Marsy's Law or Marsy's flaw? Courts will have to decide

Sometimes the best laid plans don’t work out such is the case with Mineral County’s bid for a full-time victims advocate position. Shirley Iwata was recently hired as a part-time domestic and sexual violence advocate with grant funds made available through the Office on Violence Against Women. Iwata has held a number of position with the county, including previous work with the attorney’s office, treasurer’s and health department.

When additional funding became available through the Montana Board of Crime Control, County Attorney Ellen Donohue jumped at the chance. Funds had been made available for all Montana counties specifically for prosecutor offices for victims in prosecution cases. Donohue, along with Mary Furlong of the Healthy Relationships Project, worked together to complete the grant in March 2017.

Donohue said they had written the grant because they knew that a half-time domestic and sexual violence advocate wasn’t going to cut it, “we aren’t going to be able to meet that constitutional requirement. We thought another grant would help supplement this position to full-time where she (Iwata) could help victims of every crime, anything from drunk driving to burglaries. The domestic and sexual violence advocate can’t help with those cases. She can only advocate for sexual violence victims.”

But Donohue received notice last week that a stay went into effect on July 1, “it looks like the state has stipulated to waiting for a ruling from the Montana Supreme court about the constitutionality of the law,” Donohue said.

The notice was from the Montana Association of Counties (MACo), a county attorney and a victims’ rights advocate, Montana Association of Criminal Defense Lawyers, and American Civil Liberties Union (ACLU) of Montana who petitioned The State of Montana and filed a joint motion for an Order temporarily staying the implementation of Marsy’s Law dated June 30, 2017 and went into effect July 1.

They filed the suit to block the law which passed last November by Montana voters through a ballot initiative. The judges have asked the petitioners and the Attorney General Tim Fox and Secretary of State Corey Stapleton to file briefs and the arguments to be submitted by Aug. 10. Friends of court briefs by interested parties must be submitted to the court by July 27, according to the order.

This will give the Montana Supreme Court time to hear arguments on whether the law should be thrown out. The law would create additional rights for victims of crime. The ACLU argues that since the initiative amended multiple sections of the Montana Constitution, it required a separate vote for each amendment.

A recent report said that Chuck Denowh, a leading Marsy’s Law supporter, said the delay would “create confusion, and most importantly, deprive victims of the rights that an overwhelming majority chose to provide.”

When the Marsy’s Law was on the ballot, the Montana Voter Information Pamphlet said it would add a new section to the Montana Constitution establishing specific rights for crime victims. “This includes the right to participate in criminal and juvenile justice proceedings. Also, to be notified of major developments in the criminal case, notified of offender’s custodial status, to be present at court proceedings, and have input to the prosecutor before agreements are finalized.”

The opponent arguments were prepared by Senator Kris Hansen, Representatives Brad Tschida, Peter Ohman, Senator Cynthia Wolken and Marty Lambert, Gallatin County Attorney. Opposition to the initiative said that there is a current Montana law which provides rights for crime victims and that it will increase litigation costs.

Proponent arguments were prepared by Representative Vince Ricci, William Mercer and Toni Plummer-Alvernaz. They stated that under current law, victims have no rights to confer with a prosecutor before decisions are made whether or not to charge a crime. They also argue that trial dates often come with long delays “without regard for the impact on a victim’s ability to reach closure. Also, there is no evidence that this will increase costs,” report said.