MONTPELIER – A bill that was poised to legalize the cultivation of industrial hemp in Vermont is now the subject of a constitutional dispute over whether the legislation can become law without the governor's signature.
Gov. James Douglas, a critic of the hemp bill, has said the measure flies in the face of federal statute and could ultimately complicate marijuana eradication efforts in the state.
Despite his opposition, a Douglas spokesman said that the bill doesn't rise to the level of a gubernatorial veto. And though he wasn't willing to sign the bill himself, Douglas forwarded the legislation last week to the Secretary of State for her to enact the bill into law without his signature.
But Secretary of State Deb Markowitz said Tuesday that it's unclear whether the Vermont Constitution requires a gubernatorial signature or not. When the bill officially arrives at her office, Markowitz said, she'll seek legal advice from the Office of the Attorney General to make a ruling.
"It's not clear," Markowitz said. "(The governor) is making an argument of interpretation that isn't obvious on the face of the language in the Constitution."
At issue is the so-called "pocket veto," a constitutional provision that allows a governor to squelch a bill simply by not signing it.
Gaye Symington, Speaker of the House, said Tuesday that it was her understanding that all bills would have to be signed by Douglas in order for them to become law.
But Jason Gibbs, a spokesman for the governor, said the pocket veto does not apply to bills received by the governor after final adjournment. Douglas received the hemp bill about 10 days ago, well after the Legislature adjourned.
"Our view, based on extensive legal research, is that there's precedent for this action," Gibbs said Tuesday. "And it is well within the options proscribed by the state's Constitution."
That's not the analysis of Don Milne, clerk for the Vermont House.
"It's been my understanding that once we adjourn and are not coming back, that he has to sign it or if he doesn't sign it, it's dead," Milne said.
David Gibson, clerk of the Senate, said he concurs with Milne.
"I don't agree with the interpretation of the governor's office of the Constitution," Gibson said. "I think he either had to sign it to approve it or it died. I know of no precedent that supports the governor's position."
Emily Berquist, poised to assume the role of Chief of the Legislative Council later this month, said the ruling will hinge on the interpretation of Chapter II, Section 11 of the Vermont Constitution. Other states with similarly worded pocket-veto provisions have generally required a bill to have a governor's signature in order for it to become law, Berquist said,
But Gibbs said there's a recent precedent for Douglas' interpretation.
In 1994, under Gov. Howard Dean, the Legislature passed a bill changing fish and game laws in the state. Dean didn't sign the bill, according to Gibbs, but sent it to the Secretary of State who proceeded to enact the bill into law.
"If the rationale being used by these folks is correct, it means Gov. Dean … was also incorrect in his interpretation of what the Constitution allows," Gibbs said. "That would also mean that various changes to these fish and game laws would have been enforced for more than a decade even though they are not a legitimate part of the law."
Peter Teachout, a professor at Vermont Law School and expert on the Vermont Constitution, said the Section 11 language was added to the Constitution in 1836 to preserve the power of the governor to either return bills to the Legislature or indicate his approval of them.
"The whole purpose is to preserve the role and responsibility of the governor," Teachout said.
If the governor chooses to indicate his approval of or "acquiescence" to the bill by sending it to the Secretary of State rather than signing it himself, Teachout suggested, the intent of the provision is in no way undermined.
"If in this case he doesn't have any objections, and doesn't want to exercise the right to interpose those objections, then it seems to me that both the language and the underlying policy of the provision would best be furthered by allowing the governor to indicate his approval without a signature," Teachout said.
A call to Attorney General Bill Sorrell wasn't returned Tuesday. It will fall to his office to resolve the dispute.
Gibbs said the controversy was "much ado about nothing," since federal law banning hemp cultivation supercedes any state legislation saying otherwise.
"It's a do-nothing bill that an out-of-the-mainstream majority that controlled the House of Representatives decided to squander its time on," Gibbs said. "The bill has literally no practical impact on life in Vermont."
The hemp bill won nearly unanimous support in both the House and Senate, where lawmakers praised the crop as a potential boon for the state's agriculture sector.
Amy Shollenberger, head of Rural Vermont, an organization that lobbied for the bill, said she hopes the dispute won't imperil the bill.
"I think the governor's intention is clear, that he would like the bill to become a law," Shollenberger said. "We're dismayed by the controversy, and we're just hoping he's right about his ability to let it become law without his signature."MORE IN Central Vermont
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