“What they can do is they can sue a statewide elected official who is refusing to comply with its constitutional duties when that inaction is unconstitutionally preventing the override process from occurring.”
By Blair Miller, Daily Montanan
More than six months after Montana Gov. Greg Gianforte (R) vetoed one of the more broadly supported bills of this year’s legislative session just as the Senate voted to adjourn, lawyers for the governor and secretary of state told a judge Thursday they maintain the veto was done properly and that the groups that have sued trying to force an override poll have no standing to do so.
Lewis and Clark County District Court Judge Mike Menahan, himself a former lawmaker, heard arguments for about two hours Thursday from attorneys representing Gianforte and Secretary of State Christi Jacobsen (R), who were sued this summer by attorneys for the Montana Association of Counties, Wild Montana and the Montana Wildlife Federation.
The groups were heavily involved in lobbying efforts during this year’s legislative session to craft and pass Senate Bill 442, sponsored by Sen. Mike Lang (R-Malta), which ended up as a restructuring of where Montana’s roughly $50 million in annual marijuana tax revenue was distributed.
Bipartisan bill effort leads to months of disagreement after veto
The final version distributed 20 percent of the money toward county road construction and maintenance and 20 percent to a Habitat Legacy Fund, two of the key components of the bill for the plaintiffs in their lawsuits.
On final passage, a total of 131 of 150 lawmakers supported the bill, but some top Republican senators had noted in the days leading up to its passage that the governor was unhappy with the bill and would likely veto it. Gianforte’s administration had supported different bills that sought to distribute more of the money to law enforcement and the General Fund.
Though the legislature was already nearing its 90th day of the session, when the Senate voted to adjourn sine die just after 3 p.m. on May 2, the move caught some in the chamber by surprise. Many were even more surprised when they were told by reporters and others not long afterward that Gianforte had vetoed SB 442, which several lawmakers from both parties had lauded as a key bipartisan accomplishment of the session a day earlier.
Reporters were told by his office Gianforte had signed the veto letter “sometime in the 2 o’clock hour.” That meant, according to the Legislative Services Division’s determination, that lawmakers would have no opportunity to attempt to override the veto since the Senate had already adjourned but the House had not. There are processes for lawmakers to override vetoes when they happen while they are still in session, and for when they happen while lawmakers are out of session if a bill received support from more than two-thirds of lawmakers.
Exactly what constitutes the legislature being “in session” has been a key question at the heart of the lawsuits challenging the legislature’s inability to try to override the veto, and one of the key points of argument at Thursday’s hearing.
The organizations that sued, their attorneys, and lawmakers who supported the bill spent the days after the veto was handed down trying to clarify why legislators should not be able to override the poll. They have maintained since May that since the veto of SB 442 was not read across the Senate rostrum, it was not formally received by the chamber in which the bill originated by the time the legislature adjourned.
That, they argue, means the governor should have sent the secretary of state the veto, and she should have sent out an override poll to lawmakers so they could vote to overturn the veto if two-thirds of the legislature agreed to uphold the law they made. Bills that get supermajority votes from the legislature can be overridden by polls if the vetoes occur outside of the session.
But the governor’s attorneys have always agreed with the Legislative Services Division’s interpretation, maintaining that the governor signed the veto before the Senate had adjourned, had it delivered to someone in the Senate, and that since the House was still finishing business until later that evening, the full legislature was indeed in session.
In September, attorneys for the plaintiffs asked for summary judgment in the case, arguing the governor and secretary of state were failing to fulfill their constitutional duties and to uphold the separation of powers by not sending out an override poll for the legislature to have a chance to fulfill its constitutional duty.
The motion argued both that the legislature was not “in receipt” of the bill before the Senate adjourned and that the framers of Montana’s 1972 Constitution, then voters who amended the veto provision in the constitution in 1982, had contemplated and rejected pocket vetoes—which is what they claimed happened with the SB 442 veto.
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A month later, the governor’s attorneys also asked for summary judgment in the case, saying the legislature was indeed in session when the veto was signed, that the process went according to the constitution and law, that the organizations suing were private parties and are entitled to no relief, and that the suit involves a political question, meaning the case should be dismissed.
Plaintiffs say governor wrongly interprets Constitution; defendants say legislature still has override options
Attorneys for each side made their cases to Menahan Thursday, who said the case presented several interesting questions.
For the two conservation organizations, Upper Seven Law’s Rylee Sommers-Flanagan handled arguments, and Helena attorney Mike Black argued on behalf of MACo.
Sommers-Flanagan told Menahan Article V of the Constitution defines the legislature as one that consists “of a senate and a house of representatives,” saying that should nullify the governor’s argument that the legislature was still “in session” when the Senate received the veto.
And she said the three plaintiff organizations do have standing because they are organizations that expend significant resources on the political process, and that the governor and secretary of state injured them and their members by “unilaterally killing” SB 442 by not presenting an opportunity for an override.
The governor’s attorney, Dale Schowengerdt, argued the plaintiffs lack standing because the legislature was the only party that could have suffered injury, and that even if the lawmakers were given the chance to override the veto, it is still possible the override would fail and lead to the same circumstances that are currently the status quo.
“There is, of course, absolutely no guarantee that the bill will pass and conservation organizations and MACo do not claim that they could sue the legislature to ensure its passage,” Sommers-Flanagan told Menahan. “But what they can do is they can sue a statewide elected official who is refusing to comply with its constitutional duties when that inaction is unconstitutionally preventing the override process from occurring.”
Black, representing MACo, told Menahan that the state, despite testimony from a man who met with Gianforte on May 2 at 2 p.m. who said he saw the governor veto the bill, has never proven that the bill was signed and given to the Senate by the time the chamber had adjourned.
“It doesn’t say who delivered it; it doesn’t say who they delivered it to; it doesn’t say what time. Those are critical,” Black said. “If the governor is going to suggest that it was actually vetoed before the sine die motion passed, it’s their burden to bring forth that evidence, and they haven’t done it.”
But Schowengerdt maintained that the governor followed proper procedure, that he does not have the bill, and told Menahan the legislature still had options if it wanted to try to override the bill.
Rather than having the organizations litigate the case, he suggested the legislature file suit or convene a special session to vote on the override—two options still on the table. But the plaintiffs’ attorneys had argued those options were more costly and burdensome, and the reason that the poll overrides were added to the constitution in the first place.
Menahan posed a hypothetical to Schowengerdt that the plaintiffs have also contemplated, if a governor was watching a live broadcast of the legislature knowing one chamber was about to adjourn and then vetoed a number of bills in the moment.
Schowengerdt said there were three bills that this same situation occurred with under Gov. Brian Schweitzer (D) in 2011 but no further action was taken by lawmakers, and suggested that possibly the legislature could make rules saying a body couldn’t adjourn until vetoes had been addressed.
“Let’s just say the governor can time it just right, vetoes the bill, stamps the veto while the legislature’s still in session, and then one house adjourns sine die. There’s still a backstop. If the legislature doesn’t want to address this through rule or statute, the legislature can reconvene in a special session, and there is always a way to override the governor’s veto,” he said.
Austin James, representing Secretary of State Christi Jacobsen, briefly told the court that Jacobsen maintains that she was not sent the bill by the governor to send out an override poll, and thus has not done so.
“She should not invent a solution to the dispute before you today. She should instead comply with the obligations that she’s taken an oath to do, and we believe that alone should dismiss this case,” he said.
Sommers-Flanagan told Menahan his decision in the case could prove to be a landmark one, saying it could have broad impacts for future governors and lawmakers. She said it could empower the governor to “exploit loopholes” that undermine the constitution and lead to “years of interbranch loophole wars,” or ensure lawmakers always have a chance to override a veto.
“That could last, right? Because it’s difficult at times to precisely predict the ways in which a law might be skirted,” Sommers-Flanagan said. “On the other hand, the second outcome requires nothing more than compliance with the Constitution, and it sets a precedent that’s very clear.”
Menahan did not provide the parties a timeline for his decision.