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Montana Supreme Court Strikes Down Marsy's Law as Unconstitutional

The Montana Supreme Court ruled that Constitutional Initiative 116 (CI-116), entitled “Rights of Crime Victims,” approved by Montana voters on November 8, 2016, is unconstitutional and void. The amendment was challenged by petitioners ACLU of Montana, several individual plaintiffs (including a victims’ rights advocate), the Montana Association of Counties, and the Montana Association of Criminal Defense Lawyers.

Commonly referred to as Marsy’s Law, CI-116 was presented as a “victim’s bill of rights,” yet the unintended consequences soon became apparent when the expansive redefinition of ‘victim’ gave new rights to family, friends, corporations, and other non-human entities at the expense of constitutionally enshrined rights.

In its ruling, the Court held that Marsy’s Law was “void in its entirety” because it “substantively chang[ed]” at least “six discrete, not closely related, changes [to] the Montana Constitution” without identifying those effects to the electorate and providing for a separate vote on each revision. The “separate vote” requirement of Article XIV, Section 11, protects Montana voters from inadvertently enacting stealth revisions to pre-existing constitutional rights via the initiative process. 

The Court explained that if implemented, Marsy’s Law would revise the Due Process clause in Montana’s Constitution, along with pre-existing rights to bail, to properly initiated criminal proceedings, and to such bedrock rights of the accused as “the right to discover information, meet accusers, and prepare a defense.”  The Supreme Court also agreed with petitioners that “CI-116 changes a prosecutor’s duties in a criminal adjudication,” thereby amending the Court’s own “constitutional authority to regulate attorney conduct.” 

The Court further agreed that Marsy’s Law, if implemented, would revise two landmark constitutional provisions involving an individual’s right of privacy, and the public’s right to know, by (among other things) extending privacy rights to corporations and “creat[ing] an entirely new privacy interest … for extended family members, and others with ‘similar relationships,’” different from the pre-existing privacy right afforded only to individuals, not to groups.

CI-116 was bankrolled with $2.4 million from a California millionaire who is leading a campaign to insert a “victim’s bill of rights” into states’ constitutions across the country with efforts underway to enact similar amendments in Kentucky, Georgia, Nevada, North Carolina, Ohio, Wisconsin, Idaho, Oklahoma, and Maine, any of which may be impacted by the Montana Supreme Court’s decision.

Holland & Hart’s Kyle Gray and Brianne McClafferty were lead counsel for the petitioners, agreeing to handle the litigation on a pro bono basis, together with James Molloy of Gallik, Bremer & Molloy, P.C., and Alex Rate, ACLU of Montana Foundation, Inc.’s Legal Director.

Holland & Hart has a longstanding tradition and national reputation as a law firm committed to providing legal pro bono services to those would otherwise go without legal help, particularly in issues of constitutional import. Our lawyers provide legal representation to organizations and individuals in the eight states and the District of Columbia where the firm has offices. The firm is currently partnering with the ACLU of Utah on a Sixth amendment class action challenge to the State of Utah’s indigent defense program, and with the ACLU of Montana in an Eighth amendment challenge to prison conditions for seriously mentally ill inmates in the Montana State Prison.


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