North Dakota lawmakers of the interim Judiciary Committee have no recommendations for Marsy’s Law after a study brought about last session.
State voters overwhelmingly approved Marsy’s Law as an initiated measure in the 2016 general election, planting crime victim rights in the state Constitution.
Sen. David Hogue, R-Minot, chairman of the interim Judiciary Committee, told legislators Wednesday at the state Capitol in Bismarck that the study to “assess” positive and negative consequences and costs of Marsy’s Law resulted in no recommendations. Moreover, Marsy’s Law adds little, if anything, to existing victim rights laws, he said.
“It does not provide any meaningful protections for victims that isn’t otherwise in our statute,” Hogue said. “We have a robust victim protection/advocacy statute, and so Marsy’s Law adds very little to that.”
Additionally, what “bad” consequences there are of Marsy’s Law are “not horrific,” he added.
“They’re manageable, but they come with obvious costs,” said Hogue, giving examples of administrative redactions of court documents and the restitution process under Marsy’s Law.
Only a constitutional amendment passed by North Dakota voters could alter Marsy’s Law, Hogue told legislators.
Marsy’s Law has led to various interpretations by county state’s attorneys, sometimes leading to certain information — previously available as public — being withheld.
Aaron Birst, executive director of the North Dakota State's Attorneys' Association, said an attorney general's opinion has already weighed in on interpreting Marsy's Law, but he said some prosecutors would prefer a court opinion.
"Just from the state's attorneys' perspective, 'no recommendations' essentially means that we'll just keep using the court system to guide us on a case-by-case basis," Birst told the Tribune. "And there's a number of cases that are kind of working through the system to exactly figure out the parameters of Marsy's Law."
An example of such cases is payment schedules for restitution, he noted. Marsy's Law requires victims be paid in full before government entities, which often require court fees and fines from defendants.
Burleigh County victim/witness coordinator Michelle Dresser-Ternes said Marsy’s Law has been invoked 70 times in the county — most recently on Oct. 30 — since the law took effect in early December 2016.
Marsy's Law also has raised questions over officer-involved shootings. As recently as October, a Mandan police officer shot a man allegedly attempting to flee arrest, and both men invoked Marsy’s Law. Other law enforcement officers also have invoked Marsy's Law in shootings, such as a Bismarck police officer last year who shot his attacker.
Jack McDonald, legal counsel for the North Dakota Newspaper Association, said he believes court orders may resolve aspects of Marsy’s Law. Birst said a legal challenge would likely come from media companies against a state's attorney withholding information.
Legal challenges could come about if a courtroom is closed to the public or if someone is hindered in gathering information to defend themselves, according to McDonald, who also pointed to the Constitution as the barrier to amending Marsy’s Law.
“The problem is when you put it in Constitution, you make it more difficult,” Hogue told the Tribune. “You cannot readily amend or adjust it because it’s embedded within the Constitution.”