by RICH CASSIDY on JANUARY 10, 2011
Drafting legislation seems simple. But it’s not.
It is a process that has much in common with drafting contracts. Both types of documents typically try to set out principles that regulate future conduct. And as Mark Twain, or Yogi Berra, and perhaps others, famously said: “It’s hard to make predictions, especially about the future.”
Most litigators are not present at the birth of the statutes they litigate. Most legislative lawyers – legislative draftspersons and lobbyists – are not present when their legislative work is construed by the courts. Legislator/lawyers who are active practitioners see both ends of the process, but they seem fewer and fewer.
In the late 1980s, a trade group that I represented, the Vermont Subcontractors’ Association, retained me to adapt a model statute from the American Subcontractors’ Association, the “Prompt Payment in Construction Act,” for introduction in the Vermont legislature. After several years of unsuccessfully pursuing the adoption of the Act, the VSA asked me if I would work with some of their members to get the legislation adopted in Vermont.
I had some limited background as a legislative lawyer. As a third-year law student, I had worked for a New York State Assembly Committee, (the Committee on Codes) and I had been involved in a few public interest legislative efforts here in Vermont.
I had enjoyed what work I had done in legislatures and I believed in the project, so I agreed to pursue the bill for the VSA. I registered as a lobbyist and went to work in the halls of the legislature, where I had some misadventures that I plan to write about at another time.
The justification for the Act from the VSA’s point of view was to modify what my clients called “The Golden Rule,” that is: “He with the Gold Rules.” This Golden Rule had real, and rather cynical, application in the construction world. Construction owners, their general contractors, and some top level subcontractors, have a great deal of leverage over lower level subcontractors. If a party high in the construction food chain did not voluntarily pay as agreed, a cash-pressed subcontractor had no good choices. A lawsuit, if successful, merely brought the subcontractor the amount that had been agreed to in the contract, together with interest to compensate for the delay of litigation. That delay was often extensive. If not well financed, some subcontractors would go out of business during the interim. Persistent begging sometimes worked, but compromise was often the only effective ransom.
The group’s members and I worked hard, enough legislators agreed with our arguments, and in the early summer of 1991, the Vermont Prompt Payment in Construction Act was adopted. It became effective July 1, 1991.
Such an experience teaches one that “legislative intent” the touchstone of statutory constriction is a metaphor, not a reality. A legislature is a group, not an individual, and so it has no individual mind to form an intention.
In the years that have passed since then, the Act has been construed on several occasions. It has been, well, I guess you would say, “instructive” to watch how the courts have handled it.
Overall, I think the courts have done pretty well. But the most recent decision, Burton v. Jeremiah Beach Parker Restoration and Construction Management Corp., 210 VT 55, is surprising. I plan to review it next time and see what, if anything, I’ve learned about trying to write statutes that will yield predictable results.
Rich