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ACLU files suit to stop victims’ rights ballot measure

The proposed amendment to Pennsylvania’s constitution would create new rights for crime victims.

Jennifer Storm, who heads the state's Office of Victim Advocate, testified before Philadelphia City Council on Thursday, April 11, 2019, in favor of a Council resolution urging support for Marsy's Law.
Jennifer Storm, who heads the state's Office of Victim Advocate, testified before Philadelphia City Council on Thursday, April 11, 2019, in favor of a Council resolution urging support for Marsy's Law.Read moreJULIE SHAW / Staff

The Pennsylvania American Civil Liberties Union filed a lawsuit Thursday seeking to block a ballot question asking voters whether they want to amend the state Constitution to create new rights for crime victims.

The complaint, filed in Commonwealth Court against the acting head of the Pennsylvania Department of State, alleges that the measure is unconstitutional because it combines too many changes to the state Constitution and that each must be considered separately. The suit also alleges that the proposed changes are worded too vaguely.

The ACLU filed the suit on behalf of the state League of Women Voters and a Philadelphia resident, Lorraine Haw. The complaint states that Haw agrees with some of the proposed changes but not others.

“Ms. Haw cannot vote for the parts of the amendment she agrees with without voting for other things she disagrees with. She wants to be able to vote separately on each change to the constitution, as is her right,” the complaint says.

The proposed changes are part of a national campaign known as Marsy’s Law. At least 11 other states have approved versions of the law, which is named for Marsalee Nicholas, who was murdered in 1983 by an ex-boyfriend. The campaign has been promoted by the woman’s brother, tech billionaire Henry Nicholas.

The Pennsylvania ballot question has 73 words, but is accompanied with a “plain English statement” from the state Office of Attorney General that does not add any explanations for what the changes could entail.

One of the most highlighted provisions is a requirement that a victim be notified at key steps of a criminal case and allowed to provide input. If a victim or a victim’s family are not notified of major developments in criminal proceedings, such as a plea-bargain agreement, they could petition courts. For example, victims could ask for reconsideration of sentences if they or their family members were not notified of a plea deal.

The proposed changes also include language that appears to be open to differing interpretations by either a government agency, such as a district attorney’s office, or by courts, including through appeals over what the language means.

The state Constitution would be changed to say that victims are to be treated with “respect and fairness” for their “safety, dignity, and privacy.”

In Florida, police citing the privacy provision of their version of Marsy’s Law have been withholding information from the public about crimes and even the names of murder victims.

Other proposed changes in Pennsylvania could be subject to a wide variety of readings. Victims would be allowed “to refuse an interview, deposition or other discovery request made by the accused or any person acting on behalf of the accused.” There is no explanation of how that would be implemented and under what circumstances.

Amending the Pennsylvania Constitution requires that the proposed bill pass both the House and Senate in two consecutive legislative sessions before being added as a ballot question.

The bill was passed 190-8 by the House in April and unanimously approved by the Senate in June.

The Pennsylvania ACLU said in a statement: “Whatever one believes about Marsy’s Law, legislators proposed a fatally flawed constitutional amendment. [Commonwealth Court] should force the legislature to go back to the drawing board so that voters can consider these proposals one at a time, as required by the constitution.”

The Constitution says amendments must be voted on separately. The ACLU argues that Marsy’s Law would create 15 constitutional rights for crime victims. It said the changes would effect how courts treat people accused of a crime, including whether they can get bail, whom they can call as witnesses, the pardons process, and the right not to be prosecuted twice for the same crime.

In April, Philadelphia City Council approved a resolution supporting the passage of Marsy’s Law in Pennsylvania.

Jennifer Storm, who heads the state Office of Victim Advocate, testified before Council that existing law in Pennsylvania is inadequate for crime victims. “The problem is, we have no remedy for when those rights are violated, so I would ask you: If there is no legal way to uphold your right, do you really have a right?”

Responding to the lawsuit on Thursday, she tweeted: “The fact that the @aclupa choose to wait until Oct 10th, as ballots have gone out, already been voted upon and received by various counties in PA is not only an untimely objection, but seeks to disenfranchises voters. They have known the question since July. #MarsyLawforPA.”