Attorney Mark Friese on Marsy's Law for North Dakota

May 24, 2016

Mark Friese, Vogel Law Firm attorney and former police officer, discusses on KFGO News & Views with Joel Heitkamp the impact "Marsy's Law for North Dakota" could have on North Dakotans and the justice system. Click the link to listen to the full podcast.


Here's a full transcription from the interview:

Joel: There's a process. When you put something into the law in North Dakota, there's a process. You elect legislators, they go forth. If they don't do their job, if you think they're outta touch, you always have the ability to have an initiated measure. You can do all of that. There's this little thing called the Constitution in North Dakota, just a small little thing. Not. It's North Dakota's Constitution, it's who and what we are. And Marsy's Law never once went to the legislature, never once went to any legislator from either side of the aisle and said, "I have an idea. I think we need to fix this. We have victims of crime or families of victims of crime and they're being ignored and because of that, we need to tighten things up, we need to put things in place, we need to do all of these things." They never did that. They took a billionaire from California who poured money into this project, who by the way, has a very questionable reputation and he now is gonna have his fingerprints all over the North Dakota Constitution, and I don't like that. That's a huge red flag for me. And so I've been trying to talk to as many intelligent people as I can about the law itself, what we're currently doing in North Dakota to protect victims. One of the individuals that I know that understands this as well as anyone is Mark Friese. Mark is an attorney with the Vogel firm and he's somebody I go to advice...for advice a lotta times on this show. Mark, good to have you back on News & Views.

Mark: Good to be here, Joel.

Joel: Mark, talk to me about what North Dakota does now. If God forbid, something tragic happened to a member of my family, as a family member of a victim, what rights do I have now?

Mark: North Dakota leads the way. We lead the nation. I know the folks who put some of this into play in 1987. In 1987, my law partner, Bruce Quick, was the Deputy Attorney General. He along with the Attorney General and several lawmakers went to several other states that had developed victims' rights legislation: Wyoming, Montana, other states, and they combined the best statutes from each of those states and enacted an entire chapter in the North Dakota Century Code to provide victims' rights for those who are victimized by criminal conduct in North Dakota. Those laws have been amended only a few times over the past few years in 1993, 2013 and again in 2009, there were minor modifications made, but those laws have been in place for nearly 30 years now and they're the best in the country in my view.

Joel: Mark, you've had multiple careers, one as the lead attorney now, but prior to this, tell people what you did.

Mark: I was a police officer in Bismarck for about six years.

Joel: So you know what it's like to be an advocate for victims of crime. You know what it's like to put the bad guys away, fair?

Mark: Fair enough. And I, as a lawyer, I also represent victims of crime. I represent people who are accused of crimes, I represent victims of crimes, I represent police officers charged with enforcement of the law. I like to think that I have some objectivity on this because I've seen it from multiple perspectives.

Joel: Marsy's Law had a prosecutor on their team that said this is the way to go from Stark County. He pulled the pin. He said, "After further review, I can't support this." Many people are coming to me now talking about the cost of implementing this, that yes, it may on the surface seem as though it's a great idea and who wouldn't stand and help victims of crime or family members of victims of crime, but you also have to mechanically be able to do it. There's a cost that goes with this. I spoke to some legislators who are gonna check in to that cost because...and these are from both sides of the aisle, big red flags for them on regards to all of this. Where's the legal community on this in terms of... My assumption is, defense attorneys don't like it, prosecutors probably do like it. Where [SP] that?

Mark: Well I disagree. I think that every single prosecutor that I've spoken to disfavors this proposal. Every single defense lawyer that I've spoken to disfavors this proposal. Tom Henning, who's the [inaudible 00:04:03] in Stark County, was attracted to the proposal initially just like everyone at first blush, it seems to be a great proposal, but when you start looking at the details and how it will circumvent the process and how it will impose requirements that will actually hurt victims, it's easy to see why people are defecting. And I don't think Tom Henning's only the one that's gonna be backing away from this thing. But simply, Joel, I've not heard a single lawyer in support of this except the one who's been paid by the Marsy's Law campaign to advocate on their behalf. 

Joel: So they've got an attorney. They have an attorney that they're paying, that their advertising company, [inaudible 00:04:37] Advertising is paying to be out there advocating on behalf of this.

Mark: Sure, and they have a right to do that and I respect that they do that and I respect that they put forth that side of the argument, but the reality is, across the legal community, judges are restrained from being able to come out and speak publicly because there's canons of judicial conduct that say judges who may have issues coming before them are not to speak out publicly because it shows a possible appearance of bias. Every retired judge that I spoke to is prepared to speak out. I know that you've had some of them on your show. Current judges that I've spoken to privately are opposed to this proposal. But unfortunately because of the canons of judicial conduct, they can't come out and speak publicly, but I think as we get nearer the election in November, some of these retired judges are gonna come out vocally as well.

Joel: You know, you say you respect their efforts and I totally get that, what...there're some things here I don't respect though. And it may seem small to some, it isn't small to me. The Great Seal of the state of North Dakota is everyone's seal. The Great Seal of the state of North Dakota quite clearly, and 52-02-01 is right there. It's right there. You cannot use The Great Seal for political purposes. Period. It's in the North Dakota Century Code, something that this group doesn't really care that much for because they're trying to place it into the Constitution, rather than create a law by going through the process that everybody else has to. That being said, they did, in a full page ad, not just in the form communication, I'm finding out it was in the Bismarck Tribune and many other places, they took out an ad utilizing the chief election officer for the state of North Dakota, the man that's supposed to be the referee in this debate, Al Jaeger, in the ad. So there's Al, in the picture, who after I talked to him yesterday said, "I didn't know. I didn't know that they were gonna use me in the ad." He certainly didn't sign on as an advocate for Marsy's Law knowing that he has to be the referee of all this plus The Great Seal. Now that's a violation of the law. Al Jaeger called them, called the Marsy's Law people, called [inaudible 00:06:38] Advertising, said, "Knock it off. Pull it down," which is his job. Al handled it in a classy way as the Secretary of State should've, but it tells me that they really have no respect for the Century Code itself. And I have a problem with that.

Mark: Well, and I share your concerns here, unfortunately I don't have the authority to prosecute anyone and Al Jaeger doesn't either. He has the ability to enforce that statute by taking proactive efforts, which he's done obviously and I applaud him for that, but it seems a little bit hypocritical that this campaign funded by an eccentric from California is flaunting North Dakota's statutes. Corporations under North Dakota law can be criminally liable as well for class B misdemeanor, which this is. A corporation can be fined up to $20,000 under North Dakota law. And if there's multiple papers and multiple advertisements, some of this money that's being dedicated to the campaigning maybe should be paid into the state treasury based on violations of North Dakota law. But it's almost a bit hypocritical to suggest by the folks behind this campaign, that prosecutors should have discretion as to making charging determinations. Was this an innocent mistake? Did folks just don't know that they weren't supposed to have the seal behind them, those types of things. They will want prosecutors to have discretion, say it was a mistake, it's been corrected, but they don't want prosecutors to have discretion as it relates to treating victims. And they're forcing prosecutors to treat the victim of a $5 insufficient check case exact same way that somebody who's been murdered or somebody's family whose been murdered should be treated and that's just going to undermine our system. Unbelievable.

Joel: What do you think the cost of something like this is gonna be?

Mark: It's enormous. I know currently, Cass County for example, has three full-time victims advocates and they have discretion. They use that discretion, they work with the families and the victims that need the services most, they have procedures in place for notification, they share responsibility with the sheriff's office and with the Department of Corrections for notification, but all those obligations under this proposal are now going to be pushed...put right back on the prosecutor's shoulders and they're gonna have to hire staffs. And when we have the number of counties that we have in North Dakota, the number of small prosecutors' offices that we have where they use part-time victim services, it's just gonna be enormous.

Joel: Do you think it's legitimate for those of us who have some red flags when it comes to Marsy's constitutional amendment? Do you think it's legitimate for us to look at the individual that's funding it and question the movement based upon his own personal life?

Mark: It's more than fair. This is somebody from California who had a bad experience in California 37 years ago. He wants to change the North Dakota Constitution, he wants to change the Montana Constitution and the South Dakota Constitution. They've been successful in two states so far: California and Illinois. And they think...I believe that they think that they're gonna pick smaller states where there's gonna be less opposition and they're gonna try to spread this across the country where he can enshrine his sister's name and state constitutions. And I would propound the question, if this is such a great idea under the federal...under the Supremacy Clause, the federal Constitution would prevail. Our federal Constitution has been amended 27 times since it was adopted. The last amendment was in 1992. If this was a great idea, why isn't this being presented on a federal level? They're trying to pick low hanging fruit and they're trying to sell this as something that it's not, to enshrine somebody's name into the North Dakota Constitution

Joel: Well, and the reason I bring that up is because this very individual has a past himself. And every time I see this, if it ends up in the North Dakota Constitution, I'm gonna think of a guy with a drug past, with a big-time sex past, with everything else, who had a big enough checkbook to go ahead and buy a little state like North Dakota's Constitution. And I got a problem with that, Mark.

Mark: I share that concern and everyone that I've talked to, but we can't compete financially with a billionaire, we just don't have the resources to do it, but we can compete with common sense. The voters of North Dakota understand when they're being sold a bill of goods and the fact that people are jumping off the Marsy ship is telling. The fact that state's attorneys and defense attorneys are aligned in presenting common sense arguments is telling. The fact that retired judges are speaking out against this, all of that is telling.

Joel: I wanna know what you think, 237594818008805346, whether you're for or against. Mark Friese is right here. He's willing to take your phone calls. Welcome back to News & Views. Mark Friese is with us, he's with the Vogel firm. He is not, I think it's safe to say, Mark, you are not going to vote for Marsy's constitutional amendment, right?

Mark: I'm not and I'm gonna go one step further, every person that I know that will listen to me, I'm gonna tell them about the pitfalls of this. And I think everyone, every police officer, every lawyer, every judge, everyone who has family that they care about needs to do the same thing.

Joel: Actually, I'm finding people from both sides of the aisle. This isn't an R or a D thing. They're looking at additional cost for political subdivisions. They're looking at higher property taxes out of this to fund these positions that counties are gonna need to do all this because they know no more money's coming from the state. The gravy train's over for a while.

Mark: Pay more and get less is not a good investment and that's what's going to happen, we're gonna have less attention to the cases that need the attention.

Joel: I'm gonna be really curious to see what the fiscal note to all of this has. But I wanna talk about the money. My great nephews were playing at the Fargo Coliseum. So I get to go watch Riley do well and I get to watch Brady kinda fall on the ice, he's just getting used to it, right? He's, like, everybody's favorite nephew. And I'm sitting there and I'm walking in and the signature collectors for Marsy's constitutional amendment are out in front of the Coliseum and they're collecting signatures. And I walked up to them, I said, "I usually..." Or he walks up to me, I said, "I usually sign these things but I'm not gonna on this." I said, "Because can you tell me why you didn't A, go to the legislature and make your run like everybody else has to, or B, can you tell me whether you're getting paid?" And he turned and he walked away. And I said, "Excuse me." I said, "Can you just at least tell me whether you're getting paid?" And he turned and he looked at me and he goes, "Well of course I'm getting paid, I'm working aren't I?" The best initiated measures don't come through paying, and this guy didn't sound like a North Dakotan to me, don't come from paying somebody from outta North Dakota to go ahead and get signatures, it just doesn't...didn't sell with me. 

Mark: The amount of money that this is going to cost to implement is far beyond the amount of money that this eccentric billionaire is dumping in to get his sister's name in the Constitution. I too am curious about how legislative council...and there is a requirement of statute that every initiated measure needs to be analyzed for cost, but this is gonna hit people at the local level in property taxes and it's gonna be more money for less services, which is a terrible, terrible idea.

Joel: Right, if you're the states attorney's office, you're gonna have deal with this, right?

Mark: Right.

Joel: I mean, that's what's gonna happen and maybe that's why the prosecutors that originally were involved in this are all kinda jumping ship. They're looking at their counties and their county commissioner's going, "Wait a second, I didn't know I was gonna leave you this type of a bar tab. I mean, you're gonna have to pay this. 

Mark: The number of attorneys in those offices is going to have to increase, there's possibly going to be a requirement that attorneys advocate on behalf of the victim to obtain restitution. Even in cases where the victim for example, an NSF check for $30 and it's written to Walmart, an insufficient funds check. Under this proposal, the prosecutor's now going to have to go out and seek restitution in each and every case. Under existing law, the statutes that govern restitution provide for a hearing, provide for process and most often those things are simply resolved without having to go through these additional procedures that are going to have to be implemented.

Joel: There's one other point here that we haven't gone down and we can when we come back from the break for just a second is this, if you're a Democrat trying to pass a law in North Dakota, you got an uphill climb, unless you find some Republican allies. I mean, that's just the reality, you're the minority. Drew Wrigley isn't. He's president of the North Dakota Senate. His wife is the driving force behind this. She never even went through the very process that her husband takes part in. She never even went down the road of saying, "Look, I am the number two lady in North Dakota, why can't I get a law passed in North Dakota?" I wanna talk about that when we come back. Welcome back to News & Views. Mark Friese is our guest. We're talking about Marsy's constitutional amendment proposal to change North Dakota's Constitution that's being funded by a billionaire out of California. Mark, before we go to that, I wanna talk about what we...what's happening now. Say you're a victim now or a family member of a victim now, what happens?

Mark: North Dakota has a fantastic system. We have law enforcement officers and correctional authorities that implement and operate a system called SAVIN, S-A-V-I-N, and if you Google "ND SAVIN", you can see the program, there's a list of frequently asked questions. But anyone who considers himself a victim in a case is able to register for notifications. So this narrative that we hear from the Marsy's mandate campaign that you're gonna bump into the suspect in a grocery store, that doesn't happen in North Dakota because our sheriffs and our correctional authorities at the department of corrections implement this system and provide notifications very expeditiously. It can be done by text, it can be done by telephone, it can be done by all of the above. And it's been very, very effective. 

Joel: So the Marsy's part of this, this Henry Nicholas III, we're talking about something that dates back to when, late '80s?

Mark: Yeah, his sister was murdered in 1978, so 38 years ago that happened.

Joel: But what I'm building up to here is since then, if that was a problem then and this happened to him in California in the late '80s, can we honestly say the world's gotten a little more automated since then, that we actually have a system in place, we have a means in place without making everybody's property taxes go up, without adding a bunch of new employees because he's still mad about what happened to him in the '80s?

Mark: In California. And yes, we can say all of that, but what we can also say is, is if this mandate passes, those professional law enforcement officers and those professional corrections agents who have implemented and monitored this system for 30 years are now going to lose their ability to monitor the system and control the system and those obligations are to be placed right on the shoulders of the court and the prosecutor. So it's gonna be a shifting of responsibility. So a small town state's attorney is going to have to notify victims without the victim having to take the minor step of contacting a victim's advocate or contacting the court to be put on the registry. So the prosecutor's attention is gonna have to be diverted from prosecuting the case, lining up the witnesses, making sure the court appearances are taken to supervising the notification of victims. And the definition of "victim" under this thing is unbelievable. It is... The proponents keep saying this is consistent with the definition of "victim" under North Dakota law. That's a misstatement. I have both of the statute in front of me as well as their proposal. And under the statute, there has to be a connection to the criminal activity. That nexus is taken out of the definition that they're using, and the term "victim" is much more broadly defined under this mandate.

Joel: So let me take that another step further because a victim is that broadly defined. If somebody uses, through their advertising agency and other things, somebody uses The Great Seal for example, my Great Seal because I'm in North Dakota, they use that in a political advertisement that is technically, clearly against the law of the state of North Dakota, I now am a victim. Am I entitled to be notified then by my county, my state, that, look, you've been victimized?

Mark: And that is an absolutely exceptional point because under straightforward reading of what they're proposing, the answer to that is yes, because it's so broadly defined. It's any person, and they use "person" rather than "natural person", our statute uses "natural person", any person who suffers a direct or threatened financial or physical or psychological harm, not only would you have to be notified, but the prosecutor would have to send you a card with Marsy's name on it and a listing of the rights that you would have under the mandate.

Joel: This is just bizarre, thus the empowerment of Henry Nicholas III. And what you need to do, folks, is go online, Google "Henry Nicholas III", and all you gotta write in is "Marsy's" and you're gonna find it, you're gonna find his history, you're gonna find everything that comes with it, but most importantly you're gonna find out why he's so impassionate and empowered and why he's spending this millions of dollars in North Dakota because he can all the way from California, come in, change our Constitution and have his sister become part of North Dakota's history.

Mark: And hurt our citizens in the process. This is gonna slow down proceedings, it's gonna put a screeching halt to civil cases that may be running contemporaneously with the criminal cases, it's going to require victims of crime to come into court more often than they have to do, so now it's going to limit the amount of services that can be provided for major cases. This proposal hurts North Dakota.

Joel: Somebody texting in saying, "Mark, why is this new law even needed? What are we trying to reinvent and fix here?"

Mark: Nothing. The only thing that this will do is undermine the protocols in the well-oiled machine that's been in place in North Dakota for 30 years.

Joel: So what do you think's driving it, other than Nicholas himself and, you know, the "I'm a billionaire, I can do what I want, just watch me buy it" kinda philosophy, for the locals that are doing this? Because there are some people that been involved with this that, when I look at them, you know, I see pretty decent people. I see people that have been passionate about North Dakota. I mean, Marshall Lemke who's involved in this is a...always been a good person with a great smile and... I mean, what do you think's driving this? Do you think it's strictly financial? Do you think it's, "Boy, we're gonna put some money to this," I mean what's doing it?

Mark: On the surface there's a really attractive proposal, right, this idea, this notion that we're going to place victims on the same footing as criminal defendants in the criminal case and to provide additional protections for victims. That's attractive on the front end, but once you look behind the front of the proposal, you start looking at the specifics of the proposal, and I think that's why folks like Tom Henning signed onto this. I agree, let's get good victims' rights in North Dakota, this makes sense, but then when you sit down and you read the law and you compare the mandate with what's currently being employed in our existing statutes, you recognize that this mandate is absolutely going to undermine North Dakota law and it's gonna hurt our citizens and then it's time to jump ship.

Joel: I'm curious, one of the people I saw the press conference here in the very beginning of this was Sheriff Paul Laney of Cass County, and I'm curious to see if his passion is still there after talking to other prosecutors on that side, if he still is wanting to be at that podium saying, "We need this, we need this, we need this," because he's one of the individuals that has to go back to his county commission and say, "Look, this is how much money it's gonna take to run these agencies," and between him and Burch Burdick, there's a cost to all of this here.

Mark: I don't know Sheriff Laney's position on this, I've not spoken to him about this mandate, I've not spoken to him about advocating in support of this, but what I can tell you is that if this is passed it will have an impact on Cass County, an impact beyond probably what he even expects at this point. And the implicit message of Marsy's Law is this, we're not doing it well enough already, and who's doing it, folks like Sheriff Laney, and he's dedicated to doing the right thing in my view, I continue to vote for him and will continue to do so and I'm offended by the message that underlies this proposal, the message that our current prosecutors and police officers and defense attorneys and judges aren't doing their job, because it's wrong. 

Joel: A text message comes to me and says, "Joel, do you realize that you need to get a victims advocate on, that the victims advocate that was actually serving on Marsy's..." I'm calling it constitutional amendment. That's my own... They wanna call it law, it's not a law, they didn't try to go in and put a law, they're trying to inject it directly into the Constitution, but that victim's advocate actually has gotten off this. So more people have dropped off the committee. I don't expect you to know, but is that true? 

Mark: There may be some truth to that. My view is that as folks become more aware and they look at what impact this has had, there's a six-part series that CBS did about the implementation of Marsy's Law in California, which is eye-opening. But as more information becomes available, as more case law from these states that have implemented this proposal becomes available and as people study this proposal more every day, there are more pitfalls and more detriments of this proposal that come forth, and everyday people are getting more educated and saying, "You know, I was on board, I agree with this, I want victims to have rights but not in this manner." And the manner that you propose, where this can be debated openly, and if there are offensive minor provisions within the mandate that could be removed, if there's a need for amendment to the current victim rights statutes, why haven't any of these people been at the legislature in the last four terms proposing modifications to existing law? They haven't. Our law works well enough the way it is.

Joel: When we get closer to this, Mark, when... Because if I'm Kathleen Wrigley, if I'm Drew Wrigley, I'm listening to your common sense points you're making today and saying, "Oh," you know, I wanna either be able to counter that or I didn't think of that, I don't know what's going through their mind, but my point is, if they wanna debate that on a one-on-one so it's not just one person's view, would you be willing to sit in a room with Kathleen or Drew Wrigley or anybody and go ahead and take this on? 

Mark: I would be more than willing to do that because as I indicated, we can't beat them with money. We can't, we don't have the resources, we don't have the strong economic times in North Dakota to waste money on things that we shouldn't be wasting it on. And the folks that are opposed to this don't have billions of extra dollars to dump into advertising campaigns. But what we do is we have the common sense voters of North Dakota behind us and the common sense message, I hope, prevails. 

Joel: So you would sit in a room with Kathleen and have a full debate on statewide radio?

Mark: It would be my pleasure to do so. 

Joel: Mark, it's always good to talk to you. Thanks for your time. I really appreciate you coming on today.

Mark: My pleasure, Joel.