The proposed amendment to the Pennsylvania Constitution, known as Marsy’s Law, would create a set of rights for victims, including to be notified about, attend and weigh in during plea hearings, sentencings and parole proceedings. It also guarantees “a prompt and final conclusion” of the case and post-conviction proceedings and the right to full restitution.
But the League of Women Voters and the ACLU filed suit, citing a host of issues with the proposed amendment, including the contention that it is overly broad and vague. They claim the ballot question doesn’t actually contain the text of the proposed amendment, and the language of the question would effectively amend multiple sections of the constitution, pertaining to issues related to procedures in the criminal justice system.
Days before the general election, Commonwealth Court Judge Ellen Ceisler issued a preliminary injunction but acknowledged that delaying the certification of results of a constitutional amendment referendum has apparently never happened before.
However, she said the proposed amendment would have immediate and, in some cases, irreversible consequences for the rights of the accused and the criminal justice system.
“If approved by a majority of the electorate, every stage of the criminal proceedings, including bail hearings, pretrial proceedings, trials, guilty pleas, sentencing proceedings, and parole and pardon reviews, will be put into doubt,” Ceisler wrote.
The judge has ordered that the results will not be tabulated or certified until the case is ultimately resolved.
What is Marsy’s Law?
The amendment is part of a national Marsy's Law campaign for victims' rights, named for a 1983 California murder victim.
Jennifer Riley, who runs the Marsy's Law for Pennsylvania effort, described the decision as dismaying but said her organization was confident the election results will ultimately be certified.
The proposed amendment, which remains on Tuesday's ballot, passed the Legislature overwhelmingly.
Reggie Shuford, executive director of the American Civil Liberties Union of Pennsylvania, said state lawmakers mishandled the amendment process.
“Despite the heated rhetoric, rather than help crime victims, the Legislature failed them in this process,'' said Shuford, whose organization helped represent the plaintiffs. “They did not hold a single hearing over two legislative sessions, and they ignored the law in proposing this massive constitutional amendment.”
The judge said the proposed amendment apparently violates the single-subject rule for amendments by providing “a whole series of new and mutually independent rights” to victims.
She also sided with the plaintiffs' argument that the ballot question did not fairly, adequately and clearly inform voters about what the amendment would do.
“No doubt the remedy is rare; as it appears that delaying certification of the votes to a constitutional amendment has never occurred,” the judge wrote.
Supporters have said the amendment will strengthen rights already in other laws by putting them into the constitution and that it gives victims the express ability to ask a judge to enforce those rights.
During a hearing last week , lawyers for the League of Women Voters put on one witness, a criminal defense lawyer who warned the amendment would give victims the right to refuse discovery requests by the accused. He predicted that would make it more difficult for defense lawyers to get information they need to immediately start investigating social media posts, email records and text messages.
The attorney general's office, representing the defendant, acting Secretary of State Kathy Boockvar, said an injunction would confuse voters and may affect the result. Boockvar's lawyers said the referendum's various elements all related to the single purpose of advancing victims' rights.
Thousands of absentee, overseas and military ballots have already been received.