Laura Lundquist

(Missoula Current) A judge has ruled against Gov. Greg Gianforte, saying he must allow the Legislature an opportunity to override his veto of a bill that allocates marijuana tax money to county roads.

On Tuesday, Lewis and Clark District Court Judge Mike Menahan ruled that the Governor and Secretary of State Christi Jacobsen must follow the Montana Constitution and allow the 2023 Legislature the opportunity to override the governor’s last-minute veto of Senate Bill 442.

Menahan said the Montana Constitution is clear on the Legislature’s right to veto, so the case only dealt with the question of timing. The judge ordered the governor to send his veto to the Secretary of State, who must then poll the Legislature.

“The only meaningful difference in whether a veto occurs in-session or out-of-session is which override procedure applies. Therefore, in determining whether a veto is treated as in-session or out-of-session, the determinative factor must be when the legislature receives the veto message rather than when the governor signs the veto,” Menahan wrote.

Carried by Sen. Mike Lang, R-Malta, HB 442 allocated a majority of Montana’s marijuana tax money to a number of enterprises, including county road maintenance, wildlife habitat preservation, nongame wildlife programs and state parks and trails. The fact that HB 442 benefitted a wide array of Montanans gave it bipartisan appeal, helping it pass both the House and Senate with 87% in support. That far surpassed the two-third’s supermajority that the Legislature needs to override a veto.

On May 2, Gianforte vetoed HB 442 within a day of it hitting his desk. Had both chambers been in session, legislators could have voted to override the veto. Had both chambers been adjourned, the governor is constitutionally required to send the bill and veto memo to the Secretary of State, who would have polled legislators to vote on the veto.

But the Senate had adjourned hours before although the House was still in session. So the governor let his veto stand, arguing that a loophole in the text of the Montana Constitution excused the failure to initiate an out-of-session veto override process.

“This creates a situation in which the legislature is deprived of a constitutionally delegated authority on the basis of a procedural anomaly,” Menahan wrote. “Proper interpretation of the veto provisions removes the apparenet procedural gap without requiring any additional language or procedure.”

Saying the governor robbed the Legislature of its Constitutional right to override a veto, Wild Montana and the Montana Wildlife Federation sued the Governor’s Office on June 7. The Montana Association of Counties filed a separate suit in a Helena district court, and the two cases were later combined.

“Governors cannot opportunistically time their vetoes to stifle the Legislature’s constitutionally guaranteed override authority,” said Rylee Sommers-Flanagan, counsel to Wild Montana and the Montana Wildlife Federation. “The Montana Constitution contemplated precisely these circumstances and the Governor and Secretary must comply - because one one is above the Constitution.”

The governor and secretary of state now have a few options. They both could follow the ruling and send the veto to the Legislature for a vote, or the secretary of state could do it alone. That would fulfill the Constitutional requirement. That should happen soon because the law says the secretary of state will send the bill and veto message to each legislator within five working days for a vote.

Or they could appeal the ruling to the state Supreme Court. Since it would take time for the Supreme Court to consider the case, the governor and secretary of state would also have to ask Menahan for a stay of his ruling. If Menahan refused, they could also appeal his refusal of a stay to the Supreme Court.

On Tuesday, the Montana Supreme Court provided a preview of what might happen if the governor and secretary of state try to get a stay when it rejected the state’s appeal in the climate case, Held v. State of Montana. The state had requested a stay from the district court, but Judge Kathy Seeley denied the stay. The state appealed, but on Tuesday, the Montana Supreme Court upheld Seeley’s denial, saying in a 5-2 decision that Seeley “did not act arbitrarily or exceed the bounds of reason.”

Both the Governor's and the Secretary of State's offices have said they are reviewing the decision and will evaluate next steps.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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