HELENA — A district court judge in Helena has ruled state lawmakers should get a chance to vote on whether to overturn a veto Gov. Greg Gianforte issued on the last day of the 2023 Montana legislative session.
It’s the latest in a case that centers on an ambiguity in how the governor’s authority to veto a bill and the Legislature’s power to override that veto interact.
On Tuesday, January 16, 2024, District Judge Mike Menahan sided with three organizations that filed a lawsuit, seeking to require Gianforte and Secretary of State Christi Jacobsen to let lawmakers vote by mail on whether to uphold the governor’s veto on Senate Bill 442.
He also denied Gianforte and Jacobsen’s requests to throw out the case.
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 a 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 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.
In the case of SB 442, sponsored by Sen. Mike Lang, R-Malta, Gianforte vetoed it on May 2 — 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.
Many senators — including Lang himself — said they didn’t know about the veto before the Senate adjourned, and it was never officially read into the Senate record, so there was no legitimate opportunity for them 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 didn’t apply.
Two conservation groups — Wild Montana and the Montana Wildlife Federation — and the Montana Association of Counties sued, saying the governor and Secretary of State should have to go forward with a veto override poll on SB 442.
In his order Tuesday, Menahan granted their motion for summary judgment, saying the constitution clearly intended to give lawmakers a chance to override a veto regardless of its timing.
“To give full effect to the Framers’ intent, in the event the legislature has not received a veto message prior to adjournment, the governor must transmit the veto message and the secretary of state must conduct the override poll in the manner established by Article VI, Section 10(4),” he said in his order. “This interpretation clarifies the constitutionally established procedures while ensuring each coequal branch of government retains the ability to exercise its proper authority.”
Menahan said the Legislature has no way to vote to override a veto before it is aware of the veto, so it made sense to define a veto as “in-session” or “out-of-session” based on when lawmakers receive it, not when the governor signs it.
SB 442 would redirect some of the state’s marijuana tax revenues to help counties fund the 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 organizations that filed the lawsuit celebrated Menahan’s ruling in statements Tuesday.
“The governor has to play by the rules, just like everyone else,” said Noah Marion, political and state policy director for Wild Montana. “He can’t hijack the legislature’s authority, and the court’s decision makes it clear he has to respect the constitution. Now the legislature can do what it voted for months ago: pass SB 442 and invest $30 million in habitat conservation and public access.”
“The legislature has the constitutional authority to check executive overreach – period,” said Jason Rittal, deputy director of the Montana Association of Counties. “With that clear, it’s time to pass SB 442 and invest in the infrastructure that agricultural producers, first responders, law enforcement, sportsmen, and all rural Montanans depend on.”
A spokesperson for Gianforte’s office told MTN Tuesday they are carefully reviewing the judge’s decision and will evaluate their next steps.
