North Dakota Supreme Court Begins Cleaning up the Marsy’s Law Mess


Marsy’s Law is terrible public policy. “[A] hobby farm for an eccentric California billionaire,” as former state Supreme Court Justice Sandstrom told me during the 2016 election cycle when voters cast their ballots overwhelmingly for the constitutional amendment.

Unfortunately, I think North Dakota voters were bamboozled by slick campaign (Kelsey Grammer!) funded exclusively from California by the deep pockets of Henry Nicholas, the aforementioned billionaire.

Marsy’s Law is a disaster, as any honest observer with a reasonable understanding of the law will tell you, and now it’s up to the state courts to bring some semblance of order to this mess which has been dumped in their laps.

This week the state Supreme Court heard their first case related to Marsy’s Law, and in it they ruled that victims (in this case a school district) do not have the right to excessive restitution because of Marsy’s Law.

You can read the full opinion in State of North Dakota vs. Lukas Jeremy Kostelecky here.

To summarize, Kostlecky was arrested for damaging property at the New Town High School. He has pleaded guilty to a criminal mischief (a misdemeanor) but at issue is the amount of his restitution.

Damaged of Kostlecky’s crime was a copier at the school. The school district estimated that the cost of replacing the damaged copier with a brand new one was $3,790. The defense argued restitution does not entitle the victim to buy newer, more expensive items and pointed out that a refurbished copier would cost a maximum of $1,795.

The district court judge sided with the prosecutors, arguing that Marsy’s Law requires full restitution. Here’s the quote from the district court judge excerpted in the supreme court’s opinion:

As far as the issue of restitution, I understand your argument perfectly well . . . but the problem is I believe that Marsy’s Law does require full restitution. And in this event the amount of restitution that is going to be ordered is the $3,790.

Now, if, in fact, that makes the school district beyond whole, I can’t make that determination. However, that was the amount that was expended to replace the item that was damaged and ultimately destroyed by Mr. Kostelecky. So that will be the amount of restitution.

The portion of Marsy’s Law referred to by the District Court is in Article I, Section 25, Subsection N of the North Dakota Constitution:

The problem with this portion of Marsy’s Law – a problem which infects much of Marsy’s Law – is that it conflicts with perfectly workable and reasonable law that existed before Marsy’s Law was ever created.

Marsy’s Law did more to muddy the waters than it did to solve any real public policy problems.

The Supreme Court overruled the district court. The school district may yet get the higher amount, but the justices said the district court judge must evaluate the question based on statute and precedent existing prior to Marsy’s Law:

The justices say the district court judge misinterpreted Marsy’s Law, though I’m not so sure he did. The amendment is so poorly written, so desperately vague in its application, that it puts judges in a really awkward position.

North Dakotans would be best served if Marsy’s Law were ripped out of the constitution. Since that’s deeply unlikely, what we’re left with is judges and lawyers trying to make sense of it all.