Kentucky judge blocks certification of 'Marsy's Law' vote

The question will remain on the ballot
Posted at 10:57 AM, Oct 16, 2018
and last updated 2018-10-16 11:00:37-04

FRANKFORT, Ky. (AP) -- A judge in Kentucky has ordered officials not to certify the results of an election next month on whether to add protections for crime victims to the state's constitution, saying the question posed to voters on the ballot is misleading.

Kentucky is one of six states scheduled to vote next month on "Marsy's Law," a proposed constitutional amendment that would guarantee victims similar rights to those accused of crimes in the judicial system. The effort is backed by a California billionaire whose sister, Marsalee Nicholas, was slain in 1983.

Kentucky's version of Marsy's law would guarantee crime victims have 10 constitutional rights, including the right to be timely notified of all court proceedings, the right to be present for those hearings and the right to be heard in any hearing involving a release, plea or sentencing. It would also give victims the right to ask a judge to enforce those rights.

But the question posed to voters on the ballot says: "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 Kentucky Association of Criminal Defense Lawyers sued, saying the question was misleading. On Monday, Franklin Circuit Judge Thomas Wingate agreed.

"Many voters may want crime victims to be treated 'fairly' and with 'dignity and respect,' but those same voters may not want to extend standing to a crime victim or decree the 10 specific enumerated rights to victims," Wingate wrote. "The electorate cannot be expected or required to vote on a constitutional amendment of which they are not accurately informed of the substance."

It's too late to remove the question from the ballot. The Nov. 6 election is just three weeks away, and absentee voting has already started. Monday's ruling means voters will still vote on the proposed amendment, and election officials will still count those votes. But the results won't be certified until after state appellate courts have a chance to issue a final ruling.

In Kentucky, Marsy's Law was pushed by Republican state Sen. Whitney Westerfield, chairman of the state Senate Judiciary Committee and a candidate for state attorney general in 2019. He said he's disappointed in the ruling and plans to appeal directly to the Kentucky Supreme Court.

"I remain confident that (Marsy's Law) will be incorporated into the Kentucky Constitution by the voters of the Commonwealth," he said.

David Ward, president of the Kentucky Association of Criminal Defense Lawyers, said he agreed with the judge's ruling. He expects the ruling to hold up on appeal.

In Kentucky, most of the rights asserted in the proposed amendment are already covered by state law. But supporters say adding them to the state constitution would make them more secure. Critics, like the Kentucky Association of Criminal Defense Lawyers, worry about the courts granting legal status to a victim when the judicial system — which is rooted in the presumption of innocence — has yet to determine if a crime took place.

The critics also voiced concerns that the amendment would let the state legislature, not the courts, set rules for criminal proceedings.

In Florida, a state judge ruled a Marsy's Law ballot question also was misleading. But the Florida Supreme Court overturned that decision and the question will appear on the ballot next month.

A version of Marsy's Law has been put into the constitutions of at least 15 states. This year, Kentucky and Florida are two of six states — including Georgia, Nevada, North Carolina and Oklahoma — voting on a version of Marsy's Law. Marsy's Law for Kentucky, a nonprofit group advocating for the change, has spent more than $4.5 million on a statewide advertising campaign.

In a news release, the group criticized the Kentucky Association of Criminal Defense lawyers for waiting "until the eleventh hour, just before the election, to put forward this unnecessary lawsuit."