Photo: Christian Schwier

In a historic ruling, a Commonwealth Court judge has decided that Pennsylvania voters will have an opportunity to weigh in on a controversial ballot question Nov. 5, but the votes won't be calculated unless and until the question is determined to be constitutional.

Pa.R.A.P. 1532—Pennsylvania's version of what is known nationally as "Marsy's Law" or the Victims' Rights Amendment—would amend Article I, Section 9 of the state constitution. The measure would create a long list of new rights for victims of crimes and those impacted by crimes, including the rights "to be treated with fairness and respect for the victim's safety, dignity and privacy; to have the safety of the victim and the victim's family considered in fixing the amount of bail and release conditions for the accused; to reasonable and timely notice of and to be present at all public proceedings involving the criminal or delinquent conduct; to be notified of any pretrial disposition of the case; with the exception of grand jury proceedings, to be heard in any proceeding where a right of the victim is implicated, including, but not limited to, release, plea, sentencing, disposition, parole and pardon."

On Wednesday, Judge Ellen Ceisler granted a petition for a preliminary injunction by the League of Women Voters of Pennsylvania and Lorraine Haw, a Pennsylvania voter whose brother was murdered and whose son is serving a life sentence without the possibility of parole. The petitioners argued that the amendment, if approved, would immediately and irreparably hinder criminal defense attorneys' ability to represent their clients and would throw the entire criminal justice system, including the courts, into disarray.

The ruling went against Acting Secretary of the Commonwealth Kathy Boockvar, who argued that delaying the certification of the vote could disincentivize some voters from showing up to the polls at all. Boockvar also argued that because the proposed amendment states that a victim "'shall have the following rights, as further provided and as defined by the General Assembly,'" it's not clear that the amendment would go into effect immediately upon being approved by voters.

But Ceisler said the petitioners met their burden of showing that a preliminary injunction was necessary to avoid immediate and irreparable harm.

"The remedy provided will temporarily enjoin the secretary from tabulating and certifying the votes on the proposed amendment," Ceisler said. "Upon final resolution of the petition for review, the proposed amendment will be declared either constitutional or unconstitutional. If deemed constitutional, the secretary will tabulate and certify the votes."

Boockvar also pointed to the costs incurred by the Department of State for publication of the proposed amendment as another argument against the injunction, but Ceisler waved it off.

"If the proposed amendment is approved by the majority of the electorate, the proposed amendment will immediately become part of our constitution," Ceisler said. "No vote would go uncounted. If the proposed amendment is declared unconstitutional, the secretary would have been mandated to incur the costs regardless."

Ceisler acknowledged that such a remedy is exceedingly rare, "as it appears that delaying certification of the votes to a constitutional amendment has never occurred."

But the judge said the petitioners raised substantial questions about the constitutionality of the proposed amendment.

"If passed, the proposed amendment would immediately and irreparably hamstring defendants' rights to have full and effective investigations carried out on their behalf," Ceisler said. "By invoking their absolute right 'to be treated with fairness and respect for the victim's safety, dignity and privacy,' victims and witnesses (in the likely scenario they are directly impacted by the crime) would stymie the accused's constitutional rights to confront witnesses through cross-examination or to enforce subpoenas compelling their cooperation in criminal proceedings."

Ceisler said she also found persuasive the petitioners' argument that the proposed amendment infringes on the court's ability to prescribe rules governing the practice, procedure and conduct of all courts.

"First, a victim asserting the constitutional privacy right could demand closed proceedings, contrary to Article I, Section 11′s requirement that the courts be open to all," Ceisler said. "Second, the proposed amendment gives victims the right to participate and be heard at all stages of the criminal justice process. This court previously identified the issues that the proposed amendment would have on the day it becomes part of the constitution. As the courts may not abridge, enlarge or modify the substantive rights of any litigant, the proposed amendment could impose on the courts' ability to maintain its calendar in an efficient and expeditious manner."

The petitioners were represented by Mary Catherine Roper and Andrew Chapman Christy of the American Civil Liberties Union of Pennsylvania, along with Steven Bizar and Tiffany Engsell of Dechert.

Reggie Shuford, executive director of the American Civil Liberties Union of Pennsylvania, said in a press release that Ceisler's decision "reaffirms the importance of following the constitution."

"Despite the heated rhetoric, rather than help crime victims, the Legislature failed them in this process," Shuford said. "They did not hold a single hearing over two legislative sessions, and they ignored the law in proposing this massive constitutional amendment. They knew better, and they should have done better."

Bizar said in the release: "From the start, this case has not been about victims' rights, but about protecting the rights of Pennsylvania voters. That is what our clients are concerned about here. When constitutional requirements are skirted, even for good reasons, every one of us suffers."

The Pennsylvania Department of State could not be reached for comment.