Second lawsuit filed alleges Gianforte used ‘procedural trickery’ to stop popular marijuana bill

A second lawsuit challenging how Senate Bill 442 was handled by Gov. Greg Gianforte and Montana Secretary of State Christi Jacobsen has been filed in Lewis and Clark County District Court.

The lawsuit was filed at nearly the same time as the Montana Association of Counties filed a similar suit in the same county, seeking a similar result, but for different reasons.

Wild Montana and the Montana Wildlife Federation filed a suit that has been assigned to Judge Mike Menahan that asks the court to order Gianforte return the veto and SB 442 to Jacobsen, who will then poll lawmakers on a possible override.

SB 442 enjoyed widespread bipartisan support and may have been the best example of compromise during the 2023 legislative session, which concluded on May 2. SB 442 made changes to the way taxes collected from Montana’s recreational marijuana are distributed, notably changing funding to allow for more cash to go to counties for road maintenance.

However, the bill also kept funding for conservation of wildlife habitat, a subject of much debate since voters first approved recreational marijuana by Initiative 190 in 2020.

“Montanans are disappointed in Gov. Gianforte’s veto of SB 442, a wildly popular bipartisan bill that made historic investments in conservation, public access, and rural infrastructure,” said Noah Marion, state policy director for Wild Montana. “But even more importantly, it’s the governor’s duty to play by the rules. The governor can’t obstruct the Legislature’s authority with procedural trickery.”

In the lawsuit filed on Wednesday afternoon, the conservation organizations argue that without SB 442, funding for wildlife habitat and publicly accessible lands is in jeopardy.

Attorneys Constance Van Kley and Rylee Sommers-Flanagan, who represent the wildlife groups, outlined the benefit the State of Montana has seen by purchasing new conservation lands.

Since 2019, the state’s use of wildlife funds has resulted in 56 conservation easements totaling 293,239 acres and utilizing $41.3 million in Habitat Montana funds. It has also purchased 130,117 acres of deeded land using $48.8 million in Habitat Montana funds.

SB 442 passed with 130 of 150 possible votes in the legislature, a supermajority. The bill had supporters from both the minority Democrats and supermajority Republicans, and diverse interest groups such as outdoor conservationists and county governments worked together to get the bill passed on May 1, the day before the legislature adjourned.

The lawsuit also raises questions about the timing of the veto and the rapid speed at which SB 442 flew through the process.

Senate Minority Leader Pat Flowers, D-Bozeman, told the court in an affidavit that seven bills, including SB 442, were approved by the Montana Senate on May 1. All of the bills were sent to enrolling May 2, “but only SB 442 was also returned from enrolling, printed, signed by both presiding officers and transmitted to the Governor on May 2, 2023. The other six bills were not transmitted to the Governor until either May 11 or May 12, 2023.”

“The other six bills followed an ordinary timeline for transmittal to the Governor. SB 442 moved extraordinarily quickly,” Flowers said.

But with the Montana House of Representatives still in session on May 2, the Senate adjourned, sine die or permanently. Sometime during the afternoon, with the House still in session and the Senate adjourned, Gianforte vetoed the bill. Normally, a veto is read to the lawmakers, according to law, who then decide whether to attempt a veto override.

No veto statement was read, according to the lawsuit.

Flowers also told the court in the filing that at 1:48 p.m., with just minutes left before the Senate adjourned, the Senate clerk noted at least one bill signed by the governor, but had no veto messages. The Senate adjourned 90 minutes later.

However, in the case of SB 442, the Senate had adjourned, but the House was still in session — one of the points of tension between the governor and the legislature.

Jacobsen maintains that she does not have the veto, and therefore, cannot poll the members. Furthermore, her office told the Daily Montanan on Wednesday that her role in the process is “ministerial,” meaning she only facilitates a poll, but doesn’t decide when it happens.

According to joint legislature rules, when a veto happens and the legislature is out of session, if a supermajority voted in favor of the measure, the Secretary of State’s Office sends a poll to lawmakers. In this case, though, it’s unclear whether the legislature was in session or not.

Gianforte’s office did not respond to opportunities to comment on the case when contacted by the Daily Montanan on Wednesday.

In addition to risking funding for habitat, the lawsuit said that this loophole could be exploited in the future in attempt to usurp power from the lawmakers who want to consider a veto override.

“Absent judicial relief, a loophole will allow governors to prevent legislative overrides of veto-proof bills, fundamentally undermining the Montana Constitution’s carefully crafted system of checks and balances,” the lawsuit said. “In future sessions, a governor could time vetoes of all veto-proof bills at a politically opportune moment – waiting, for example, until one chamber adjourns sine die – and claim that, because the Legislature was still in session, the vetoes cannot be overridden.”