September 2002. Gillies No Title.

Vermont Bar Journal

2002.

September 2002.

Gillies No Title

RUMINATIONS: THE BALANCE

Gillies

Browsing the laws of 2002, I saw the movement of branches. In Section 1 of Act No. 131, "An act relating to arrest without a warrant," the legislature has included a paragraph entitled, "Legislative intent." It begins by explaining that the phrase, "while the crime is being committed or without unreasonable delay," as it appears in Rule 3 of the Vermont Rules of Criminal Procedure, has not yet been interpreted by Vermont courts. It ends with this explanation: "No specific limits in seconds or minutes is intended by the phrase ‘without unreasonable delay,' but it is equally clear arrest must follow promptly after it is feasible under the facts and circumstances of a particular case." It quotes a law review and a treatise. It intends to inform and affect the decisions of the courts (and the executive, in the per-son of arresting officers) when they reach this question.1

In precise, articulate legislative findings, the legislature makes its intentions clear, detailing how the new law will be interpreted, and quietly attempts to avoid an unintended result in the judicial branch.2 This is not the first instance of legislative findings. They have accompanied many bills over the years. But this year there seems to be more emphasis on what the courts will do with legislation, in the explanations that accompany many new laws.

Every year the balance of power changes, as a result of some new law, decision of the court or executive rule, policy, or action. A court ruling can inspire a legislative change. The legislature can direct the executive to abandon a practice by changing the law. The court can order the executive branch to follow its order. It is a tug of war, played out not with the large weapons of the separation of powers arsenal—the veto, impeachment, or judicial review—but in subtle movements, shifts in position, small adjustments within the branches.

When government in Vermont first began, the legislature acted as if it had unlimited powers. It granted divorces, acts of insolvency, laws directing courts to

THE BALANCE

grant a new trial or admit evidence. In 1779 and 1786, it enacted the state constitution as if it were another bill.3 The decline of the preeminence of the General Assembly is one of the histories of Vermont that has yet to be told. It is the story of a government righting itself, as the executive was given (or took on) more responsibility and the judiciary recognized its duty to draw on other sources of law than statute, notably an emerging Vermont common law and the Vermont Constitution.

Perhaps the righting went too far. Brigham and Baker included explicit directions to the legislature on what and when it had to act, even as the Court deferred to legislation primacy in enacting law.4 Legislators had a range of choices to make in both cases, but the experience of being directed by the judiciary to pass laws was foreign to the General Assembly. The Champion lands controversy enraged many legislators, who complained that the executive department's actions went beyond what was intended in the enabling legislation several years earlier.

No branch is sovereign, but that does not mean their relative positions are fixed. There is play in the machinery.

The Resolution

The legislature came back several weeks after it appeared to have adjourned this year to consider, and ultimately sustain, a veto. The Governor vetoed legislation dealing with abandoned cars, because of a glitch. Many legislators crabbed about the inconvenience, but if they thought about it, they knew the procedure was right, even if the reason was silly.

The Constitution explains that every bill, before it becomes a law, must be presented to the governor for signature. The governor has three choices - sign it into law, return it with objections (the veto) within five days, or let it become law by not returning it in time and not signing it. That system works until the legislature adjourns. Bills presented to the governor near or after adjournment never become law by default. Any bill presented within

Paul S. Gillies, Esq .

three days of final adjournment, and not signed by the governor, dies. 5

Pocket veto is the name for that process, but in 1995, after experiencing nine pocket vetoes the previous year, the legislature decided it had had enough. By resolution the General Assembly made final adjournment conditional, and the practice has continued every year since that time.6 This year the resolution provided that if the Governor vetoed a bill, the legislators would come back...