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“It’s a bipartisan bill that supports Montana values and benefits Montanans all across our great state.”
By Darrell Ehrlick, Daily Montanan
The Montana governor has the power to veto legislation, and the Montana Legislature has the power to override those vetoes, things that a Lewis and Clark County district court judge said are not ambiguous.
And even though a small gap could be created by the timing of the veto or when the Legislature adjourns, Judge Mike Menahan said the Constitution’s framers were clear that both branches should be able to equally exercise their powers.
In a ruling handed down on Tuesday, Menahan said that Montana Gov. Greg Gianforte (R) must transmit his veto of Senate Bill 442 to Montana Secretary of State Christi Jacobsen (R), and that she must poll lawmakers to see if they wish to override Gianforte’s veto of a bill that would redistribute revenues from recreational marijuana toward conservation efforts and county road improvement.
The final version of SB 442 would distribute 20 percent of the money toward county road construction and maintenance and 20 percent to a Habitat Legacy Fund, two of the key components of the bill for the plaintiffs.
On final passage, a total of 131 of 150 lawmakers supported the bill, but some top Republican senators had noted in the days leading up to its passage that the governor was unhappy with the bill and would likely veto it. Gianforte’s administration had supported different bills that sought to distribute more of the money to law enforcement and the general fund.
It would take two-thirds of the Legislature, or 100 votes, to override a veto.
Representatives from the governor’s office were not immediately available for comment when the decision was released late on Tuesday afternoon.
“We will review the decision and determine the next steps as our commitment is to serve Montana and faithfully execute the laws,” said secretary of state spokesman Richie Melby.
Wild Montana, Montana Wildlife Federation and the Montana Association of Counties banded together to file the lawsuits which centered on the exact timing of Gianforte’s veto as well as the time the Senate adjourned for the 2023 session.
The process to override a veto changes based upon whether the Legislature is in session or is adjourned. In this case, Gianforte issued a veto of SB 442 at approximately the same time the Senate was adjourning. However, the Montana House continued on, raising a question of whether the Legislature was truly in session.
Gianforte said that he transmitted the veto to the Senate, but it had adjourned. Jacobsen said that she lacked the authority to poll via mail because the Legislature because it was still in session when the veto was signed.
Attorneys for the groups challenging the veto pointed out that executives could orchestrate down-to-the-minute timing to frustrate the override process in the future if a governor were time a veto just as either chamber was adjourning, leaving lawmakers with little chance to exercise their constitutional checks and balances.
“The plain language of these two provisions appears to leave a procedural gap whereby the legislature does not have the opportunity to conduct a vote to override a governor’s veto if it does not receive timely notice of a veto prior to adjournment,” Menahan described in his nine-page ruling. “This creates a situation in which the legislature is deprived of a constitutionally delegated authority on the basis of a procedural anomaly.”
“…Although subject to different procedures, the framers [of the Montana Constitution] clearly intended the legislature’s veto power to exist regardless of the timing of the veto.”
Menahan ruled that the only question the constitution left vague was which procedure should be used.
“The determinative factor must be when the legislature receives the veto message rather than when the governor signs the veto,” Menahan said. “This interpretation clarifies the constitutionally established procedures while ensuring each coequal branch of government retains the ability to exercise its proper authority.”
Menahan issued a writ of mandamus, or an order commanding Gianforte to send the veto to Jacobsen who then will poll lawmakers. That poll could take place, or the decision could be appealed to the Montana Supreme Court, in which case the order would likely be stayed pending a final decision there.
Lawmakers and outdoor advocates were quick to cheer the news.
“I’m glad SB 442 has been restored to its proper legal status. It’s a bipartisan bill that supports Montana values and benefits Montanans all across our great state, and I encourage the Secretary of State to issue the veto override poll ASAP,” said Sen. Mike Lang (R-Malta), the sponsor of the bipartisan measure. “This is the same bill 130 legislators supported during the session, and I’m looking forward to working with my colleagues to secure historic investments in rural infrastructure, agricultural communities, veteran’s services and our drug abuse epidemic.”
Ross Butcher, Fergus County Commissioner and Montana Association of Counties President, said that if lawmakers override Gianforte’s veto, it will help with much-needed infrastructure improvement.
“A lot of Fergus County’s 1,700-plus miles of roads are falling apart due to the extraordinary traffic impact caused by out-of-area recreationists outpacing the local ability to keep them up within our regular maintenance schedules,” Butcher said. “This makes it tough for recreationists, citizens and ag producers. The story’s the same across the state—most counties don’t have wiggle room in their budgets, and this SB 442 investment will go a long way.”
For wildlife and conservation advocates, the possibility of Senate Bill 442 becoming law means a huge investment in the state’s outdoors.
“SB 442 will be transformative for Montanans by improving wildlife and landscapes while supporting veterans and rural communities. It’s poised to be the largest investment in Montana’s wildlife habitat in over four decades, and we’re eager to work with our partners in the legislature to make it law,” said Frank Szollosi, executive director of the Montana Wildlife Federation.
Reporter Blair Miller contributed to this report
This story was first published by Daily Montanan.
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