“While Governor has constitutional authority over SB 442, the Governor cannot veto SB 440 or any other law by interfering with the Legislature’s constitutional authority.
By Arren Kimbel-Sannit, Montana Free Press
Interest groups filed two lawsuits on Wednesday to try to force lawmakers to override the governor. Greg Gianforte (R) has vetoed Senate bill 442. The measure was bipartisan and outlined how taxes collected from the sale of marijuana for recreational use would be allocated by the state.
Wild Montana and Montana Wildlife Federation have filed a lawsuit asking a Helena District Court judge to declare Gianforte’s veto invalid until he, along with Secretary of State Christi Jacobsen(R), asks lawmakers if they want to override Gianforte’s veto that was issued on the final day of the session. Montana Association of Counties, another stakeholder in the legislation, is also making a similar argument.
A two-thirds majority vote can be used to override vetoes by the Legislature. This process is done via mail, when legislators are not in session.
Wild Montana’s policy director Noah Marion stated that this process was not followed for SB 442. This is due to “procedural tricks” by the governor’s staff.
The lawsuit states that “While the Governor is constitutionally authorized to veto SB442, he may not veto SB442 or any other law by interfering with the Legislature’s authority under the Constitution to override this veto.”
A disagreement exists over the seemingly simple question of when the 2023 Legislature will end.
SB 442 – which passed its final hurdle on May 1, a 48-1 approval by the Senate – proposes to divide the tax revenue levied on the recreational marijuana sales among the General Fund and county road maintenance and construction, conservation and recreation programmes, addiction treatment, and veterans services. Gianforte vetoed it on May 2, despite its popularity among legislators and support from a variety of interest groups. In his veto memorandum, Gianforte argued that the bill created a “slippery-slope” by making state authorities responsible for matters which are under the strict jurisdiction of local authorities, such as county road construction and upkeep.
He also criticized the fact that, while SB 442 directs marijuana revenue to various accounts in the companion legislation, House Bill 866, the actual authority for expenditure of these funds is contained within the companion legislation. This, he said, was a “substantial issue”.
Theoretically, Gianforte’s veto should not have been a problem for supporters of SB 442, who had likely more than enough votes to override it in the Legislature. Senate Majority Leader Pat Flowers unexpectedly moved to adjourn Senate.
Flowers moved the motion shortly before 3:20 pm on May 2. A spokesperson for Gianforte said that the veto was issued “sometime around 2 o’clock.” However, the veto had not been read by the presiding officers by the time of the Senate’s adjournment, as per the rules. Senator Sen. Lang, SB 442’s author, was among the lawmakers who voted in favor of adjournment. Mike Lang, R. Malta–seemed to not know about the Governor’s veto at the time they voted. The House continued to work for several hours.
The timing of the vote has left the bill in an uncertain state. Some argue that since the House was in session the Legislature was in session as a group and a referendum to override a veto now would be inappropriate.
It doesn’t really matter if it was received before the sine die. We are still in session because one chamber is still working. After the Senate adjourned, Senate majority leader Steve Fitzpatrick (R-Great Falls) told reporters that the bill was dead.
Lang, and other plaintiffs argue that the governor’s official veto wasn’t communicated to Senate in a formal manner and therefore shouldn’t have been valid. The Legislature is now out of session and there’s no other way to override a veto than by using polling.
The suit states that “the Constitution and implementing laws do not identify any circumstance in which the Legislature can’t consider and override an veto.” The suit says that the Constitution and implementing statutes consistently state that the Legislature has the power to override a veto in any circumstance.
Wild Montana’s attorneys have urged the governor’s office to return the bill and the veto memo, which is a necessary procedural step for Jacobsen before she can issue a poll. However, the governor has refused to do so. Jacobsen’s attorneys stressed in email exchanges with Lang that their role is primarily “ministerial” and her office cannot act until the governor first does.
Plaintiffs in two lawsuits filed on Wednesday claim that if this problem is not corrected and the override vote is not conducted, it will create a loophole which governors may exploit in the future in order to avoid overriding vetoes.
The Montana Association of Counties lawsuit states that “the two chambers of a legislature typically adjourn separately on or after the 87th day of legislative session.” The experience of SB 442 prevents the Legislature from exercising their constitutional override power if one house adjourns first and then delivers a veto. If the precedent created by SB 442 does not change, a future Governor may prevent widely supported bills from becoming law without regard for the constitutional system of check and balances.
A 10-day clock that requires the governor to act on a law is another potential wrinkle. If the governor does not sign or veto a law within this 10-day period, then it becomes law. MACO claims in its lawsuit, that under this logic the court should order the governor to either return the bill back to the secretary or declare that the veto wasn’t properly made within 10 days. Then, SB 442 becomes law.
A further complication is the fact that Governor Gianforte has also vetoed HB868 in part due to his previous veto of SB 442. Gianforte argued that a large part of HB 868 had been invalidated by default in his veto memorandum. The secretary of state must receive the ballots by June 20 to override this veto. Then, it’s possible that SB 442 will become law, whether through a court order or a veto override. The tax revenue would then accrue into the SB 442 accounts, but the Legislature would still have to approve the expenditures in 2025.
A spokesperson for the Secretary of State’s Office said that Jacobsen has not yet received a formal complaint. However, the office generally “has followed the law and will continue to do so.”
The governor’s office issued a statement in which it did not respond to the specific claims made by the plaintiffs but reiterated Gianforte’s criticisms of SB 442.
Kaitlin Preis, a Gianforte spokesperson, stated that “while we don’t generally comment on potential or current litigation, the Governor’s technical and political concerns with SB 442, are well documented.” The bill fails to provide funding and omits a clear appropriation. It also sets a precedent that is dangerous by authorizing the use of state resources, funded by Montana taxpayers, for local road maintenance.
This story was originally published by Montana Free Press at montanafreepress.org.
Industry report finds that a majority of truckers support marijuana legalization and testing reform despite labor shortages
The article Montana Gov. Faces Two Lawsuits over Veto of Marijuana Revenue Bill first appeared on Marijuana Moment.
