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.

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.

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