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Legislature overturns vetoes on Montana State Hospital bills, lawsuits challenge veto on marijuana tax measure

Montana Governor's
Posted at 7:18 PM, Jun 08, 2023

HELENA — State lawmakers have voted to enact two bills dealing with the Montana State Hospital into law, over Gov. Greg Gianforte’s objection.

On Thursday, the Montana Secretary of State’s Office released the results from the latest set of veto override polls, where lawmakers have been voting by mail on whether to accept or overturn Gianforte’s vetoes on recently passed bills.

Two-thirds of House members and two-thirds of Senate members are required to override a veto. House Bill 29 and Senate Bill 4 each met that threshold.

HB 29, sponsored by Rep. Jennifer Carlson, R-Manhattan, requires the state to begin transferring patients out of MSH if their primary diagnosis is Alzheimer’s disease, dementia or traumatic brain injury. The Montana Department of Public Health and Human Services will need to find new community placements for those patients by 2025.

Gianforte said in a letter announcing his veto that HB 29 “fails to offer a realistic mechanism” for transitioning these patients to new placements. He called the 2025 deadline “unworkable.”

SB 4, sponsored by Sen. Jen Gross, D-Billings, requires DPHHS to share reports about allegations of abuse and neglect at MSH with Disability Rights Montana, the organization with the responsibility of protecting and advocating for Montanans with disabilities.

In his veto letter, Gianforte said the bill had technical issues and didn’t sufficiently protect the right to privacy because it prohibited redacting information from the reports.

So far, Gov. Greg Gianforte has vetoed 25 bills passed during the Legislature’s 68th session. Secretary of State Christi Jacobsen is conducting polls for 19 of those.

However, the Legislature didn’t get a second chance to weigh in on one broadly supported bill – and now that’s led to legal action.

This week, two separate lawsuits were filed in state district court against Gianforte and Jacobsen. They argue that the timing of Gianforte’s veto of Senate Bill 442 deprived lawmakers of their opportunity to decide whether to override the governor’s action.

“What happened with SB 442 is the veto came in in such a manner that it hit the Legislature in the sort of no-man's-land,” said Constance Van Kley, litigation director for Upper Seven Law.

Upper Seven Law is representing Wild Montana and the Montana Wildlife Federation, two conservation groups that backed SB 442. The Montana Association of Counties, another organization that supported the bill, filed a second lawsuit. Both are set to be heard in Lewis and Clark County.

SB 442, sponsored by Sen. Mike Lang, R-Malta, went through several changes during the session. In its final version, it would have used 20% of marijuana revenues to help counties fund construction and repair of rural roads. It would also have increased the share of funding that goes toward wildlife habitat improvement projects and allowed some of that money to go toward other conservation work. Significantly more funding would also have gone toward a state account that provides assistance for veterans and their surviving spouses and dependents.

Supporters of the bill said they saw the finished product as a model of how various stakeholders can work together for a good outcome. It ended up passing the bill with support from 130 of 150 legislators.

However, Gianforte vetoed the bill, sending it back to the Legislature on the same day they officially sent it to his desk. In a letter, he said it was inappropriate to use ongoing state funding to support a local responsibility like roads and the bill would create a “slippery slope.” He also identified technical concerns with the way it was written.

The veto came on May 2 – the last day of the session, shortly before the Senate adjourned on a surprise sine die motion. The plaintiffs argue that the veto was never officially announced on the Senate floor, so senators didn’t have a real opportunity to override it.

“The legislature followed the process that it was supposed to follow, and the full Senate did not know of this veto prior to adjournment,” said Van Kley.

According to the Montana Constitution, the governor must return a vetoed bill to the Legislature with an explanation. The Legislature’s joint rules say that, when the House or Senate receives a veto message, the presiding officer must read it into the record. After that, a member can call for a vote to override the veto.

If the Legislature is not in session, the governor must return the bill to the Montana Secretary of State. If more than two-thirds of the House and Senate supported the bill, the Secretary then polls lawmakers by mail to see if they want to override the veto.

In this case, the Secretary of State’s Office said the Governor’s Office never sent them information on the veto, so they had no way of conducting an override poll.

“When the governor refused to correct that action and then to return the veto with the reasons to the Secretary of State, then it's very clear that that is a deliberate choice to deny the Legislature the power of override,” Van Kley said.

Wild Montana and MWF asked the court to direct Gianforte to submit the veto to Jacobsen, and to direct Jacobsen to then conduct a poll. The Montana Association of Counties asked for the same step – or for the court to order that Gianforte’s veto was invalid and that SB 442 should become law.

Plaintiffs argued that, if this veto goes unchallenged, not only will a widely popular bill not get a chance to go forward, but it will also create a loophole that governors could use in the future to keep the Legislature from having a chance to override.

“There certainly will be those opportunities if this particular action is not corrected,” Van Kley said.

A spokesperson for Gianforte’s office said they generally don’t comment on ongoing litigation, but they pointed back to the governor’s initial objections to SB 442.

The first successful veto override of this year came last week, on House Bill 693, sponsored by Rep. Bill Mercer, R-Billings, says a public agency can’t refuse to disclose public information simply because it may be part of litigation. Gianforte said in his veto message that it “encourages trial lawyers with deep pockets to abuse the Right to Know, giving them an unfair advantage.”

Five other bills have failed to receive enough votes to override Gianforte’s veto:

· House Bill 33, sponsored by Rep. Steve Gist, R-Great Falls, would have allowed county commissioners to start civil proceedings if a local government board member failed to comply with a requirement.
· House Bill 37, sponsored by Carlson, would have required DPHHS to get a warrant before removing a child from their home and family “unless the child is likely to experience sexual abuse or physical abuse in the time that would be required to obtain a warrant.”
· House Bill 423, sponsored by Rep. Amy Regier, R-Kalispell, would have revised Montana’s laws for compensation to people who were wrongfully convicted, including shifting financial responsibility for that compensation from the counties to the state.
· House Bill 748, sponsored by Rep. Katie Zolnikov, R-Billings, would have removed local governments’ ability to pass zoning restrictions for the purpose of promoting “morals” and replaced it with one for promoting “separation of incompatible uses of property.”
· House Bill 828, sponsored by Rep. Ed Buttrey, R-Great Falls, aimed to provide additional financial support for Montana ambulance providers by allowing them to charge themselves a fee and use the money as a match to bring in more federal dollars.

The last set of veto override polls currently in progress is set to wrap up on June 20.

In 2021, Gianforte vetoed 16 bills. One of them was successfully overridden.