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Corporations as Marsy's Law victims debated before North Dakota Supreme Court

Public defender Yancy Cottrill argues in front of the justices of the North Dakota Supreme Court on Thursday, April 18, in Bismarck about the case of Javonne Hunt, of Bismarck, involving Marsy's Law. Hunt disputes a judge's order that he pay $27,500 to Blue Cross Blue Shield, Cottrill arguing that an insurance company or corporation is not a victim under Marsy's Law in the state Constitution. Mike McCleary / Bismarck Tribune

BISMARCK — Marsy's Law may see its first clarification of who is a victim as the North Dakota Supreme heard arguments on Thursday, April 18, on restitution to an insurance company.

North Dakota voters in 2016 embedded Marsy's Law for victim rights in the state Constitution. Police and prosecutors have since grappled with the constitutional amendment, some withholding traditionally public information and certain details of crimes amid perceived ambiguity over the definition of a victim.

Justices heard arguments in the case of Javonne Hunt, of Bismarck, who disputes a judge's order that he pay about $27,500 in restitution to Blue Cross Blue Shield after his assault conviction for breaking another man's jaw in a fight. He did agree to pay about $3,200 for the injured man's out-of-pocket medical expenses.

Victim definition

Public defender Yancy Cottrill argued that corporations are not victims under Marsy's Law, pointing to the constitutional provision as conflicting with and overriding statute on its definition of a victim as "a person."

Marsy's Law in the state Constitution defines a victim as "a person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed."

Justices questioned Cottrill's argument of a conflict and what intent Marsy's Law had for who is a victim. Cottrill said he believes the victim definition is limited to human beings, while corporations and government entities shouldn't be able to claim restitution under Marsy's Law.

Justice Lisa Fair McEvers said corporations can sustain financial harm from crimes.

"There is financial harm to a corporation, but Marsy's Law isn't in place to protect corporations," Cottrill said. "(It's) in place to protect victims, and victims are those who are harmed by the direct result of the crime or attempted crime."

Burleigh County prosecutor Tessa Vaagen said that "person" in statute and in Marsy's Law "should be read the same." Statute defines a person as "an individual, organization, government, political subdivision or government agency or instrumentality." Blue Cross Blue Shield, therefore, qualifies as a victim, according to Vaagen.

"It actually falls in line in interpreting 'person' to include both corporations and individuals, as the statute defines as human beings," Vaagen said.

Chief Justice Gerald VandeWalle asked where the court may find intent on Marsy's Law, but Vaagen said she doesn't know, as the constitutional amendment was an initiated measure passed by voters, with no legislative history to reference.

"I think that kind of leads us to a problem," Vaagen said. "But I think in looking at the rest of the constitutional provision, the spirit of the provision is there. They want these victims, whoever they may be, to be made whole, to be returned as closely as possible to the state that they were prior to being a victim of a crime."

Ambiguity

Persons perceived to be victims of crimes are given so-called "Marsy's cards" listing their rights. Bismarck Police Deputy Chief Randy Ziegler said police distribute cards daily.

"We probably give them out more than we need to, just to cover the bases, so to speak," Ziegler said. "If there's ever a doubt, are they a victim, are they not a victim, they get a card."

Ziegler said police have given cards to stores such as Walmart, Target and Scheels after shoplifting offenses, but are usually declined due to familiarity with the procedure and a card already on file.

Police might "revisit" their determination of who should receive a Marsy's card, depending on how the Supreme Court may rule, Ziegler added — but that's "wait and see." And officers are fairly "ingrained" now on distributing Marsy's cards, he added: "I don't think they see it as a hindrance."

Aaron Birst, executive director of the North Dakota State's Attorneys' Association, said a ruling would help answer some questions around the Marsy's Law victim definition.

"That was one of our problems with the initiated measure to begin with, that the victim language that's in the Constitution is quite broad," Birst said.

Marsy's Law took effect in early December 2016. The court may issue its opinion in a few months.

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