Thanks to Marsy’s Law Corporations Can Maybe Have Victim Rights Too

Shane Goettle, a member of the committee sponsoring Marsy's Law, speaks at a press conference in the state capitol prior to petitions, shown in front of podium, being delivered to the Secretary of State's office. In back from left are Marsha Lembke, Burleigh County Sheriff Pat Heinert, Kelly Leben of the Burleigh County Sheriff's Department, Lacee Anderson, Kathleen Wrigley and Nicole Peske. TOM STROMME/Bismarck Tribune

North Dakota voters made a grievous mistake when they, at the behest of a campaign funded by a California billionaire, approved the “Marsy’s Law” amendment to the state constitution.

The fallout from that mistake continues to unfold in state courts.

Earlier this year I wrote about a state Supreme Court decision in State vs. Strom dealing with restitution in an embezzlement case. That opinion struck down state law allowing courts to consider a defendant’s ability to pay when ordering restitution because the Marsy’s Law amendment (Article I, Section 25) gives victims the “right to full and timely restitution in every case and from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct.”

The state Supreme Court found no room in that language for considering whether a defendant can pay. Which, as I pointed out at the time, may have 8th amendment implications. That part of our national constitution, which was just recently incorporated to the states by the U.S. Supreme Court in a case involving civil asset forfeiture, prohibits cruel and unusual punishments up to and including excessive penalties.

Is Marsy’s Law requirement for full restitution in all cases constitutional under the 8th amendment? It’s an open question, but back to the matter at hand.

The opinion stops just short of saying the Marsy’s Law definition of victims includes corporations, but it doesn’t say it excludes them either.

Today the state Supreme Court ruled on another question of restitution involving Marsy’s Law.

The case, State vs. Hunt, deals with a man, one Javonne Qwanae Hunt, who harmed another individual during a fight in a YMCA basketball game. Hunt agreed to pay that person’s medical fees, which amounted to just over $3,000. But Blue Cross Blue Shield of North Dakota, the victim’s insurer, went after Hunt for the roughly $30,000 in medical expenses they covered beyond the out-of-pocket costs.

Blue Cross felt Marsy’s Law, which per the aforementioned language mandates full restitution in all cases, covers them too since they had to cover medical expenses resulting from the injury Hunt caused. The lower court agreed with them, and the state Supreme Court concurred.

You can read their full opinion below.

The opinion stops just short of saying the Marsy’s Law definition of victims includes corporations, but it doesn’t say it excludes them either. Barring some other legislative action, it sure seems like corporations can now be victims too under the law too and afforded the Marsy’s Law list of rights.

Can corporations keep their names out of the headlines by claiming the privacy protections Marsy’s Law put in place? The amdendment says victims have the “right to privacy, which includes the right to refuse an interview, deposition, or other discovery request made by the defendant, the defendant’s attorney, or any person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.”

Does that mean a corporation can refuse depositions by meeting the very expansive definition of a victim enshrined in Marsy’s Law?

I don’t know. I’m not sure anyone really knows yet. Based on the law as it stands, it sure seems like it, though when most people voted for Marsy’s Law I’m sure they were thinking of protecting individuals who were victims of crimes like assault and rape. Not corporations.

What a mess. Another victory for the initiated measure process, I guess.

Here’s the full opinion:

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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