Most Senate Republicans send letters accusing Supreme Court of violating separation of powers

Sen. Mike Lang, R-Malta, prepares to speak to supporters of Senate Bill 442 on Monday, May 1, 2023, just ahead of its final Senate passage. (Photo by Blair Miller, Daily Montanan)

Senate Republican leadership is heading up a last-ditch effort to try to block a court-ordered override poll of a popular bill Gov. Greg Gianforte vetoed last session, making similar arguments the governor made in a lawsuit and the court has disagreed with multiple times.

The push comes three days after the Montana Supreme Court cleared the way for the poll to be sent out by Secretary of State Christi Jacobsen by the end of Tuesday.

Leadership sent letters Monday signed by most of the Senate GOP caucus to the Montana Supreme Court and Lewis and Clark County District Court Judge Mike Menahan, and separately to Gianforte and Jacobsen, saying they believe that the Supreme Court’s order from Friday ordering the poll to be sent out is unconstitutional because they say it violates the separation of powers among the three branches of government.

“Legislators are elected by the people to represent their interests,” Senate President Jason Ellsworth, R-Hamilton, said in a statement. “We cannot abide a situation where the people’s voice in Helena is ignored by the other branches of government. Separation of powers demands that only the elected officials closest to the people—legislators—may make law. The Judicial Branch is overstepping its constitutional bounds on this matter.”

None of the letters are official court filings in the governor and secretary of state’s formal appeal of Menahan’s January order in which he found the Legislature needed to have some kind of chance to override Gianforte’s veto of SB 442.

But the last-ditch questions the Republican lawmakers and governor raise are their latest efforts to avoid an override poll of the bill that passed the full Legislature with votes from 130 out of 150 lawmakers, including every Republican senator except for one. That lone lawmaker, Sen. Brad Molnar, R-Yellowstone County, did not sign either letter on Monday.

The Gianforte Administration also has argued against sending out the poll. However, Gianforte sent Jacobsen a letter Monday with a copy of his veto of Senate Bill 442, saying he wants to comply with the court order but does not have the bill in his possession. Gianforte wrote that it would violate the state constitution to try to get it from the Legislature.

“I do not have custody of the original veto message or the actual original bill, and consequently I am unable to provide them. Instead, I provide a copy of my veto message in an attempt to comply with the court’s order and while we await the Montana Supreme Court’s ruling on the underlying constitutional question about whether the judiciary can manage rules, processes, and political questions that are solely the purview and authority of the Legislature,” Gianforte wrote in his letter.

In a news conference late Monday afternoon, Ellsworth said he had the bill in his possession for the past 10 months and held it up for reporters to see. A spokesperson for Senate Republican leadership said as of Monday evening, there was no plan to hand the bill and the veto message back to the governor.

A spokesperson for the Secretary of State’s Office did not respond to an email seeking details of a timeline or plans for the override poll on Monday.

Senate Bill 442 was a widely supported, bipartisan bill that redistributes Montana’s marijuana tax revenue, including new allocations to county road maintenance and a Habitat Legacy conservation program. While most lawmakers supported the bill, the governor and a handful of Republicans balked at it because more money was not going to crime prevention or the General Fund, as they had hoped.

Rylee Sommers-Flanagan, an attorney representing Wild Montana and the Montana Wildlife Federation, which are two of three plaintiffs in the case, said in response to the letters from the lawmakers that they “appear to profoundly misunderstand the court’s order.”

“This case has always been about making it clear the legislature is a coequal branch of government and the executive can’t use gamesmanship to take their powers away,” Sommers-Flangan said in a statement. “Ultimately, this is an attempt to shift the discussion away from county roads, conservation funding, and veterans’ programming – all of which benefit from the bill.”

Montana Association of Counties Executive Director Eric Bryson said in a statement that the courts have already agreed “that no process allows a sitting governor to issue a pocket veto.”

“We respect whatever manner the legislature chooses to exercise that right, by participating in the poll or not, but we hope that they choose to vote in favor of legislation that is good for Montana,” Bryson said.

Nearly 10 months of court battles follow veto

The arguments made Monday by the Republican legislators about where the bill sits are not novel; the governor’s attorney raised the point that the Legislature was still in possession of the bill when it filed its appeal of the case last week with the Supreme Court and asked for the stay of the lower court’s decision.

In a 6-0 decision a day later, the Supreme Court denied that request and said the override poll needed to go out while the Supreme Court considers the full appeal.

“Because the fate of SB 442 could ultimately go either way, a stay denial does not moot Appellants’ appeal. Appellants have not demonstrated irreparable harm,” the six justices wrote in their opinion, which was not signed by Justice Dirk Sandefur.

But the Supreme Court did not address the claim that the bill was still in the hands of the Legislature, and Senate Republican leadership over the weekend started drafting the letter raising the separation-of-powers concerns on their own behalf, though they are not party to the case.

The entire case has involved the interpretation of what “in session” means for the Legislature and the veto process in the state constitution. Gianforte and Republicans who have been unhappy with SB 442’s passage have for 10 months maintained that since the House was still in session that day for several hours after the Senate adjourned, the Legislature was still “in session.”

But attorneys for the plaintiffs – Wild Montana, the Montana Association of Counties, and Montana Wildlife Federation – have always said that they believe the Legislature was not in session when the veto occurred because the veto message of the bill was never read in front of the Senate chambers that day before the Senate adjourned.

Menahan in January sided with the plaintiffs, saying the framers of the Constitution made it clear that the Legislature needed an opportunity to override a veto no matter when it occurred and that the loophole the governor was using to avoid sending the veto and bill to Jacobsen so she could mail out the override poll needed to be closed.

“This creates a situation in which the legislature is deprived of a constitutionally delegated authority on the basis of a procedural anomaly,” Menahan said.

Gianforte and Jacobsen both asked for stays of his decision so the poll override wouldn’t have to go forward while they appealed to the Supreme Court, but Menahan denied those requests. After Gianforte and Jacobsen filed their notice of appeal last week with the Supreme Court, that court also denied the stay request on Friday.

Republicans say they think court orders are unconstitutional

Ellsworth said in a news conference he had spent the entire weekend trying to figure out how to respond to what he says are unconstitutional orders from Menahan and the Supreme Court.

The letter to the court says the 27 Republican senators who signed on believe the judicial branch is stepping on the Executive’s and Legislature’s toes because they maintain the Legislature was in session when Gianforte vetoed the bill.

“The legislature will not participate in an unconstitutional poll,” the letter says.

Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said in the news conference that the situation was “an invitation for mischief in the future” by which legislators could game out the end of the session to hold onto a bill. The plaintiffs in the case had postulated that the same could be said for a governor who did not like a bill and wished to create a situation where a veto could not be overridden.

Fitzpatrick said at a committee hearing last week he wanted to write new draft rules he said would directly address the court rulings against Republican lawmakers in this case and another involving attorneys’ fees.

Ellsworth agreed the Legislature is not a party in the case and technically has little say, but he said he felt the purpose of the letters was for the Supreme Court to look at them and do something with them. Fitzpatrick said the letters were not a push toward the governor or secretary of state to disobey either court’s orders to conduct the poll.

“This is just simply an expression of our point of view, that we think there is a separation of powers issue,” Fitzpatrick said. “…I fully expect the poll to go through unless something happens, unless some other party makes a motion or anything of that nature. But I think this is just more about making sure that our opinion is expressed.”

He said he didn’t feel it was necessary for the Legislature to seek to intervene as a party to the suit when it was in district court. Ellsworth said the letter was not questioning the bill as a policy but rather the court’s determinations in the case so far, while Fitzpatrick, himself an attorney, compared the situation to lawmakers setting rules for how long a court hearing could last.

“These are internal operations of the legislature, and I am just really frustrated to think that a court is going to question the internal operations of the legislature when they are not constitutionally based,” Fitzpatrick said.

Democrats say Republicans’ letter is a delay tactic

Democratic legislative leadership saw the Republicans’ efforts differently. Every Democratic lawmaker supported SB 442 last session.

“After months of repeated political tricks and delay tactics by Governor Gianforte, legislators should and will have the opportunity to override the governor’s veto and make that bill law,” Senate Minority Leader Pat Flowers, D-Belgrade, said in a statement. He also made the motion to adjourn last May. “It is unfortunate that, at the eleventh hour, some Republican legislators are refusing to stand by Montanans and instead are surrendering their constitutional duties to the governor.”

In response, Fitzpatrick said that was rich coming from Democrats, saying they did not override vetoes from Democratic governors previously while Republicans have overridden Gianforte’s vetoes.

House Minority Leader Kim Abbott, D-Helena, said she still expected an override poll to be issued on Tuesday.

“No matter how badly Republican legislators want to give their power away to the governor, the Montana Constitution disagrees with them,” Abbott said.

Supreme Court Veto Override Letter

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