Governor asks court to stop order; plaintiffs say governor using delay tactics

Montana State Sen. Ken Bogner, R-Miles City, speaks at a news conference on May 1, 2023, urging support of Senate Bill 442. (Photo by Blair Miller, Daily Montanan)

Last month, a district court judge said the Montana Legislature must have a chance to override Gov. Greg Gianforte’s veto of a popular bill that directed marijuana tax revenue to conservation and county roads — but the governor believes the judge is wrong.

Earlier this month, the state asked the Lewis and Clark County District Court to stop its earlier order, arguing in part that it isn’t even certain the legislature still approves of Senate Bill 442.

“It is far from clear the Bill would not be overridden, making the Plaintiffs’ claim to relief speculative,” said a brief from the state for the governor. “Perhaps the Legislature found the Governor’s reasons for vetoing the bill persuasive.”

In the 2023 session, 130 of 150 legislators voted in support of the bill on final reading. The judge’s order last month required the governor to transmit his veto to the Secretary of State so she can poll lawmakers to see if they want to override it.

This week, plaintiffs in a lawsuit that aims to force the governor and Secretary of State to allow the legislature the opportunity to veto SB 442 said Gianforte is using stalling tactics with his request the court stop the order. But they said he’s “not entitled to usurp” the legislature’s authority.

“Consistent with his policy position and contrary to this Court’s Order and Judgment, the Governor seeks to delay the Legislature’s opportunity to exercise its constitutional power to override his veto of Senate Bill 442,” said a court document from the plaintiffs. “Delay is against the public interest and substantially injures Petitioners Conservation Organizations and Plaintiff Montana Association of Counties.”

The plaintiffs also said the law might have been implemented a long time ago, and potential harms from the slowdown include real-world damages: “The continued logjam prevents real-time infrastructure improvement.”

In the governor’s request the court change its mind, lawyers for the state argued the case involves “novel questions of constitutional law.” They said “the public interest is served by having novel constitutional questions finally resolved by the Montana Supreme Court, especially when those issues involve the separation of powers.”

The plaintiffs, however, said the governor didn’t actually appeal the case to the Supreme Court, which is required before filing a request to “stay,” or stop, an order.

“By seeking a stay before noticing an appeal, the Governor evinces the same interest in procedural maneuvering that led to this litigation,” the plaintiffs said in their motion against a stay.

The matter landed in court partly because the governor vetoed the bill around the same time the Senate adjourned but before the House did, and override processes are different depending on whether the legislature is in session.

However, the judge’s earlier order said the governor’s veto power and the legislature’s override power are not ambiguous. Judge Mike Menahan said the Constitution’s framers were clear that both branches should be able to equally exercise their powers.

Upper Seven Law, which represents the plaintiffs, said the Secretary of State may resolve the case at any time by polling the legislature on the veto. Friday, a spokesperson for the Secretary of State’s Office did not respond to a question emailed late in the afternoon about the status of such a poll.

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