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Victim Rights Amendment May Block Amber Alerts

Back to law enforcement: Davison County State’s Attorney Jim Miskimins says the new family-inclusive definition of “victim” may shut down Amber Alerts:

According to the amendment, a victim is any person who suffers physical, psychological or financial harm as a result of a crime. The definition also includes the victim’s spouse, parent, grandparent, child, sibling, grandchild or guardian.

While it’s difficult to predict how Marsy’s Law will affect future cases, Miskimins said this definition could affect Amber Alert investigations — in which a child is kidnapped — if the child is taken by a non-custodial parent. Since the child’s grandparents could be considered victims, they may be able to hide information from law enforcement, violating the best interests of the child [Jake Shama, “Marsy’s Law Leaving ‘Unintended Consequences’ on Public Information,” Mitchell Daily Republic, 2016.11.25].

Once again faced with the unintended consequences of the vanity bill California billionaire Henry T. Nicholas paid him to push, Republican consultant and attorney Jason Glodt insists the language of his amendment isn’t a problem and that the courts can pick through each situation on a case-by-case basis. Surely a reasonable judge could see that a child’s right to safety takes precedence over claims of the parents of a kidnapper and that the police don’t have to contact every parent, grandparent, sibling, guardian, “and any person with a relationship to the victim that is substantially similar to a listed relationship” of the abducted child before issuing an Amber Alert.

To reach that conclusion, judges will have to sift through the escape clause written into the amendment:

The granting of these rights to any victim shall ensure the victim has a meaningful role throughout the criminal and juvenile justice systems and may not be construed to deny or disparage other rights possessed by victims [Amendment S, as printed 2015.08.11].

The language I bold above may save Amber Alerts… if we can establish that abducted children and/or their custodial parents have a constitutional right to an Amber Alert. Unfortunately, I don’t see Amber Alerts authorized in the state Bill of Rights, and I have difficulty believing that a constitutional amendment can subordinate itself to a statutory right—judges test laws against the constitution, not the constitution against laws.

Funny that our Republican legislators are exerting themselves in court to overturn IM 22 to protect their free lunches but aren’t making any litigious fuss over Amendment S to protect abducted children.


  1. Troy 2016-11-29 07:35


    To answer your last question, “litigating” and dealing with a Constitutional Amendment is infinitely harder than addressing changes to a passed law or initiated measure. As the unintended consequences or consequences not contemplated by voters become clear, there are three basic strategies:

    1) Contest conformance of Marcy’s Law to the US Constitution or
    2) Pass legislation which tests the consequences/meaning of Marcy’s Law.
    3) Pass a Legislature drafted referendum which deals with the unintended consequences for consideration by the people in two years.

    In the end, because of the unintended or unknown consequences of this Amendment and IM22, I think we will see a greater reticence of the people to approve complex matters going forward.

  2. Darin Larson 2016-11-29 07:56

    Troy, if the legislature decides that it will simply kill IM22 rather than working to carry out the provisions of the bill, I think we will see more constitutional amendments on the ballot. The lesson will be that the legislature can’t even be trusted to carry out the expressed will of the voters. Therefore, it has to be enshrined in the SD Constitution to keep it safe from legislator meddling.

  3. Darin Larson 2016-11-29 08:17

    Cory, I think the escape clause saves the amber alert. It does not say that it is limited to constitutional rights. The statutory or even regulatory or policies and procedures that favor a victim should be a sufficient right to have an amber alert issued for a child. It would be an absurd interpretation of the law to value the rights of relatives or possible perpetrators over the rights of a child who may be the victim of a crime. Federal constitutional provisions like the Equal Protection clause of the 14th Amendment and freedom of speech and of the press under the 1st Amendment would overrule many of the doomsday scenarios that you are throwing out.

    I am not a fan of Marcy’s Law, but we need to be careful not to overreact to it like the Chicken Littles in the GOP are doing with regard to IM22.

  4. John 2016-11-29 09:07

    Cory, they only ‘care’ about the fetus and its birth. After that it’s survival of the fittest for the child’s health, education, upbringing.

    “. . . just because you’re opposed to abortion, that that makes you pro-life. In fact, I think in many cases, your morality is deeply lacking if all you want is a child born but not a child fed, not a child educated, not a child housed. And why would I think that you don’t? Because you don’t want any tax money to go there. That’s not pro-life. That’s pro-birth. We need a much broader conversation on what the morality of pro-life is.” -Sister Joan Chittister, OSB

  5. caheidelberger Post author | 2016-11-29 17:47

    Troy, I recognize we’ll have to work harder to rectify any unintended consequences of Amendment S than we would to amend and improve the Anti-Corruption Act. One could argue that such degree of difficulty should motivate even more early effort to identify problems and put solutions in motion. But the Republican leadership seems a lot more interested attacking an initiative launched by Democrat Rick Weiland (but campaign-spearheaded by Republican Don Frankenfeld) than digging into a constitutional amendment pushed by one of their insider cronies.

  6. caheidelberger Post author | 2016-11-29 17:57

    As for Troy’s prediction on complicated issues, that was the conventional wisdom prior to this election. I thought IM 22 stood far less chance of passing than Amendment T or Amendment V, which were both more readable and straightforward. I was mistaken. Numerous folks thought the complicated ballot—ten measures! too much to read!—would promote the “Vote No on Everything” vote. But the longest of all ten measures still passed. I’m not convinced the kerfuffle over IM 22 will discourage people from voting for complicated measures in the future; it might actually torque off the electorate and make it easier to get them to approve measures to rein in Legislative power.

  7. caheidelberger Post author | 2016-11-29 18:00

    Darin, I won’t overreact to the extent that I’ll file a lawsuit to overturn the whole thing. Maybe that’s a key part of distinguishing the Democratic Party from the SDGOP: “We respect your vote; Republicans freak out when you vote.”

    I do like your constitutional analysis, especially when you can point to U.S. Constitutional rights that will override the state constitution rights. But isn’t it odd for a constitutional provision to go the other direction and allow itself to be superseded by mere statute or rule?

  8. Darin Larson 2016-11-29 18:42

    Cory, I’ll grant you that a constitutional provision doesn’t normally allow itself to be superseded by statute or rule. Normally, a saving clause is to keep a statute from being ruled overbroad and unconstitutional. However, there is no reason it can’t work this way to keep the constitutional provision from being overbroad.

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