The statehouse: A place paved with the best intentions?

Listen to this article

Until 5:05 p.m. Wednesday night, state Rep. Gary Hebl thought there would be an amendment to a bill requiring the installation of devices that prevent someone convicted more than once of drunken driving from starting a car after having a drink.

That was when the Sun Prairie Democrat got a call from the author of the bill, state Rep. Jim Ott, R-Mequon, saying that Ott was now second-guessing his earlier inclination to alter the legislation. The change of heart led to a fairly lengthy discussion among members of the Assembly Judiciary Committee about Republicans’ regular resistance to accepting any amendment proposed by Democrats.

The inevitable comment, coming from state Rep. David Craig, R-Big Bend, was that if the Democrats had more good ideas, more would be incorporated in legislation. But the debate on the bill did give rise to one big question: How can the members of the minority party recommend changes to a bill without their suggestions being perceived as nothing more than a partisan attack?

The question holds particular weight for the Assembly Judiciary Committee. Of the seven members serving on that panel, four have law degrees and three of them are Democrats.

As was pointed out by Hebl and his two Democratic colleagues, state Rep. Evan Goyke of Milwaukee and Dana Wachs of Eau Claire, laws that are passed even with the best of intentions do have unintended consequences. And lawyers, because of their experience, are often the ones most likely to foresee those consequences – especially when it comes to the thorny legal matters that tend to come before the Judiciary Committee.

The committee on Thursday was dealing with just such a matter. Ott’s bill is intended to close what he perceives to be a loophole in current law.

A court can now order a person convicted more than once of drunken driving to install a so-called ignition interlock device in his car. But, because of the loophole, the device actually does not have to be used until after the offender has his driver’s license back following a period of revocation, which typically lasts a year to 18 months.

Ott, who also has a law degree, argued current statutes are not fulfilling lawmakers’ intentions. People who have lost their licenses, he said, are under an obligation to not drive, but nothing physically prevents them from starting up a car. In response, his bill would require offenders to install an ignition interlock device almost immediately after losing their licenses.

But the three Democrats said Ott’s bill would be unfair to offenders who actually abide by the rules. What would happen, Goyke asked, to someone who was not driving on a revoked license but was still discovered to have disobeyed a court order to install an ignition interlock device?

His solution: They should be given an affirmative defense under the law. In other words, they should be shielded from criminal liability if they can prove that, although they did not obey a court’s order to install the device, they nonetheless have not been driving and thus do not pose a threat to society.

Goyke’s suggestion did not fall on deaf ears. Ott even promised to take any amendment Goyke would write up and present it to the Republican party leadership, which plan to debate Ott’s bill in the Assembly on Tuesday.

The only trouble is that, as the Democrats noted, amendments coming from across the aisle on the Assembly floor are typically perceived as stemming from a partisan desire to have a swat at anything originating on the other side, whether it is a good proposal or not. As the Democrats said, for proposed change to have a real chance at being adopted, it would have to come up in committee.

Now, I’m not saying that Goyke’s proposal is good or necessary. But, for the sake of argument, let’s say it would close some unforeseen loophole, much as Ott’s bill is meant to do. What could he and the other Dems possibly do to ensure it gets adopted?

Staff writer Dan Shaw writes his Capitolisms blog for The Daily Reporter, the Wisconsin Law Journal’s sister publication. For more from his Capitolisms blog, go to dailyreporter.com/capitolisms.