Point/Counterpoint, 1016 COBJ, Vol. 45, No. 10 Pg. 59

• Author: Mallary Lerner , Maggie Dethman, J.

45 Colo.Law 59

Point/Counterpoint

Vol. 45, No. 10 [Page 59]

The Colorado Lawyer

October, 2016

Mallary Lerner , Maggie Dethman, J.

Judges as Lawmakers

Point: Judges Should Draft the Laws They Apply

Because judges are responsible for interpreting and applying the law, it seems logical that they should also play a role in drafting laws. As it stands today, the legislature defines offenses and the judiciary applies the laws articulated by the legislature.¹ But consider this: Your client appears for sentencing. Depending on the court’s interpretation of the sentencing statute, your client either faces a mandatory aggravated prison sentence or is probation eligible. Just recently, when sentencing a defendant for an armed robbery, a judge spent hours determining whether the statute was intended to require probation or a minimum of 10 years in prison. It is concerning that the outcome of a case may hinge on consideration of comma placement, gap-filling, or a guess as to whether provisions of a statute should be read in the conjunctive.

I contend that judges, equipped with the training to read, analyze, and implement statutes, are in the best position to understand which statutes need revision and should draft the laws they apply. Judges are in a unique position to improve the law because of their experience and education. Furthermore, judges making laws would increase judicial efficiency, independence, impartiality, vitality, and public image.²

In Search of an Independent Law-Making Body

Of course, I cannot advance this argument while ignoring the separation of powers issue that immediately comes to mind at the thought of a judge both drafting and implementing laws. Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.³ Deference to the judicial branch would unwisely turn judges into policymakers.⁴ And at least in theory, we assume that lawmakers have experience drafting legislation, are educated in the areas in which they make law, and are largely free from outside influence. Certainly, an advantage of an independent law-making body is that it exercises independent judgment on the rule of law, an important constitutional safeguard.⁵

However, lawmakers are generally not independent actors creating laws based on legitimate needs within the court system. In The Politics of Legislativ e Drafting: A Congressional Case Study, Victoria Nourse and Jane Schacter found that legislative staffers are driven by constitutive virtues, including “action and agreement, reconciling political interests, and addressing the pragmatic needs of those affected by legislation.”⁶ Those who work for the legislature must deal with multiple factions and cannot generally afford to be perceived as captive to any of them.⁷

Perhaps it is not surprising that seemingly arbitrary legislation is enacted. For example, while undoubtedly responding to a lobbying effort rather than the needs of the legal system, the legislature in Boise, Idaho banned wiener dog racing.⁸ Yes, you read that correctly. Legislation was enacted and enforced that prevented the 40-foot dachshund races at the annual “Arena-Weina Extravaganza.”⁹ While judges would arguably be focused on legislation concerning, for instance, clear sentencing guidelines, race organizers learned from a policy expert who helped to draft the law that while the law “definitely applied to 40-foot wiener-dog races,” it does not apply to winter dog sled races.¹⁰ And in New Hampshire, the legislature put its efforts to good use when proposing a bill that would require all new legislation to directly quote the Magna Carta.¹¹

Colorado judges are certainly freer from the influence of voters and lobbyists and would be driven by drafting with precision and clarity, building on legal precedent, and revising laws with gaps and ambiguities that lead to inconsistent application. Judges are certainly concerned with retention, but likely not with dog racing. However, the outside pressures on judges, as compared to legislators, are not comparable. The number of people voting to retain a judge is insignificant compared to the number of people voting for congressional representatives, and in my two years of working at the courthouse, our staff has yet to hear from a lobbyist concerned with how a judge will apply a statute in a particular case.

Ambiguity Undermines Clarity

Lawmakers may also be less knowledgeable than judges about drafting specific statutes. Bridging the Statutory Gulf Between Courts and Congress: A Challenge of Positiv e Political Theory considers how legislation is drafted and concludes that legislators do not track application of statutes in appellate cases nor consider how courts will interpret legislation when writing statutes.^[12] Factors such as uncertainty and time pressures often lead Congress to pass laws and amendments without much thought to the courts.¹³ Similarly, issues with drafting stem from deliberate congressional decisions to leave resolution of issues to the court, while other problems are not anticipated by the legislature. The lack of sufficient time to draft legislation and “deliberate ambiguity” undermine the need for clarity, as the need to pass legislation according to a deadline or the threat of an inflexible political position may thwart the passage of a bill.¹⁴ “You can’t get someone to agree to it your way, and you hope that the courts will give you the victory.”¹⁵ Take, for example, 18 USC § 924(c), a 28-line subsection of a statute. In U.S. v. Rentz,¹⁶ the Tenth Circuit Court of Appeals devoted its entire 56-page opinion to making sense of the statute. The opinion actually contains a diagram that breaks down words within the statute in an attempt to decipher the legislature’s intent for sentencing a defendant.¹⁷

[Image Omitted.]

As the court noted, “That bramble of prepositional phrases may excite the grammar teacher but it’s certainly kept the federal courts busy.”¹⁸

Judges, on the other hand, write with an eye toward clarity. Courts are commonly asked to gap-fill, deal with questions lawmakers failed to address, assess a drafting error, or apply an unclear statute that appears to have been written without consideration of either the courts applying the law or the parties subject to the law. As it is, courts already determine whether Congress intended a federal statute to occupy the field, or what law a court should apply.¹⁹ If judges were responsible for drafting legislation, we wouldn’t have to worry that the courts were misinterpreting the law as it related to a client, or that a judge, before issuing an order, had to essentially guess what the law says or would have said if it wasn’t poorly drafted in the first place.

Additionally, judges are particularly qualified to assess legislation critically. They are trained lawyers...