Port: Judge to rule on whether a Marsy's Law provision is constitutional

Marsy's Law file
Shane Goettle, a member of the committee sponsoring Marsy's Law, speaks at a press conference in the state Capitol prior to petitions, shown in front of podium, being delivered to the Secretary of State's office in May 2016. (Tom Stromme /Bismarck Tribune file photo)
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MINOT, N.D. -- Marsy's Law is a bad idea shoved into our state constitution, over the nearly united objections of those working in North Dakota's criminal justice system, by voters who were bamboozled with a slick initiated measure campaign exclusively bankrolled by a drug-addled California billionaire .

The existence of this public policy abomination is an indictment of North Dakota's loosey-goosey initiated measure process, which allows pretty much anyone with enough money to buy their pet issues onto the ballot where the often distracted and ill-informed electorate might just approve it.

Billed as a "victim's right amendment," in the years since it became law, there is little in the way of discernible progress toward protecting victims, though it has driven protracted litigation in our court system.

Case in point, in a criminal case before the Northwest District Court , the lawyer for a man accused of shooting two other men, killing one and wounding another, has been attempting to depose the surviving man as a witness in preparation for trial.

The defendant is Ian Laboyd, who is 17 years old. The other men involved: Matthew York, now deceased, and Patrick Haider, who Laboyd's attorney would like to question


Haider is refusing the deposition, arguing that he is a victim under Marsy's Law, and thus has a right in the state constitution to refuse.

Laboyd's attorney argues that his client also has rights. Specifically, the Sixth Amendment, which includes the confrontation clause . You usually hear this referred to as the "right to confront your accusers."

Mr. Haider is a witness in this matter against Mr. Laboyd. Laboyd's legal counsel would like to question him as a way to ascertain facts for trial.

Seems reasonable, right?

Marsy's Law is standing in the way of this.

Now Judge Ben Johnson is going to decide whether that's constitutional.

It's no sure thing that he'll find Marsy's Law unconstitutional. While the U.S. Supreme Court hasn't weighed in on whether the Sixth Amendment includes a right to pre-trial depositions with witnesses, lower courts have held it protects only the right to confrontation at trial.

Many states don't allow it.


North Dakota is one of the few states that has allowed pre-trial depositions in the past, though thanks to Marsy's Law, that may be a thing of the past.

Setting aside the academic legal arguments, and how other states handle this, do we want a criminal justice system in our state that so dramatically narrows the ability of defendants to gather information for trial?

The definition of a "victim" in Marsy's Law is so broad, one could imagine defendants tasked with defending themselves against criminal charges struggling to find any witnesses who don't invoke their supposed right not to be deposed pre-trial.

Justice is the goal of the criminal justice system.

Do you think the narrowing of the Sixth Amendment rights of defendants will mean more justice or less?

I suspect it will mean less, and that's a real travesty.

To comment on this article, visit

Rob Port, founder of, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at .

Related Topics: NORTH DAKOTA
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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