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Montana marijuana tax distribution bill in uncertain position after veto

Senate Bill 442 News Conference
Posted at 6:29 PM, May 08, 2023

HELENA — On the final day of the 2023 Montana legislative session, Gov. Greg Gianforte vetoed a bill that would have changed the way the state’s marijuana tax revenue is distributed. Now, supporters of that bill are hoping one final maneuver can keep the proposal alive.

Senate Bill 442, sponsored by Sen. Mike Lang, R-Malta, passed the Legislature with 130 out of 150 lawmakers in support. However, because of the timing of the veto – just before the Senate adjourned sine die – it’s not clear whether lawmakers will get a chance to try to override it.

SB 442 went through several changes during the session. In its final version, it would have used 20% of marijuana revenues to help counties fund construction and repair of rural roads. It would also have increased the share of funding that goes toward wildlife habitat improvement projects and allowed some of that money to go toward other conservation work. Significantly more funding would also have gone toward a state account that provides assistance for veterans and their surviving spouses and dependents.

The revised bill drew support from a wide variety of stakeholders, including lawmakers from both parties, conservation groups, landowners, county governments and more. In a news conference at the State Capitol last Monday, they hailed SB 442 as a model of cooperation.

“It's a great bill and we have to respect the ideas of every Montanan, but yet we have to work together and keep ourselves in the middle of the road or we will not have success,” said Lang.

“In collaboration, you’ve got to give and take, you’ve got to give up a lot and you got to take the 20% that you don't agree on and set it aside and then work on that 80% or 90% or whatever it is,” said Denny Iverson, a rancher in the Blackfoot Valley. “But we always get hung up on that 20%, and then things don't get done. I think this is a good example of setting those differences aside – let's get down, let's get to work, let's figure out what can work for people.”

But even that day, Gianforte’s office told MTN he had “substantial concerns” about SB 442. The Legislature officially transmitted the bill to Gianforte on Tuesday, and he returned it with a veto that afternoon. In a letter, Gianforte said it was inappropriate to use ongoing state funding to support a local responsibility like roads, and that the bill would create a “slippery slope.”

“Senate Bill 442 creates the illusion that the state will accept increasing responsibility for matters that are strictly under the jurisdiction of local authorities,” he said.

Now, the question remains what will happen next. If two-thirds of the members of each legislative chamber vote to override a veto, they can pass the bill into law anyway. However, the procedure for conducting an override vote depends on when the governor delivers a veto.

According to the Montana Constitution, the governor must return a vetoed bill to the Legislature with an explanation – unless the Legislature is not in session, in which case he must return the bill to the Montana Secretary of State. If more than two-thirds of the House and Senate supported the bill, the Secretary then polls lawmakers by mail to see if they want to override the veto.

The Legislature’s joint rules say that, when the House or Senate receives a veto message, the presiding officer must read it into the record. After that, a member can call for a vote to override the veto.

Lang and other supporters argue the veto came too late – just before the Senate adjourned Tuesday afternoon – so there was never a chance to read it into the record. They say that didn’t give lawmakers a legitimate opportunity to attempt to override it. They are calling on Secretary of State Christi Jacobsen to conduct a poll after all.

Others, like Senate Majority Leader Sen. Steve Fitzpatrick, R-Great Falls, have interpreted the law to say that, since the Senate was still in session when Gianforte made the veto, there’s now no option to hold an override poll.

The veto of SB 442 was read into the record in the House shortly before that chamber adjourned sine die Tuesday evening.

On Monday, conservation groups including Wild Montana, Backcountry Hunters and Anglers, Montana Conservation Voters and the Montana Wildlife Federation delivered a petition to Jacobsen, with more than 2,500 signatures urging her to poll lawmakers about the veto of SB 442.

Alex Blackmer, communications manager with Wild Montana, says they’re concerned not only about this bill being vetoed, but that it could set a precedent that could keep lawmakers from having their say on future bills as well.

“I think it's been as confusing an end to a legislative session as most folks can remember – legislators included,” Blackmer said. “So, hopefully we can pass the bill, but if not, at least we'll get some clarity and then we'll know where to go from there.”

On Friday, Gianforte vetoed three other bills. Because each received more than two-thirds support in the House and Senate, Jacobsen’s office is expected to poll lawmakers on whether to override those vetoes:

· House Bill 33, sponsored by Rep. Steve Gist, R-Great Falls, would allow county commissioners to start civil proceedings if a local government board member fails to comply with a requirement. It passed 90-9 in the House and 49-1 in the Senate. In his veto letter, Gianforte said the bill was well-intended, but it exempted too many boards, and he objected to a provision that would let a court remove elected officials from office for failing to comply.
· House Bill 693, sponsored by Rep. Bill Mercer, R-Billings, says a public agency can’t refuse to disclose public information simply because it may be part of litigation. It passed 94-4 in the House and 48-2 in the Senate. Gianforte said in his veto message that it “encourages trial lawyers with deep pockets to abuse the Right to Know, giving them an unfair advantage.”
· House Bill 748, sponsored by Rep. Katie Zolnikov, R-Billings, would remove local governments’ ability to pass zoning restrictions for the purpose of promoting “morals” and replace it with one for promoting “separation of incompatible uses of property.” It passed 98-0 in the House and 38-12 in the Senate. Gianforte’s veto letter said the use of the term “morals” comes directly from a U.S. Supreme Court case, and there is an extensive body of case law in Montana using that language. He said the change would insert “vagueness, uncertainty and unpredictability” into the planning process.