Ky. Supreme Court strikes down Marsy's Law that establishes victims' rights

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FRANKFORT, Ky. (KT) - The Kentucky Supreme Court on Thursday unanimously affirmed a lower court opinion that invalidated the language of a Constitutional Amendment known as Marsy’s Law, which was overwhelmingly approved by voters last year.


Sen. Whitney Westerfield, R-Crofton, introduced Senate Bill 3 on the first day of the 2018 General Assembly, the title of which was, “AN ACT proposing to create a new section of the constitution of Kentucky relating to crime victim’s rights.”  The measure, to be known as Marsy’s Law, proposed an amendment to the Kentucky Constitution that would provide certain rights to crime victims.


It passed the Senate 34-1 and the House 87-3 and was placed on the November ballot for voters to decide where it easily won approval.


The bill included the ballot language, which stated, “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?”


In August, the Kentucky Association of Criminal Defense Lawyers filed suit at Franklin Circuit Court, seeking a declaration that the ballot question in SB 3 failed to inform the voters adequately of the substance of the amendment in violation of Kentucky’s statutory and constitutional requirements.  They also sought, in the alternative, injunctive relief that would prevent Secretary of State Alison Lundergan Grimes from certifying the ballot question to the county clerks or would direct her to rescind her certification if made.


A month before the election, Franklin Circuit Judge Thomas Wingate ruled that the ballot question did not adequately state the substance of the amendment and thereby violated the requirement of state law, that the question be “in a manner calculated to inform the electorate of the substance of the amendment.”


Wingate allowed the question to appear on the ballot during the November 6, 2018 election, but prevented Grimes from certifying the ballots cast for or against the proposed amendment.  


Westerfield appealed the ruling, the defense lawyers group filed a cross-appeal, and the high court agreed to transferring the case directly to them.


Among the findings of the Justices:


--This Court has the authority to hear a constitutional challenge to a proposed constitutional amendment after it has been adopted by the voters.


--The relief KACDL seeks is not barred by the doctrine of laches, meaning the lawsuit was filed timely.


--The proposed amendment violated the Kentucky Constitution, because it failed to satisfy the requirement that it be published and submitted to the electorate in full.


Their bottom line: “We hold that Section 256 of the Kentucky Constitution requires the General Assembly to submit the full text of a proposed constitutional amendment to the electorate for a vote. Likewise, Section 257 requires the Secretary of State to publish the full text of the proposed amendment at least ninety days before the vote. Because the form of the amendment that was published and submitted to the electorate for a vote in this case was not the full text, and was instead a question, the proposed amendment is void.”


Westerfield issued a statement after the opinion was handed down: “Kentucky voters spoke loud and clear in support of crime victims on Election Day in 2018. Like the majority of Kentuckians, I believe that crime victims deserve to be afforded the respect, justice, and equal rights that Marsy’s Law would provide. It is troubling that in order to reach this conclusion the Supreme Court reversed years of established precedent and inserted an entirely new requirement for amending our state constitution.


“I hope the General Assembly will take up Marsy’s Law again and give Kentucky voters another opportunity to voice their support for crime victims in 2020.”

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