Dec. 28, 2021 – The Wisconsin Court of Appeals has certified an appeal over a victims’ rights ballot measure adopted last year to the Wisconsin Supreme Court.

In Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2020AP2003 (Dec. 21, 2021), a three-judge panel held that certifying the appeal to the supreme court was necessary to clarify the central question raised by the appeal: whether the ballot question submitting the measure to voters was legally insufficient.

In its certification, the court cited “the statewide importance of the issues at stake, the novelty of some of those questions, and the lack of significant authority on others.”

Measure Passed by Wide Margin

Wisconsin voters adopted the measure at the April 7, 2020 election by a margin of three to one.

Known as Marsy’s Law, the measure wrote many statutory victims’ rights into the state constitution. The move to put the amendment before Wisconsin voters was part of a nationwide campaign to enact victims’ rights ballot measures.

The measure amended article 1, section 9m of the Wisconsin Constitution in the following ways:

·         Expanded the definition of “victim” to include the spouse or parent of a victim, as well as a person living with the victim;

•         Removed the condition “unless the trial court finds sequestration is necessary to a fair trial for the defendant” from the exercise of a victim’s right to attend all proceedings involving his or her case;
•         Provided a mechanism for a victim or a representative of a victim to enforce the rights in article I, section 9; and
• ​        Specified that nothing in the section was to be interpreted to “supersede a defendant’s federal constitutional rights,” amending a subsection that specified that nothing in the section “shall limit any right of the accused which may be provided by law.”

Grounds for Lawsuit

In December2019, Wisconsin Justice Initiative (WJI) filed a lawsuit in Dane County Circuit Court seeking a temporary injunction to prevent the measure from going to the voters. The court denied the motion.

After the April 2020 election WJI filed a motion seeking declaratory and injunctive relief.

WJI argued that the ballot measure was insufficient because it failed to reasonably, intelligently and fairly include or reference every essential of the measure; was misleading; and should have been presented as multiple questions.  

The circuit court agreed with WJI and granted the motion.

‘Every Essential’ Test

The circuit court ruled that the measure failed the “every essential” test because it didn’t inform voters that it removed protection for the accused by striking the provision that conditioned a victim’s right to attend proceedings on the absence of a judge’s sequestration finding.  

The Wisconsin Elections Commission (WEC) argued that a ballot question need only contain a concise summary of the essential elements of a proposed amendment, and need not discuss potential or speculative legal effects.

“As shown by the competing positions in this case, there is need for clarification and development of the court’s ‘every essential test,’” the appellate panel wrote in its certification.

“To be sure, a test that moves too far on the margins in either direction can have significant ramifications in terms of how future ballot questions must be presented to voters to validly amend our state’s highest law.”

Was Ballot Question Misleading?

The circuit court ruled that the ballot question was misleading for two reasons. 

While it informed voters that the measure left the federal constitutional rights of the accused intact, the ballot question failed to mention the removal of the condition regarding a no- sequestration finding.

Additionally, the ballot measure failed to mention that it narrowed the scope of the savings clause from not limiting any right of the accused to not limiting any federal constitutional right of the accused.

WEC argued that the circuit court’s rationale was improperly based on “concerns about possible effects of the Amendment in particular cases.”  

Perhaps that was so, the court of appeals wrote. But, the court wrote, there was still a question whether it was misleading for the ballot question to imply that the measure made no change to any constitutional provision related to the rights of the accused.

The circuit court also ruled that the ballot question was misleading because while it stated that victims’ rights shall be “protected with equal force to the protections afforded the accused,” the wording of the new constitutional provision specifies that those rights “shall be protected with equal force to the protections afforded the accused.”

WJI argued to the circuit court that the two phrases connoted different levels of protection. WEC argued to the court of appeals that the circuit court was too critical in parsing the wording of the two phrases.

“Thus, another novel question that is appropriate for the [supreme] court’s determination is whether, and to what degree, a ballot question must faithfully represent the text of the proposed amendment,” the court of appeals wrote.

Separate Questions?

The circuit court ruled that the ballot question ran afoul of a state constitutional provision that proposed constitutional amendments be submitted to the voters separately.

Specifically, the proposed provisions expanding crime victims’ rights were neither related to nor dependent on – and did not accomplish the same thing – as the provisions restricting the rights of the accused.

WEC argued to the court of appeals that adoption of the ballot measure did not change the substantive rights of the accused.

“Thus, again, the question is whether the removal of constitutional language related to protections afforded a defendant, regardless of its present effect, warrants submitting a separate question,” the appellate panel wrote.

“Although our case law provides guidance on this point, further guidance from our supreme court is needed to address this question and others of statewide significance.”