We don’t have to wait for G. Mark Mickelson and his new out-of-state friends to clarify the crime victims amendment. On Valentine’s Day, the South Dakota Supreme Court ruled against a South Dakota man trying to invoke Amendment S—”Marsy’s Law”, now Article 6 Section 29 of the South Dakota Constitution—to resist Minnesota’s efforts to subpoena him and his granddaughter to testify in a domestic abuse case against the girl’s father.
William Joseph Wilkie did not want his granddaughter to have to travel from Flandreau, where she now lives with her grandfather, to Moorhead to testify in her father’s trial in May 2017. Wilkie said testifying would be hard on the girl, and a letter from her counselor supported that claim. Wilkie also said driving back and forth to Minnesota was “starting to cost [Wilkie] a lot of money….” The Third Circuit Court said tough shiskey and ordered both to comply with Minnesota’s order to testify.
Wilkie appealed, claiming that the judge failed to inform him and his granddaughter of their new constitutional rights as victims. Specifically, Wilkie cited the Clause 19 right “to be informed of these rights, and to be informed that a victim can seek the advice of an attorney with respect to the victim’s rights.”
The Supreme Court ruled Wednesday that South Dakota’s victim rights apply only victims of crimes committed in South Dakota. The Court points to this language in the Article 6 Section 29 that signals the framers’ (i.e., South Dakota voters’!) intent:
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. All provisions of this section apply throughout criminal and juvenile justice processes, are self-enabling and require no further action by the Legislature [SD Const. Art. 6 Sec. 29].
The Court says the “systems” and “processes” invoked must be happening in South Dakota:
At issue here is the right set forth in subsection 19, which states that a victim has a right to be informed that he or she “can seek the advice of an attorney” about the rights afforded in Article VI, § 29. This right, along with nearly all the rights listed in Article VI, § 29, appears to place some affirmative obligations on law enforcement, prosecutors, state and local corrections, and the courts in South Dakota. If we were to interpret Article VI, § 29 to be applicable to crimes committed outside of South Dakota, it would create an untenable situation of potentially imposing affirmative obligations on South Dakota authorities and courts over which they have no jurisdiction or authority to act. Moreover, it is unlikely, in most instances, that South Dakota authorities or courts would be aware that an individual present in the state is a victim of a crime in another state or have any ability to redress such rights [In Re: The Matter of the Issuance of a Summons Compelling an Essential Witness to Appear and Testify in the State of Minnesota (2018 S.D. 16), South Dakota Supreme Court, 2018.02.14, pp. 8–9].
The logic there is sound: South Dakota is responsible for delivering justice within its own justice system; it has no authority or obligation to deliver justice within Minnesota’s justice system or that of any other state. Victims of crimes in Minnesota can’t hop the border and demand that South Dakota’s prosecutors and courts deliver their justice.
The Court cut Wilkie no slack on his hardship claim and upheld the Third Circuit Court order that he testify, based on the fact that his granddaughter called him immediately after the alleged assault and told him about the abuse. The Court did, however, say the lower court erred in rejecting the hardship claim for the granddaughter without issuing a proper finding. The Court didn’t get her completely off the hook; instead, it told the Third Circuit judge to read the counselor’s letter and other evidence and determine and explain whether the girl would suffer in testifying against her father.