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Delayed veto override poll from 2023 Montana Legislature now going forward

Ellsworth SB 442
Posted at 6:18 PM, Mar 19, 2024

HELENA — The ongoing legal battle over Gov. Greg Gianforte’s late veto of a bill last legislative session heated up this week, as a growing number of leaders made clear they’re not happy with how the process has gone. For the moment, though, a poll asking whether lawmakers want to overturn the veto is going forward.

Montana Secretary of State Christi Jacobsen’s office told MTN Tuesday that they’re preparing to mail out ballots to all 150 state legislators, asking whether they’ll sustain Gianforte’s veto on Senate Bill 442. But Jacobsen is including a letter, expressing reservations about the poll taking place.

These are just the latest steps in a battle over this veto and its implications for the separation of powers that has dragged on for almost a year.

SB 442, sponsored by Sen. Mike Lang, would redirect some of the state’s marijuana tax revenues to help counties fund construction and repair of rural roads, as well as to increase funding to wildlife habitat improvement projects and to a state account that supports veterans and their surviving spouses and dependents.

The bill passed with support from 130 of Montana’s 150 lawmakers, but Gianforte vetoed it, citing technical concerns with how it was written and saying it was inappropriate to use ongoing state funding for a local responsibility like roads.

That veto came right around the time the Senate adjourned on a surprise sine die motion. It created an uncertain situation for supporters of the bill, who hoped to try to get the required two-thirds of the Legislature to override the veto. The Montana Constitution says when a bill is vetoed and the Legislature is in session, the governor returns it to the Legislature and both the House and Senate have to hold individual votes if they want to attempt an override. When the Legislature is not in session, the governor has to return any bills that got two-thirds support to the Secretary of State, who then polls lawmakers by mail on whether to overturn the veto.

In this case, supporters of SB 442 said they didn’t know about the veto before the Senate adjourned, and it was never officially read into the Senate record, so there was no legitimate opportunity for them to override the veto during the session. Gianforte’s office argued the Legislature was in session when he issued the veto, so a veto override poll would be inappropriate.

Two conservation groups – Wild Montana and the Montana Wildlife Federation – and the Montana Association of Counties sued, saying the governor and Secretary of State should have to go forward with a veto override poll on SB 442. In January, District Court Judge Mike Menahan of Helena sided with the plaintiffs, saying the constitution clearly intended that lawmakers have an opportunity to override a veto whenever it occurs. In March, he gave the governor and secretary 14 days to begin the process of polling lawmakers, saying Gianforte would otherwise have exerted too much control over the legislative process.

Gianforte appealed the decision to the Montana Supreme Court, and he asked them to put a stay on Menahan’s ruling. The court denied that request, saying their ultimate decision on the appeal is going to determine whether the veto stands, so there was no irreparable harm in allowing the poll to go forward.

On Monday, Gianforte sent Jacobsen a letter, saying that he did not have custody of the original bill or his original veto message – which he had sent to the Legislature.

“Instead, I provide a copy of my veto message, in an attempt to comply with the court’s order and while we await the Montana Supreme Court ruling on the underlying constitutional question about whether the judiciary can manage rules, processes, and political questions that are solely the purview and authority of the Legislature,” he wrote.

At the same time, Senate President Sen. Jason Ellsworth, Senate Majority Leader Sen. Steve Fitzpatrick, and 26 other Republican senators – a majority of the Senate – sent their own letters to Gianforte, Jacobsen and the Supreme Court, saying these judicial decisions had severely overstepped onto the Legislature’s authority over its own procedures.

“I think to a certain degree, the courts probably think that they're helping us out,” Fitzpatrick told reporters Monday afternoon. “Maybe they are, but I don't really feel that way. I feel like it's an invasion of the separation of powers – and it's really an invasion of what we're supposed to do. If there's problems with how bills are getting processed or whether a veto needs to be made, we can solve it. We don't need the judicial branch stepping in and saying what we're supposed to do.”

Those who signed the letters said they either won’t participate in the poll or will vote not to override the veto. In order to successfully overturn the veto, two-thirds of each chamber have to vote in favor – and not returning the ballot has the same effect as voting no. That means that group on its own can effectively sustain the veto.

Ellsworth said Monday that it was inappropriate for the executive branch to hold a poll when they don’t have the physical bill in their possession.

“The bill is here in my possession, as it always has been,” he told reporters on a video call, holding up the bill packet. “The question should have always just been asked, where is the bill?”

Fitzpatrick said Monday that he was less worried that the governor would use the ambiguity around sine die for gamesmanship with bills than he was that legislators would take the precedent set in Menahan’s decision and use it for gamesmanship. He put the blame for what happened to SB 442 primarily on the surprise sine die motion, which ended the Senate’s session earlier than leaders were planning.

“To me, what happened is that something bad happened, we don't like what it is, so we're going to run to the court and the court is going to say, ‘Yeah, there's a problem with your procedure,’” said Fitzpatrick. “That's a ‘no’ to me.”

Senate Minority Leader Sen. Pat Flowers, who leads the Senate Democratic caucus and who made the sine die motion, put out a statement Monday, expressing disappointment in the Republican senators’ letter.

“After months of repeated political tricks and delay tactics by Governor Gianforte, legislators should and will have the opportunity to override the Governor's veto and make that bill law,” Flowers said. “It is unfortunate that, at the eleventh hour, some Republican legislators are refusing to stand by Montanans and instead are surrendering their constitutional duties to the Governor.”

In the letter Jacobsen is attaching to the legislators’ ballots, she called this poll “historic and unprecedented.” She alluded to the Republican senators’ statements and said her office shared their concerns and their frustrations about the process.

“The Secretary of State’s Office followed Montana law for every veto during the 2023 legislature to the letter of the law,” Jacobsen said. “The Secretary of State should not be in this case. I look forward to the state supreme judicial body weighing in on this significant case.”

Jacobsen said legislators have until 5 p.m. April 18 to return their ballots – though, again, not returning a ballot is effectively the same as voting no.