Montana Lawmakers Have Opportunity To Override Governor’s Veto Of Marijuana Revenue Measure

Montana Lawmakers Have Opportunity To Override Governor’s Veto Of Marijuana Revenue Measure

“SB 442 brought Montana together in a time when division is the preferred course of action in politics. I hope my colleagues will still stand with me and cast their vote to overturn the Governor’s veto.”

By Arren Kimbel-Sannit, Montana Free Press

Montana Secretary of State Christi Jacobsen (R) on Tuesday complied with a state district court order by sending a poll that could give lawmakers the ability to override Gov. Greg Gianforte’s (R) veto of a marijuana tax reallocation measure, a significant step in a now almost yearlong fight about the separation of powers and proper veto procedure.

Lawmakers now have a month to respond to the mail poll, which asks whether they want to override Gianforte’s veto of Senate Bill 442, legislation that initially passed the Legislature with broad bipartisan support in the 2023 session. The measure would divvy up tax revenues from the state’s marijuana program between conservation, veterans’ services and local infrastructure projects.

The poll was issued despite legal objections from Jacobsen and Gianforte as well as public statements from lawmakers who contend the court is improperly compelling a veto override in contravention of legislative rules.

In an unusual letter sent Tuesday afternoon, Jacobsen told lawmakers that the issuance of the poll was “historic and unprecedented” and questioned the wisdom of the court’s order, though she said she would comply with it nonetheless.

“To my knowledge, the Secretary of State has never polled members of the legislature on a bill returned to the legislative branch during session,” she wrote. “Nor has the Secretary of State ever conducted a veto poll prior to receipt of the bill. Finally, having the legitimacy of the poll weighed and potentially invalidated at any time is certainly unusual.”

Part of the objection from Jacobsen and Gianforte, both executive branch officials, lies in the fact that the Legislature is in physical possession of the actual hard copy of the bill. So far, no judge has recognized that material distinction as particularly significant, asserting that the constitutional responsibilities of each officeholder are independent.

Litigation about how to address the timing of Gianforte’s veto of the bill and the propriety of subsequent interventions by the district court will continue at the state Supreme Court. If that litigation is resolved in favor of the bill’s opponents, the court could potentially nullify an otherwise successful override poll.

Sen. Mike Lang (R-Malta), who sponsored the bill, could not be immediately reached for comment Tuesday afternoon.

“SB 442 brought Montana together in a time when division is the preferred course of action in politics. I hope my colleagues will still stand with me and cast their vote to overturn the Governor’s veto and support this excellent bill,” Lang wrote in a recent op-ed.

SB 442 passed its final vote in the Legislature by an almost unanimous vote. But despite support for the bill from most of his fellow Republicans, Gianforte signaled opposition to the proposal in part because it, in a novel arrangement, sets up ongoing support for local infrastructure projects with state dollars. The governor issued his veto on what ended up being the last day of the 2023 Legislature, shortly before the Senate adjourned on a surprise motion.

In most cases, lawmakers have two options to override a veto. If convened in a regular session—or if they assemble themselves in a special session—they can simply do so with a two-thirds vote on the floor. If out of session, lawmakers can override a veto via mail poll if at least two-thirds of the members of each chamber of the Legislature respond in favor of doing so.

The timing of the Senate’s adjournment, however, meant the veto was never read across the rostrum in that chamber, as is the typical procedure. Lawmakers who voted to adjourn—including many of those who voted for the bill—didn’t seem to know the proposal had been vetoed, and were counting on being able to override the veto via mail poll if necessary. The House, though, remained in session for several more hours. Gianforte contended that with the House in session, so too was the Legislature as a whole, and as such, initiating the process for a by-mail override would be inappropriate.

Last June, stakeholder groups backing the bill sued, asking the Lewis and Clark County state district court to compel Gianforte and the Montana secretary of state—the office that actually issues the mail poll—to initiate the override. Plaintiffs argued that the Montana Constitution contemplates no instance in which lawmakers don’t have the opportunity to override a veto, regardless of its timing. The governor and secretary of state maintained that the veto was issued in good order and that the plaintiffs were asking the court to weigh in on what is fundamentally a political question.

As the Supreme Court summarized the question in a recent ruling: “The underlying litigation concerns the ambiguity of [the Montana Constitution] as to the procedure to be followed when the Governor vetoes a bill while the Legislature is still in session but adjourns before it learns of a veto.”

Earlier this year, the district court sided with the plaintiffs. Since then, Gianforte has sought a court order blocking enforcement of the ruling pending an appeal, arguing that initiating a poll would effectively moot his legal arguments. Last Friday, the Montana Supreme Court affirmed a district court ruling and denied Gianforte’s request, noting that a poll on the veto of SB 442 could go either way.

On Monday, Gianforte wrote a letter to Jacobsen containing his veto message, a necessary step, he said, to comply with the court order even if he asserts that the executive branch does not possess the bill and thus should not be sending it to anyone to initiate anything.

Tuesday was the deadline for Jacobsen to issue the poll because of the various timing mechanisms in the litigation and in Montana’s veto laws.

“We’re happy the override poll has finally been issued to legislators,” Noah Marion, the political director for Wild Montana, one of the bill’s organizational backers, said in a statement Tuesday evening. “SB 442 had the support of over 100 organizations representing tens of thousands of Montanans and 130 of 150 legislators during the session. That kind of collaboration deserves to be honored and SB 442 deserves to become law.”

Whether lawmakers still have the political will to override the veto of SB 442 months after its passage is an open question.

On Monday, Senate President Jason Ellsworth (R-Hamilton)—who supported the bill during its final Senate vote—issued letters to the governor, secretary of state and Montana Supreme Court lambasting the court rulings as unconstitutional. The Legislature as a whole is not a party to the litigation, but the letters and subsequent statements by Republican legislative leaders generally further the argument made by the governor: that the bill was in the Legislature’s possession when the Senate adjourned, meaning the governor and secretary of state can’t appropriately send it out for an override poll.

“We are at a crossroads,” Ellsworth wrote in the letter, which was co-signed by 27 other GOP senators. “We believe the judicial branch has issued an order which not only violates the principles of the separation of powers, but our own legislative rules as well. We do not believe the Executive Branch has the authority to conduct an action on a bill that is in the Legislature’s possession. … The legislature will not participate in an unconstitutional poll.”

The proper remedy for the situation would be for lawmakers to convene in special session and take a vote on the override then, Ellsworth wrote.

In a later press conference Monday, attorney and Senate Majority Leader Steve Fitzpatrick (R-Great Falls), said the court was meddling in the Legislature’s internal procedures.

“I think a court is completely within its right to say a bill is unconstitutional, that’s their job,” Fitzpatrick said. “What happens on whether a bill is signed or what kind of bill gets put on a [voting] board, that’s all us. These are internal operations of the Legislature. I’m just really frustrated to think that a court is going to question the internal operations of the Legislature when they are not constitutionally based.”

One of the plaintiffs’ attorneys, Rylee Sommers-Flanagan, said in a statement Monday that “the legislators’ letters appear to profoundly misunderstand the Court’s order.

“This case has always been about making it clear the legislature is a coequal branch of government and the executive can’t use gamesmanship to take their powers away. Ultimately, this is an attempt to shift the discussion away from county roads, conservation funding, and veterans’ programming—all of which benefit from the bill.”

Fitzpatrick acknowledged that the Legislature did not make its objections in court—and said explicitly that senators weren’t urging the secretary of state to disregard the court’s direction.

“I want to be very clear: we are not trying to tell anybody to disobey a court order,” Fitzpatrick said. “To me this is just simply an expression of our point of view, that we think there is a separation-of-powers issue.”

This story was originally published by Montana Free Press at

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