Montana Judge Hears Arguments over Governor's Veto of Marijuana Bill

By Blair Miller of the Daily Montanan

After more than six months of Montana Gov. Greg Gianforte , the Republican governor of Montana, vetoed a bill that was widely supported during this year’s session of the legislature just as the Senate voted for adjournment. Lawyers for the Governor and Secretary of State told a court Thursday that they believe the veto to be done correctly and that groups who have sued to force a poll to override the veto have no right to do so.

Mike Menahan of the Lewis and Clark County district court, himself a former legislator, heard arguments from attorneys representing Gianforte and Sec. of State Christi Jacobsen, who were sued by lawyers for the Montana Association of Counties (MAC), Wild Montana and Montana Wildlife Federation this summer.

These groups participated in lobbying during the legislative session of this year to pass Senate Bill 442, sponsored by Sen. Mike Lang, R-Malta. This resulted in a restructuring in how Montana’s annual marijuana tax revenues were distributed.

After veto, months of disagreements after bipartisan bill effort

The final version allocated 20 percent of money to county road maintenance and construction, and another 20 percent went toward a Habitat Legacy Fund. These are two key components in the bill that the plaintiffs used for their lawsuits.

On the final passage of the bill, 131 out of 150 legislators supported it. However, some of the top Republican Senators noted that the Governor was not happy with the bill and likely would veto. Gianforte’s administration supported several bills to give more money to the General Fund and law enforcement.

The Senate’s decision to adjourn sine Die on May 2 just after 3 pm caught many in the chamber off guard. They were surprised to learn, not long afterwards, that Gianforte vetoed SB 442 which had been hailed by both sides of the aisle as an important bipartisan achievement.

The office of Gianforte told reporters that Gianforte signed the veto “sometime around 2 o’clock.” This meant, as determined by the Legislative Services Division, that legislators would not have the opportunity to try to override a veto, since the Senate was already adjourned, but the House wasn’t. When a veto occurs while the lawmakers are in session or when it happens while lawmakers are not in session and a bill has received more than two thirds of support, there are procedures for overriding vetoes.

What exactly is “in session?” This question has been at the core of lawsuits filed against the legislature for its inability to override vetoes. It was also a major point of contention at Thursday’s hearing.

After the veto, the organizations who sued, their lawyers, and the lawmakers who supported this bill spent days trying explain why legislators shouldn’t be able override the vote. Since May, they have claimed that because the veto was not read on the Senate rostrum by the time the Legislature adjourned, the chamber where the bill was originally introduced had not received it.

They argue that the governor should not have sent a veto to the secretary of state, but instead, she should have sent a poll to the lawmakers, so they could vote on whether to overturn the Governor’s veto. This would have been possible if the two-thirds majority of the legislature agreed with the legislation they passed. If the supermajority vote is obtained by the legislature, then the bill can be overridden through a poll if it occurs outside the session.

The governor’s lawyers have always agreed with this interpretation. They maintain that the governor had signed the veto prior to the Senate adjourning, that it was delivered to someone within the Senate and that, since the House had not finished its business by the evening, the entire legislature was in session.

In September, attorneys representing the plaintiffs requested summary judgment for the case. They argued that the Governor and Secretary of State were not fulfilling their constitutional duties, and upholding the separation of powers, by failing to send out an override ballot for the Legislature to fulfill its constitutional obligation.

The motion claimed that both the Montana Constitution of 1972, and the 1982 amendment to the veto clause in the constitution, which was enacted by voters, rejected pocket vetoes. This is what the motion claimed happened in the case of SB 442.

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The governor’s lawyers also requested summary judgment in this case a month later. They said that the legislature was in session at the time the veto had been signed, and the process followed the law and constitution. Also, they stated that private parties were suing and therefore, entitled to no relief. Additionally, the lawsuit involved a political issue, so the case was dismissed.

Plaintiffs claim governor incorrectly interprets Constitution, defendants say legislature has still override options

Menahan, the judge who heard both sides of the argument on Thursday, said that it raised several interesting questions.

Rylee Summers-Flanagan, an attorney at Upper Seven Law, argued for MACo, while Mike Black, an attorney with Helena, argued for Upper Seven Law.

Sommers-Flanagan explained to Menahan that Article V of Constitution defines the legislative body as “a senate, and a chamber of representatives”; this should negate the argument of the governor that the Senate was “in session” at the time the veto was issued.

She said that the three plaintiffs organizations have standing, because they are groups that spend significant resources in the political process. The governor and secretary did them harm and their members when they “unilaterally killed” SB 442 without allowing an override.

Dale Schowengerdt argued that the plaintiffs lacked standing, as the legislature was only one party who could have been injured. He also said that if lawmakers had the opportunity to override a veto it’s possible that the override might fail, leading to the current status quo.

Sommers-Flanagan said to Menahan that there is “absolutely no guarantee” that the bill would pass. Conservation organizations and MACo did not claim they could sue lawmakers in order to secure its passage. They can, however, sue an elected official in the state who refuses to follow constitutional obligations and is preventing override from happening.

Black, representing MACo told Menahan, despite the testimony of a man, who had met with Gianforte at 2 p.m. on May 2, who claimed to have seen the governor veto a bill, that the state has never proved that the bill had been signed and sent to the Senate before the chamber adjourned.

It doesn’t mention who delivered it, who it was delivered to or what time. “Those are crucial,” Black said. Black said that if the governor wants to claim that the sine-die motion was passed before it was vetoed, they must provide evidence. They haven’t.

Schowengerdt insisted that the governor had followed the correct procedure and that he did not possess the bill. He told Menahan that the legislature could still override this bill if they so desired.

He suggested that the legislature sue the organizations or call a special session for a vote on override. Both options are still available. The plaintiffs’ lawyers had said that these options were more expensive and burdensome and were the reason why the poll overrides in the constitution were first added.

Menahan asked Schowengerdt a hypothetical question that plaintiffs also considered: if the governor watched a live broadcast and knew one chamber was about adjourn, but then vetoed several bills at the last minute.

Schowengerdt stated that the same thing happened with three bills under Governor. Brian Schweitzer (D), in 2011, but no action was taken by legislators.

“Let’s say that the governor is able to time his veto perfectly, stamps it while the legislature is still in session and then adjourns sine qua non. There is still a backup. “If the legislature does not want to deal with this issue through a rule or statute, they can convene in a Special Session, and there’s always a way of overriding the governor’s Veto,” he added.

Austin James, who represents Secretary of State Christi Jacobsen in court, told the court briefly that Jacobsen claims that she has not conducted an override vote because the Governor did not send her the bill.

She should not try to invent a resolution for the problem before you. She should comply with her obligations, which she has taken an oath of. We believe this alone will dismiss the case.

Sommers-Flanagan said that Menahan’s decision could be a landmark, and could have a broad impact on future governors. She said that it could allow the governor to “exploit” loopholes which undermine the constitution, leading to “years interbranch wars”, or give lawmakers the chance to override the veto.

“That could be for a long time, right?” Sommers-Flanagan explained that it is sometimes difficult to predict exactly how a law will be circumvented. The second outcome, however, requires no more than compliance with Constitution and sets a precedent which is very clear.

Menahan didn’t give a time frame for his decision.

The story was originally published by Daily Montanan.