Blair Miller and Keila Szpaller

(Daily Montanan) The Montana Legislature needs an opportunity — “without further delay” — to override Gov. Greg Gianforte’s veto of a 2023 bill that redistributed marijuana funds, a judge said Tuesday in response to the governor’s request to stop the court’s earlier order.

Lewis and Clark District Court Judge Mike Menahan also said Gianforte and the Secretary of State have “interrupted the political process in an impermissible way” by blocking any chance for lawmakers to override the veto of Senate Bill 442, which the governor issued just as the Senate adjourned on the final day of the 2023 legislative session, but without the body knowing.

Menahan in January ordered Gianforte to transmit his veto of the bill to the Secretary of State so lawmakers could be polled on whether they want to override the bill, which redistributed marijuana funds to county roads and a new Habitat Legacy fund in what proponents said was a resounding bipartisan victory. In the 2023 session, 130 of 150 legislators voted in support of the bill, sponsored by Sen. Mike Lang, R-Malta.

The governor in February asked the judge to block his own order while he appeals to the Supreme Court, but Menahan this week said time is running short before the 2025 session and the legislature must have the chance to override a veto or the “crucial balance of power” between the legislative and executive branches of government will be upset and the lawmaking process “incomplete.”

“Staying the court’s judgment would allow Gianforte to continue to exercise an unconstitutional level of control over the lawmaking process,” the order said. “Regardless of Gianforte’s motives in relation to SB442 specifically, he advocates for a troubling precedent.”

“There should be no instance in which a governor’s veto may stand by default because the legislature did not have an opportunity to override it.”

The matter landed in court because the legislature never had the opportunity to override the veto of the bill — a popular piece of legislation supported by lawmakers from both parties, the Montana Association of Counties, Montana Wildlife Federation and Wild Montana — during the session. The governor said he vetoed the bill shortly before the Senate adjourned but before the House did, and contended that the full legislature was still in session when he handed down the veto, and that it should not go to a poll override.

If both chambers are still in session when the governor vetoes a bill and it is read over the rostrum of its original chamber, lawmakers can override a bill with two-thirds support of both chambers. If the veto happens while the legislature is out of session, the Secretary of State sends a mail override poll to lawmakers.

Plaintiffs Wild Montana, the Montana Wildlife Federation — represented by Upper Seven Law — and Montana Association of Counties, represented by Helena attorney Michael G. Black, sued the governor and Secretary of State to force a chance at an override. The plaintiffs in the case challenged the governor’s contention that the full legislature was still “in session” when the veto was made, arguing rather it was not a proper “in session” veto because the veto message was never read over the Senate rostrum.

This week, the judge said the public interest lies in quick action, especially as legislative candidates and advocacy groups such as the plaintiffs prepare for the 2025 session.

“As time passes, uncertainty around the status of a bill from the previous session becomes increasingly problematic,” the order said. “The longer the issue of SB 442’s status remains unknown, the longer Petitioners/Plaintiff are unable to know how to direct their advocacy and resources.

“If this Court stayed its judgment, Petitioners/Plaintiffs would continue to face harm to their ability to meaningfully participate in the political process.”

The plaintiffs called the decision a “scathing” one that forces the poll lawmakers and the plaintiffs have been asking for since last May.

“Once again, the District Court has rejected Gianforte’s attempt to remove the legislature’s constitutional authority to override a governor’s veto. Over the last year, millions of dollars could have been spent benefitting Montana’s infrastructure, veterans, agriculture industry, wildlife, and outdoor enthusiasts,” Wild Montana political and state policy director Noah Marion said in a statement. “Instead, the governor has wasted countless taxpayer dollars obstructing the legislature. We look forward to helping Sen. Lang and the legislature finally get SB 442 over the finish line.”

Eric Bryson, the executive director of the Montana Association of Counties, said he expected the Secretary of State’s Office to initiate the poll override process as soon as possible. Frank Szollosi, the Montana Wildlife Federation executive director, said the governor and Secretary of State should “let our elected representatives vote already.”

Sean Southard, a spokesperson for the Governor’s Office, said the office was reviewing the decision before determining its next steps.

Richie Melby, a spokesperson for Secretary of State Christi Jacobsen, said in a statement: “The Secretary of State’s unwavering position is that her office has followed and will continue to follow the law regarding veto procedures.”

The court granted summary judgment in favor of the plaintiffs on Jan. 16 and a “writ of mandamus,” to force action, on Feb. 2. On Feb. 26, Gianforte moved to stop the order pending appeal, though the governor has yet to file a notice of appeal with the Montana Supreme Court. His office told the Daily Montanan it would appeal the order before it asked for the stay.

The governor argued in part that lawmakers had possibly come to agree with his veto. Lawyers for the state also argued the case involves “novel questions of constitutional law,” which they said should be resolved by the Montana Supreme Court, especially because they involve the separation of powers.

The judge ruled against the defendants, and in the order this week, he said that since the court just issued a finding against the governor on the merits, the governor isn’t likely to succeed on the merits — one of the factors considered in a request to stop an order.

“However, the Court can consider whether Gianforte has successfully raised strong legal arguments on the merits,” the order said. “The Court finds he has not.”

Upper Seven Law said Gov. Gianforte and Secretary Jacobsen have 14 days to comply with the order, and the Secretary must now poll the Legislature and “can no longer stand between lawmakers and their constitutional authority to override any governor’s veto.”

“Today the Court assures us that Montana is no monarchy,” said Rylee Sommers-Flanagan, executive director of Upper Seven Law, a nonprofit law firm, in a statement. “The Legislature’s lawmaking authority is not subject to the governor’s whims, invented loopholes, or gamesmanship.  Despite the Governor’s repeated attempts to avoid responsibility, today’s order requires that he play by the same constitutional rules as everybody else.”