Jerry G. Jones,
Attorney and Counselor at Law
P.O. Box 44430
Baton Rouge, Louisiana 70804
Tele: (225) 930-9347
Email: jgj@jerryjoneslaw.com
Web: www.jerryjoneslaw.com
Admitted to practice: Louisiana, Texas, and District of Columbia
PRACTICE AREAS SUMMARY:I advise and represent clients, and provide legal assistance and support, in matters involving:
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Legislative law and procedure, and related constitutional issues and litigation.
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Legislative and regulatory drafting, review, and analysis.
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Statutory construction and interpretation, including (1) legal issues surrounding legislative history and questions of legislative intent; and (2) legal issues surrounding the retroactivity, effective date, severability, and repeal of legislation and regulation.
These are discussed below and in detail on the Practice page of my web site.
In February of 2004, I was employed by the Louisiana Senate as a Senate Counsel. Work in actual or potential conflict with such employment is prohibited.
MY BACKGROUND:I have over fourteen years experience as a legislative counsel. My legislative experience includes serving as committee counsel for civil, criminal, and natural resources legislative committees; senior legislative staff attorney; and as a division director for Environmental, Natural Resources, Transportation and Agriculture legislative committee, drafting, and research staffs. My business experience includes serving from 1989-1994 as a manager, state regulatory affairs, and senior representative, state government affairs, for an interstate natural gas pipeline company and business units. As an attorney in public and private practice, I have represented governmental and private entities and individuals in civil, public law, contract, and business matters and litigation. I am admitted to practice in Louisiana, Texas, and the District of Columbia.
Further information about my activities can be found on the Publications page of my web site.
LEGISLATIVE LAWYERING: Thoughtful lawyers have long recognized that the skills necessary for public policy advocacy and legislative lawyering, including drafting of sound and effective legislation, are not necessarily developed in the more traditional legal practices relating to counseling and litigation.
Effective advocacy involving the legislative process requires practical and realistic consideration of both legal and political elements. It further requires an understanding of how the results of the legislative process will be interpreted by courts and regulatory agencies.
In addition to political concerns, legislative procedures and legislative instruments are subject to constitutional requirements, statutes, procedural rules, case law, and established precedents and customs. These requirements directly affect not only the substance and form of legislation, but also the political process and outcome by which legislation is adopted, modified, or defeated.
Regardless of the merits of legislation, (a) the failure to adhere to constitutional requirements may subject the legislation, or regulation resulting from such legislation, to claims of invalidity; (b) improper or inappropriate wording may create pitfalls for proponents, provide opportunities for successful attack or delay by opponents, necessitate amendments, and result in legal questions regarding interpretation and enforcement; and (c) challenges may include review of legislative history and questions surrounding the issue of "legislative intent".
Individuals and organizations engage in public policy advocacy as part of free speech, petitioning government for a redress of grievances, and other constitutional rights. From a constituent writing a letter to extensive and highly-organized professional campaigns, the goal of advocacy is to successfully affect public policy choices and decisions.
Legislative lawyering combines client advocacy goals with pertinent legal skills. As Professor Reed Dickerson noted, "Determining the general underlying policy is the fun part, the easy part. Good ideas are a dime a dozen. What we miss in the legal profession today are craftsmen who can take such an idea and make it work."
In other words, although their political and public impact may be great, speeches, promises, claims, intentions, policy statements, position papers, press releases, news reports, wishes, hopes and desires ultimately do not become written law. These ideas must be crafted into specific and appropriate wording of legislation and regulation. Such legislation and regulation must then be successfully guided through a complex adoption process. If necessary, through a related but separate process, funding to implement such policy must also be obtained and reobtained on a recurring basis.
"Legislative lawyering" has been defined as "the discipline of combining knowledge of political realities with a thorough understanding of legal issues -- to develop legislation that effectively meets one's goals and still has a realistic chance of passage, or to stop or modify legislation that is antithetical to one's goals." - Professor Chai R. Feldblum, Director of the Federal Legislation Clinic, Georgetown University Law Center.
An effective legislative lawyer, Professor Feldblum states, must be able to combine "a rigorous knowledge of the law (including the rules of statutory interpretation, the law concerning a specific policy issue, and a keen appreciation of text) with a sophisticated understanding of political realities."
In addition to developing and explaining desired public policy, and preventing or modifying proposed public policy that is unacceptable, an effective legislative lawyer must also serve in a "preventive maintenance" capacity. Even in noncontroversial proposals, awareness and prevention of "unintended consequences" that may be created by wording is of major importance. Identifying and resolving such concerns prior to adoption is an efficient and cost-effective way for clients to avoid future legal issues or disputes.
In more complex matters, the process of deliberation involves numerous legal and political considerations. There is intense negotiation between many interested persons and groups regarding the scope, wording, and passage or defeat of legislation. Coalition-building through consensus and compromise are fundamental parts of the political process. From both a political and a legal standpoint, the successful adoption and implementation of public policy usually requires that its wording be carefully crafted and tailored.
As Mark Twain pointed out, the "difference between the almost right word & the right word is really a large matter--it's the difference between the lightning bug and the lightning." Twain further observed that "Thunder is good, thunder is impressive; but it is lightning that does the work." The wording of law and regulation is the lightning of public policy.
STATUTORY INTERPRETATION AND "PROOF OF LAW" ISSUES:In his book A Matter of Interpretation: Federal Courts and the Law (1997), U.S. Supreme Court Justice Scalia noted that statutory interpretation "is the principal business of judges and (hence) lawyers." Many, if not most, of the cases in federal and state courts have a question of statutory interpretation as a fundamental issue.
Unfortunately, it is wishful thinking to assume that statutory interpretation issues - especially when arising from intentional or unintentional ambiguity in legislative or regulatory language - are easily resolved through a mechanical application of rules and precedents. Neither legislatures nor courts can function in such a strictly technical manner. Legal and jurisprudential interpretive guidelines are numerous, broad, and often contradictory. It is not uncommon for all parties to a matter, regardless of their position, to find at least one "rule" of statutory interpretation to support their claim.
Further, as one commentator noted, "That there are so many statutory interpretation cases, to my mind, is not attributable to hungry lawyers or power-crazed judges, or even to the inherent imprecision of language. It's because however careful, wise and farseeing the Legislature, the abstract words of a statute often require fitting and tailoring when applied to real-life cases, which may be more bizarre than anyone could possibly have imagined. Fitting and tailoring are what judges do, and what they are supposed to do--they make judgments." (Honorable Judith S. Kaye, "Things Judges Do: State Statutory Interpretation", 13 Touro Law Review 595 (1997).
Questions of statutory interpretation and construction may include questions relating to legislative retroactivity, effective date, and severability of provisions.
These, together with more traditional questions relating to interpretation of statutory text, may involve issues of "legislative intent", and related evidentiary concerns as to what materials may (and may not) be admitted or considered to show such intent. Such "proof of law" issues are distinct. They require separate consideration and research by counsel apart from the usual evidentiary questions, related to factual proof, that arise in litigation or as an issue in appeals.
CONCLUSION:Public policy advocacy is a full-time, ongoing activity directed at all levels of government. In an era where much attention is given to "sound bite" proposed solutions, "spin", and increasing focus upon appearance rather than substance, the actual crafting, consideration, and adoption of effective legislative and regulatory public policy can be a difficult and time-consuming process.
As the old adage says, "an ounce of prevention is worth a pound of cure." Whether you are a business organization, public interest group, trade association, governmental entity, or a professional firm or organization engaged in governmental relations, effective legislative lawyering and participation in rulemaking is a critical component of any successful public policy advocacy effort.
Knowledge of legislative law and procedure, and related statutory interpretation materials, is of vital importance in the drafting and scrutiny of legislation and regulation. Such knowledge is also essential to anticipate and appropriately resolve questions that may arise concerning how laws and regulations are to be construed and enforced in actual practice. Regardless of merit, the failure to adhere to legal requirements may subject legislation or regulation to claims of invalidity.
Whether in matters of public policy development, interpretation, or litigation, I welcome the opportunity to discuss how my experience and services can help you to achieve your goals. Contact me to request a consultation or further information.
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Disclaimer: Not certified by the Texas Board of Legal Specialization. No designation has been made by the Texas Board of Legal Specialization for a Certificate of Special Competence in the areas of Legislative Drafting and Legislative Advocacy.
