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Marsy’s Fix Flyer Fibs: Amendment Y Weakens Victims

This postcard from Henry T. Nicholas gives me one more reason to vote NO on Amendment Y: the backer of Marsy’s Fix just can’t tell the truth.

Marsy's Law for South Dakota LLC, postcard for Amendment Y, received by DFP April 2018.
Marsy’s Law for South Dakota LLC, postcard for Amendment Y, received by DFP April 2018.

Help Crime Victims Get the Rights They Deserve


Issue Y is an amendment to the South Dakota Constitution to allow law enforcement agencies to share information to help solve crimes.

And,* it allows victims of crime to ‘opt-in’* to receive notification of escape or release of the criminal as well as all legal proceedings including trial, sentencing, pardon, or parole hearings.


MAKES LAW ENFORCEMENT TOUGHER [Marsy’s Law for South Dakota LLC, postcard for Amendment Y, received by DFP April 2018].

The primary deception in Nicholas’s chosen marketing lines for this fix to his ill-crafted Marsy’s Law is the characterization of the “opt-in” as “mak[ing] victims stronger.” As approved in 2016, the constitutional rights of crime victims are automatic, existing from the moment an individual is robbed, raped, or otherwise criminally violated. Crime victims don’t need Amendment Y to “Get the Rights They Deserve”; crime victims already have those rights. Amendment Y delays these rights, saying they come into effect only “upon request.”

Amendment Y doesn’t “allow” victims to opt in; it takes away rights that victims have now and requires them to ask for those rights to get them back. Taking away rights and activating them only upon request doesn’t make victims stronger; it makes them weaker.

Amendment Y takes away rights from a wide swath of currently covered “victims” and offers no opt-in to get them back. Amendment Y “fixes” Marsy’s Law by narrowing the definition to “victim”:

As used in this section, the term, victim, means 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 thea crime or delinquent act is committed. TheIn the case of a victim who is killed or incapacitated as a result of the crime or delinquent act, or who is a minor, the term also includes any spouse, parent, child, sibling, or as designated by the court, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, and includes a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mentally incapacitated [2018 HJR 1004, as approved by SD Senate, 2018.02.28].

By striking the language about suffering harms and attempted crimes, Amendment Y reduces the scope of criminal incidents in which these rights may be invoked. By striking the language about relationships and lawful representatives, Amendment Y reduces the number of individuals who may invoke these rights.

Amendment Y further weakens victims by adding this immunity clause:

Nothing in this section or any law enacted under this section creates a cause of action for damages against the state or any political subdivision of the state, or any officer, employee, or agent of the state or of any political subdivision of the state [2018 HJR 1004].

That immunity clause takes away the threat of lawsuits that victims can use to make sure law enforcement respects their Marsy’s Law rights.

Amendment Y doesn’t strengthen victims. It takes Marsy’s Law rights away from some people completely, delays the application of those rights to those still covered, and denies those remaining rights-holders the ability to punish officials for not fully respecting those diminished rights. Amendment Y weakens victims.

*     *     *

Bonus Grammar Critique! Henry T. Nicholas has billions of dollars but can’t afford a good proofreader:

  1. The comma after “And” is incorrect. One can start a sentence with a coordinating conjunction, but there is no justification for a comma after a coordinating conjunction.
  2. “Opt in” should have no hyphen, since it is used here as a verb. Hyphenate only when using the phrase as a noun or adjective: “The opt-in clause weakens victim rights.”


  1. Porter Lansing 2018-04-30 09:32

    If the author wanted the visual impact of “opt-in” the author should have used an as the preceding word instead of to?
    Also, this is so very, very wrong!!
    In 2014, according to The Washington Post, “A federal judge struck down… campaign truth… issuing a significant First Amendment decision that pushes the state out of the business of trying to referee “political truth” in campaign advertising. In an opinion that cited authorities ranging from the Supreme Court to the “House of Cards” character Frank Underwood, federal District Court Judge Timothy S. Black said Americans should be free to battle out their political ideas without a government overseer ruling whether what they say is true. ‘We do not want the government deciding what is political truth — for fear that the government might persecute those who criticize it,’ Judge Black wrote in his opinion. ‘Instead, in a democracy, the voters should decide.’”

  2. Cory Allen Heidelberger Post author | 2018-04-30 10:27

    Porter, yes! Replacing “to” with “an” is perhaps the most efficient grammatical revision.

    And yes, it’s up to the voters to discern truth from fiction. I’d like to see them throw a flag and penalize Nicholas and Mickelson for their untruth in this flyer. If you want to pass your ballot measure, you have to do it honestly.

  3. o 2018-04-30 10:45

    About starting a sentence with a conjunction, NO!

    Certainly sentences exist – sentences from famous author no less – that begin with coordinate conjunctions. The existence of such sentences does not make the practice correct. (We have covered many times on this blog that the existence of something does not equate to a presumed value of that thing.) Coordinate conjunctions join two elements of equal grammatical construction together. Beginning a new sentence is not joining ideas. The desired effect can be achieved with the use of a comma instead of the period to actually join the two independent clauses instead of the period to separate them. But I digress from the topic at hand. (Sorry, I couldn’t resist.)

  4. bearcreekbat 2018-04-30 11:10

    o – The late Antonin Scalia and his co-author Bryan A. Garner advocated starting sentences with conjunctions (without a comma) in legal writing.

    As professional writers have long known, conjunctions are a terrific way of starting a fair number of sentences. They’re typically one-syllable starters that tie one sentence to another quickly and tightly.

  5. Porter Lansing 2018-04-30 11:25

    So it’s wrong to begin a sentence with a coordinating conjunction? Like the FANBOYS words? (for, and, nor, but, or, yet and so) 😉

  6. o 2018-04-30 13:06

    Porter – asked and answered in my post: you are not conjoining elements if starting a new sentence.

    Bearcreekbat – look where that got Scalia. Seriously, it is OK to use big words – especially when explaining Constitutional principles. If “tying to tie things together” do that internal in the sentence.

  7. Cory Allen Heidelberger Post author | 2018-04-30 13:43

    If O’s criticism is correct—a conjunction must connection items in a single sentence, not start a whole new sentence, even if nodding toward a previous sentence—does that same criticism apply to starting sentences with conjunctive adverbs like however, nevertheless, and thus? Semicolons only?

    (No need to apologize for grammatical diversions: I introduced the topic in the p.s., so bring it on! Just don’t forget that Henry T. Nicholas is lying to us, again.)

  8. o 2018-04-30 14:35

    Porter – DANG IT! I just saw what you did there. Well played, sir.

  9. bearcreekbat 2018-04-30 15:11

    Cory – To avoid ambiguity, use “however” to start a sentence only if you mean “in whatever way,” (this use seems to indicate that however is not being used as a conjunction) but not if you mean “on the other hand” (which is a conjunction).

  10. mike from iowa 2018-04-30 15:33

    What difference does it make if you start a sentence off in the wrong direction if you end up making a salient point?

    Words is words. Proper grammar and sentence structure never won a single war that I am aware of and trying to follow intelligent people conversing here is giving me another headache.

  11. Dicta 2018-04-30 16:07

    Convo feels a bit like the pedants who rankle at the idea of prepositions at the end of sentences, and this is the kind of tedious nonsense up with which I will not put.

  12. Cory Allen Heidelberger Post author | 2018-04-30 16:24

    Dicta, only hardcore Latinists consider prepositions at the ends of sentences worth worrying about… don’t they?

    However we discuss these fine grammatical points, some will think us pedants. However, others’ scorn won’t deter me from occasionally diverting myself (and, apparently, happily, many of you!) with deep attention to minor details of grammar, especially when that attention inspires many of you to verbal creativity to make your points.

    BCB, is my comma sufficient to avoid the ambiguity with which you are concerned?

  13. Dicta 2018-04-30 16:30

    Well, shoot. Since we are doing grammar jokes:

    Saying “I’m sorry” is the same thing as saying “I apologize.”

    Except at a funeral.

  14. bearcreekbat 2018-04-30 16:57

    Yup, the comma after your second “however” is necessary to clarify the sentence. And you saved some space and time by omitting the need for a second comma preceding “however” had you placed it in the middle of the sentence.

  15. mike from iowa 2018-04-30 18:21

    Grammar choke? What’s the difference between a sentence and a cat?

    For the uninitiated, a cat has claws at the end of its paws. This is what passed for humor in ice age iowa.

  16. Cory Allen Heidelberger Post author | 2018-05-01 06:01

    BCB, correction: however or another conjunctive adverb in the middle of a sentence requires a preceding semicolon:

    Marsy’s Fix might save counties money, but its dissembling supporters have failed to offer any hard numbers; therefore, I remain suspicious of the ballot measure.

  17. Jason Hill 2018-05-01 14:44

    This is a Constitutional Republic not a Democracy….

  18. leslie 2018-05-01 16:45

    ankle pendants? good look! but “don’t put up with” yet bring it (pedantic) up:)

  19. leslie 2018-05-01 16:55

    Jason, wouldn’t McConnell’s failure to hear Garland’s SCOTUS nomination a hearing violate your Constitutional Monarchy, I mean your Republic?

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