to representing the state, the victim have been forgotten. So an effort like Marsy’s Law is an effort to bring them back into a more central role in the case."
When Marsy’s Law was put to vote, ballot information guides said the constitutional change would have financial impacts on Office of the Public Defender, the judicial branch, the Department of Corrections and local governments. Those information guides did not say what those costs would be.
Montana's Canvassers Board gathered Monday morning and certified the election results approving Marsy’s Law. But, the board did not give an effective date for the constitutional change.
That will be decided by the state Supreme Court in the petition filed by the ACLU of Montana along with several associations of counties and attorneys.
The suit hopes to delay Mary’s law until July 1 2017.
The secretary of state and attorney general have 14 days to respond to the petition from the ACLU and other organizations to the Court.
This story was updated at 4:15 p.m. on 12/05/16 to add information about Monday's Board of Canvassers meeting.