Gov. Greg Gianforte speaks on the Montana Capitol steps on March 13, 2023. (Photo courtesy of the Governor’s Office)
Montana’s governor and secretary of state have asked a judge to dismiss a legal challenge to Gov. Greg Gianforte’s veto of Senate Bill 442, a broadly supported bill that would have put more of the state’s marijuana revenue toward county roads and conservation efforts across the state.
Earlier this month, attorneys for Gianforte and Secretary of State Christi Jacobsen asked Lewis and Clark County District Judge Mike Menahan to dismiss the case, in which three organizations sued alleging Gianforte improperly vetoed the measure in the final hours of the legislative session and that lawmakers should be allowed to vote to override the veto.
The attorneys for Gianforte and Jacobsen say the three organizations are arguing political positions and asking the court to step outside its duties. They also say that the veto was done correctly, and that Jacobsen has no power to issue an override poll because the full legislature was indeed in session when the bill was vetoed.
The legislature can override a governor’s veto with a two-thirds majority. If the legislature is in session, it can vote to override the veto then, but if the legislature is out of session when the veto is handed down, the Secretary of State sends a poll to lawmakers, who then vote whether to override the veto via mail.
In two lawsuits filed in June that were since consolidated, Wild Montana, the Montana Association of Counties (MACO), and Montana Wildlife Federation asked the court to either have Jacobsen send a poll override to lawmakers via mail or to declare SB 442 law, claiming the governor did not follow the law in issuing his veto.
SB 442 was the product of months of work by lawmakers and lobbyists to try to find a solution to multiple competing bills surrounding how to reallocate Montana’s marijuana tax revenue from how lawmakers divvied it up in the 2021 session.
Sponsor Sen. Mike Lang, R-Malta, and lobbyists for the three organizations that sued over the veto of SB 442 were instrumental in crafting a bill that disperses the $50 million in annual marijuana revenue to county roads, a Habitat Legacy fund, the general fund, trails, parks and recreation, veterans’ services, and a treatment and recovery fund. The measure received 131 votes on its final passage out of 150 lawmakers in the House and Senate.
But the administration supported sending more money to the Department of Justice and general fund, for regular state operations, and in the weeks before the measure’s final passage, some lawmakers noted that the governor had said he would veto the bill.
According to the Governor’s Office, Gianforte vetoed the bill “sometime in the 2 o’clock hour” on May 2, and the Senate voted to adjourn shortly after 3 p.m. that day.
Senators supporting the bill said they only learned of the veto after they had adjourned, and several of them and the lobbyists who worked on the bill protested, saying the veto should have been read aloud across the Senate rostrum while the Senate was still in session because that is the chamber in which the bill originated. They declared Gianforte’s veto was improper because the full legislature was not in session, and as such, they should have the right to vote via a poll on whether to override the governor’s veto.
The groups sued on June 7, alleging the governor committed “procedural trickery” with how quickly the bill was enrolled, signed by the Senate president and House speaker, then transmitted to the governor and vetoed on the same day while other bills enrolled that day were not transmitted for at least another week.
The wildlife groups argued that unless a court said otherwise, the ability to veto a bill while one chamber had already adjourned gave the governor extraordinary power that strained the system of checks and balances.
On Aug. 18, attorneys for Gianforte and Jacobsen argued, rather, that the three organizations lack any judicial standing and that the governor and secretary of state followed the state constitution and legislative rules in issuing the veto.
“There is no private right of action under mandamus or the Uniform Declaratory Judgment Act to force this Court to draft and referee procedures the Legislature uses to determine when it is in session and the mechanics of how it votes to override votes,” attorneys for Gianforte wrote in their filing. “Even if the Court believes it could lawfully fill a perceived gap in the Legislature’s rules and statutes governing the legislative process, the Lobbying Organizations lack standing because there is no private cause of action for the relief they seek.”
Gianforte’s attorneys wrote that the groups’ requests are an effort to have the judicial branch compel the executive branch to get around the constitution and statutes “for the sole purpose” of furthering the groups’ financial interests.
They argue that the organizations are asking the court to move beyond its authority to create “additional” rules regarding what happens when a veto is handed down when one chamber is out of session, while maintaining that both chambers were in session when Gianforte vetoed SB 442.
The governor’s attorneys also maintained that even if legislative rules undermined lawmakers’ ability to override a veto while still in session, it was not the court’s obligation to update those rules, but rather the legislature’s.
“It would be absurd to read a private right of action into the veto procedures of the Governor and Legislature and give private parties the right to litigate when the Legislature is in session or when it was not in session, or how the internal rules of the Legislative branch are to operate,” Gianforte’s attorneys wrote.
The attorneys said that it would not make sense based on the constitution’s plain language to interpret “in session” as meaning anything other than at least one chamber being active before both vote to adjourn sine die. Finding otherwise, they argued, would also mean that bills like the budget bill would have died once the Senate adjourned this session because the House still had yet to approve the final version.
“To conclude otherwise yields absurd results,” the attorneys wrote.
Jacobsen’s attorneys argued in their filing that she should not be a party to the ongoing suit because she followed the constitution and law in sending out override polls for bills that were vetoed after both chambers had adjourned. She also argued that Gianforte’s veto was handed down while the legislature was still in session and is not subject to a poll override.
“What is asked and advocated for by Petitioners on a bill that the Secretary does not have because the veto occurred during the session is unlawful,” the attorneys wrote. “Not only does the Secretary have no legal duty to issue a veto poll when a bill is vetoed during session, but she has no legal authority to do so here.”
Judge Menahan has yet to issue an order on the government’s latest filings asking him to dismiss the case.
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