State Senate pushes back on a judicial Trojan horse

A majority of the Montana Senate has delivered letters to the Montana Supreme Court, Governor, and Secretary of State outlining our concern that a recent court order is unconstitutional. 

It’s easy to get lost in the weeds of the issue, but the heart of the matter is pretty simple. It’s about the separation of powers among our three branches of government. The Legislature is the branch closest to the people. We cannot abide a situation where the people’s voice in Helena is ignored by the other branches.

First, it’s important to know that there is an official, physical version of every bill the Legislature handles. Attached to that official bill are all the formal actions taken on it.

A bill passed the 2023 Legislature. It was transmitted to the governor. The governor vetoed the bill and returned it to the Senate while both chambers of the Legislature were in session. Before the full Senate could be notified that the bill had been vetoed and was back in the Senate’s possession, a surprise motion ended the Senate’s legislative session. The full membership of the House received notice of the veto before the House wrapped up its business. The Senate has had physical possession of the bill ever since. 

Article VI, Section 10 of the Montana Constitution is explicit. “If the legislature is not in session when the governor vetoes a bill…he shall return the bill…to the secretary of state. The secretary of state shall poll the members of the legislature by mail…” to vote on whether to override the veto. 

Per the constitution, a mailed poll may only happen if a veto comes after the Legislature has adjourned. Who has custody of the official bill matters. The Executive Branch has no authority to take any action on a bill that they don’t have.

Despite the constitutional clarity, District Court Judge Mike Menahan, backed up by the Montana Supreme Court, has ordered the governor to give the Secretary of State a bill he doesn’t have and ordered the Secretary to conduct a mailed poll. A majority of the Senate has pledged not to participate in this unconstitutional poll. In his own letter to the secretary of state, Gov. (Greg) Gianforte said he is giving her an unofficial copy of his veto in an attempt to comply with the court order, but noted he cannot provide the official bill or veto because he doesn’t have them.

A generous interpretation of the courts’ actions is that they’re trying to help the Legislature by making sure we have the opportunity to override the veto. What the courts are actually giving the Legislature is a Trojan horse. We don’t need their help; we have numerous ways we can fix the veto override issue ourselves. Those include calling ourselves back into session, adjusting our rules (which is already in progress), and being organized with how and when we end a legislative session. 

The courts’ “solution,” on the other hand, opens the door to the Executive and Judicial Branches grabbing power that isn’t theirs by acting on bills in the Legislature’s possession. Imagine a Governor preemptively vetoing a bill before it reaches his desk, or a judge blocking a bill while it’s still under development. Such a precedent is alarming for Montanans’ elected representation at the Capitol. 

As clearly stated in our letters to the other branches of government, the Senate rejects this unconstitutional Trojan horse from the courts. 

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Sen. Jason Ellsworth, R-Hamilton, is the president of the Montana Senate.