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Court Denies Gianforte’s Request To Stay Ruling

A Lewis and Clark County district court judge on Tuesday, March 5, denied a request from Gov. Greg Gianforte to stay enforcement of a prior order directing him to allow lawmakers to override his veto of a 2023 marijuana tax revenue bill.

Judge Mike Menahan’s ruling on March 5 does not guarantee that lawmakers will be able to override Gianforte’s veto of Senate Bill 442, legislation that allocated tax revenues from marijuana sales to conservation, veterans and county infrastructure programs. But it does start a 14-day clock for the governor and the Montana secretary of state to initiate a vote to override the veto, appeal the district court’s ruling to the Montana Supreme Court or both.

“The court finds ordering a stay would be inimical to the public interest as it would prevent the lawmaking process from moving forward,” Menahan wrote. “While this case involves technicalities of in-session versus out-ofsession veto procedures, no party has convincingly argued the Legislature had a meaningful opportunity to respond to Gianforte’s veto. The public interest lies in removing any uncertainties, which may lead to gamesmanship in the lawmaking process.”

A spokesperson for Gianforte said the governor’s office is reviewing the ruling and determining its next steps.

SB 442, sponsored by Sen. Mike Lang, R-Malta, passed successive votes in the House and Senate with broad bipartisan support. It also carried the backing of several outside stakeholders, including conservation groups and the Montana Association of Counties. But Gianforte’s office signaled throughout the session that it didn’t support the bill, largely because it allocates state funds to local infrastructure projects on an ongoing basis, which Gianforte said was inappropriate.

He vetoed the bill on May 2, the final day of the 2023 session. Normally, lawmakers would have the opportunity to veto the bill through a vote while in session or by a mail poll if out of session. But the timing of the veto, which came down just before the Senate adjourned sine die, effectively foreclosed the possibility of an in-session veto, which requires 100 votes. Gianforte’s office also argued that because the House was still in session when the veto came down, it would be improper to initiate a by-mail vote to override the veto.

As such, the override process didn’t move forward. Stakeholders sued, asking the district court to compel Gianforte and the Montana secretary of state — the office that actually issues the mail poll — to initiate the override. Plaintiffs argued that the Montana Constitution contemplates no instance in which lawmakers don’t have the opportunity to override a veto, regardless of its timing. The governor and secretary of state maintained that the veto was issued in good order and that the plaintiffs were asking the court to weigh in on what is fundamentally a political question.

The court ultimately sided with the plaintiffs. It also rejected Secretary of State Christi Jacobsen’s assertion that her office could not issue an override poll until Gianforte’s veto was officially transferred to her office. The court concluded that the two offices’ responsibilities were independent.

A spokesperson for Jacobsen said the office’s “unwavering position is that her office has followed and will continue to follow the law regarding veto procedures.”

In the coming 14 days, the state can initiate the vote to override the veto, appeal the ruling or both.

“If the poll proceeds concurrently with the appeal process, the entire issue may be resolved at the same time,” Menahan wrote. “Should the Montana Supreme Court overturn this court’s judgment on appeal, the governor’s veto will stand regardless of the results of the poll. On the other hand, if the Montana Supreme Court affirms this court’s judgment, the results of the poll will control SB 442’s status.”

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