Lawmakers, MACO go to court to demand chance to override veto on SB 442, marijuana revenue bill

The Montana Association of Counties, one of the most powerful and influential groups of leaders in the state, is taking on the governor and secretary of state, saying they’re blocking a potential veto override of a key marijuana revenue bill of the 2023 legislature.

MACO is suing Gov. Greg Gianforte and Montana Secretary of State Christi Jacobsen, asking Lewis and Clark District County Judge Kathy Seeley for an order to allow the legislature to vote on a veto override of Senate Bill 442, proposed by Sen. Mike Lang, R-Malta. Or, failing that, the lawsuit asks for Seeley to declare Senate Bill 442 part of Montana law because the Governor’s Office failed to follow proper veto procedures.

The inner politicking of the bill pits Republicans against each other and focuses on the last minutes of the 2023 legislature. On May 1, 130 of 150 lawmakers passed Senate Bill 442, which rejiggered how tax proceeds from recreational marijuana would be spent. It changed the allocation structure, most notably opening up a funding mechanism for county road improvements from the tax proceeds.

However, the next day, the Senate adjourned, while the House continued. At some point during the day, Gianforte vetoed the measure.

At the heart of this controversy is whether the legislature was in session, given the chambers adjourned at different times. The veto process is different before and after the legislature adjourns.

The lawsuit, filed on Wednesday in district court, warns that future legislatures could be undermined by the governor coordinating or timing vetoes while only one chamber is still active. The lawsuit describes withholding a veto as a violation of the separation of powers between the legislative and executive branches.

The details of the suit involve how lawmakers can override a veto. When in session, the governor’s veto is read to the chamber – in this case, the Senate – which would then be given a chance to override the veto with a vote of two-thirds of the members. However, if the legislature is not in session, and a bill has supermajority support, the Secretary of State is charged with polling members for an override, according to the Montana Constitution. In this particular case, the rules of the legislature aren’t clear about which route should be taken if one chamber has adjourned, but the other has not.

Either way, however, the veto was never read to the chamber.

MACO’s lawsuit argues because half the legislature, the Senate, had already adjourned sine die – the Latin term meaning “without time,” or permanently – the legislative session for 2023 had concluded.

“The Constitution and implementing statutes do not identify any circumstance under which the Legislature is not empowered to consider, address, and override a veto,” the lawsuit said. “In any situation, the governor’s veto power is limited by the Legislature’s power to override.”

Michael Black, attorney for MACO, said counsel for the Secretary of State’s Office told his clients that Jacobsen’s role was “ministerial” and that Gianforte had not returned SB 442 or a veto to her office, therefore she could not poll lawmakers, despite pleas from both political parties to do so.

“In the days and weeks following the legislative session, numerous individuals (including Sen. Mike Lang, the sponsor of SB 442) and groups have sent letters to the Governor and Secretary of State in order to initiate the polling process,” the lawsuit said. “The Governor and Secretary of State have refused.”

Meanwhile, the lawsuit asks that if the court does not order Jacobsen to poll lawmakers, based on Gianforte’s veto, that Seeley declares SB 442 law because the governor did not follow the law, essentially allowing the bill to lapse into law without his signature.

“With respect to SB 442, the Governor has not returned the bill with any reasons for his veto to the Secretary of State,” the court filing said. “The Governor has retained the bill and continues to retain the bill, and therefore it became law not later than May 12, 2023.”

The lawsuit said that even though Gianforte may not have intended for the timing of his veto to overlap the Senate’s adjournment, the actions since raise questions about his motives.

“The failure to take further action is deliberate,” the lawsuit said. “Without corrective action or judicial intervention, the veto of SB 442 sets a dangerous precedent that may be exploited in future legislative sessions where bills may be vetoed without the prospect or fear of legislative override.

“The Governor lacks the authority to time a veto to prevent an override and further lacks authority to deprive the Legislature of an opportunity to override any veto.”

A spokesman for the Secretary of State’s Office said Jacobsen had not been served with the lawsuit, so did not have a chance to review it.

“The Secretary of State’s Office has followed and will continue to follow the law,” said Secretary of State spokesman Richie Melby.

The Daily Montanan reached out to Gianforte on Wednesday afternoon, but did not receive an immediate response with regard to this lawsuit.

“This case is about following established processes,” said Eric Bryson, the executive director of MACO. “An attempt to circumvent the Legislature’s review authority by playing games and changing protocol is bad politics and bad precedent. We are asking the courts to remind the parties involved that they have an obligation to allow legislative review of a governor’s veto.”