Court hears arguments after Gianforte's late veto created ambiguous situation

Posted at 7:35 PM, Dec 07, 2023
and last updated 2023-12-07 21:35:51-05

HELENA — Thursday in Helena, a judge heard testimony as he weighs a case that seeks to clarify an ambiguity in how the governor’s authority to veto a bill and the Legislature’s power to overturn that veto interact.

Attorneys presented oral arguments in a lawsuit over Gov. Greg Gianforte’s veto of Senate Bill 442. District Judge Mike Menahan is considering a series of motions from all the parties, calling either to dismiss the case or make an immediate ruling on it.

SB 442, sponsored by Sen. Mike Lang, R-Malta, would have redirected some of the state’s marijuana tax revenues to help counties fund construction and repair of rural roads, as well as to increase funding to wildlife habitat improvement projects and to a state account that provides assistance for veterans and their surviving spouses and dependents.

The bill passed with support from 130 of Montana’s 150 lawmakers, but Gianforte vetoed it, citing technical concerns with how it was written and saying it was inappropriate to use ongoing state funding for a local responsibility like roads.

The veto came on May 2 – the last day of the session, right around the time the Senate adjourned on a surprise sine die motion. That created an uncertain situation for lawmakers who wanted to try to override the veto and enact SB 442 into law over Gianforte’s objection.

The ambiguity comes out of the way the Montana Constitution lays out the veto and override procedures. When the Legislature is in session, the governor returns a vetoed bill to the Legislature, and each chamber can hold an vote on whether to override it. If two-thirds of House members and two-thirds of senators vote in favor, the bill will become law regardless of the veto.

When the Legislature is not in session, the Constitution says the governor must returned vetoed bills to the Secretary of State. If more than two-thirds of each chamber supported the bill, the Secretary of State must then poll lawmakers by mail to see if they want to override the veto.

Many senators – including Lang himself – say they didn’t know about the veto before the Senate adjourned, and it was never officially read into the Senate record, so they argue there was no legitimate opportunity to override the veto during the session. But the governor’s office argues the veto occurred while the Legislature was in session, so the provision allowing for an override poll doesn’t apply.

Two conservation groups – Wild Montana and the Montana Wildlife Federation – filed suit against the governor and the Secretary of State, saying lawmakers should be given the chance to vote in an override poll. The Montana Association of Counties filed its own suit, arguing that either the poll should go forward or the veto was invalid. The cases have been consolidated.

The arguments Thursday hinged largely on the specific meaning of the language in the Montana Constitution. Both sides were generally in agreement that the veto of SB 442 created a situation not specifically addressed in those provisions, but they disagreed on what should be done about it.

Rylee Sommers-Flanagan, an attorney for the conservation groups, said it was clear the Constitution tried to cover every possible outcome to make sure the Legislature always had a chance to try overriding a veto. She said not allowing a poll in this case would create a loophole that could be misused going forward.

“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.

Mike Black, an attorney representing MACo, argued the Legislature, as a whole, wasn’t “in session” for the purposes of a veto override once the Senate adjourned, since there was no way they could attempt an override without both chambers. He also said the governor’s office hadn’t provided specific evidence of when Gianforte’s veto actually happened. The veto was read into the record in the House several hours after the Senate adjourned.

Dale Schowengerdt, an attorney representing Gianforte, said this case raised a “political question” and therefore can’t be decided by a court. When Menahan questioned whether this ambiguity created the possibility for mischief in the future, Schowengerdt said it was up to the Legislature to decide how to resolve the issue.

“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 pointed to 2011, when former Gov. Brian Schweitzer vetoed bills on the last day of the session that had been supported by two-thirds of the Legislature, but which didn’t end up receiving override polls. He said that showed the Legislature could have acted since then, but hasn’t.

Schowengerdt said they didn’t believe the specific time of the veto was in question in this case, but they could produce further evidence to clarify that.

Menahan took no immediate action after Thursday’s arguments.