The veto and the void

Gov. Greg Gianforte is asking a Lewis and Clark County district court judge to dismiss a lawsuit challenging his veto of Senate Bill 442, major bipartisan legislation from the 2023 session that reallocated marijuana tax revenue to conservation and county road projects.

In a recent court filing, attorneys for the governor argued that the question at the heart of the litigation - whether Gianforte vetoed the bill in a way that prevented an override by the Legislature on the last day of the session - is an essentially political issue, not something for the courts to consider at the behest of the interest groups that filed the lawsuit.

Moreover, attorneys for Gianforte maintained, the governor vetoed the legislation according to proper procedure.

"... What [the plaintiffs] ask is that the judicial branch compel the executive branch to thwart the Constitution, statutes and duly adopted legislative processes for the sole purpose of furthering the lobbying organizations' own financial interests," Gianforte's attorneys wrote.

Wild Montana, the Montana Wildlife Federation and the Montana Association of Counties launched separate but since-consolidated suits against the governor in June, alleging that Gianforte used "procedural trickery" to preclude the Legislature from an opportunity to override his veto of SB 442. The bill, which rejiggered the marijuana revenue allocation formula established in the 2021 session, had broad support among lawmakers but generated session-long opposition from the governor's office, which argued, among other concerns, that the Legislature should not create a statutory funding mechanism for county governments.

Under the proposal, tax revenues levied on recreational marijuana sales would be divided between the General Fund, county road construction and maintenance, conservation and recreation programs, addiction treatment and veterans services.

Central to the lawsuit is a seemingly simple question: when, exactly, the 2023 session ended.

Gianforte vetoed the bill "sometime in the 2 o'clock hour" on May 2, the final day of the session, a spokesperson said at the time. In theory, that shouldn't have been an issue for backers of the legislation, who had more than enough votes to override the veto during the session or via mail poll after the session ended.

But Senate Minority Leader Pat Flowers, D-Bozeman, complicated things with an unexpected and ultimately successful motion to adjourn the Senate sine die just before 3:20 p.m. that day.

But Gianforte's veto hadn't been read across the rostrum by the presiding officer, as is standard practice under legislative rules, by the time the Senate adjourned. The lawmakers who voted for the adjournment motion - including SB 442's sponsor, Sen. Mike Lang, R-Malta - seemed not to know about the governor's veto when they did so. The House, meanwhile, continued its work for several more hours. But without the Senate in session, lawmakers would not have the votes necessary to override the veto.

In the eyes of the governor and his legislative allies, it's a settled issue. Because the House was still in session, so too was the Legislature as a whole, so a veto poll - which is designed for vetoes that occur after a session ends - would be inappropriate.

But the plaintiffs contend that the governor's action violates the state Constitution.

"The Constitution and implementing statutes identify no circumstance in which the Legislature cannot consider and override a veto," the suit says. "Rather, they consistently provide that, in any situation, the veto power is limited by the Legislature's power to override."

Failure to issue the override poll would establish a loophole that governors can exploit in the future to avoid veto overrides, they argued.

"The two chambers of the Legislature typically adjourn at different times on or after the 87th legislative day," the Montana Association of Counties lawsuit reads. "If one house adjourns before the other and then a veto message is delivered, the experience with SB 442 serves to prevent the Legislature from exercising its constitutional power of override. If the precedent set by SB 442 is not corrected, a future governor may block widely supported bills from going into effect without regard to the constitutional system of checks and balances."

In the recent motion to dismiss, attorneys for the governor argued that private lobby groups have no standing to force the court to adjudicate a "political question."

"They ask this Court to infringe upon the constitutional powers of the Legislature by writing on behalf of the Legislature specific rules to address procedures for when one body adjourns sine die before considering a veto while the other body continues to conduct business," the attorneys wrote. "The Governor did precisely what he was supposed to do under ... the Montana Constitution, applicable statutes, and the legislative rules, and the Lobbying Organizations cannot claim otherwise."

Additionally, they argued that it's impossible to construe the Legislature as adjourned when the House is still meeting. That presumption would invalidate all other business the House conducted after the Senate adjourned, including the final passage of the state budget.

"These outcomes defy common sense," they wrote. "The House can conduct the business of the Legislature after the Senate adjourns sine die (and vice versa) ... But the Legislature cannot be 'in session' under these circumstances, including the last day of legislative session, while simultaneously be 'not in session' should the governor deliver a veto that same last day. Such an incompatible interpretation of the same circumstances is indefensible as a matter of law."