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Justices of the North Dakota Supreme Court are from left Jon J. Jensen, Daniel Crothers, Gerald VandeWalle, Lisa Fair McEvers and Jerod Tufte.

Who is a victim under Marsy's Law is seeing a legal challenge.

Justices of the North Dakota Supreme Court will hear arguments on Thursday in the case of a Bismarck man ordered to pay about $27,500 of restitution to Blue Cross Blue Shield after his assault conviction for breaking another man’s jaw in a fight during a basketball game.

Public defender Yancy Cottrill, who is representing Javonne Hunt, argues the insurance company cannot be a victim under the constitutional amendment for victim rights that North Dakota voters enacted in 2016. Hunt had agreed to pay about $3,200 for the injured man’s out-of-pocket medical expenses. 

Cottrill said the case disputes who is a victim under Marsy's Law, which has seen varying interpretations of its provisions even on a county-to-county level due to perceived ambiguity.

"I don't think we'd be taking it to the Supreme Court if I didn't think there was ambiguity," Cottrill told the Tribune.

Marsy's Law defines a victim as "a person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed."

Aaron Birst, executive director of the North Dakota State's Attorneys' Association, said prosecutors have struggled with victim language of Marsy's Law, describing it as "quite broad" in interpretation. Some police and prosecutors have withheld information traditionally shared as public, such as details of crimes. 

"I would say this will definitely give the courts the first real crack at trying to influence what Marsy's Law really means," Birst said of Hunt's case. "Because it's a constitutional measure, we could never try to define it through the statutes, so we need the courts to weigh in on exactly what should be done on that law." 

Burleigh County prosecutor Tessa Vaagen responded to Cottrill in briefs, saying nothing in Marsy's Law or state law limits victims to human beings, while the statutory definition of "person" extends to "an individual, organization, government, political subdivision, or government agency or instrumentality."

"To restrict the interpretation of 'person' to mean just human beings leads to an illogical conclusion," Vaagen wrote. "It means any business that suffers any form of loss at the hands of a defendant would go without compensation." 

Cottrill also argued in briefs that a 1998 opinion on insurance companies as victims conflicts with the victim definition under Marsy's Law, due to the "person" language. His briefs also reference a previous Marsy's Law appeal, which addressed ability to pay restitution. 

How a ruling by the court could lay out a road map to the victim definition remains to be seen.

"It appears to me that the Supreme Court may determine at the very most whether a corporation, like Blue Cross Blue Shield, is included in the definition of 'victim' under Marsy’s law, but the court may also issue a narrow ruling determining strictly whether Blue Cross Blue Shield is a 'victim' under Marsy’s law," Vaagen said in comments to the Tribune.

North Dakota Supreme Court Clerk Penny Miller said Marsy's Law has been cited in three state Supreme Court opinions, all regarding restitution. 

North Dakota Attorney General Wayne Stenehjem in 2017 issued guidance on several questions of Marsy's Law, noting its victim definition but also the statutory definition as “a natural person who has suffered direct or threatened physical, financial or psychological harm as the result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed."

State lawmakers in the 2017-18 interim between sessions studied costs and consequences related to Marsy's Law but brought forth no recommendations, with one lawmaker pointing to the amendment's placement in the Constitution as a roadblock to adjustments. 

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Reach Jack Dura at 701-223-8482 or jack.dura@bismarcktribune.com.

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