Ladd Erickson: Marsy’s Law Is a Debate Over Public Policy Not Sad Stories

We’re already voting on Measure 3 – hopefully more no’s than yes’s – and we will soon know if “Marsy” will be part of our State Constitution. The defense attorneys, state’s attorneys, retired judges, victim advocate groups, and lately the North Dakota Fraternal Order of Police, have all been trying to educate the voters on the poor and harmful constitutional policy Measure 3 represents.

At this point, I believe Marsy’s Law should be a case study for our lawmakers on whether our initiated measure process is due for serious review and repair.

North Dakota needs initiated measures as a check on our government. We wouldn’t have oil extraction taxes without it, nor many other successful policies. Initiated measures give the grassroots a voice in policy when there is a will for it.

However, when a billionaire from California bypasses the grassroots and simply pays signature gathers, the foundational reason for our initiated measure system gets usurped. Of late, this isn’t the only measure that has gotten on the ballot through paid signature gathers. But we should all reflect on whether bypassing grassroots will to get agendas on our ballots is healthy.

In other words, as long as this buy-in method of getting ballot access seems more the norm, perhaps the legislature should look at just proposing a fixed amount – say $1 million dollars – that a wealthy special interest can pay into the state treasury and get whatever policy they want for our Constitution voted on? This is absurd and nobody would vote for doing this, but if you vote for Measure 3 you are endorsing this exact absurdity. At least with my suggestion the State gets some revenue and the Secretary of State wouldn’t have to deal with the pain of verifying thousands of bought signatures.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…perhaps the legislature should look at just proposing a fixed amount – say $1 million dollars – that a wealthy special interest can pay into the state treasury and get whatever policy they want for our Constitution voted on?[/mks_pullquote]

Next, our legislature should study how we debate or educate the voters when someone buys their way onto our ballot. Many of us don’t pay attention or study all the issues with every measure, nor have the time or interest in a lot of subjects. I myself have probably voted for some really dumb things over the years.

The Founding Father’s recognized that the people have no way of being informed on every issue of the day, and opted for a checks and balances republic in lieu of direct democracy. The Federalist Papers explain in learned detail why a republic is advantageous over what some of them felt would be “mob rule” if every important issue had to be voted on by the people.

The proponents of Marsy’s Law decided to avoid our representative legislature that could have studied and tried to fix their proposal. I suspect what happened to Marsy’s Law in Illinois had the billionaire dude not wanting to have a policy debate or any deliberative hearings on his language in North Dakota.

Marsy’s Law, in Illinois, started as a bill in their legislature. But prosecutors, defense attorneys, and crime victim advocates descended upon the horrible provisions and got them out of the bill – then it went out to the voters to up or down.

The constitutional provisions the Illinois voters approved for crime victims make sense, and their language is under half the language in our Measure 3 with the bad stuff still in it. Except for California, no other state has enacted this guy’s agenda –and California’s has some key differences from Measure 3. Certainly our legislature would be skeptical of placing a California crime victims name in the North Dakota Constitution, just like the Illinois legislature was and took it out of their bill.

Our legislature additionally, and forensically, should look at the methods used by moneyed interests to sell the voters on their policy – or, to get “the mob” to vote for their agenda using Founding Father parlance. No matter how untrue or nonsensical campaign ads are, the legislature is powerless to create policy that focuses debate on the real issues.

In this instance, the proponents of Measure 3 use story craft exclusively – “Marsy’s story”, “Pam’s story”, “Alyssa’s story”, whoever’s story. Story is a powerful mode of persuasion. Kathleen Wrigley was on a radio show last week telling a “story” of a recent rape case I handled. In her telling, we need Marsy’s Law because in a McLean County rape case the victim didn’t get to meet with the prosecutor until a couple days before trial.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]The proponents of Marsy’s Law decided to avoid our representative legislature that could have studied and tried to fix their proposal.[/mks_pullquote]

And now, as Paul Harvey oft said, the rest of the story. In that case in which Ms. Wrigley has found a constitutional crisis, the victim moved to Idaho a few days after being raped by her ex-boyfriend. My victim advocate was in constant contact with her to keep her updated on the case. We flew her back to North Dakota a few days before trial so I had time to meet her and address any concerns she had. After the verdict of guilty the victim, her family, and her friends have sent us letters and cards thanking us for how we handled this case and how we really helped the victim and her family get past what happened.

Kathleen, if you’re reading this, stop by my office sometime and I’ll let you read them.

Here is the central problem with using fictional storytelling in lieu policy debate: We’re not putting anyone’s story into our Constitution. We are putting policy into it, or things the opponents of Marsy’s Law would like the voters to vote on. The proponents of Marsy’s Law have refused all debates on its policy. Believe me, we’ve tried to have those debates.

Odney Advertising is running this soft background music and lighting, fictionalized, sad story campaign. Odney isn’t much on constitutional scholarship, but watching their Marsy’s Law story ads sure makes a person want to hug a golden retriever puppy.

Storytelling is just modern politics I guess. But where the legislature could step in and look at some initiated measure policy changes is in how we describe measures in the measure summary that the voters read on their ballots. In the case of Marsy’s Law, this is what the voters will read on their ballots:

Analysis of Initiated Constitutional Measure No. 3

Initiated Constitutional Measure No. 3 was placed on the ballot by petitions circulated by a sponsoring committee. If approved, it would add a new section to Article I of the North Dakota Constitution which would provide certain rights to victims of crime in this state, including the right to be treated with respect, to be free from harassment, and to be protected from the accused. The measure would provide for the right to prevent the disclosure of confidential information about the victim; to refuse or limit questioning of the victim; to notice of, and presence at, court proceedings; and to notice of release or escape of the accused. The measure would provide for the right to be heard in court proceedings, to provide information about the impact of the offender’s conduct, and to receive reports relevant to these rights. The measure would provide for the right to restitution from an offender for losses suffered as a result of criminal conduct; to be informed of the outcome of the case and of the detention or other disposition of the offender; and to be informed of, and participate in, post-judgment processes.

Voting “YES” means you approve the measure as summarized above. Voting “NO” means you reject the measure as summarized above.

The Attorney General and Secretary of State’s office have to do ballot summaries or we would have 20 page ballots no machine could count. But, with Measure 3’s page after page of new constitutional provisions, there is no way those offices can encompass all what goes into the Constitution in a summary. Everything in this Measure 3 summary is already current law, it makes sense, and opponents have no beefs with these concepts.

But there are other, more objectionable parts of the measure not mentioned in the language quoted above. For example, the provision the NDFOP emphasized in their opposition statement – where someone purporting to be a crime victim could use Marsy’s Law to shield the truth from the police or a falsely accused defendant.

Does anyone think there would be any grassroots support for a provision like this? Has anyone seen a hug-a-puppy ad on it? If a person steps into the booth and reads the Measure 3 ballot summary, without other information, they are voting to add this crazy Marsy’s law provision police officers in the trenches are rightly concerned about being in our Constitution – without the voter ever knowing it.

A wacky out of state agenda with a big checkbook could exploit our mainstay energy or agricultural industries by following the Marsy’s Law playbook, and our state leaders had best consider this reality. To me, at a minimum, our measure summary policy perhaps should include a bolded universal statement that tells the voters:

“CAUTION: THIS BALLOT SUMMARY MAY OR MAY NOT ACCURATELY REFLECT THE COMPLETE POLICY YOU ARE VOTING ON. FOR THAT YOU MUST DO YOUR OWN RESEARCH AND READ THE ACTUAL THINGS YOU ARE VOTING ON BY REVIEWING THE FULL LANGUAGE ON THE SECRETARY OF STATE’S WEBSITE.”

Whether Marsy’s law is part of our lives, or not, come November 8th, I hope our lawmakers are studying the playbook being used to buy our policy for us.