Guest Editorial
Legislators as Lawyers
More lawyers are needed in the
Legislature and in the legislative process to lend a practical,
common-sense rationality to the law-making process.
Sidebars:
By Rebecca Young
When I first arrived in the Wisconsin Legislature in January 1985,
lawyers numbered nine out of 33 members of the state senate and 14 of
the 99 members in the state assembly. Currently, there are five senate
lawyers and 10 assembly lawyers.
The decline in the number of lawyers, I think, is reflected in the
quality of many of the bills that have been adopted in recent
legislatures.
I am issuing an urgent plea for more lawyers to enter the Wisconsin
Legislature or become more involved in the legislative process, to lend
a practical, common-sense rationality to the law-making process.
Perhaps most illustrative of some of the current shortcomings in the
law-making process is the recent Kevin Gillson case. Kevin is the young
man who was charged with repeated sexual assault of a minor, after he
had sexual intercourse, at age 17, with his 15-year-old girlfriend. Once
a jury found him guilty of that offense, Kevin automatically was subject
- for the rest of his life - to the sexual offender registration
act.
When that act was introduced, the bill's authors, neither one a
lawyer, were warned that the mandatory features of this sex offender
registration act might well take in far more people than its authors
really intended. However, as is the usual response when it is argued a
criminal sanction is overbroad in its sweep, the authors contended no
district attorney would charge improperly. Only after the Kevin Gillson
case received widespread publicity, was Rep. Greg Huber (D-Wausau), an
original critic and former assistant district attorney, able to push
through an amendment to the sex offender registration law to give judges
the type of discretion that should have been included in the law from
the outset.
An unfortunate trend in the Legislature is the constitution-be-damned
approach to lawmaking. Although legislators take an oath of office to
uphold both the state and federal constitutions, we frequently use the
dodge of "let the courts sort it out." Such was the case with AB 463,
the so-called "cocaine mom" bill, which allows law enforcement to take
into custody pregnant women who are drinking or taking drugs. Our
Legislative Reference Bureau lawyers warned that an amendment to the
bill would be unconstitutional under Roe v. Wade because it
authorized the intrusion of law enforcement from the time of conception
rather than upon viability of the fetus. However, nonlawyer proponents
of the amendment said, "Constitution be damned; let the courts sort it
out," and they prevailed.
Another frequent foible is to follow H.L. Mencken's maxim: "For every
complex problem, there is a solution that is simple, neat, and wrong."
The "three strikes and you're out" parent's bill falls into this
category. SB 173 created a new ground for termination of parental rights
if a child has been found in need of protection or services (regardless
of abuse or neglect) and on three separate occasions placed or continued
in placement outside his or her home. In the form in which SB 173 was
quickly passed by the senate, it was so broadly written that it would
have applied to a child who was placed initially in a foster home, moved
to a group home, and subsequently the subject of a court order for
visitation with a grandparent.
Rep. Rebecca
Young (D-Madison), U.W. 1983, is retiring from the Legislature
after having represented the 76th Assembly District since 1984.
Fortunately, two attorneys in the assembly, Glenn Grothman (R-West
Bend) and David Cullen (D-Milwaukee), teamed up to write an amendment
narrowing the scope of the new ground to the following: On three or more
occasions the child has been adjudicated to be in need of protection or
services under Chapter 48 because of abuse, neglect, or substantial risk
of abuse or neglect, and, in connection with each of the adjudications,
has been placed outside his or her home, and the conditions that led to
the child's placement outside his or her home under each order were
caused by the parent. Rationality prevailed in this case, and the
assembly passed the Grothman-Cullen amendment, in which the senate
concurred.
From the foregoing it is clear that lawyers have a positive influence
on the legislative process because they are skillful in identifying
problems for which they can tailor a specific solution. The Legislature
would be well-served if more lawyers joined our ranks, or at least got
more involved in lending their expertise to the legislative process.
Wisconsin
Lawyer