Gianforte’s late veto produced an unclear situation; the court is hearing arguments

Helena, Montana – A court in Helena heard testimony on Thursday while he considers a case that aims to resolve a misunderstanding over the relationship between the Legislature’s ability to override the governor’s veto of a bill and the governor’s authority to veto it.

Oral arguments were made in a lawsuit concerning the veto of Senate Bill 442 by Governor Greg Gianforte. All of the parties have filed a number of motions, asking District Judge Mike Menahan to either dismiss the case or rule on it right now.

Sen. Mike Lang, a Republican from Malta, is the sponsor of SB 442, which would have diverted a portion of the state’s marijuana tax revenues to counties for building and maintaining rural roads, funding projects to improve wildlife habitat, and funding a state account that aids veterans, their surviving spouses, and dependents.

Although 130 of Montana’s 150 lawmakers supported the bill, Gianforte vetoed it, claiming that it was improper to use continuing state revenue for a local obligation like roads and citing technical issues with the bill’s drafting.

On May 2, the final day of the session, the veto was announced, just before the Senate unexpectedly adjourned on a sine die motion. Legislators attempting to overturn Gianforte’s veto and pass SB 442 into law were left in an unclear position as a result.

The Montana Constitution’s description of the veto and override processes is where the ambiguity stems from. A vetoed measure returned by the governor to the Legislature during a session allows each chamber to vote on whether to override it. Notwithstanding the veto, the bill will become law if two-thirds of senators and two-thirds of House members vote in support of it.

The Constitution mandates that the governor return vetoed bills to the Secretary of State when the Legislature is not in session. The Secretary of State is then required to survey lawmakers via mail to determine their desire to override the veto if the bill receives the support of more than two-thirds of each chamber.

Many senators, including Lang, contend that there was no legal chance to override the veto during the session because they were unaware of it before the Senate’s adjournment and because it was never formally entered into the Senate record. However, the governor’s staff contends that because the veto happened during a legislative session, the clause providing for an override poll is inapplicable.

Wild Montana and the Montana Wildlife Federation, two conservation organizations, filed a lawsuit against the governor and the secretary of state, arguing that lawmakers need to have the opportunity to cast ballots in an override referendum. The Montana Association of Counties launched a separate lawsuit, contending that the veto was void and that the poll should proceed. All of the cases have been combined.

The Montana Constitution’s wording and its precise meaning were the main points of contention throughout the debate on Thursday. Though they disagreed on what should be done about it, both sides recognized that the veto of SB 442 created a scenario that was not directly addressed in those provisions.

The conservation groups’ lawyer, Rylee Sommers-Flanagan, stated that it was evident the Constitution attempted to account for every scenario so that the Legislature would always have an opportunity to attempt overturning a veto. According to her, denying the poll in this particular instance would open the door for future abuse.

“The only interpretation of Section 10 that makes any sense is the one that ensures the Legislature’s ability to exercise its override power as a lawmaking body,” she said.

When the Senate adjourned, Mike Black, the MACo representative, contended that since the Senate could not attempt a veto override without both chambers, the Legislature as a whole was not “in session” for a veto. Additionally, he claimed that the governor’s staff had not offered concrete proof of Gianforte’s veto’s real date of occurrence. A few hours after the Senate adjourned, the House read the veto into the record.

Gianforte’s lawyer, Dale Schowengerdt, stated that this case posed a “political question” that cannot be resolved by a judge. Menahan asked Schowengerdt if this uncertainty left room for future mischief, to which he replied that the Legislature should decide how to settle the matter.

“The Legislature can adopt rules, it can enact statutes to deal with that,” he said. “There’s a gap, Your Honor recognized that in his first questions.”

Schowengerdt cited the year 2011, when, on the final day of the legislative session, then-Governor Brian Schweitzer vetoed laws that had received support from two-thirds of the Legislature but were not overridden by popular vote. He claimed that demonstrated the Legislature’s potential to act since then but chose not to.

Schowengerdt stated that although they could provide more proof to support their position, they didn’t think the veto’s exact timing was in doubt in this particular instance.

Menahan did not act right away following the debates on Thursday.