In Montana, we can only have one governor at a time

It was one thing that Gov. Greg Gianforte’s recent vacation left the public and the press playing “Where’s Waldo?” for the week that he was, as it turns out, in Italy — but how his executive office was handled during the catastrophic floods in Carbon, Park and Stillwater counties leaves some doubts as to who exactly was the governor during that time.

Article VI of Montana’s Constitution establishes the executive branch of our government and sets out a number of other provisions defining the operation and duties of the various public officers comprising that branch.

To put a finer point on it, Section 1 states that the executive branch includes, among other officers, “a governor” and “lieutenant governor.” Section 4(1) states that “(t)the executive power is vested in the governor who shall see that the laws are faithfully executed,” and that “(h)e shall have such other duties as are provided in this constitution and by law.”

The governor’s constitutional duties include appointing powers (Sections 8 and 15), budgeting duties (Section 9), veto powers (Section 10), convening special sessions of the legislature (Section 11), granting pardons (Section 12), and powers relating to the militia (Section 13).

Additionally, the governor has certain statutory duties under Section 2-15-201 of Montana’s Code. Of note, Section 3 of this statute provides that “the governor is the sole official organ of communication between the governor of this state and the government of any other state or of the United States.”

As for the lieutenant governor, Section 4(2) states that “(t)he lieutenant governor shall perform the duties provided by law and those delegated to him by the governor. No power specifically vested in the governor by this constitution may be delegated to the lieutenant governor.” Moreover, pursuant to Section 2-15-302(2) of Montana’s Code, the lieutenant governor is required “to perform the duties provided by law and those delegated to the lieutenant governor by the governor.”

Section 14 , (modeled after the federal constitution’s 25th Amendment) describes under what circumstances the lieutenant governor can become the governor. None of those circumstances are at issue here, save for the first sentence of Section 14(2), which states that “(t)he lieutenant governor shall serve as acting governor when so requested in writing by the governor.”

Importantly, one can read Section 14 in vain without finding any a provision that allows the governor and the acting governor to exist at the same time. In other words, if by illness, disability, resignation, death or gubernatorial request, the lieutenant governor becomes the acting governor, then he (she in this case) is the governor for all purposes, unless and until that executive office is transferred back to the original governor. That may seem complicated, but, actually, it’s pretty simple: We can have only one governor at a time.

But here’s what happened during the flood. According to Helena’s Independent Record, Gianforte on June 13 sent an email to Lt. Governor Kristen Juras “giving her the authority to act as governor ‘in response to the flooding in Montana.’”

“He also verbally authorized the disaster declaration Monday and then asked Juras to formally issue it on his behalf Tuesday (June 19), according to his office.”

The governor then promptly left Italy and returned to Montana Friday morning.

The IR article also states that on Thursday (June 16) President Joe Biden issued a disaster declaration for the state of Montana, making federal funding available to address the widespread flooding.

Here’s the problem. The governor’s June 13 email apparently didn’t request the lieutenant governor to become the acting governor, but, rather, she was given authority to act as governor, for the limited purpose of dealing with the flooding in Montana and to issue a disaster declaration for Montana. So, at that point we have two governors — one who is tasked with dealing with the flood and issuing a disaster declaration, (acting governor Juras) and the other holding all the rest of the bundle of sticks that comprise being governor (original, elected Governor Gianforte).

And, then there’s the fact that President Biden declared an emergency due to the flooding so as to provide financial relief to the afflicted counties. We don’t know how, or when the president was contacted or who did so, but Section 2-15-201(3) states that, among the governor’s duties listed in the statute “the governor is the sole official organ of communication between the governor of this state and the government of any other state or of the United States.”

So, Gianforte must have contacted President Biden at some point on or before June 16; if he delegated that duty to Juras, then he did so in violation of the statute, because only the governor can contact the federal government on behalf of the state.

The long and short of it is that under the Montana Constitution the governor’s office cannot be split between two people; we cannot have an acting governor with some gubernatorial functions and the original, elected governor exercising the rest of his powers.

When properly appointed, the acting governor becomes and is the governor with all the powers and duties of that office.

At the very least, what Gianforte did in this case sets an extremely bad precedent. What’s next, an acting governor tasked with vetoing certain bills while the original, elected governor vacations in Europe?

In short, the state constitution does not permit a hybrid chief executive. That is, constitutionally we cannot have two different people filling that one office, each with different duties.

Under our Constitution we can have only one chief executive, one governor at a time.

James C. Nelson is a retired lawyer and former Montana Supreme Court Justice. He lives in Helena.