HELENA — Both the state and a group representing the interests of Montana’s counties have asked the state Supreme Court to push back the implementation of Marsy’s Law, a so-called victims’ bill of rights that counties statewide have said will require massive resources to implement.
Marsy’s Law is set to take effect July 1. It creates a new section of the state Constitution enumerating 18 rights for crime victims, including the right to refuse an interview or deposition and to receive notification for all steps of a criminal proceeding.
On June 20, the American Civil Liberties Union of Montana, joined by the Montana Association of Counties, Montana Association of Criminal Defense Lawyers, a county attorney and a victims’ rights advocate, asked the state's highest court to void the law.
The court, however, gave the state of Montana, Attorney General Tim Fox and Secretary of State Corey Stapleton 30 days to respond to the suit, which would have allowed the law to take effect Saturday.
The joint stipulation, which was filed Thursday by attorneys from both sides of the lawsuit, asks for a delay in the start of the law until the court takes further action.
The court did not act on the request Thursday, but since it was filed by both parties in the suit, it is likely to be granted.
In the stipulation, both parties say the “interest of judicial economy and the efficient administration of justice will be served by staying” the implementation of Marsy’s Law until the court resolves the original lawsuit.
Eric Sell, a spokesman for the Attorney General's office, said Thursday night the delay was the best approach for the state.
"As the Montana Supreme Court will decide this case in an expedited manner, it’s in the state’s best interest to put Marsy’s Law on pause until the outcome of the litigation is final. It makes little sense to require cities and counties across the state to expend resources on Marsy’s Law implementation until the case against it is resolved.”
Chuck Denowh, spokesperson for Marsy's Law for All, said when the initial lawsuit was filed: "There will always be a handful of people that simply don't believe crime victims should have equal constitutional protections to their offenders."
Voters approved Marsy’s Law, also known as Constitutional Initiative 116, in November with 66 percent of the vote. Since it passed, cities and counties around the state have expressed concerned about the costs of complying with the new law, saying they don’t have enough staff to do what will be required.
In the lawsuit, ACLU of Montana argued that since the initiative amended multiple sections of the Montana Constitution, it required a separate vote for each amendment. The lawsuit asked the court to void the enactment of Marsy's Law, halt all enforcement and decertify its passage.
There have been previous efforts to delay the implementation of the law, including two delays in certifying its passage by the state Board of Canvassers.
Kent Sipe, the Fergus County attorney, said Thursday evening his department has spent an extensive amount of time researching and preparing for the implementation of Marsy’s Law, but is still unsure of some requirements of complying.
“We have not brought on staff, but we’ve utilized existing staff and we’ve pushed back some of our other duties in order to prepare and comply,” he said. Other counties have hired additional employees to handle the workload.
There’s uncertainty, Sipe said, over several requirements of the initiative. One example is that Marsy’s Law requires a victim’s identity and location be kept private. But the county attorney is also required to turn over evidence, such as a law enforcement officer’s body camera that may have recorded information about where a victim is located.
“There’s a lot of unanswered questions that even over the last seven months we have just not gotten the answers to,” Sipe said. “There’s questions of to what extent the Public Defender’s Office or the attorneys for the defendants are able to receive information and to what extent we’re able to sanitize that information to protect victims’ rights but still comply with our Constitutional obligations for providing information for the defense.”
The state Attorney General’s office has provided training for law enforcement, but Sipe said his office has not had any kind of direction or guidance on how to comply with Marsy’s Law.
Sipe said that his office will err on the side of protecting victims’ rights while understanding that puts the office at risk of failing to provide defendants with discovery information.
Alex Rate, an attorney for ACLU of Montana, said when the initial lawsuit was filed, some voters did not understand what they were passing in November.
"From our perspective there was minimal discussion in the press or with various constituencies that are impacted about what the unintended results of the amendment would be,” Rate said on June 20. “We don't believe local victims organizations or victims rights groups were adequately consulted. I don't think the title of the constitutional amendment adequately described what the impact would be. I don't fault the voters for voting for something like this, but I do believe nobody quite understood exactly how this would fundamentally rearrange the Montana Constitution.".
There’s been an effort over the last 20 years, Sipe said, to protect victims’ rights and give victims a voice in the judicial process.
“I think we have done a very good job and we have statutorily implemented those rights,” Sipe said of state law before the initiative passed. But Marsy’s Law adds another level to that, and with it a layer of confusion.
“It’s just an effort to have to expend this level of money and resources and there’s still these unanswered questions out there that leaves victims and it leaves prosecutors and it leaves defense counsel in the lurch trying to sort out how to comply.”