“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.”
By Arren Kimbel-Sannit, Montana Free Press
Interest groups filed a pair of lawsuits Wednesday in an effort to allow lawmakers to override Gov. Greg Gianforte’s (R) veto of Senate Bill 442, a bipartisan measure that spelled out how the state allocates taxes collected on the sale of recreational marijuana.
The lawsuit filed by Wild Montana and the Montana Wildlife Federation asks a Helena district court judge to declare Gianforte’s veto of the bill invalid unless and until he and Secretary of State Christi Jacobsen (R) ask lawmakers whether they want to override the veto issued on the last day of the session. Independently, the Montana Association of Counties—another stakeholder involved with the legislation—is making a similar case.
The Legislature can override vetoes with a two-thirds vote, a process that takes place by mail when lawmakers are out of session.
But that process hasn’t occurred for SB 442, the result of “procedural trickery” on the part of the governor’s office, Wild Montana policy director Noah Marion said in a statement.
“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 reads.
At issue is a disagreement over a seemingly simple question: when the 2023 Legislature ended.
SB 442—which passed its final legislative hurdle, a 48-1 endorsement by the Senate, on May 1—proposes to divide tax revenues levied on recreational marijuana sales between the General Fund, county road construction and maintenance, conservation and recreation programs, addiction treatment and veterans services. But Gianforte, despite the bill’s popularity among lawmakers and buy-in from an array of interest groups, vetoed the bill on May 2. In his veto memo, he argued the bill creates a “slippery slope” by making the state responsible for “matters that are strictly under the jurisdiction of local authorities”—i.e., county road construction and maintenance.
He also took issue with the fact that while SB 442 directs marijuana revenues to various accounts, the actual statutory authority for the expenditure of those funds is contained in companion legislation, House Bill 868, which he called a “substantial technical issue.”
In theory, Gianforte’s veto shouldn’t have been an issue for backers of SB 442 who likely had more than enough votes in the Legislature to override the veto. But the picture was complicated by Senate Minority Leader Pat Flowers’s unexpected motion to adjourn the Senate.
Flowers made the motion just before 3:20 p.m., on May 2. Gianforte, a spokesperson said, issued the veto “sometime in the 2 o’clock hour.” But the veto hadn’t been read across the rostrum by the presiding officer by the time the Senate adjourned, as is standard practice under legislative rules. 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.
That timing has left the bill in limbo. Since the House was still in session, some contend that the Legislature as a whole was still in session and a poll now to override the veto would be improper.
“It came in before the sine die, but it doesn’t matter. One chamber is still in progress so we are still in session. That bill is dead,” Senate Majority Leader Steve Fitzpatrick, R-Great Falls, told a gaggle of reporters after the Senate adjourned.
At the same time, the governor’s veto was never formally communicated to the Senate and shouldn’t be valid, the plaintiffs, Lang and others contend. With the Legislature now fully out of session, there’s no way to override the veto without the use of polling.
“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.”
The governor’s office has not returned the bill and veto memo to the secretary of state, a procedural step necessary for Jacobsen to issue a veto poll, despite the urging of attorneys for Wild Montana. In email exchanges with Lang, Jacobsen’s attorneys have emphasized that their role in the veto override process is primarily “ministerial,” and her office can’t act unless the governor does so first.
Failure to remedy this and issue the override poll would establish a loophole that governors can exploit in the future to avoid veto overrides, the plaintiffs in both lawsuits filed Wednesday argue.
“The two chambers of the Legislature typically adjourn at different times on or after the 87th legislative day,” the Montana Association of Counties suit 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.”
Another potential wrinkle is the 10-day clock requiring the governor to take action on a bill. If the governor doesn’t sign or veto a bill within that 10-day period, it automatically becomes law. Under that logic, MACO argues in its lawsuit that the court should either compel the governor to return the bill to the secretary of state or to declare the veto was not made properly within 10 days. In that case, SB 442 would be law.
An additional complication is that the governor has also vetoed HB 868, in part because he had already vetoed SB 442. Much of HB 868 was invalid by default, Gianforte argued in his veto memo. Ballots to override that veto are due to the secretary of state on June 20. It’s possible, then, that whether by court order or veto override, SB 442 becomes law and HB 868 does not. In that instance, tax revenues would accrue in the accounts described in SB 442, but the Legislature would have to authorize the spending in the 2025 session.
A spokesman for the secretary of state’s office said Wednesday that Jacobsen had not yet been served a complaint, but that generally, “the secretary of state’s office has followed and will continue to follow the law.”
In a statement, the governor’s office did not address the specific claims of the litigation but reiterated Gianforte’s criticism of SB 442.
“While we generally don’t comment on potential or ongoing litigation, the governor’s technical and policy concerns with SB 442 are well-documented,” Kaitlin Price, a spokesperson for Gianforte, said. “The bill glaringly omits an appropriation and fails to fund itself, and it sets a dangerous precedent by authorizing state resources—funded by the taxpayers of Montana—for local road maintenance.”