Montana Lawmakers Say Legal Opinion On Overriding Governor’s Marijuana Revenue Reallocation Veto Is Wrong
“The constitutionally protected right of the Legislative Branch to override a veto cannot be circumvented by the Executive Branch attempting to find a constitutional loophole.”
By Blair Miller, Daily Montanan
A bipartisan group of lawmakers including the two minority leaders and Sen. Mike Lang (R) is disputing the determination from the Legislative Services Division that lawmakers are unable to conduct a poll to try to override the governor’s veto of Senate Bill 442 because of the timing of the veto and the Senate’s adjournment.
In the more than two weeks since the dramatic final day of the legislative session, the lawmakers who supported Lang’s bill, as well as a host of proponents across the state and political spectrum, have been working to find a resolution to undo Gov. Greg Gianforte’s (R) veto of the measure that redistributes Montana’s marijuana tax revenue to create a habitat legacy account and put more of the money toward county road maintenance.
The veto of the bill and the abrupt adjournment has also rankled some Republicans who appear to be split on everything that happened during the final day of the session.
The bill from Lang, a Malta Republican, eventually won out in the fight among legislators about how the money should be redistributed after the 2021 legislature laid out the current distribution plan for revenue from recreational marijuana.
But despite the bill being sent to the governor with 131 votes in favor from the 150 legislators, Senate Majority Leader Steve Fitzpatrick, R-Great Falls, told his caucus in the days before adjournment that the governor planned to veto it.
According to Gianforte’s office, the governor vetoed the bill sometime in the 2 p.m. hour on May 2. Around 3:19 p.m., Senate Minority Leader Pat Flowers, D-Belgrade, made the sine die motion to adjourn, which was approved in a 26-23 vote, including by several Republicans who supported Lang’s bill.
Shortly afterward, the governor’s office sent out Gianforte’s veto letter, kicking off a flurry of confusion over the legislature’s ability to override the bill. Fitzpatrick said supporters of SB 442 (he also voted in favor of the bill) had “screwed themselves” and would no longer be able to attempt an override.
Lang said he was “very disappointed” by the veto and surprised at how quickly the bill had moved—from its final reading in the Senate, through enrollment and to the governor’s desk in 24 hours—when many bills had taken more than a week to run that course. The measure’s Democratic and Republican supporters and lobbyists who worked on the bill said they believed there were still options to try to get to the poll override.
Under the Montana Constitution, there are two ways the legislature can attempt to override a veto with two-thirds of each chamber:
- “If after receipt of a veto message, two-thirds of the members of each house present approve the bill, it shall become law.”
- “If the legislature is not in session when the governor vetoes a bill approved by two-thirds of the members present, he shall return the bill with his reasons therefor to the secretary of state. The secretary of state shall poll the members of the legislature by mail and shall send each member a copy of the governor’s veto message. If two-thirds or more of the member of each house vote to override the veto, the bill shall become law.”
On May 5, Lang sent Secretary of State Christi Jacobsen a letter requesting a poll override, arguing the veto was not read across the rostrum in the Senate by the time it adjourned so it was thus not formally received by the chamber.
But the secretary of state’s office said it plays “a ministerial role” for the executive and legislative branches and that it had not been asked to conduct a poll on the bill because it was vetoed during the legislative session.
On May 10, Helena-based law firm Upper Seven Law sent a letter to Gianforte on behalf of Wild Montana, which was heavily involved in the crafting and passage of SB 442 because of the Habitat Montana and habitat legacy funding, also saying it believed that since the veto was not read across the rostrum, an override poll should still be conducted.
The law firm argued that the constitution contains gray areas that the executive branch is trying to take advantage of with the timing of the veto, and that it believes the legislature should be entitled to complete a poll.
“While the Constitution does not set forth the process by which the Legislature may exercise its override power when the veto is returned to the Legislature without meaningful opportunity for consideration, this is only because the Constitution does not deal in absurdity,” the Upper Seven Law lawyers wrote. “Core to the separation of powers, the fundamental principle stands: the Legislature may override a veto by a two-thirds vote. Nothing in Montana law suggests that there are circumstances in which the Legislature is simply out of luck and unable to respond to a veto.”
Bipartisan group of lawmakers ask Legal Services director to reconsider opinion on veto
On Thursday, a consortium of Lang, Flowers, House Minority Leader Kim Abbott, Lewistown Republican Sen. Dan Bartel and Missoula Democratic Rep. Katie Sullivan asked Todd Everts, the director of Legal Services and Montana’s Code Commissioner, to reconsider his original interpretation of the veto override on similar grounds.
“Your interpretation of the constitution, code and legislative rule will deprive our co-equal branch of government of practical and important methods to override a veto that the Constitution protects,” the lawmakers wrote to Everts.
They, too, argued that they had no evidence the veto was delivered to the Senate before adjournment and that it was not read across the rostrum.
They said the constitution does not define what “not in session” means and contains no language about how to proceed with a veto when one chamber has already adjourned and the other is in session. Further, they pointed out that Joint Rule 40-220 says the presiding officer shall read a veto message over the rostrum of the chamber, which they interpret as making clear that lawmakers can only act to override a veto once it is formally read.
“The constitutionally protected right of the Legislative Branch to override a veto cannot be circumvented by the Executive Branch attempting to find a constitutional loophole between both chambers being present and the Legislature not being [in] session,” the lawmakers wrote to Everts.
They said they were “disturbed” by how quickly the bill was enrolled, sent to the governor’s office, then vetoed.
“It appears that the governor’s office moved with speed in order to act in a perceived ‘dead zone’ that would attempt to circumvent the Legislature’s constitutionally protected ability to override,” the letter says.
The lawmakers told Everts his interpretation sets a precedent that future governors could use to undermine the legislature’s power to override a veto, saying it could allow a governor to hold veto memos for up to 10 days to wait for one chamber to adjourn, then issue the vetoes so the legislature would have no power to override the veto.
“We are exceptionally concerned about the long-term implications of this interpretation and would like your guidance and rebuttal if you see another practical impact of your interpretation,” the lawmakers wrote to Everts.
They used House Bill 2, the budget bill, as an example in a theoretical posed to Everts. In that scenario, they wrote, the House could send the bill to the governor on the 87th day of the 90-day session, vote to adjourn, and while the Senate was finishing its business, the governor could return line-item vetoes of the budget.
“Under your interpretation, the Legislature would have no opportunity to override these line-item vetoes, giving the executive final and unchecked authority on what is constitutionally the sole responsibility of the Legislative Branch—appropriations,” they said. “This significantly weakens the Legislative Branch and is constitutionally unacceptable.”
They argued the full legislature is not in session once one of the chambers has voted to adjourn, which would mean a poll could still be conducted.
Everts did not return a phone call or email requesting comment on the letter on Thursday afternoon.
Bartel told the Daily Montanan Thursday he felt like the governor ignored the will of Montanans, county governments, recreationists and legislators when he vetoed the bill.
“I think that the governor ended up with his priority bills early in the session and got what he wanted. And when our priority bills came along at the end of the session, it didn’t seem like our priorities were near as important as the governor’s priority bills, and I think that’s wrong,” Bartel said.
He added that he doesn’t believe the precedent set by the veto of SB442 is one that should stand moving forward.
“I think it’s wrong. I just think that’s a nefarious way, and it’s a precedent that we don’t want to start happening. And it will happen if we don’t stop it right now,” Bartel said.
Lang said he helped craft the letter and simply wants to see where it goes.
“I just don’t think anybody has the ultimate end; we’ve just got to play the card and hope to get an answer out of it,” he told the Daily Montanan.
Supporters of bill push Gianforte as Republicans tussle over adjournment
Gianforte’s veto and how it was done has also angered those who worked on and supported the bill through the process for months and led to some Republican infighting post-session.
Montana Association of Counties Executive Director Eric Bryson and multiple other MACO officials penned an opinion column published in the Helena Independent Record on Monday chastising Gianforte and calling the veto “unpopular, inexplicable and contrary to the wishes of both the Legislature and the people of Montana.”
The organization, which represents 56 county commissions, said the veto ignores the broad support the bill received from local governments, rural Montana, the energy sector, veterans, health care providers and outdoorsmen and women—“without exaggeration, every Montanan,” they wrote.
The MACO officials said they believed Gianforte would respect the long negotiations the bill went through in the legislature, but that he instead decided to “turn his back” on the beneficiaries and “side with legislative spenders rather than his Montana constituents.”
The group encouraged the governor to “get out of Helena” and visit rural elected officials, said his veto letter showed “a concerning lack of understanding” of local taxing authority, and that he “went out of his way to circumvent” the legislature’s override authority.
“Over 130 legislators voted in favor of SB 442, and they deserve the chance to have a final say on legislation that directly impacts the lives and livelihoods of their constituents. Anything less is a failure of government,” the MACO officials wrote.
Republican lawmakers have also been taking shots at one another over the adjournment and veto of Lang’s bill, according to a legislative email chain obtained by the Daily Montanan and corroborated by lawmakers.
Bartel, who signed the letter to Everts Thursday, told Fitzpatrick the adjournment would not have happened when it did if Fitzpatrick and others had worked with the caucus through the session “and not [went] on a spending spree yourselves the last day.”
Fitzpatrick responded by saying Bartel was part of the Senate Finance and Claims Committee’s “pork caucus” and that Bartel had voted for the sine die motion “to protect SB 442 from the veto.”
Bartel responded by saying that Fitzpatrick “missed the mark on 442.”
“You and second floor [the governor’s office] never wanted 442. Amazing how fast the process works. Enrolling averages 14 days. You helped 442 thru the enrolling process in lightning speed. You were my majority leader never saw it,” Bartel wrote back.
Fitzpatrick at one point also told Bartel he did not kill SB442: “You did when you voted to sine die. Perhaps in the future, you will be more careful when you vote to sine die.”
Sen. Barry Usher, R-Billings, asked Fitzpatrick who “hand carried” the bill through the process to the governor’s desk, saying it was taking around 12 days for other bills to go through enrolling at the time. But he added, “Instead of blaming and everyone pointing fingers – we all need to move on.”
Fitzpatrick said that staff did so after Lang signed the bill, adding that Lang did not need to do so at the time, and that Usher helped kill the bill when he voted to adjourn.
“Barry—Perhaps it would be better for you to explain to everyone why you thought SB 442 was so important that it was necessary for you to follow the Minority Leader and kill all the remaining bills in process,” Fitzpatrick said. “You were elected as a Republican. Perhaps next session you should follow the Majority Leader and not the Minority Leader on key procedural votes.”
Usher responded saying Fitzpatrick’s message was “very demeaning and accusatory” and that SB442 had no bearing on his vote to adjourn. He again asked if the Senate actually received the vetoed bill back before it adjourned and added: “FYI: I was elected by my constituents to be a conservative Republican, not to be a blind sheep follower.”
Bartel chimed back in, saying Fitzpatrick’s narrative was one of his own creation and that if he is again a majority leader he “will carry the water for the caucus who elected you.”
“Dan—I have a better idea,” Fitzpatrick responded. “Next session start working as part of the Republican Party. You were a de facto member of the Democratic caucus all session long.”
A major reason the fight over the marijuana money took months was because of two other bills from House Republicans that originally sought to strip the 20 percent of the $50+ million in annual marijuana tax revenue that currently goes to the Habitat Montana conservation program—which drew widespread opposition from conservationists, hunters anglers and outdoorspeople.
At the initial House Appropriations Committee hearing on House Bill 462, sponsored by Rep. Marta Bertogliio, R-Clancy, many Department of Justice employees testified in favor of it because it sought to take the money from Habitat Montana and put it toward criminal justice and police efforts.
At that same hearing, Fish, Wildlife and Parks Deputy Director Dustin Temple said that $5 million in marijuana tax revenue that went toward Habitat Montana was used to acquire the Big Snowy Mountains Wildlife Management Area, which opened Monday at a ceremony kicked off by Gianforte.
“Not only are we opening access for hunters to pristine wildlife habitat, but also, we’re keeping the land available for cattle grazing to keep ranchers on the landscape. This is a win-win for Montana,” Gianforte said.
Legislative Council discusses veto process
The idea of Gianforte’s veto setting a precedent was also discussed Thursday by the Legislative Council after Rep. Alice Buckley, D-Bozeman, told the council it threatened the legislature’s power as a co-equal branch of government and discussed some of the points made by lawmakers in Thursday’s letter to Everts.
Julie Johnson, the Legislative Services Division deputy director, said she did not believe such a veto had happened before and suggested the council take a look at the rules to see if they could be modified to clarify when an override can occur.
Fitzpatrick agreed, saying he thinks the constitution is “pretty clear” and that he felt lawmakers should have a better idea between chambers of when they want to adjourn and what is left on the table. But he also suggested that perhaps the constitution should be amended to clarify the veto override process.
Rep. Derek Harvey, D-Butte, said he felt the council should look at possible legislation to bring the polling authority back to the legislature from the Secretary of State’s Office to put the power back in the hands of lawmakers.
“It’s worth a conversation about precedent given that it hasn’t happened before. It happened with one particular bill,” Buckley said. “It opens up a really interesting contemplation of the separation of powers, our coequal branch of government and the responsibility we have to be thoughtful about the bills that are passed.”
This story was first published by Daily Montanan.
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Photo courtesy of Max Pixel.