Attorneys sue to block vote on Marsy's Law that would expand crime victims' rights

Patrick Marley | Milwaukee Journal Sentinel

MADISON - Criminal defense attorneys announced a lawsuit Thursday to try to block an April referendum that would expand crime victims' rights.

Lawmakers over the last two years have given initial approval to an amendment to the state constitution known as Marsy's Law. They've lined it up for final approval in a statewide referendum.

But those bringing the lawsuit in Dane County Circuit Court argued the referendum should be canceled because voters weren't being given enough information about the measure.

"Wisconsin residents should not have to vote in the dark," Craig Johnson of the Wisconsin Justice Initiative said at a Capitol news conference. "They should have the right to be informed by their government of exactly what they're voting on."

Teri Jendusa Nicolai, the chairwoman of Marsy's Law Wisconsin, said the proposal has been vetted and voters know what they'll be voting on.

"I do believe in the intelligence of the voters of Wisconsin, that they do understand what they are getting into and what they are voting for," said Jendusa Nicolai, who was kidnapped, beaten and left for dead by her ex-husband in 2004.

In 1980, Wisconsin became the first state in the country to adopt a "crime victim bill of rights" and in 1993 adopted a constitutional amendment to afford victims' privacy and ensure they are kept abreast of their cases.

Marsy's Law would strengthen some of the rights guaranteed in state law by putting them into the state constitution. The measure would allow victims to attend all proceedings in their case and allow them to refuse to sit for some depositions.

The lawsuit argues the amendment would interfere with the constitutional rights of the accused and the ballot question does not adequately summarize the effects of the measure.

"Supporters say it levels the playing field, but it really does just the opposite," Johnson said. "It stacks the deck against the accused, making it difficult to receive a fair trial at incalculable costs to the taxpayer."

The state constitution requires each amendment to be presented to voters with separate ballot questions. Those bringing the lawsuit argue Marsy's Law includes so many changes to the constitution that it must be broken up into multiple questions.

The lawsuit — filed Wednesday and announced publicly Thursday — was brought by the Wisconsin Justice Initiative, Johnson, state Democratic Sen. Fred Risser of Madison, attorney Jacqueline Boynton and attorney Jerome Buting.

Johnson and Boynton are on the Justice Initiative's board. Buting drew national attention for his representation of Steven Avery in a case that was the subject of the Netflix series "Making a Murderer."

They filed the suit against the Wisconsin Elections Commission, Secretary of State Doug La Follette and Attorney General Josh Kaul. The commission and La Follette are responsible for putting the measure on the ballot and Kaul is the state's top prosecutor.

The proposed amendment is similar to ones that have been adopted in Illinois, California, Montana, North Dakota and South Dakota at the urging of a group set up by Henry T. Nicholas III.

Nicholas' sister, Marsy, was murdered in California by her former boyfriend in 1983. The ex-boyfriend confronted Nicholas' family in a grocery store a week after her death, at a time when the family did not know he had been released on bail.

Nicholas has had his own run-ins with the law. In October, he reached what's known as an Alford plea to two felony drug possession charges in which he acknowledged prosecutors could have presented evidence of his guilt if his case had gone to trial. Under the deal, he and a co-defendant avoided jail but had to donate $1 million to charities, according to the Associated Press.

You can find out who your legislators are and how to contact them here: https://maps.legis.wisconsin.gov/

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.