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Murky Marsy's Law: Clarity sought for prosecutors, public access

BISMARCK—Critics of Marsy's Law say its ambiguity for prosecutors is leading to withheld public information, while those attorneys say they want more clarity on the victim rights law.

While Marsy's Law enshrines victim's rights in the state constitution, representatives of the North Dakota Newspaper Association say its transparency issues have "chipped away" at North Dakota's "thoughtfully devised" laws and rules on open meetings and public records.

"I do think there is a temptation when you don't have to release information, not to," said Steve Andrist, NDNA executive director. "There's also a temptation when you're uncertain as to what information should be released, your inclination is definitely not to release it, so we need specifics."

Take the redacted affidavit alleging Chad Legare strangled an Anamoose priest. The formal court document reads more like a Mad Lib for all its white spaces.

"On January 30, 2018 at approximately 7:45 a.m. (blank) located (blank) a (blank) at (blank), at (black mark), McHenry County, ND, covered in blood and in need of assistance. (Blank) was located at the (blank) at the time of being found," Craig Zachmeier, of the North Dakota Bureau of Criminal Investigation, wrote in his affidavit, which contains more than 200 redactions thanks in part to Marsy's Law.

Andrist said the affidavit "tells us absolutely nothing" for a type of public record that is generally highly detailed. Marsy's Law has added "significant uncertainty" to a host of issues, he said.

"I've always said if you give a public official a chance to withhold information, they're going to go for it," said Jack McDonald, NDNA's attorney. "And that's the danger of things like Marsy's Law."

Legare's alleged victim, the Rev. Robert Wapenski, was identified by Diocese of Fargo spokesman Paul Braun the day of the attack. Wapenski is referred to as "John Doe" in court documents.

Since voters approved the initiated constitutional measure in 2016, county prosecutors have grappled with Marsy's Law, which has presented much ambiguity. Attorney General Wayne Stenehjem's office issued guidance last summer on Marsy's Law, while a legislative committee studies related concerns.

How many and who

Burleigh County State's Attorney Richard Riha said his office didn't know what to expect when Marsy's Law passed.

"Our big thing was how many people are going to invoke and what's that going to do and are we going to have to add personnel so that we can keep up, comply with the law," he said.

In 14 months, 38 people in Burleigh County have invoked Marsy's Law, one as recently as Tuesday. Riha said that's surprisingly low.

Burleigh County victim/witness coordinator Michelle Dresser-Ternes said Marsy's Law allows for much of what was already in place for crime victims, but added that elements of victim restitution and the ability to speak at hearings are benefits.

"There have absolutely been victims who have benefited," she said.

Still, some issues aren't clear.

"If you have 10,000 people in a football stadium and a streaker goes through, is every one of those 10,000 people a victim?" Riha said, posing a question from when Marsy's Law was proposed.

Inconsistencies exist across counties, from small offices lacking victim/witness coordinators, to differences between more populated areas like Burleigh and Ward counties.

"Obviously, we all have the same law but it's interpreted differently county to county," Riha said.

Aaron Birst, legal counsel for the North Dakota Association of Counties, said he hasn't yet been able to track how Marsy's Law is understood.

"I would say there's differences in interpretation of Marsy's Law — not on the global scale but in the weeds level, there are some differences in interpretation," he said.

To release or not

Uncertainty over Marsy's Law makes it easier for public officials to withhold information that hadn't before been in question, according to Andrist.

"It just kind of automatically allows officials to automatically decide that 'I'm going to err on the side of caution, I don't want to get into trouble with Marsy's Law,'" he said.

Birst said that's happened.

"You don't want to find yourself violating some constitutional right in Marsy's Law, and so you're probably going to err on the side of caution as far as what gets released," he said. "I know that has been discussed and there are people on different sides of the fence on that."

Stenehjem's guidance states that addresses "or other information" that could locate victims is protected under Marsy's Law, but their names are not. Riha said that's one example of the ambiguity.

Bismarck Police encountered the issue when an officer shot his alleged attacker and asserted Marsy's Law. Police traditionally release the name of an officer involved in a shooting after an investigation has closed.

Police Chief Dan Donlin said his department sought Stenehjem's guidance on the issue, which was resolved as he later released the officer's name.

McDonald said Zachmeier's redacted affidavit is one in "a series of little closures" of public access to information, such as a new state law shielding all but finalists' applications for public positions and public boards' propensity to enter executive session "for so-called attorney consultation."

"These open record issues and open meetings issues, they're kind of like grapes; they come in bunches sometimes," he said.

"Once we chip away at those things, it's pretty hard to get them back," Andrist said.

Guiding light

State Sen. David Hogue, of District 38, chairs a legislative judiciary committee studying Marsy's Law. He said the group has heard testimony on its concerns but has yet to draft a response. The committee has discussed clarifying that those asserting Marsy's Law "must take an affirmative step" to do so, rather than leave police and prosecutors to assume they're invoking their rights.

"I think what we would like to see is a clear statutory law that says that these rights must be affirmatively invoked by the victim and, if they're not, then the rights are not going to be monitored," he said.

Birst said he hopes for clarity or uniformity for counties accommodating Marsy's Law.

"We've got to comply with all the constitution's requirements, and it does cause a little bit of a log jam because of the uncertainties," he said.

Andrist said laws and rules regarding public information remain strong in North Dakota, but added there's work to be done to "rekindle" public interest in transparency.

"This is public information. It belongs to the public," he said. "It's being held by representatives of the public, and unless there's some really important reason, it should be available to the public."