Court Rules Legislature Can Override Veto of Popular Infrastructure Funding Bill

The ruling marks the latest development in an ongoing conflict between the governor’s office, county leaders and environmental groups over Senate Bill 442. If lawmakers override the governor’s veto, the bill will reallocate marijuana tax revenue towards county road repairs and conservation projects.

By Denali Sagner
Agricultural land along Lower Valley Road south of Kalispell on July 26, 2023. Hunter D’Antuono | Flathead Beacon

State lawmakers must be allowed to vote on whether or not to override a veto of a popular infrastructure funding bill after a Lewis and Clark County District Court on Tuesday sided with plaintiffs in a lawsuit against the governor and secretary of state.

Per the order handed down by District Court Judge Mike Menahan, the governor’s office must send the bill and veto message to the secretary of state, who must then poll the Legislature by mail. If two-thirds of lawmakers vote to override the governor’s veto, Senate Bill 442 will become law.

The Montana Association of Counties, Wild Montana and the Montana Wildlife Federation in June sued Gov. Greg Gianforte and Secretary of State Christi Jacobsen, alleging that the governor and secretary were derelict in their duties when they refused to carry out veto override procedures following the governor’s veto of a bipartisan funding bill. The bill, Senate Bill 442, reconfigures how marijuana tax revenue is spent in the state, distributing the funding between county road repairs, conservation and recreation programs, addiction treatment, veterans’ services and the state’s General Fund. The current funding structure does not allocate any of the revenue towards repairing county roads.

The legal battle over Senate Bill 442 stemmed from a procedural irregularity towards the end of the session that left questions about the bill’s status. Lawmakers are able to override vetoes by a two-thirds vote; either in-person during the session or by mail after the session is over. The governor vetoed Senate Bill 442 about an hour before the state Senate adjourned. Though technically vetoed during the session, lawmakers did not know the bill had been vetoed and did not conduct a veto override vote.

Despite protests from lawmakers, county officials and conservation groups, the governor and secretary of state declined to conduct a veto override vote because the veto technically occurred while the Legislature was still in session.

The court on Tuesday argued that the Legislature cannot override a veto it is not aware of, therefore determining whether a veto was ordered in-session or out-of-session must be determined based on when the Legislature receives the veto message, not when the governor signed the veto.

The governor and secretary’s refusal to conduct a veto override poll deprived the Legislature “of a constitutionally delegated authority on the basis of a procedural anomaly.”

“Although subject to different procedures, the Framers clearly intended the Legislature’s veto power to exist regardless of the timing of the veto,” Menahan wrote.

A spokesman for Gianforte on Tuesday said that the governor’s office is carefully reviewing the judge’s decision and will review next steps.

A representative for Jacobsen said the office was “surprised to learn the judge did not dismiss our office at the earliest stage,” and said the secretary of state’s office will review the decision and “determine the next steps as our commitment is to serve Montana and faithfully execute the laws.”

One hundred thirty-two of 150 lawmakers supported Senate Bill 442 during the legislative session.

“We’re glad that the court made the decision to uphold the Legislature’s constitutional authority, which is to always have the last say on a bill,” Noah Marion, Wild Montana political and state policy director, told the Beacon, adding that the bill “impacts and benefits people all over Montana.”

Environmental groups and county leaders have argued the funding will allow counties to repair decrepit roads, increasing access to outdoor recreation sites and bolstering safety for first responders and rural residents who rely on the roads. Ninety-four Montana organizations in April signed an open letter supporting Senate Bill 442. Supporting groups included the Montana Farm Bureau Federation, Montana Conservation Voters, the Trust for Public Land, the Montana Petroleum Association and Montana Conservation Corps.

“A lot of Fergus County’s 1,700+ miles of roads are falling apart due to the extraordinary traffic impact caused by out-of-area recreationists outpacing the local ability to keep them up within our regular maintenance schedules. This makes it tough for recreationists, citizens, and ag producers. The story’s the same across the state – most counties don’t have wiggle room in their budgets, and this SB 442 investment will go a long way,” Ross Butcher, Fergus County commissioner and president of MACo, said in a Tuesday press release.

The full order can be read below.

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