Montana Lawmakers Say Legal Opinion On Overriding Governor's Marijuana Revenue Reallocation Veto Is Wrong

“The Executive Branch cannot circumvent the constitutionally protected Legislative Branch’s right to override the veto by trying to find a constitutional gap.”

By Blair Miller of the Daily Montanan

A group of bipartisan lawmakers, including the two minorities leaders and Sen. Mike Lang(R), is disputing a determination by the Legislative Services Division stating that legislators are unable conduct a survey to attempt to override Governor’s veto for Senate Bill 442. due to the timing of veto.

Since the dramatic end of the session of the legislature, lawmakers and supporters from across the political spectrum have worked to find a solution to reverse Gov. Greg Gianforte (R) has vetoed the measure which redistributes Montana marijuana tax revenues to create a legacy account for habitat and allocate more money towards county road maintenance.

Some Republicans have also been upset by the veto and abrupt adjournment of the session. They appear to be divided on what happened.

Lang, a Malta Republican legislator, won the battle among lawmakers over how to redistribute the money after the 2021 legislative laid out the current plan of distribution for the revenue from recreational cannabis.

In the days leading up to adjournment, Senate Majority leader Steve Fitzpatrick (R-Great Falls) told his caucus that the Governor planned to veto the bill, despite it being sent to him with 131 votes from 150 legislators.

Gianforte’s office reports that the governor vetoed this bill at around 2 pm on May 2. Around 3:19 pm, Senate Minority leader Pat Flowers, D, Belgrade, proposed the sine-die adjournment motion, which was approved by a vote of 26-23, including several Republicans who supported Lang’s bill.

The governor’s office issued Gianforte veto shortly after, sparking confusion about the ability of the legislature to override this bill. Fitzpatrick claimed that supporters of SB 442, (he voted for the bill as well) “screwed” themselves and will no longer be able attempt an override.

Lang expressed his “disappointment” at the veto, and was surprised by how quickly the bill moved from its final reading in Senate to enrollment to the Governor’s desk within 24 hours. Many bills took more than a full week to complete this process. The bill’s Democratic, Republican supporters, and lobbyists that worked on it said there are still options for the measure to be overridden at the polls.

The Montana Constitution allows the legislature to attempt overriding a veto by two-thirds in each chamber.

If, after receiving a veto, two thirds of members in each house approve the bill it becomes law.
If the legislature is not present when the governor vetoes the bill, he must return it to the secretary with the reasons for his veto. The secretary of State will poll all members of the Legislature by mail, and send a copy to each one. The bill becomes law if two-thirds of members of each house vote in favor of overriding the governor’s veto.

Lang sent a request to Secretary of State Christi Jacobsen on May 5th, arguing that the Senate had not adjourned by the time the veto had been read. Therefore, it wasn’t formally received.

The secretary of state’s said that the office plays a “ministerial role” in the executive and legislative branch and had not been asked by either to conduct a survey on the bill, because it was vetoed at the time.

Upper Seven Law, a Helena law firm, sent on behalf of Wild Montana to Gianforte, the organization that was heavily involved with the creation and passage of SB 442, due to the funding for Habitat Montana.

The law firm claimed that there are gray areas in the constitution that the executive branch was trying to exploit with the timing of a veto. It also believed that the legislature should have the right to conduct a vote.

The Upper Seven Law lawyers stated that “the Constitution does deal with absurdity” because it does not specify the procedure by which the Legislature can exercise its overriding power when the veto has been returned to the Legislature for consideration without meaningful opportunity. The fundamental principle of the separation between powers is that the Legislature can override the veto with a majority vote. Montana law does not suggest that the Legislature will be unable to override a veto in certain circumstances.

A bipartisan group of legislators asks the Legal Services Director to reconsider his opinion on veto

A group of Lang, Flowers and House Minority Leader Kim Abbott as well as Lewistown Republican Sen. Dan Bartel and Missoula Democratic Rep. Katie Sullivan, asked Todd Everts to reconsider the original interpretation of his veto override.

Everts was told by the legislators that “Your interpretation” of the Constitution, Code and Legislative Rule would rob our co-equal government branch of important and practical methods to override the veto which the Constitution protects.

The Senate also claimed that the veto had not been read aloud and they did not have any proof that the veto had been delivered before adjournment.

The constitution, they said, does not specify what “not in sessions” means. It also contains no guidance on how to handle a veto if one chamber is already in session and the other has adjourned. They also pointed out that Joint Rule 40-220 states that the presiding official shall read a message of veto over the rostrum, which they interpret to mean that lawmakers can override the veto only after it has been read.

The lawmakers wrote Everts that “the constitutionally protected right for the Legislative Branch of overriding a veto can’t be circumvented” by the Executive Branch trying to find a loophole in the Constitution between the two chambers being in session and the Legislature being absent.

They were “disturbed by the speed with which the bill was enrolled and sent to the Governor’s Office, before being vetoed.

The letter states that “it appears that the Governor’s Office moved quickly in order to act within a perceived “dead zone” that would attempt circumventing the Legislature’s constitutionally-protected ability to override.”

The lawmakers said that Everts’ interpretation could be used by future governors to undermine the power of the legislature to override an veto. They explained that a governor could hold veto memoranda for up to ten days, waiting for the adjournment of one chamber, and then issue vetoes, so the legislature wouldn’t have the power to override.

The lawmakers wrote Everts that they were “extremely concerned” about the implications of the interpretation. They asked for Everts’ guidance, and to rebut it if he saw another impact.

In a hypothetical question, they used House Bill 2 as an example. They wrote that in this scenario, the House would send the bill to Governor on the 87th of 90-day session and vote to adjourn. While the Senate finished its work, the Governor could return the line-items vetoes.

“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 would be a constitutionally unacceptable way to weaken the Legislative Branch.

They claimed that the entire legislature was not in session after one chamber voted to adjourn. This would allow a vote to be held.

Everts didn’t return a call or an email on Thursday afternoon requesting a comment about the letter.

Bartel told The Daily Montanan on Thursday that he thought the governor had ignored the wishes of Montanans, local governments, recreationalists, and legislators by vetoing the bill.

“I believe that the governor got his priority bills in early session and got exactly what he wanted. Bartel stated that when the Governor’s priority bills were presented at the end, they didn’t appear to be as important as ours.

He also said that he does not believe that the precedent that was set by the veto SB442 should continue to be followed.

“I don’t think that it is right. I think it’s wrong. It’s also a precedent we don’t wish to set. Bartel added that it would happen if the situation was not stopped immediately.

Lang told me he wrote the letter himself and is just curious to see what happens with it.

He told the Daily Montanan, “I don’t believe anyone has a definitive end. We’ve got to just play the cards and hope we get an answer.”

Bill supporters push Gianforte while Republicans argue over adjournment

Gianforte’s veto, and the way it was implemented, has angered many who have worked and supported the bill throughout the months-long process. This has led to some Republican bickering after the session.

The Helena Independent Record published an opinion piece by Eric Bryson, the Executive Director of the Montana Association of Counties and other MACO officials on Monday. They criticized Gianforte’s veto and called it “unpopular and inexplicable” and said that the veto was contrary to both the wishes of the Legislature and people of Montana.

The group, which represents 56 counties, claimed that the veto was a slap on the face of the widespread support for the bill from local governments, rural Montanans, veterans, healthcare providers, and outdoor enthusiasts. “Without exaggeration… every Montanan,” the organization wrote.

MACO officials stated that they thought Gianforte was going to respect the lengthy negotiations of the bill in the legislature. However, he decided instead to “turn his rear” and “side with legislators rather than his Montana constituencies.”

The group encouraged Governor Toby to “get away from Helena” to visit rural elected officials. They said that his veto showed a “concerning lack of understanding” about local taxing authorities, and he had “gone out of his way” to circumvent the override power of the legislature.

“Over 130 legislators have voted for SB 442, they deserve to be able to make a final decision on legislation which directly affects the lives and livelihoods their constituents. “Anything less is a government failure,” wrote the MACO officials.

According to an email chain obtained and confirmed by the Daily Montanan, Republican legislators have also taken shots at each other over the adjournment of Lang’s Bill and the veto.

Bartel, the person who wrote the letter to Everts on Thursday, said that Fitzpatrick’s adjournment wouldn’t have taken place if Fitzpatrick, and others, had worked with caucus throughout the session, “and [not] gone on a shopping spree yourself the last day.”

Fitzpatrick replied by stating that Bartel is a member of the Senate Finance and Claims Committee “pork claucus”, and Bartel voted in favor of the sine die motion to “protect SB 442 against the veto.”

Bartel replied by saying Fitzpatrick had “missed 442.”

“Neither you nor the second floor [the Governor’s Office] ever wanted 442. It’s amazing how quickly the process moves. The average time to enroll is 14 days. You enrolled 442 in record time. Bartel replied, “You were my majority leader and never saw it.”

Fitzpatrick told Bartel at one time that he didn’t kill SB442 but “you did it when you voted sine die.” Maybe in the future you’ll be more careful about voting sine die.

Barry Usher (R-Billings), a senator from the state, asked Fitzpatrick to “hand carry” the bill to the governor, stating that it took 12 days to enroll other bills at the time. He added that “instead of everyone blaming each other and pointing fingers, we need to move forward.”

Fitzpatrick stated that the staff had done so after Lang signed the legislation, adding that Lang was not required to do this at the time. Usher also helped kill the law when he voted for adjournment.

Fitzpatrick replied: “Barry, perhaps it would be best for you if you explained to everyone why SB 442 is so important to you that you felt it necessary to follow the Minority leader and kill all of the other bills currently in progress.” “You were elected a Republican. Next session, you might want to follow the Majority leader and not the Minority leader on important procedural votes.

Usher replied that Fitzpatrick’s message was “very demeaning and accusedatory” and that SB442 did not influence his vote for adjournment. He asked again if the Senate received the vetoed legislation before adjourning and added: “FYI, I was elected to be conservative Republican by my constituents, not a blind sheep.”

Bartel responded, saying Fitzpatrick’s narrative was his own and that if Fitzpatrick is elected again as majority leader he will “carry the water for the caucus which elected you.”

Fitzpatrick replied, “Dan — I have a better plan.” Next session, start working with the Republican Party. “You were de facto a member of the Democratic Caucus for all of this session.”

The fight over marijuana money lasted months because two other bills by House Republicans sought to take away 20 percent of the $50+million in annual marijuana tax revenues that go to Habitat Montana’s conservation program. This bill was opposed by conservationists, anglers, and outdoor enthusiasts.

Many Department of Justice employees spoke in support of the bill at the first House Appropriations Committee Hearing on House BILL 462. It was sponsored by Rep. Marta Bertogliio (R-Clancy) and sought to divert money from Habitat Montana for criminal justice and police initiatives.

Dustin Temple, Deputy Director of Fish, Wildlife and Parks, said at the same hearing that $5 million from marijuana tax revenues that were donated to Habitat Montana had been used to purchase the Big Snowy Mountains Wildlife Management Area, opened on Monday by Gianforte in a ceremonial opening.

“We’re not only opening up access to wildlife habitat for hunters, but we are also keeping land open for cattle grazing, to keep ranchers in the landscape.” Gianforte stated that this is a win for Montana.

Legislative Council discusses veto process

The Legislative Council also discussed the idea that Gianforte’s veto would set a precedent after Rep. Alice Buckley (D-Bozeman) told the council that it threatened the power of the legislature as a co-equal part of government. They also discussed some of points raised by lawmakers in their letter to Everts on Thursday.

Julie Johnson, deputy director of the Legislative Services Division, stated that she didn’t believe this type of veto has ever happened and suggested that the council review the rules in order to clarify the circumstances under which an override is possible.

Fitzpatrick said he agreed. He believes the constitution is “pretty clearly” and that lawmakers should be able to better understand when they are going to adjourn between chambers and what’s left on the desk. He also suggested the constitution be amended in order to clarify the process of veto override.

Rep. Derek Harvey (D-Butte) said that he thought the council should examine possible legislation to return the authority to vote back to the legislature, from the Secretary’s Office, to put the powers back in the lawmakers’ hands.

It’s worth having a discussion about precedents, given that this hasn’t occurred before. Buckley explained that it happened with a particular bill. It opens up an interesting discussion about separation of powers and our equal branch of government, as well as the responsibility that we have to think carefully before passing bills.

This article was originally published by Daily Montanan.