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Thanks for reading the State Court Report newsletter! This week I’m turning things over to my co-editor, Douglas Keith, to share his analysis of recent litigation over state constitutional protections for victims’ rights.

– Alicia Bannon

Over the last 40 years, there has been a quiet revolution in the constitutional rights of crime victims. In 1982, Ronald Reagan convened the President’s Task Force on Victims of Crime, which ultimately recommended an amendment to the U.S. Constitution. Though congressional resolutions to advance such an amendment never gained enough traction, the effort gave rise to a national campaign to amend state constitutions. Today 37 states grant victims certain rights to participate or seek restitution in criminal cases.

This effort gained added momentum in 2008 when California voters adopted the nation’s first Marsy’s Law

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amendment. The amendment is named for Marsalee “Marsy” Nicholas, who was murdered in 1983, and whose brother and mother encountered the person who killed her in a supermarket while he was on bail awaiting trial.

Marsy’s Law is a package of amendments that grants victims and their families the right to be notified of and participate in many aspects of criminal proceedings: the right to refuse depositions, the right to restitution, and more. With a national campaign

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funded by Marsy’s brother, tech billionaire Henry Nicholas, voters in 12 states have passed a Marsy’s Law amendment.

But this momentum has not been without friction, and victims’ rights amendments have faced court challenges across the country that encapsulate much of what makes state constitutions distinct.

For example, state courts regularly have to define the contours of these relatively new rights, which are often written in broad terms. Next week, the Maryland Supreme Court will hear one such case in an appeal by Adnan Syed, whose case was made famous by the podcast Serial. (Rex Bossert previewed the argument for State Court Report this week.

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Though a Baltimore judge vacated Syed’s conviction for the 1999 murder of Hae Min Lee last year, Lee’s family appealed and won in the intermediate appellate court. The appeals court ruled that the trial court had violated Lee’s brother’s rights as a victim under state law when he was given inadequate notice of the hearing to vacate Syed’s conviction and was only allowed to attend via Zoom. (Maryland voters adopted the state’s victims’ rights provisions in 1994, before Marsy’s Law.) The state supreme court will now hear both Syed’s appeal and Lee’s cross-appeal arguing he was unconstitutionally denied the right to speak at the hearing.

Courts have also had to reconcile new victims’ rights provisions with long-standing federal and state constitutional protections for defendants in criminal cases. Last summer, the Arizona Supreme Court struggled to square a defendant’s request for data from a victim’s GPS with the victim’s family’s claim that they have the right to refuse such requests for information. A divided court ultimately sent the case back

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to the trial court to see if there was a way to balance the rights by changing how the data would be extracted, but a sharp dissent wrote that the majority was overcomplicating the matter, as a victim’s rights “must yield if they conflict with a defendant’s constitutional right to present a complete defense.”

These cases also illustrate how state courts learn from one another and look to their peers for guidance, especially since the multistate victims’ rights campaign has led to numerous state constitutions with similar or identical provisions. In an earlier decision

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about how to protect both defendants’ and victims’ rights, the Arizona Supreme Court looked at how courts in New Jersey, Iowa, Wisconsin, and Kentucky all addressed the same question.

Lastly, Marsy’s Law has run up against procedural requirements for amending state constitutions. While state constitutions are easier to amend than the federal Constitution, state law often contains detailed procedures and requirements those amendments must meet. Courts in Montana

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, Pennsylvania

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, and Kentucky

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all struck down Marsy’s Law, ruling that those amendments put too many distinct provisions before voters in a single vote or the ballot language did not adequately convey to voters the substance of the amendments. Earlier this year, the Wisconsin Supreme Court upheld

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its Marsy’s Law amendment in the face of a similar challenge. (You can read more about that case in a State Court Report piece

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by Walter Olson of the Cato Institute, which also discusses a pending challenge before the Florida Supreme Court.)

Our State Case Database

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has 20 decisions from the last three years about victims’ rights under state constitutions, showcasing how state courts interact with their constitutions and relatively new rights like these.





When Can States Strip Power from Elected Officials?

Professor Quinn Yeargain of Widener Law School analyzes a recent Ohio law stripping away most of the elected state board of education’s powers. Pointing to similar laws in Minnesota and Wyoming that were held to violate the state’s constitution, Yeargain argues that there is “a strong textual argument that the legislature . . . has overstepped its role.” Read more

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Mississippi High Court Strikes Down New Appointed Judgeships in Jackson

Last week, the Mississippi Supreme Court struck down part of a controversial law that created new appointed judgeships and prosecutors in Hinds County, an area that includes Jackson and is more than 70 percent Black. The Brennan Center’s Michael Milov-Cordoba breaks down the decision, which relied on a state constitutional provision requiring that circuit court judges be “elected by the people.” Read more

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Ohio Supreme Court Hears Appeal of Abortion Ban Injunction

On Wednesday, the Ohio Supreme Court heard argument on whether to reinstate a six-week abortion ban that was temporarily blocked by a trial court. The appeal, which is being considered less than two months before Ohioans vote on a constitutional amendment to protect reproductive rights, raises two procedural questions that “will inform how future abortion litigation plays out in the state,” writes the Brennan Center’s Gabriella Sanchez. Read more

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An Introduction to the District of Columbia’s Courts

“DC courts hold a unique status in our democracy,” writes the Brennan Center’s Michael Milov-Cordoba in a new explainer. Milov-Cordoba details the history of Washington, DC’s court system, how its judges are selected, and its relationship with federal Article III courts. Read more

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What Else We’re Reading

The State Democracy Research Initiative at the University of Wisconsin recently launched the Democracy Principle website

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, which details democracy-related provisions across state constitutions.





Notable Cases

Grisham v. Van Soelen

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, New Mexico Supreme Court

Opinion issued following a July order holding that partisan gerrymandering claims were justiciable under the state constitution. With a trial scheduled to begin on September 27, the New Mexico Supreme Court explained its reasoning and provided further guidance to the trial court, including that plaintiffs must provide district-specific evidence of disparate treatment. // New Mexican

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Snaza v. State

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, Washington Supreme Court

Ruled that a law mandating that sheriffs receive authorization from their jurisdiction’s “highest elected official” before deploying tear gas outside of a jail, correctional, or detention facility violates the Washington Constitution, as applied to sheriffs in noncharter counties, because it interferes with the sheriff’s core functions. // Washington State Standard

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State v. Torgerson

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, Minnesota Supreme Court

Ruled that the smell of marijuana alone is not enough to create probable cause for a warrantless search of a vehicle under Article I, Section 10, of Minnesota’s constitution, stressing that the odor should be taken into account along with other factors. // MinnPost

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State v. Geddes

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, Iowa Supreme Court

The court heard argument on September 14 in Robert Geddes’s challenge to his conviction for trespass as a hate crime, stemming from the placement of homophobic notes on the doors of residences displaying rainbow flags. Among other things, Geddes contends the law at issue violates his right to free speech under the state and federal constitutions. // Iowa Courts

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