Michael S. Lewis: With Marsy’s Law, officials seek to ride state constitution into Jurassic Park

For the Monitor
Published: 1/17/2018 12:20:11 AM

Dr. Sattler: “I’m still not clear on chaos (theory).”

Dr. Malcolm: “Oh . . . oh . . . it deals with predictability in complex systems.” – Jurassic Park (1993)

The governor and attorney general stood together on Tuesday with many others to announce their support for “Marsy’s Law,” a series of substantial amendments to the New Hampshire Constitution.

In their minds, no doubt, is a sincere and good-faith desire to vest a subset of victims with certain rights and protections as a matter of constitutional law. These are laudable intentions. I say this having worked with many victims as a homicide prosecutor in the Attorney General’s Office, including through the 2010 biennium in which our Legislature acted against the interests of victims by limiting or slashing spending for our courts, law enforcement, legal services, nonprofits and many other victims’ rights entities.

Given our state’s recent history, perhaps it is time to create a constitutional barrier to this type of retrenchment by constitutional officers whose baseline obligations are nothing if not the obligation to protect children, for instance, from harm.

Indeed, a review of the language of the new proposed constitutional amendments illustrates how the adoption of new rights into our state constitution will cause our state to enter a new era of constitutional litigation whose true topography will be unknown until victims seek to enforce their rights in individual cases.

The proposed amendments themselves are drawn from a national effort financed by a wealthy patron to “secure for victims justice and due process throughout the criminal and juvenile systems.” It applies beyond judicial proceedings to “any proceeding” during which “a right of the victim is implicated.”

The new rights described in the language of Marsy’s Law include the rights to “safety, dignity and privacy.”

These rights have never been recognized, explicitly, within the language of our state constitution, though they have a substantial heritage in our constitutional law, generally.

The right to privacy, of course, was the basis for the rights to an abortion and to marital contraception: the bases of Roe v. Wade (1973)and Griswold v. Connecticut (1965).

The right to dignity pervades recent decisions recognizing gay rights in the area of consensual sex and marriage in Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).

The right to safety is the right the United States Supreme Court denied to the mother of a child who was brain damaged by his father’s violent abuse in Deshaney v. Winnebago (1989), though state officials knew about the abuse and did nothing to curb it.

This “right to safety” dovetails with an additional proposal for a right to “reasonable protection against the accused.”

Together, these new rights would mandate that the state and all of its branches take the affirmative steps the United States Supreme Court thought beyond the scope of the negative right to due process of the law in Deshaney to protect victims at stages prior to a final injury.

In other words, Marsy’s Law would supplant Chief Justice Rhenquist’s ruling in Deshaney that the constitution “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests (the rights to life, liberty and property) do not come to harm through other means.”

Remarkably, politicians of both parties back the explicit recognition of all of these new rights, including those at the foundation of abortion and gay rights, with little controversy, though the nature and existence of these rights has been the subject of the most intense political fighting over the past half-century.

Under the new law, victims also will have a right against “proceedings free from unreasonable delay and a prompt conclusion of the case.”

This right doubles-down on, focuses and augments the force and effect of provisions within Part I, Article 14 of the New Hampshire Constitution requiring the resolution of matters “promptly and without delay.”

The failure to abide by these new obligations will subject the state to litigation generated by private individuals. The plain language of the bill makes it so. Under it, all of these rights are conferred broadly. The proposed amendments vest standing both to “victims” and “any person” who is “directly and proximately harmed by the commission of an offense or act.”

And while these same amendments that seek to secure rights for victims take them away by denying the rights of victims to seek damages (a notably anti-victim aspect of this professed pro-victim amendment), the act of foreclosing relief in the form of money, by virtue of ancient legal principles, eases the way for litigants to seek injunctions against the state and possibly orders of contempt against state officials, as well as other relief.

In other words, the governor and attorney general and victims’ rights advocates, among others, are facilitating government by court injunction the likes of which would far exceed the scope of constitutional litigation inside education financing.

It is with this in mind that we should take what they say about the law with a grain of salt.

Because we should remember that the governor, the attorney general and other state agency heads are also the potential named parties and future adversaries of private citizens in litigation. In this setting, these same state actors will contort into an about face when defending the state against claims that it has violated the same constitutional amendments by seeking a narrow interpretation of their scope.

To imagine why, consider the following questions regarding the new law and its interaction with current legal problems and the state:

– Mandatory Reporting of Child Abuse: New Hampshire law requires health care providers, teachers, religious and spiritual advisers, parents, and citizens generally, to report child abuse under circumstances that are very badly defined. Many of these actors must navigate vague and outdated statutes on the one hand, and health care, counseling, and education privileges and rights for victims on the other. Will this law create a new constitutional immunity for these health care providers and counselors by protecting the rights of victims to privacy, dignity and safety where victims do not want their abuse reported and publicized? And to what extent will victims be able to invoke these new rights to prevent reports by third-party schools, counselors and health care providers?

– Parental Notification: New Hampshire law requires that parents be notified if a minor seeks to obtain an abortion, except upon petition to the New Hampshire Superior Court. Will these rights vitiate the requirement of a petition on right-to-privacy grounds? Will they go further and vest a minor with the right to counsel in this legal setting given that victims must now have rights on par with or greater than the rights of the accused?

– Court and Child Protective Services Funding: And what will be the effect of these provisions in relation to the underfunding of our courts and DCYF? Will the new “unreasonable delay” and “prompt conclusion of the case” clauses give rise to litigation drawing a connection between the absence of judicial personnel on the one hand and judicial and agency budgeting decisions on the other? Will the same executive branch officials and legislators supporting this law finally support sufficient funding for these entities or will they be forced to do so through litigation? Who will arbitrate that new ground for constitutional crisis among the branches of government where legislators and judges will be required to assess how much funding is too much funding, and so “unreasonable” when protecting children from child abuse under the new “reasonable protection” clause of our state constitution?

It is no small thing to amend the constitution and anyone who suggests otherwise while supporting these efforts must confront the simple question: Why amend our sacred document so extensively if you are merely seeking band-aids or to enshrine rights that already exist? There is no credible answer.

These amendments are broad and powerful and stand to alter substantially our small constitutional republic in many unpredictable and hopefully good ways in the years to come. They also stand to do so in ways our constitutional officers may not have currently predicted and which they may come to regret for self-interested reasons. For them all I can say is: “Welcome to Jurassic Park!” They certainly have purchased their own tickets for the ride ahead.

(Michael S. Lewis is a Concord attorney.)




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