Billings Gazette, June 27, on the consequences of a new crime victims’ rights law:
The unintended consequences of Marsy’s Law will be worse than we thought for Montana.
The voter-approved law warrants the Montana Supreme Court review sought by a lawsuit filed last week in Helena. The petition was filed by the Montana Association of Counties, Montana Association of Criminal Defense Attorneys, ACLU of Montana, the Lewis and Clark County attorney and a victims’ rights advocate.
Last fall, when a California man spent more than $2 million to pass Marsy’s Law as Constitutional Initiative 116, a Gazette opinion cautioned voters: “While the initiative known as Marsy’s law aims to protect victims’ rights, it would have some unintended consequences.”
Unknown costs
The initiative text is lengthy and based on a law that Henry Nicholas promoted in California after the murder of his sister, Marsy Nicholas. The proposed law duplicated crime victim rights and protections already in Montana law, and vastly expanded the definition of who is a crime victim, adding relatives and friends and even nonhuman entities. The initiative, which 66 percent of Montana voters approved Nov. 8, requires that victims’ services be available to all victims of all alleged crimes.
Billings and Yellowstone County law enforcement officials cautioned that there would be additional taxpayer costs to implementing Marsy’s Law, but the ballot language simply said that the cost was “unknown.”
Since then, we have seen the Billings City Council amend the city budget to hire additional victim advocate staff in the City Attorney’s Office. The Yellowstone County Commission recently authorized the addition of positions in the Yellowstone County Attorney’s Office.
More concerning than the financial costs are the ways in which Marsy’s Law would conflict with other constitutionally guaranteed rights. For starters, the new law grants family and friends the right to be informed about criminal cases - even if the person who was actually attacked doesn’t want others to know. This could be especially problematic for victims of rape or domestic violence.
The new law may stop the release of basic crime reports, such as the identification of a homicide victim after next of kin have been notified. Under Marsy’s Law, authorities may have to notify many more family and friends.
Even a prominent proponent of Marsy’s Law, District Judge Russell Fagg, acknowledged in a Gazette column that one of its provisions is probably unconstitutional because it would deny the accused the right to face the accuser.
Diluting resources
The petition to the Supreme Court points out that Marsy’s law could take resources away from victims of violent crimes as local authorities try to meet the new mandate to provide services related to all crimes charged and to a much larger pool of “victims.” Long before CI-116 was proposed, Montana law already provided for victims’ assistance in domestic violence cases. Now that assistance will have to be stretched to cover misdemeanor property crimes, too.
Before Marsy’s Law, the Yellowstone County Attorney’s Office already had 7.5 full-time-equivalent employees as victim-witness assistants, while the Billings City Attorney’s Office, which prosecutes only misdemeanors, had 2.5 FTE victim-witness assistants dedicated to domestic violence cases.
Montana’s court system is overloaded with so many cases, that justice can be slow - especially for civil cases. Marsy’s Law will add to that burden.
The U.S. and Montana justice systems are based on the presumption of innocence for the accused. Our Constitution guarantees the right to a fair trial and requires proof beyond reasonable doubt. If Marsy’s Law interferes with those rights - as it apparently would - the result would be more appeals, more retrials and victims subjected to lengthier and repeated court proceedings.
Multiple amendments
Perhaps the simplest argument against CI-116 is that it violates the Montana Constitution requirement that a constitutional initiative can amend only one part of the Constitution. CI-116 changes at least eight sections, according to the lawsuit.
Lewis and Clark County Attorney Leo Gallagher summed up his concerns: “CI-116 will force me to make the impossible choice between seeking justice for all Montanans and enforcing longstanding constitutional protections or serving the narrow, competing interests of Mary’s Law’s newly expanded pool of victims harmed or allegedly harmed by even the most petty of offenders.”
Marsy’s Law is scheduled to take effect July 1. A Supreme Court order delaying implementation pending full consideration of its constitutionality would be in the best interest of Montanans.
Editorial: https://bit.ly/2tYWE4I
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Independent Record, June 25, on the importance of transparency and sunshine laws:
When a police officer is charged with a crime, the public has a right to know what happened.
That’s not just our opinion. It’s the opinion of the Montana Supreme Court, which concluded almost 25 years ago that “the position of public trust held by a police officer alleged to have committed a criminal act, albeit while off duty, was such that there existed a compelling state interest in the release of the investigative information surrounding the incident.”
The law clearly requires this information to be released, and for good reason. The public needs to know whether they can trust the people who have been given the power to take away their freedom or their life.
So what does it take to get it? Apparently a good attorney, a lawsuit, six months and a fat check.
At least that was our experience, after we requested the investigative information regarding an off-duty Helena police officer charged with domestic assault and the city of Helena responded by taking us to court.
Luckily, we had the time and the means to jump through all the legal hoops. And the investigative information that a district judge eventually ordered the city to release was neither time-sensitive nor even that interesting in this case.
But if we are having this much trouble enforcing the right to know guaranteed by case law, state statutes and the Montana Constitution, other Montana citizens probably are, too.
And we can’t help but wonder: What about the people who can’t afford to hire an attorney or don’t know how to navigate the legal system? What if they need the records quickly to save their car, house or job? What information is being hidden from Montanans who just can’t deal with the rigmarole?
We know we harp on government transparency issues a lot. But we want people to remember examples like this when local and state officials talk about how accountable they are to the public.
Sunshine laws are not just there for the newspaper. They are there for everyone.
We just wish they worked for everyone.
Editorial: https://bit.ly/2tYE9Nv
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Bozeman Daily Chronicle, June 25, on U.S. Senate health care bill:
Tens of thousands of Montanans are going to lose their health insurance if the Senate’s version of repeal and replace Obamacare becomes law.
It’s been estimated that more than 70,000 once-uninsured state residents now have coverage due to the expansion of the Medicaid program under Obamacare. Under both the House and Senate health care bills, that will be phased out. The only difference is the speed with which that will happen. And the elimination of some insurance premium subsidies will make insurance unaffordable for many more Montanans.
We don’t see how insuring fewer people at a greater cost can be beneficial, and Montana’s congressional delegation is urged in the strongest terms to reject the proposals as they stand so far.
Obamacare made it possible for tens of millions of Americans without health insurance to get coverage. But it’s in trouble in some areas largely because of uncertainty in the insurance market - much of which is caused by the Trump administration’s lack of support for the program. With Republicans controlling Congress and the White House, the GOP has it within its power to stabilize the insurance market and see that even more people are covered. Instead the House and Senate seem to be in a contest to see who can make the situation worse.
Montana’s delegation should be unified on this. What’s being contemplated so far will hurt many Montana families and is simply not acceptable.
If the Senate passes its bill, differences with the House bill will have to be hammered out in a conference committee. That means hard choices must be made by Rep. Greg Gianforte and Sen. Steve Daines, both Republicans. We urge them to listen to Montanans and do what is right by our state.
Our health care is far too important to be a partisan issue. On this above all else, our congressional delegation is urged to put politics aside and do what’s right.
Editorial: https://bit.ly/2snE0Bo
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