tuesday, 17 january of 2017

The Kansas Senate has a legal problem: not a single lawyer

Teacher, farmer, personal chef, anesthesiologist, graduation photographer and auto dealer are among the professions of the Kansas Senate’s men and women.

What the lawmaking body doesn’t have this year: a single lawyer.

The attorney absence in the 40-member Senate is unprecedented. It also poses a legal problem: An obscure statute requires a statewide committee that hears certain claims against the state to include at least one senator who is a lawyer.

Some lawmakers suggest a quick fix: Make the provision go away. “We will no doubt have to introduce legislation to repeal it,” said Republican Sen. Jeff Longbine, owner of a Chevy-Buick dealership in Emporia.

That still would leave no lawyers among the lawmakers, which State Sen. David Haley, a Kansas City Democrat, calls “a low-water mark” for the chamber. He realizes, he said, that among the general public lawyers “may be held in a certain level of disdain.”

Lawyers have long starred in U.S. politics, occupying what Alexis de Tocqueville called America’s “highest political class.”

Donald Trump isn’t a lawyer, but 26 of his presidential predecessors were. Barack Obama is one. Roughly half the Founding Fathers—the Declaration of Independence signers and members of the 1787 Constitutional Convention—were lawyers, outnumbering merchants and farmers combined, said Richard D. Brown, a University of Connecticut early-American-history professor. The practice of law then was regarded as elite and cosmopolitan, qualities considered conducive to public service, he said.

Lawyers still flourish in some statehouses. But compared with decades ago, fewer are roaming legislatures’ marble hallways. The proportion of lawyers in the U.S. House of Representatives has waned to under 40% in recent years from around 60% during World War II, according to annual surveys.


Kansas has had at least one lawyer in its Senate since 1861, when it joined the Union, according to Kansas legislative researchers. Two lawyers occupied Senate seats last year. One didn’t seek re-election. The other was unseated in the primary. Other lawyers ran but were defeated.

Joe Patton, a Republican personal-injury lawyer from Topeka, failed to unseat a pharmacist in the primary. His opponent ran ads calling him a “trial lawyer,” edging him by about 740 votes.

Whether the trial-lawyer label hurt him, “it’s hard to say,” said Mr. Patton. “Every argument has some impact.” He thinks the Senate has the legal staff to ensure laws are written properly. But, he said, lawyers can “give direction to the legislative process” and help see “the bigger picture of how any piece of legislation affects jurisprudence.”

The Kansas Senate is a part-time body that pays around $27,800 a year, including expenses for lodging and meals, for about 90 days of sessions. Most members maintain other jobs.

“You don’t need all of them to be lawyers,” said former Republican Sen. Forrest Knox, a rancher unseated in the last election, “but it’s certainly going to handicap the Senate.”

Legislators in Kansas’ House of Representatives, Mr. Knox said, are tickled at the idea the Senate may need to lean on the lower chamber for legal advice.

And no Senate lawyer may mean the Joint Committee on Special Claims Against the State can’t do its job of handling certain claims of personal injury, property damage and tax refunds owed. Formed early last century, the committee typically handles roughly 100 claims a year and must include lawyers from the Senate and House.

There’s time: The committee won’t meet until September, said a committee staffer. “As long as the issue is resolved prior to then, we should be OK.”

Learning and practicing law offers a kind of political schooling, said Clark University political-science professor Mark C. Miller, who wrote a book about lawyers in American politics. Lawyers are more likely to have verbal agility and negotiating skills and “are very good at saying, ‘Here are the unforeseen consequences,’ ” he said. “People who want radical change in the legislature would probably not want lawyers.”

Sen. Haley comes close to being a lawyer. He graduated from law school in the 1980s and passed two sections of the bar exam—ethics and the multistate portion of the test—but not the essay portion, he said. He worked for a county prosecutor years ago.

When Sen. Haley joined the Senate in 2001, the chamber was more lawyerful. He recalled upward of eight back then. “This is a quantum decrease in our legal expertise.”

So much of what the Senate deals with—penal code, licensing, banking rules—could benefit from a trained eye, he said.

While law school is so often a steppingstone to elected politics, plenty of lawmakers have wielded influence without a law license.

The top Republican and Democratic lawmakers on the U.S. Senate Judiciary Committee, responsible for vetting President-elect Trump’s judicial appointments, never went to law school, a fact Sen. Haley said he found comforting.

“I don’t know if we should be particularly concerned,” said Mike Jordan, president of the Kansas Association of Wheat Growers, which lobbies in Topeka. He assumes the Senate has bill-drafting staff to make sure laws are properly constructed, he said, and that stumped senators could approach lawyers in the state attorney general’s office. “It’s not the end of the world.”

Sen. Longbine, the auto dealer, said law isn’t the only background useful in the statehouse: “I’m certainly a good negotiator.”

The Senate’s lack of lawyers is “an oddity that will quite likely be corrected in the next election cycle,” he said. For now, “I think we will function just fine.”

As the law stands, though, Kansas still needs a lawyer-senator for its claims committee. Sen. Longbine said legislation is being drafted to get rid of the provision.

A possible workaround is for Sen. Haley to take the bar exam—and pass. Sen. Haley said that idea isn’t off the table, but he is hesitant to crack exam-prep books.

“There would be quite a bit of information to reabsorb,” he said, and it would require a time commitment he fears would divert him from constituents. “It would be somewhat of a disservice to adequately prepare for the rigors of the bar.”

(Published by The Wall Street Journal - January 11, 2017)

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