Did Vermont's industrial hemp bill, H. 267, become law when the Governor took no action on it after the legislature had already adjourned?

Plain-English summary

The legislature passed H. 267, an industrial hemp bill, in May 2008. The session adjourned on May 3. The bill was presented to the Governor on May 23, seventeen days (Sundays excepted) after adjournment. On May 29, the fifth day after presentation, the Governor's office told the House that the Governor "did not approve" the bill but "allowed [it] to become law without his signature." Secretary of State Markowitz then asked AG Sorrell whether she should accept the bill and prepare it for publication.

Chief Assistant Attorney General William E. Griffin advised her to do so. Vermont's Constitution, Chapter II § 11, provides three ways for a bill to become law: signature, override of a veto, or non-return within five days. The non-return path has an exception: it does not apply if the legislature adjourns "within three days after" the bill is presented and that adjournment "shall prevent" return. The textual question was whether an adjournment that occurred before presentation also prevented return.

Griffin concluded the exception did not apply for two reasons. The plain meaning of "after" does not include "before," and stretching it would add words the constitutional drafters did not write. The historical record reinforced this. The 1793 amendment proposed an unqualified exception, which would have applied to any adjournment preventing return. The 1836 amendment, which actually became part of the Constitution, narrowed the exception to adjournments "within three days after the presentment of such bill." That qualifying language showed an intent to limit the exception's scope.

The opinion then surveyed authority. Hartness v. Black (1921) was the only Vermont Supreme Court decision interpreting § 11, and the Hartness Court did not reach the question presented here. Other states' adjournment clauses use unqualified language and so are inapposite. The federal Constitution's pocket veto clause likewise lacks the "within three days after" qualifier.

The opinion also noted a 1994 precedent. The legislature passed H. 153 (fish and wildlife licensing) in May 1994, adjourned on June 12, presented the bill to the Governor on June 15 (three days after adjournment), and the Governor "allowed" it to become law on June 21. The Secretary of State numbered it as 1994 Act No. 236 and published it. That precedent was not binding but supported the result.

Griffin concluded H. 267 had become law without the Governor's signature, and the Secretary of State should accept it, assign it an Act number, and prepare it for publication.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

H. 267 was published as 2008 Acts & Resolves No. 212. Federal hemp law has since been transformed by the 2014 and 2018 farm bills, which legalized hemp at the federal level and reset the regulatory landscape. The constitutional analysis in this opinion concerns Vermont's enactment process and remains structurally relevant, but the Vermont Supreme Court has continued to refine its approach to constitutional interpretation, and Article 22 (Reproductive Liberty Amendment) and other recent amendments have changed the broader environment.

Historical summary

For the Secretary of State (at the time): The opinion told Markowitz to accept H. 267 and treat it as enacted. Her role under 3 V.S.A. § 104, 29 V.S.A. § 1115, and 2 V.S.A. § 18 was to verify that the bill had been properly signed (or had become law without signature), assign a public act number, correct typographical errors, and forward to the printer. The Constitution's "five day rule" had run, the Governor had not vetoed, and the Constitution's adjournment exception did not apply.

For legislative process researchers: The opinion is a useful reading of Vermont's pocket-veto rule. The unique "within three days after" qualifier in Vt. Const. ch. II § 11 distinguishes Vermont from New Hampshire, Maine, the federal Constitution, and most other states.

For constitutional law researchers: The opinion uses Chittenden Town School District (1999) for the proposition that plain meaning is the starting point but not the only consideration in constitutional interpretation. The 1793-to-1836 history of the adjournment clause carried significant weight in confirming the textual reading.

Common questions

What is a "pocket veto"?
At the federal level, a pocket veto is the Constitution's rule that a bill presented to the President fails if Congress adjourns before he can return it within ten days. Vermont's analog is narrower: it operates only if the legislature adjourns "within three days after" presentment, not at any other time.

Did the Governor veto H. 267?
No. The Governor sent a message that he "did not approve" but allowed the bill to become law without his signature. The Constitution treats failure to return within five days as approval by default.

Could the Governor have refused to send a return message at all?
The opinion's analysis suggests yes; the bill would have become law silently after five days. The Governor's message confirmed the result rather than caused it.

Citations and references

Constitutional provisions:
- Vt. Const. ch. II § 11 (presentment, signature, return, and adjournment exception)
- Vt. Const. ch. II § 56 (oath or affirmation of allegiance)
- Art. Amend. 11 (1836) (qualified adjournment language); Art. Amend. 29 (1913) (two-thirds override)

Statutes:
- 3 V.S.A. § 104 (Secretary's duties on enacted bills)
- 29 V.S.A. § 1115 (delivery to printer)
- 2 V.S.A. § 18 (verification of acts and resolutions)
- 1994 Acts & Resolves No. 236 (H. 153 precedent)

Cases:
- Hartness v. Black, 95 Vt. 190 (1921) (Chapter II § 11 interpretation)
- Chittenden Town School District v. Department of Education, 169 Vt. 310 (1999) (constitutional interpretation; plain meaning as starting point)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/FO%202008-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

WILLIAM H. SORRELL
ATTORNEY GENERAL
JANET C. MURNANE
DEPUTY ATTORNEY GENERAL
WILLIAM E. GRIFFIN
CHIEF ASST. ATTORNEY GENERAL

STATE OF VERMONT
OFFICE OF THE ATTORNEY GENERAL
109 STATE STREET
MONTPELIER, VT
05609-1001

Formal Opinion #2008-1

June 20, 2008

Hon. Deborah L. Markowitz
Secretary of State
Redstone Building
26 Terrace Street
Montpelier, VT 05601-1101

Re: H. 267
Dear Secretary Markowitz:

This is in response to your request for advice on the official duties of the Secretary
of State relative to the preparation and publication of acts of the General Assembly.
In particular, you ask whether your office should accept H. 267, an act relating to
industrial hemp, and prepare it for publication. It is the opinion of the Attorney
General that you should do so.

The Secretary of State does not have a role in the enactment of legislation, but has
several duties relating to the custody and printing of laws after they have been
enacted. These duties are described in three statutes which provide as follows:

After an act or resolution has been passed by both houses of the
general assembly, signed by the presiding officers of both houses and
by the governor, it shall be delivered to the custody of the secretary of
state. The secretary shall cause the act or resolution to be reproduced
in form suitable to be submitted to the printer designated in 29 V.S.A.
§ 1115. Before submission to the printer the secretary shall correct
obvious typographical errors and assign a public law number to each
act or resolution.

3 V.S.A. § 104.

Immediately after the close of each session of the general assembly, the
secretary of state shall furnish the printer designated by the
commissioner of buildings and general services a copy of the acts and
resolves of such session, duly certified by him or her, as secretary of
state.

29 V.S.A. § 1115.

Within one hundred and fifty days after the final adjournment of each
session of the general assembly, the governor, president of the senate,
speaker of the house of representatives, and the secretary of state shall
convene at Montpelier and verify the acts and resolutions which have
been engrossed, typewritten or printed as provided by law under the
direction of such secretary by comparison with the original acts and
resolutions which have passed both houses.

2 V.S.A. § 18.

In summary, your duties are to review the acts delivered to your custody, confirm
that they have been properly signed, assign them numbers, correct obvious
typographical errors, deliver certified copies to the printer and, in cooperation with
the Governor and legislative officers, assure that the printed laws match the
original acts. Your letter expresses concern that H. 267 "has not been returned to
the General Assembly as contemplated by section 11 of chapter II of the Vermont
constitution" and asks whether you should assign it an Act number and send it to
the printer along with the other laws enacted this session.

Section 11 of Chapter II of the Constitution describes the process for the General
Assembly to present bills to the Governor and for the Governor to approve or return
them. It provides that:

Every bill which shall have passed the Senate and House of
Representatives shall, before it becomes a law, be presented to the
Governor; if the Governor approve, the Governor shall sign it; if not,
the Governor shall return it, with objections in writing, to the House in
which it shall have originated; which shall proceed to reconsider it. If,
upon such reconsideration, two-thirds of the members present of that
House shall pass the bill, it shall, together with the objections, be sent
to the other House, by which it shall likewise be reconsidered, and if
approved by two-thirds of the members present of that House, it shall
become a law.

.... If any bill shall not be returned by the Governor, as aforesaid,
within five days (Sundays excepted) after it shall have been presented
to the Governor, the same shall become a law in like manner as if the
Governor had signed it; unless the two Houses by their adjournment,
within three days after the presentation of such bill shall prevent its
return; in which case it shall not become a law.

Thus, a bill can become law in three ways: 1) it can be passed by both houses and
signed by the Governor; 2) it can be passed by both houses by two-thirds majorities
after the Governor has returned it with objections; and 3) it can be passed by both
houses and not returned within five days. As explained by the Vermont Supreme
Court, "[f]ailure to return the bill within five days (Sundays excepted) is made
equivalent to approval." Hartness v. Black, 95 Vt. 190, 199 (1921). H. 267 was not
signed by the Governor and was not returned with objections, so the issue is
whether it became law by the Governor's failure to return it within five days.

The legislative history of H. 267 shows that it passed the House on February 8,
2008 and passed the Senate on May 1, 2008. It was presented to the Governor on
May 23, seventeen days (Sundays excepted) after the Legislature adjourned on May
3. On May 29, the fifth day (Sundays excepted) after the bill was presented to him,
the Office of the Governor informed the House of Representatives that:

... [The Governor] did not approve and allowed to become law without
his signature a bill originating in the House of the following title:

H. 267 An Act Relating to Industrial Hemp
Message from the Governor, House Message #73, 05/29/08 (emphasis in original).

Therefore, absent an exception to the five day rule imposed by Section 11 of Chapter
II of the Vermont Constitution, H. 267 became law without the Governor's
signature because the Governor did not return it with objections within the time
allowed. Given the Governor's message to the House, that is the result that the
Governor intended. The only question is whether the bill was defeated by the
exception to the five day rule created by the adjournment clause.

The adjournment exception to the five day rule provides that the Governor's failure
to return a bill within that time limit will not be treated as approval if a legislative
adjournment "within three days after the presentation of such bill shall prevent its
return...." By its terms this exception does not apply to the present circumstances
because the Legislature adjourned more than two weeks before H. 267 was
presented to the Governor. The adjournment exception applies only when the
Legislature adjourns "within three days after the presentation." (emphasis added)

It has been suggested that the adjournment clause could be interpreted to defeat
unsigned bills not only when the Legislature adjourns within three days after the
presentation of a bill, but also when the Legislature adjourns before a bill has been
presented. The suggestion is that the Legislature has prevented the return of a bill
in both instances and should suffer the same consequence; that is, the bill should
fail. The argument for this result might be that the rush of business at the end of a
session presents a risk that the Legislature will pass flawed bills, the Governor
needs more than the usual five days to review these bills and, therefore, end-of-
session bills should never become law without the Governor's signature.

The problem with this interpretation is that it stretches the plain meaning of the
constitutional language. In effect it adds words to Section 11 and expands it to
include adjournments "before the presentation" of a bill as well as adjournments
"within three days after the presentation." This is a problem because the plain
meaning of "after" does not include "before."

The Vermont Supreme Court has cautioned against an "excessive reliance on a
plain meaning approach to constitutional interpretation." Chittenden Town School
District v. Department of Education, 169 Vt. 310, 327 (1999). Still, the
constitutional text is an essential consideration and the usual starting point for
constitutional analysis. See, id. at 324 ("In performing this analysis, we turn first to
the text of Article 3..."); and 348-49 ("Plain language should be our first resource in
interpreting the law, particularly when it provides as clear a guide as the plain
language of the Compelled Support Clause does here.") (Johnson, J. dissenting.)

Other resources that the Court uses to resolve constitutional claims are its own
decisions, the historical context of the relevant constitutional language and judicial
precedents from other states. Id., 169 Vt. at 321-42. We should of course use the
same approach, and there is a Vermont case that discusses Section 11 generally and
the five day rule in particular. See Hartness v. Black, supra. However, the facts in
that case were significantly different from those presented here. And, unfortunately
for our purposes, the Court was able to decide that case without venturing beyond
the plain meaning of the adjournment clause.

In Hartness the Court considered the validity of several bills that had been
challenged by the Secretary of State. All of the disputed bills had been signed by
the Governor and all but one of them had been signed within five days of
presentment. The Court's first holding was simply that the bills signed within the
five day period became law by virtue of their signing. The Court rejected arguments
that they were invalid because they had been signed, and in some cases presented
and signed, after the Legislature had adjourned. 95 Vt. at 204-05.

The Court's second holding was that the remaining bill, which was not signed until
the sixth day after presentment, was not valid. The Court reasoned that the
signing after the five days allowed by Section 11 was ineffective and that if the bill
became law it did so by virtue of the Governor's inaction during the five day period.
The Court concluded without reservation that the five day rule did not apply and
that the bill did not become law because it had been presented to the Governor
"within three days before the adjournment"; that is, within the specific time period
described in the exception clause. See 95 Vt. at 205.

In the course of its opinion the Court noted that "[t]he effect of an adjournment of
both houses when there are bills awaiting executive approval is to cut off the
opportunity for [legislative] reconsideration...." 95 Vt. at 199-200. The Court also
expressed a general concern that "numerous bills, some of them important,
containing many sections and intricate provisions are passed in the closing days,
often in the closing hours of the session...." Id. at 202. These statements suggest
that the adjournment clause should be given an expansive reading so that all bills
presented after adjournment would fail if not signed by the Governor.

However, other statements in the opinion suggest otherwise. For example, when
the Court framed the issue respecting the bill that was signed after the five day
period, it underscored the limited time frame of the exception to the five day rule.
Id. at 198 ("a bill which has been presented to the Governor within three days before
final adjournment") (emphasis in original). The Court went on to describe the
exception clause as "a concession in favor of the executive, and not as a limitation of
his power of approval." Id. at 199.

Finally, the Hartness Court commented on a practical aspect of Section 11. The
Court observed that, "[t]he Constitution has provided for defeating an act of
Assembly when the Governor disagrees with the two houses of the Legislature; but
where they all agree, it contains no provision for defeating their united will." Id. at
202. In our context there may be some disagreement between the legislative and
executive branches about the wisdom of H. 267, but the "united will" was to enact a
law. The House of Representatives and the Senate passed the bill and the Governor
messaged his intent that it should "become law without his signature."

In the final analysis the Hartness Court did not have to decide whether the
adjournment clause applied to bills presented to the Governor after adjournment
and so did not provide definitive guidance on the issue. The case is more instructive
in its discussion of the constitutional history. As the Court explained, Section 11 of
Chapter II of our present constitution had its origins in a constitutional amendment
first proposed in 1793. See 95 Vt. at 195-96. That proposal would have added a
Senate to the General Assembly and provided for the automatic enactment of bills
presented to the Governor and not returned within four days.

More to the point, the 1793 proposal included an unqualified exception to the rule
that bills not vetoed, or "returned," by the Governor within a certain number of days
would become law. It provided that:

If any bill shall not be returned by the governor, as aforesaid, within
four days (Sundays excepted) after it shall have been presented to him,
the same shall become a law, unless an adjournment of the Legislature
shall prevent its return, in which case it shall not be a law.

95 Vt. at 196 (emphasis added). This language clearly provided that any
adjournment of the Legislature preventing the return of a bill, including an
adjournment before the presentment date, would override the provision for the
automatic enactment of bills not returned on time. Such bills would not become
law.

The substance of this 1793 proposal was added to our constitution in 1836, but the
critical language changed. The adjournment clause was qualified so that only
adjournments "within three days after the presentment of such bill" would prevent
a bill from becoming law. Art. Amend. 11, 1836. That is the same qualified
language that appears in Section 11 of Chapter II of our present constitution. See
Vt. Const. ch. II, § 11.

This history does not foreclose the argument that the constitutional intent was to
apply the adjournment clause whenever an adjournment prevented the return of a
bill, but it does weaken that argument. The Constitutional Convention that
approved the amendments adopted in 1836 was aware of the proposed amendments
that were rejected in 1793. See Collected Papers of Daniel Chipman, Speech of Hon.
Daniel Chipman, January 6, 1836 at pp. 6, 18. The fact that the 1836 Convention
adopted the qualifying language suggests an intent to limit the scope of the Section
11 adjournment clause.

As noted above, it is appropriate to interpret our Constitution in light of legal
precedents from other states as well as from Vermont. Unfortunately the
precedents from other states have limited value here because the adjournment
clause in the Vermont Constitution appears to be one of a kind. This point is
brought home in a standard legal treatise that includes Vermont on a list of states
whose constitutions provide that a bill does not become law when its return "is
prevented by adjournment of the legislature....". Sutherland Statutory
Construction, § 16:4. Vermont's inclusion on that list is distinguished by a
parenthetical reference to the qualifying language in Vermont's adjournment
clause. Id., n. 1 ("if legislature adjourns within three days after presentment").

The adjournment clauses in other state constitutions use unqualified language that
defeats legislation without regard to the sequence of presentment and adjournment.
See, e.g., N.H. Const. pt. 2, art. 44 ("unless the legislature, by their adjournment,
prevent its return"); Me. Const. art. IV, pt. III, § 2 ("unless the Legislature by their
adjournment prevent its return"). The federal constitution uses similar, unqualified
language, making the federal precedents inapposite as well. See U.S. Const. art. I, §
7 ("unless the Congress by their Adjournment prevent its Return").

You are probably aware that one of your predecessors accepted, numbered and
certified another bill in circumstances like those in our case. In 1994, the
Legislature passed a bill that was not presented to the Governor until June 15,
three days after the final adjournment. See 1994, No. 236, An Act Relating to Fish
and Wildlife Licensing. On June 21, the fifth day (Sundays excepted) after
presentment, the Office of the Governor informed the House that "[the Governor]
did not approve and allowed to become law without his signature a bill originating
in the House of the following title: H. 153. An act relating to fish and wildlife
licensing...." See Journal of the House dated June 12, 1994. (emphasis in original)
On August 5, 1994, the Secretary of State published the bill as Act No. 236 in a
volume of laws that he certified as "true copies of the Public Acts and Resolves
passed by the General Assembly...."

This 1994 precedent is not binding on you and is not a legal precedent with the
stature of a court opinion. It is, however, a public and formal interpretation that
two high state officials have given to Chapter II, Section 11. They acted in the
scope of their offices and so were bound to "not directly or indirectly, do any act or
thing injurious to the Constitution." Vt. Const. ch. II, § 56 (Oath or Affirmation of
Allegiance).

In summary, there are several considerations that make it more likely than not that
the courts would sustain H. 267 against a claim that it was not properly enacted.
These considerations include: the plain meaning of the constitutional provision
allowing bills to become law without the Governor's signature, the historical context
of that provision, the fact that the Legislature has approved H. 267 and that the
Governor has indicated it should be "allowed to become law," the lack of judicial
precedents to demonstrate the bill should not become law and the parallel
circumstances of the enactment of H. 153 fourteen years ago.

For all of these reasons the Attorney General's Office would advise you to accept
H. 267 as a valid bill and to assign it a number and prepare it for publication.

Sincerely,

WILLIAM E. GRIFFIN
Chief Assistant Attorney General