some are reluctant to say: amending our state constitution by the
current initiated measure process is a bad idea. The adoption of Marsy’s
Law illustrates the point squarely.
Before adoption, a constitutional amendment should be the subject
of rigorous debate, public hearing, and an opportunity to amend,
clarify, and improve a proposal. The initiated measure process does
not allow for this level of analysis or hard work that goes into a sound
constitutional revision. Instead, the Marsy’s Law proposal was rolled
out across the upper plains states with Hollywood actors, a lavish
budget, and platitudes about “protecting victims.” Of course, once a
constitutional initiated measure is approved for the ballot, it cannot be
amended, corrected, or modified by the Legislature.
While the public universally supports victims’ rights, Marsy’s Law
is a mess, sold to unwitting voters as a feel-good constitutional
amendment, and unfairly cast in a light of “victim versus accused.”
When politics supplant time-tested and informed public policy
formation, citizens lose. Despite the mess created, Marsy’s Law has
illuminated the need for reform of the ballot measure process. When
the Legislature reconvenes in January, reforms will be considered and
hopefully implemented. But unlike the lavishly-funded advertising
campaign sold to voters, reforms will be considered with balance,
respect, and informed analysis – with consideration of the impacts on
North Dakotans.
The notion that Marsy’s Law is “part of the fabric of our liberty” is also
dispelled by the truth – the measure was funded entirely by a billionaire
from California. The sponsor, formerly indicted in federal court for
insider trading and drug trafficking, is currently facing criminal charges
for drug trafficking in Nevada. As aptly noted by former Justice Dale
Sandstrom, North Dakota’s Constitution ought not be a “hobby farm.”
In response to the Marsy’s Law mess and others, our elected leaders
have undertaken two significant steps. First, the Legislature formed
an interim legislative committee to evaluate and consider sensible
changes to the initiated measure process, particularly for constitutional
initiated measures. Unfortunately, interim consensus on committee
recommendations could not be reached. Secondly, an interim legislative
committee is conducting hearings, evaluating options, and proposing
amendments to ameliorate the damage done by Marsy’s Law. This
second step is exceedingly difficult because, as a constitutional
amendment, the Legislature cannot simply amend the measure to
correct deficiencies or clarify ambiguities. Similar to the South Dakota
approach, the legislature could propose a follow-up constitutional
amendment to clarify Marsy’s Law and narrow its scope.
North Dakota, Montana, and South Dakota are not the first or last
states to be handed a constitutional measure that conflicts with their
existing victims’ rights laws. In Idaho, Marsy’s Law did not get onto
the ballot after it failed to gain the approval of the Idaho Legislature, a
necessary predicate to Idaho constitutional amendments. The Montana
Supreme Court entirely struck down Marsy’s Law, finding the measure
violated the Montana Constitution by denying
voters the ability to decide separate issues with
separate votes. Unlike Montana, North Dakota’s
Constitution does require proposals to be limited
Dr. Matthew Bunkers of Northern Plains Weather Services is a certified
to a single subject. As Marsy’s Law is introduced
consulting meteorologist (CCM) and forensic meteorologist with over 25
in other states, it increases the burden on taxpayers
years of weather analysis and forecasting experience. He can provide reports,
depositions, and testimony in the areas of weather and forecasting, severe
and the judiciary. In Florida, for example, the
summer and winter storms,
measure is similar to the North Dakota version but
flooding, applied climatology
contains more requirements for prosecutors and
and meteorology, agriculture
courts regarding the timing of trials and appeals.
meteorology, and statistics. More
If the Florida court cannot meet the timelines
information is provided at http://
prescribed in the Florida version of Marsy’s Law,
npweather.com, and you can
the appellate courts are required to report to the
contact Matt at nrnplnsweather@
gmail.com or 605.390.7243.
Legislature on each such case.
NORTHERN PLAINS WEATHER SERVICE
FALL 2018
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