The Senate shortly after it voted to adjourn on Tuesday, May 2, 2023. (Photo by Blair Miller)
Montana’s legislative leaders took a step Tuesday to clarify the rules surrounding the veto and override process for the upcoming session to try and avoid a situation similar to what ended the 2023 session and led to a year-long court dispute involving Gov. Greg Gianforte’s veto of a marijuana revenue distribution bill.
The Legislative Council gave approval to four of its own proposed rule recommendations, two of which add detail about the process for the House or Senate to receive a veto from the governor and to initiate an effort to override that veto.
Another rule clarifies who can consider two bills to be identical, and the fourth allows the sponsor of a bill that received a legal review note to write a letter claiming legal issues are fixed once the bill is amended.
The rule changes are not final; they will need to be agreed upon by the House and Senate rule committees when they meet in early December. Before the Legislative Council meeting Tuesday, the council’s Rules Subcommittee had also failed to pass three other rule-change proposals about the makeup of conference committees and when and how the Legislature could adjourn sine die, the term for the end of the Legislative session which must conclude on or before the 90th day.
Six rule changes were originally proposed by Senate Majority Leader Steve Fitzpatrick, R-Great Falls, largely in response to various court decisions that had to do with bills or processes that wound up in court from the past two legislative sessions.
Three of his proposals were passed by the Legislative Council after three of them failed during the Rules Subcommittee hearing earlier in the day due to “no” votes from House Minority Leader Kim Abbott, D-Helena, and Sen. Susan Webber, D-Browning. The fourth approved rule recommendation was proposed during the Legislative Council meeting by Senate Minority Leader Pat Flowers, D-Belgrade.
Rule changes after SB 442 veto saga
Most of Fitzpatrick’s proposals stemmed from what happened with the governor’s veto of Senate Bill 442, which happened just ahead of the Senate voting to adjourn. But the senators were unaware the bill, which changed the distribution structure for Montana’s marijuana revenue and was broadly supported, had been vetoed when they voted to adjourn.
The abrupt adjournment initially angered Fitzpatrick and some others who said senators had left necessary work on the table. And it kicked off what would end up being a novel legal question for the Montana courts about when the full Legislature is truly “in session,” the process by which a veto message must be read to lawmakers, and which executive is responsible for starting the veto override process if a veto happens when the Legislature is out of session.
Sen. Mike Lang, R-Malta, talks to Rep. Steve Gist, R-Cascade, on the House floor after his Senate Bill 442 was vetoed by Gov. Greg Gianforte. (Photo by Blair Miller, Daily Montanan)
Eventually, the Montana Supreme Court ordered an override poll be allowed to go out to lawmakers this past spring. But the override of the veto ultimately failed when Republican leadership urged their members not to support it amid another fight with the Supreme Court.
Fitzpatrick was unsuccessful in getting his two bills trying to change adjournment rules out of the Rules Subcommittee. But his rule clarifying when a veto is considered to have been “received” by its originating chamber passed a Council vote.
The rule change makes it so the Clerk of the House or Secretary of the Senate must physically receive the vetoed bill, then stamp it with a date and a time before it is considered to have been “received.”
Flowers’ rule, proposed on the fly during the council meeting, would include having the veto read over the rostrum as part of the process of considering the bill to have been received. That would then allow a member to make a motion to override the veto.
While Fitzpatrick suggested the later change might need to be further tweaked at the upcoming rules committee meetings in December, he and Abbott also said there would have to be another clarification made in statute at the start of the session to ensure all the changes made address the conundrum of the Senate Bill 442 veto.
“I think of this just as one of, I think, probably three steps we need to go through to get this all tightened down to a point where we’re not caught by surprise,” Fitzpatrick said.
He also added that he thought it might be worth bringing back up some of his adjournment proposals at December’s meeting.
“I do want to just say that the most important thing about clarity here is that we’re making sure that we’re preserving our ability to override an executive veto,” Abbott responded.
Changes on legal review note responses, ‘identical’ bill determination
A third rule was passed by the Legislative Council that says only the Senate or House rules committee – whichever chamber the bill originated in – can make the determination that a bill is “identical” to another bill.
Fitzpatrick said the proposed rule tied back to the Forward Montana vs. State of Montana ruling from the Supreme Court earlier this year, allowing the plaintiffs to seek attorney’s fees in the case after they challenged a bill from the 2021 session that was made in a free conference committee and included amendments from a bill that had previously failed.
Fitzpatrick also said there was a bill that was sent from the Senate to the House, where the House Speaker got in a dispute with the Senate because there was already an identical bill that previously died.
“I’m not sure it was, but this will just avoid that dispute, and we create a mechanism in code or the rules to say the bill is identical or the bill is not identical,” Fitzpatrick said. “So, I think that will eliminate that dispute to the extent we have it.”
The fourth proposed rule change the council agreed on is one that will allow a bill’s sponsor to have Legislative Services update the sponsor’s response to the note once a bill has been amended to purportedly resolve any legal issues that Legislative Services found with the original version.
The legal services office of Legislative Services reviews every bill before it is introduced to ensure no potential legal or constitutional issues might arise should it pass. The primary sponsor of the bill can include a rebuttal to the legal note when it is published. But Legal Services does not issue updated legal review notes after the bill is first introduced.
The rule change would allow the sponsor, after a bill is amended, to update that rebuttal to say that the amendment “has resolved the potential legal issues” cited by the original legal review note.
Flowers raised the question of whether Legal Services would be able to update its legal review note as well in response to the lawmaker’s new statement, saying it could cause legal issues and confusion if non-lawyers are saying a bill’s legal issues are resolved when they might not have been in the eyes of an attorney.
But Todd Everts, the director of Legal Services within the Legislative Services Division, said that would be a “huge burden” for his staff and not possible for it to constantly being doing legal reviews with the pace by which lawmakers amend bills as they pass through the chambers. He said lawmakers would “have to hire a bunch more attorneys” to be able to do so.
“Once the bill’s in the process, it’s in hearings, these are scrutinized by thousands of eyes. And the case to be made in front of the committees is (there is) information that you’re going to be getting – including legal information from all different quarters – and the legal review note is just one small piece,” Everts said.
The Legislative Council also agreed to adopt a host of minute changes requested by Legislative Services staff, then agreed to adopt the proposed calendar for the session.
The session will start on Jan. 6 and is currently scheduled to run until April 30 at the latest. Lawmakers from both parties said there had been strong support to be done by May. The calendar currently has lawmakers working on Saturdays – something that rarely happened during the 2023 session. The schedule shows lawmakers working on 11 Saturdays between January and May.