Wisconsin Lawyer
Vol. 81, No. 2, February 2008

Letters

Clarification to Marital Property Act Effect on Debt

My article "After the Split: The Marital Property Act's Effects on Debt After Marriage" was published in the November 2007 Wisconsin Lawyer. After hearing some feedback, I felt the need to clarify a significant point. In my article, I said that bankruptcy courts have found modifications to divorce judgments to be appropriate. That statement, while broadly correct, contained an inadvertent pitfall for practitioners.

Specifically, in In re Zick, Judge McGarity noted that while amendments to divorce judgments might be allowed when there are issues of spousal maintenance or child support, the Zick case involved only property division and so a modification of the divorce judgment was not allowed. In fact, the court sanctioned the lawyer and his client for trying to do so in violation of the bankruptcy court's automatic stay.

A detailed discussion of the interplay between the bankruptcy rules and Wisconsin's divorce laws was beyond the scope of my article; my point in writing now is to clarify that counsel needs to act carefully when a bankruptcy has been filed. Courts have varied on exactly when such modifications are appropriate, and there is no blanket rule. Two good sources of further information on these subjects are Sommer and McGarity, Collier Family Law and the Bankruptcy Code, and State Bar CLE Books' Marital Property Law in Wisconsin, Third Edition.

Briane F. Pagel Jr., Madison

Relative Caregivers Should be Able to Advocate for Children's Placement

Elizabeth Neary's September article, "In The Best Interest of Children: When Foster Parents May Keep Placement," did an excellent job of highlighting the opportunities and obstacles in obtaining a safe, permanent, loving home for children when parents are unwilling or unable to provide it.

In a footnote of the article, Ms. Neary mentions that another obstacle in terms of standing may occur when the caretaker is not a licensed foster parent but instead is a relative with whom the child has been placed. Foster parents who have had placement of a child for more than six months are entitled to an evidentiary hearing if they object to a change in placement of their foster child. Relatives do not have this right. The reason this should be of interest to the bar and to the general public is that the vast majority of children who are being cared for by someone other than a biological parent are being cared for by a relative. Many of these relatives are not licensed foster parents.

Relative caregivers who have cared for children for six months or longer should have the same right to advocate for children placed with them by an agency as a foster parent currently has, specifically:

• Adequate notice of intent to change placement by the agency responsible for carrying out the child's dispositional order (30 days if a nonemergency);
• Ability to object to a change of placement and receive an administrative hearing on the issue;
• Assurance that the child cannot be removed on a nonemergency basis before the hearing is completed; and
• Kinship caregivers afforded a process to appeal false allegations.

Basic rights such as these will go a long way in helping relatives provide safety and permanence for related children who are placed in their home.

Anita R. Cruise, Milwaukee

Law School Debt Keeps Young Lawyers from Smaller Communities 

The article "Recruiting Lawyers to Smaller Communities" in the October issue did a nice job of discussing some of the challenges faced by small communities in attracting and retaining young attorneys. However, it overlooked one glaring aspect, the cost of legal education today combined with lower salaries in smaller communities.

The truth is the average law school graduate leaves school with a heavy debt burden. The realities of large student-loan repayment demand that a recent graduate take a higher paying position, which typically is found in a larger community. The sad fact is that the rising cost of a legal education is forcing young attorneys away from firms and corporations in smaller communities. While it is true that smaller communities may not be attractive to some because of the perception that "there is nothing to do" or that practicing in a small town might seem dull, please do not discount the role student-loan repayment plays in the decision of where to practice law.

Name Withheld by Request

Voters Alone Should Determine Fitness of Judicial Candidates

In his January 2008 article, president Thomas J. Basting Sr. says the Bar should "Take Politics Out of Judicial Selection." He has pushed the formation of the Judicial Campaign Integrity Committee to educate voters on what judges do and to monitor the coming Wisconsin Supreme Court campaign.

The State Bar should keep its nose out of politics and let the voters learn who is fit to be a judge through vigorous open campaigning. Voters deserve to know what a judge candidate has done and will do on interpreting Wisconsin law. It's not unfair to talk about the judge's past rulings and behavior and not unfair to ask sharp questions as to who backs a candidate's campaign.

Mr. Basting tries to tell us his committee is neutral and bipartisan, but the members are Democrats, university professors, a community activist, and a writer for the Capital Times (more Democrats). The committee will use www.WiFairCourts.com to put out its press releases. My Bar dues help finance this political gambit. This bad idea is a restriction of campaign free speech and an attempt to ensure that Justice Louis Butler keeps his job and keeps on delivering goodies to the leftist trial bar, the guys who now own our State Bar and are buying the judges they like.

Thomas R. Jones, Milwaukee

Explaining the Importance of Tripartite Government

As I prepared to give an important presentation to a class of about 30 second graders, I pondered how best to explain tripartite government, participatory democracy, and the rule of law to an audience of 7- and 8-year-olds in 10 minutes or less. I settled on a skit developed by the State Bar about a police officer who takes it on himself to adopt, enforce, and rule on the issuance of a traffic citation. This simple story is one most kids understand. It allows them to participate in the short skit and very effectively communicates to the children the danger of the consolidation of legislative, executive, and judicial power in any one person or entity. I think that is a timely message for all of us to consider.

The recent Wisconsin budget process exemplifies such a concern. An extensive veto authority effectively grants the governor a quasi-legislative role in appropriations bills. The power originates in article V, sec. 10 of the Wisconsin Constitution, but it has become the most extensive gubernatorial veto in the country through expansive use by Wisconsin governors and affirming judicial decisions (Benjamin W. Proctor, Wisconsin's Chief Legislator: The Governor's Partial Veto Authority and the New Tipping Point, 90 Marq. L. Rev. 739, 740 (2007)). The Wisconsin Constitution provides: "Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law" (Wis. Const. art. V, sec. 10(1)(b)). The innocuous word "part" has been distinguished from the term "item," used by many other states to designate the limits of veto authority, to justify broad veto authority in Wisconsin, even to permit changing the meaning of nonappropriation legislation placed within an omnibus budget bill (Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976); see also Wisconsin Senate v. Thompson, 114 Wis. 2d 429, 424 N.W.2d 385 (1988)). Gov. Doyle recently used such a veto to affirmatively legislate, through a budget bill, a new right for law enforcement officers to seek binding arbitration as an alterative to the nonpartisan and judicially reviewed local police and fire commissions created under Wis. Stat. section 62.13. Regardless of the merits of this specific veto, it exemplifies the present scope of the veto authority to create new legislative policy having nothing to do with the state budget.

By amendment in 1990, one aspect of the broad veto power was limited by the following clause: "In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of an enrolled bill" (Wis. Const. art. V, sec. 10(1)(c)). However, a large omnibus budget bill still allows the governor substantial ability to create legislation of completely new meaning and effect through the crossing out of words to create new sentences, the so-called Frankenstein Veto power. While this practice could be reduced through legislative restraint to keep nonappropriation issues out of the state budget, the recent budget provided little evidence that such restraint is likely. The leading example was the senate's attempt to adopt a form of universal health care, certainly a significant stand-alone policy issue, through the state budget. The author of the cited Marquette Law Review article suggests a "targeted" constitutional amendment is needed to address the Frankenstein Veto and restore our "traditional concepts of separation of power" (90 Marq. L. Rev. at 764).

The long established checks and balances of tripartite government are being bent and blurred by the continued use of an executive veto that permits the creation of new legislative policy. Our system requires that legislation pass through the crucible of both the legislative and executive branches before possible review and interpretation by the judiciary. Absent all these checks, vitally important decisions are made by too few individuals and by those with special access to and influence on those few. The decision-makers can be well intentioned, but we place our collective faith in a constitutional government founded in a system of checks and balances. It is a message I shared with the second graders this fall.

Stephen C. Nick, Eau Claire

Endnote Correction to "Mortgage Meltdown" Article

The December 2007 article "Main Street Meets Wall Street: The Mortgage Meltdown" is missing a citation signal. The signal to endnote 9 should have appeared at the end of the penultimate sentence in paragraph 10. The sentence should read: Consequently, the number of subprime loans soared.⁹ The signal and citation appear correctly in the endnotes. - WL Editors

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