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Judge: Constitution says the Legislature's veto override power exists 'regardless of the timing of the veto'

Lawmakers may soon have an opportunity to override Gov. Greg Gianforte's veto of a popular bill that sorts out how Montana spends its marijuana tax revenue.

Lewis and Clark County District Court Judge Mike Menahan's order last week doesn't necessarily mean that the 2023 Legislature's Senate Bill 442 will become law. But it does provide clarity on a thorny constitutional issue that arose on the final day of the legislative session: The governor cannot veto a bill in a way that denies the Legislature the ability to override the veto.

"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 wrote, adding that "as a practical matter, the Legislature cannot vote to override a veto before it is aware of the veto."

Barring an appeal, the ruling means lawmakers should soon have the opportunity to override the governor's veto of the bill via a mail poll, the standard procedure for veto overrides when lawmakers are out of session.

That concept - "out of session" - is central to the legal dispute.

Senate Bill 442, sponsored by Sen. Mike Lang, R-Malta, reallocates recreational marijuana tax revenues to fund conservation projects and county roads, among other areas, and enjoyed broad bipartisan support in the Legislature. But Gianforte was not a fan, and his administration maintained that the state should not fund county infrastructure on an ongoing basis. He issued a veto of the bill on May 2.

In theory, that should not have been a problem for the bill's supporters, who likely had the votes to override the veto either through a vote on the floor or, if out of session, through a mail poll issued by the Montana secretary of state. Veto overrides require a two-thirds vote of the Legislature.

Gianforte's veto came down when the Legislature was in a state of procedural chaos. Senate Minority Leader Pat Flowers, D-Bozeman, made a successful motion to adjourn the Senate, leaving the fate of dozens of bills and millions of dollars in proposed spending up in the air. According to the timeline provided by Gianforte's office, the governor vetoed the bill before the Senate adjourned.

But none of the members who voted for adjournment - including Lang, the sponsor of SB 442 - seemed to know the governor had vetoed the bill, as the veto wasn't read across the rostrum as is standard. Lang, among others, anticipated the possibility of a veto but assumed lawmakers would be able to override the order via mail poll.

With the Senate out of session, the Legislature lacked the votes to override the veto on the floor. But in the view of Gianforte's office, he issued the veto when the Legislature was still in session, and no lawmaker attempted an override.

Last June, a series of groups that backed the bill, including the Montana Association of Counties, Wild Montana and the Montana Wildlife Federation, filed a lawsuit, asking the district court to sort through the procedural muck and order the state to issue the veto override poll.

"While the Governor has the constitutional authority to veto SB 442, he cannot veto SB 442 or any other law in a manner that interferes with the Legislature's constitutional authority to override that veto," the lawsuit read.

The Montana Constitution, the plaintiffs argued, does not contemplate any situation in which the governor can avoid a veto override sheerly through the timing of his veto. To let his action stand, they said, would leave a loophole that the executive could exploit to override the will of the Legislature.

Attorneys for the governor argued in response that, first and foremost, the governor issued the veto in proper order, but that, regardless, the overarching question is a political one, not one for a judge to answer at the behest of interest groups. And attorneys for Secretary of State Christi Jacobsen, also a defendant in the case, argued that Jacobsen should not be a party in the case at all because her obligation to issue a veto override poll is contingent on the governor sending the bill and a reason for his veto to her office.

Menahan dealt with all of those questions this week, first denying the respondents' request to dismiss the lawsuit and then ruling with the plaintiffs on their motion for an order directing Gianforte to send the bill to Jacobsen and for Jacobsen to issue a mail poll.

"If the governor vetoes a bill prior to the legislature's adjournment but the legislature does not receive the veto message while it is in session, the governor and secretary of state must follow the veto override procedures established in [the Constitution]," Menahan wrote.

Proponents of the bill roundly applauded Menahan's ruling.

"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," Lang, the sponsor, said in a statement. "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."

Noah Marion, the political director for Wild Montana, added that it's not just about the underlying policy in the bill - it's also about the separation of powers.

"The governor has to play by the rules, just like everyone else," he said in a statement. "He can't hijack the legislature's authority, and the court's decision makes it clear he has to respect the constitution. Now the legislature can do what it voted for months ago: pass SB 442 and invest $30 million in habitat conservation and public access."

While proponents of SB 442 celebrated the ruling as the restoration of proper order, it's not immediately clear what will happen to the bill. The state could, for example, decide to appeal the ruling and file a motion to delay the override procedure pending that appeal. A spokesperson for the governor's office said Tuesday the office is "carefully reviewing the judge's decision and will evaluate next steps."

A spokesperson for Jacobsen expressed surprise that Menahan did not dismiss Jacobsen as a party to the lawsuit, but said the secretary of state's office "will review the decision and determine the next steps as our commitment is to serve Montana and faithfully execute the laws."

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