separation of powers doctrine in Vermont

2026See In re DL, 164 Vt. 223 , 228–29 (1995) (discussing the separation of powers doctrine in the context of an inquest proceeding). . . . (2) information concerning the availability of: . . .

2010“The focus of a separation of powers inquiry is not whether one branch of government is exercising certain powers that may in some way pertain to another branch, but whether the power exercised so encroaches upon another branch’s power as to usurp from that branch its constitutionally defined function.” In re D.L., 164 Vt. 223, 229 (1995).

2004Our most extensive discussion of the separation-of-powers requirement in Chapter II, §5 of our Constitution is in In re D.L., 164 Vt. 223, 228-29 , 669 A.2d 1172, 1176-77 (1995).

2001Although the separation of powers doctrine does not, to be sure, “contemplate an absolute division of authority among the three branches,” In re D.L., 164 Vt. 223, 228 , 669 A.2d 1172, 1176 (1995), it does ensure, at a minimum, that no branch will usurp the “core functions,” State v. Pierce, 163 Vt. 192, 197 , 657 A.2d 192, 195 (1995), or impair the “independent institutional integrity” of another.

2018The separation of powers requirement is a “relatively forgiving standard” that is 10 “tolerant of such overlapping institutional arrangements short of one branch virtually ‘usurping’ from another its constitutionally defined function.” Hunter v. State, 2004 VT 108, ¶ 21 , 177 Vt. 339 (quoting State v. Nelson, 170 Vt. 125, 128 (1999)).

2008Our Supreme Court has further noted that when a constitutional argument is rooted in the separation-of-powers doctrine, such arguments face a particularly steep uphill battle because this constitutional requirement is “a relatively forgiving standard” and is “tolerant of . . . overlapping institutional arrangements.” State v. Nelson, 170 Vt. 125, 128 (1999).

2010II, § 19 (Senate has power to decide on election and qualifications of it members); 17 V.S.A. § 2603(a) (voter cannot contest the results of election to the general assembly); Kennedy v. Chittenden, 142 Vt. 397, 399-400 (1983) (court has no jurisdiction to hear complaint contesting election to the general assembly because adjudication by court would violate doctrine of separation of powers). 9 we will enforce it according to its terms.” State v. Pellerin, 2010 VT 26, ¶ 7 (citation and quotations omitted).

1995See Kennedy v. Chittenden, 142 Vt. 397, 399 , 457 A.2d 626, 627 (1983); House Bill 88, 115 Vt. at 528 , 64 A.2d at 172 .

1999See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22 (1986).

1999See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22 , 106 S.Ct. 3181 , 92 L.Ed.2d 583 (1986).

2006To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, and violate the border lines drawn by the constitutional doctrine of separation of powers.” 153 Vt. at 164 , 569 A.2d at 490 (Peck, J., dissenting) (quoting State v. Jacobs, 144 Vt. 70, 75 , 472 A.2d 1247, 1250 (1984) (additional citations omitted)). ¶ 36.

2006To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, and violate the border lines drawn by the constitutional doctrine of separation of powers.” 153 Vt. at 164 , 569 A.2d at 490 (Peck, J., dissenting) (quoting State v. Jacobs, 144 Vt. 70, 75 , 472 A.2d 1247, 1250 (1984) (additional citations omitted)). ¶ 36.

1995See Smith, 686 F. Supp. at 854 .

1995See Smith, 686 F.Supp. at 854 .

1995See Granai, 123 Vt. at 470-71 , 194 A.2d at 392-93 .

1995See Granai, 123 Vt. at 470-71 , 194 A.2d at 392-93 .

1989To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, Maurice Callahan & Sons, Inc. v. Armstrong, 125 Vt. 213, 215 , 214 A.2d 70, 73 (1965) (citing Murphy Motor Sales, Inc. v. First National Bank, 122 Vt. 121, 124 , 165 A.2d 341, 343 (1960)), and violate the border lines drawn by the constitutional doctrine of separation of powers.

1989To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, Maurice Callahan & Sons, Inc. v. Armstrong, 125 Vt. 213, 215 , 214 A.2d 70, 73 (1965) (citing Murphy Motor Sales, Inc. v. First National Bank, 122 Vt. 121, 124 , 165 A.2d 341, 343 (1960)), and violate the border lines drawn by the constitutional doctrine of separation of powers.

1989To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, Maurice Callahan & Sons, Inc. v. Armstrong, 125 Vt. 213, 215 , 214 A.2d 70, 73 (1965) (citing Murphy Motor Sales, Inc. v. First National Bank, 122 Vt. 121, 124 , 165 A.2d 341, 343 (1960)), and violate the border lines drawn by the constitutional doctrine of separation of powers.

1989To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, Maurice Callahan & Sons, Inc. v. Armstrong, 125 Vt. 213, 215 , 214 A.2d 70, 73 (1965) (citing Murphy Motor Sales, Inc. v. First National Bank, 122 Vt. 121, 124 , 165 A.2d 341, 343 (1960)), and violate the border lines drawn by the constitutional doctrine of separation of powers.

2025Although a version of this sentiment is ordinarily expressed by the rule that “a municipality has only those powers and functions specifically authorized by the legislature, and such additional functions as may be incident, subordinate or necessary to the exercise thereof,” City of Montpelier v. Barnett, 2012 VT 32, ¶ 20 , 191 Vt. 441 (quoting Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486 (1977)), plaintiffs argue that a more basic separation-of-powers principle is involved in this case: the court cannot infer any rights of maintenance or repair because “[t]he Vermont legi

2024As to Lowell’s remaining arguments that her claims are not moot, we conclude that they lack merit. 8 conclusion because Lowell did not seek monetary damages for the alleged constitutional violation. 164 Vt. 428, 434-35 , 670 A.2d 800, 804-05 (1995) (holding plaintiff’s request for declaratory relief not moot because declaration on constitutionality of government conduct was predicate to plaintiff’s claim for monetary damages under 42 U.S.C. § 1983 ). ¶ 18.

2024As to Lowell’s remaining arguments that her claims are not moot, we conclude that they lack merit. 8 conclusion because Lowell did not seek monetary damages for the alleged constitutional violation. 164 Vt. 428, 434-35 , 670 A.2d 800, 804-05 (1995) (holding plaintiff’s request for declaratory relief not moot because declaration on constitutionality of government conduct was predicate to plaintiff’s claim for monetary damages under 42 U.S.C. § 1983 ). ¶ 18.

2020See Annotation, Discretion of Administrative Officers as to 22 Changing Boundaries of School District, 135 A.L.R. 1096 , § 2 (originally published in 1941 and supplementing 65 A.L.R. 1523 ) (listing cases supporting proposition that state legislatures have “almost unlimited power to abolish, divide, or alter” school districts and that “this broad discretionary power to change the boundaries of school districts may be delegated by the legislature to administrative bodies, to be exercised under certain conditions”); 16B McQuillan, The Law of Municipal Corporations § 46:2 (3d. ed. 2019) (stating

2018Accord, Powder River County v. State of Montana, 2002 MT 259 , ¶¶ 115 – 188, 60 P.3d 357, 381 (Mont. 2002) (participation of the state Commissioner, for the Montana Department of Revenue, in researching and drafting a new tax law, creating a local government severance tax on certain natural resource extraction industries’ proceeds, to provide funding for public schools, did not violate the separation of powers provisions of the Montana State Constitution or the United States Constitution).

2018Accord, Powder River County v. State of Montana, 2002 MT 259 , ¶¶ 115 – 188, 60 P.3d 357, 381 (Mont. 2002) (participation of the state Commissioner, for the Montana Department of Revenue, in researching and drafting a new tax law, creating a local government severance tax on certain natural resource extraction industries’ proceeds, to provide funding for public schools, did not violate the separation of powers provisions of the Montana State Constitution or the United States Constitution).

2010II, § 19 (Senate has power to decide on election and qualifications of it members); 17 V.S.A. § 2603(a) (voter cannot contest the results of election to the general assembly); Kennedy v. Chittenden, 142 Vt. 397, 399-400 (1983) (court has no jurisdiction to hear complaint contesting election to the general assembly because adjudication by court would violate doctrine of separation of powers). 9 we will enforce it according to its terms.” State v. Pellerin, 2010 VT 26, ¶ 7 (citation and quotations omitted).

2006To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, and violate the border lines drawn by the constitutional doctrine of separation of powers.” 153 Vt. at 164 , 569 A.2d at 490 (Peck, J., dissenting) (quoting State v. Jacobs, 144 Vt. 70, 75 , 472 A.2d 1247, 1250 (1984) (additional citations omitted)). ¶ 36.

2006To do so would usurp the exclusive prerogative of the Legislature; it would constitute judicial legislation, and violate the border lines drawn by the constitutional doctrine of separation of powers.” 153 Vt. at 164 , 569 A.2d at 490 (Peck, J., dissenting) (quoting State v. Jacobs, 144 Vt. 70, 75 , 472 A.2d 1247, 1250 (1984) (additional citations omitted)). ¶ 36.

2001See 28 V.S.A. § 205(a) (allowing trial court to suspend all or part of a sentence and place defendant on probation with conditions); id. § 252(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so") (emphasis added); State v. Moses, 159 Vt. 294, 301 , 618 A.2d 478, 482 (1992) (“the Legislature placed the power to impose probation conditions on the court”); State v. Bubar, 146 Vt. 398, 405 , 505 A.2d 1197, 1202 (1985) (noting that trial courts have great discreti

2001See 28 V.S.A. § 205(a) (allowing trial court to suspend all or part of a sentence and place defendant on probation with conditions); id. § 252(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so") (emphasis added); State v. Moses, 159 Vt. 294, 301 , 618 A.2d 478, 482 (1992) (“the Legislature placed the power to impose probation conditions on the court”); State v. Bubar, 146 Vt. 398, 405 , 505 A.2d 1197, 1202 (1985) (noting that trial courts have great discreti

2001Although the separation of powers doctrine does not, to be sure, “contemplate an absolute division of authority among the three branches,” In re D.L., 164 Vt. 223, 228 , 669 A.2d 1172, 1176 (1995), it does ensure, at a minimum, that no branch will usurp the “core functions,” State v. Pierce, 163 Vt. 192, 197 , 657 A.2d 192, 195 (1995), or impair the “independent institutional integrity” of another.

2001Although the separation of powers doctrine does not, to be sure, “contemplate an absolute division of authority among the three branches,” In re D.L., 164 Vt. 223, 228 , 669 A.2d 1172, 1176 (1995), it does ensure, at a minimum, that no branch will usurp the “core functions,” State v. Pierce, 163 Vt. 192, 197 , 657 A.2d 192, 195 (1995), or impair the “independent institutional integrity” of another.

2001See 28 V.S.A. § 205(a) (allowing trial court to suspend all or part of a sentence and place defendant on probation with conditions); id. § 252(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so") (emphasis added); State v. Moses, 159 Vt. 294, 301 , 618 A.2d 478, 482 (1992) (“the Legislature placed the power to impose probation conditions on the court”); State v. Bubar, 146 Vt. 398, 405 , 505 A.2d 1197, 1202 (1985) (noting that trial courts have great discreti

2001See 28 V.S.A. § 205(a) (allowing trial court to suspend all or part of a sentence and place defendant on probation with conditions); id. § 252(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so") (emphasis added); State v. Moses, 159 Vt. 294, 301 , 618 A.2d 478, 482 (1992) (“the Legislature placed the power to impose probation conditions on the court”); State v. Bubar, 146 Vt. 398, 405 , 505 A.2d 1197, 1202 (1985) (noting that trial courts have great discreti

1995In State v. Saari, 152 Vt. 510, 517-19 , 568 A.2d 344, 349-50 (1989), we rejected the argument that the legislature’s enactment of mandatory minimum sentences violated the separation-of-powers doctrine, and we recognized that sentencing is not “solely a judicial function derived from constitutional mandates.” Cf. Mistretta, 488 *196 U.S. at 364 (“Historically, federal sentencing - the function of determining the scope and extent of punishment - never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.”).

1995In State v. Saari, 152 Vt. 510, 517-19 , 568 A.2d 344, 349-50 (1989), we rejected the argument that the legislature’s enactment of mandatory minimum sentences violated the separation-of-powers doctrine, and we recognized that sentencing is not “solely a judicial function derived from constitutional mandates.” Cf. Mistretta, 488 *196 U.S. at 364 (“Historically, federal sentencing - the function of determining the scope and extent of punishment - never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.”).

1995In State v. Saari, 152 Vt. 510, 517-19 , 568 A.2d 344, 349-50 (1989), we rejected the argument that the legislature’s enactment of mandatory minimum sentences violated the separation-of-powers doctrine, and we recognized that sentencing is not “solely a judicial function derived from constitutional mandates.” Cf. Mistretta, 488 *196 U.S. at 364 (“Historically, federal sentencing - the function of determining the scope and extent of punishment - never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.”).

1995See Billis, 800 P.2d at 426 (holding similar statute constitutional); see also State v. Huerta, 878 F.2d 89, 92 (2d Cir. 1989) (upholding federal statute requiring motion from prosecutor before court may impose sentence below statutory minimum based on defendant’s cooperation).

1995See Billis, 800 P.2d at 426 (holding similar statute constitutional); see also State v. Huerta, 878 F.2d 89, 92 (2d Cir. 1989) (upholding federal statute requiring motion from prosecutor before court may impose sentence below statutory minimum based on defendant’s cooperation).

1993See Smith v. Cooper, 475 P.2d 78, 88 (Or. 1970) (in suit against employees of state highway commission, “most decisive factor ... is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury”); Restatement, supra, § 895D, at 416 (among factors courts consider in determining whether officers’ acts are discretionary is “extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment... on the conduct of a coordinate branch of go

1993See Smith v. Cooper, 475 P.2d 78, 88 (Or. 1970) (in suit against employees of state highway commission, “most decisive factor ... is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury”); Restatement, supra, § 895D, at 416 (among factors courts consider in determining whether officers’ acts are discretionary is “extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment... on the conduct of a coordinate branch of go

1992Relying on State v. Gorton, 149 Vt. 602, 606 , 548 A.2d 419, 422 (1988), they contend that the appropriate means of augmenting due process rights is through legislation, and that continued enforcement of the decree by the court violates the separation of powers clause of the Vermont Constitution.

1992Relying on State v. Gorton, 149 Vt. 602, 606 , 548 A.2d 419, 422 (1988), they contend that the appropriate means of augmenting due process rights is through legislation, and that continued enforcement of the decree by the court violates the separation of powers clause of the Vermont Constitution.