Pennsylvanians will vote next week on a statewide victims' rights referendum. But their votes won't be counted.
A state appellate judge Wednesday found that the referendum question is not clear enough and granted a preliminary injunction barring state officials from tabulating any votes cast on the effort known as Marsy’s Law to amend the Pennsylvania constitution.
In granting the injunction, requested by the state League of Women Voters, Commonwealth Court Judge Ellen Ceisler ruled that the ballot question does not "'fairly, accurately and clearly' apprise the electorate of the question upon which it is asked to vote." She found that the proposed amendment would put every stage of criminal justice proceedings "into doubt,” and infringe upon the rights of those accused of crimes.
"The inevitability of these harms is assured by the plain language of the proposed amendment," she wrote in a 39-page opinion. The amendment “appears to implement sweeping and complex changes to the Constitution,” including infringing on the rights of the accused to a speedy trial and to confront witnesses among others.
The Pennsylvania attorney general’s office plans to appeal to the state Supreme Court.
“We disagree with the court’s ruling on both procedure and substance. We will be filing an appeal and an application for extraordinary relief tomorrow,” the attorney general’s office said.
The ballot initiative asks whether a new amendment, known as the Victims’ Rights Amendment, should be added to the state Constitution.
Jennifer Riley, state director for Marsy’s Law for Pennsylvania, said in a statement that the challenge to the initiative "represents an overwhelming disservice to both survivors and voters across Pennsylvania, many of whom have already cast their votes on the Crime Victims’ Rights Amendment.
“We are dismayed by the decision of the Commonwealth Court to grant the injunction request. We maintain our position that the proposed amendment for Marsy’s Law satisfies the single-subject rule, and remain confident that the court will ultimately rule in favor of certifying the election results.”
The League of Women Voters filed a lawsuit challenging the ballot question on Oct. 10, and the court heard argument a week ago. In that challenge, attorneys for the League argued that the ballot question is too vague and does not properly inform voters on the actual issues encompassed by the proposed amendment, which include giving victims the right to be notified, attend and weigh in during plea hearings, as well as at sentencings and parole proceedings.
In her opinion, Judge Ceisler acknowledged that granting such an injunction is rare, writing that "[I]t appears that delaying certification of the votes to a constitutional amendment has never occurred.”
But she also said, "[I]t is clear that the proposed amendment, by its plain language, will immediately, profoundly, and irreparably impact individuals who are accused of crimes, the criminal justice system as a whole, and most likely victims as well."
She went on to write that if voters approve the ballot question, it will impact every stage of the system, from bail hearings to pardon and parole reviews. The rights afforded to the victims, the judge continued, would require all of those proceedings to be re-evaluated, as well as procedures of releasing defendants from state prison or county jail — to ensure victims are aware of the upcoming release.
"This is particularly harmful to those inmates who have completed the term of their sentences and can lawfully be released," Judge Ceisler wrote.
"The inevitability of these harms is assured by the plain language of the proposed amendment," she wrote.
If, ultimately, the amendment is found to be constitutional, the votes would be tabulated, and if voters approved the amendment it would immediately become part of the constitution, she said.
In her opinion, the judge discounted the state's notion that the amendment covers a single-subject area, which is required under the law.
"The proposed amendment addresses a wide range of subject matters including bail, discovery, due process, restitution, the right to privacy and evidence control, all under the auspices of connecting them to victims' rights,” she wrote.
In an online article last week, Elizabeth Randol, the legislative director for the American Civil Liberties Union of Pennsylvania, explained the group’s objection to the ballot question this way:
“The rules for amending the Pennsylvania Constitution require that changes affecting different sections of the constitution must be voted on as separate amendments. Marsy's Law creates 15 constitutional rights for crime victims that impact three articles and eight different sections of the state constitution. By bundling many amendments into a single ‘yes’ or ‘no’ proposal, the November 5th ballot question denies voters their right to choose which provisions of Marsy’s Law, if any, to adopt. Voters will instead be forced to make an all-or-nothing choice on the proposed constitutional changes.”
The bill’s language says that it sets out to give victims "justice and due process," providing rights "which shall be protected in a manner no less vigorous than the rights afforded to the accused."
Among the rights it would provide: allowing a victim and the victim's family to be considered in fixing the amount of bail and release conditions for an accused; to be timely notified for all hearings; to be heard in those proceedings — such as at a plea, sentencing or parole or pardon hearing; and to be able to refuse an interview or discovery request made on behalf of the accused.
To win a preliminary injunction, petitioners are required to show that without it, there would be immediate and irreparable harm.
A long-time criminal defense attorney testified at oral argument that there would be immediate harm because the amendment could stymie an attorney’s ability to obtain discovery — social media or phone records, for example — and "eviscerate his ability to effectively represent his clients and throw the criminal justice system into turmoil," the opinion said.
The attorney general's office, which represented at oral argument the Acting Secretary of the Commonwealth Kathy Boockvar, the state’s chief election official, countered that every single one of the proposed question's 500 words revolves around advancing victims' rights.
Further, the office argued that not counting the votes — after thousands of absentee ballots have already been cast — would confuse voters.
Reggie Shuford, executive director of the ACLU of Pennsylvania, which represented the petitioners, said the ruling reaffirms the importance of following the Constitution.
“Despite the heated rhetoric, rather than help crime victims, the legislature failed them in this process. They did not hold a single hearing over two legislative sessions, and they ignored the law in proposing this massive constitutional amendment. They knew better, and they should have done better.”
Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.
First Published October 30, 2019, 5:33pm
