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HELENA — Gov. Brian Schweitzer's attorney has urged a district judge not to dismiss the governor's lawsuit against the 2009 Legislature over a budget bill he says is unconstitutional.

Ann Brodsky, Schweitzer's chief counsel, this week asked state District Judge Kathy Seeley of Helena to reject the Legislature's request to toss out the lawsuit and disputed the legal reasons cited by attorneys for the Legislature.

In September, Schweitzer sued the 2009 Legislature and members of its House Appropriations and Senate Finance and Claims committees. He asked the judge to declare unconstitutional House Bill 676, a companion bill to the major appropriations act that funds most of state government. In spring 2009, Schweitzer let HB676 become law without his signature.

He contended HB676 violates the state constitution, which says that only the general appropriations bill may contain multiple subjects. Earlier this month, attorneys for the Legislature asked Seeley to dismiss the lawsuit for a number of reasons, including whether the governor has “standing” to bring the suit.

Brodsky took issue with their reasons in her brief.

“Gov. Schweitzer has standing to challenge the constitutionality of a bill that deprived him of one of his most important and powerful constitutional rights as governor — the right to decide whether to exercise his veto power over legislation consisting of a single subject,” she said.

The Legislature's attorneys said the governor “did not allege that he attempted to veto HB676 but could not do so, and he did not allege particular provisions of HB676 that he would have vetoed had he wanted to do so.”

In response, Brodsky said the fact that Schweitzer did not veto or sign HB676 is irrelevant. “Nothing in Montana law or history suggests the governor's sole remedy when presented with what he believes to be unconstitutional legislation is to flex his political muscle by his veto power under Article VI, Section 10 (of the Montana Constitution), or convening the Legislature in special session, as authorized under Article V, Section 6,” Brodsky wrote.

“Had Gov. Schweitzer vetoed the bill in its entirety, Montana would have been without a much-needed increase in school funding for the 2011 biennium. Had he vetoed the bill and called the Legislature back into special session, there would have been no assurance as to any particular outcome.”

She disputed the Legislature's lawyers' contention that Schweitzer presented a controversy that is essentially moot.

“Improbably, the Legislature argues not only that Gov. Schweitzer's lawsuit was filed too early, but it argues that the lawsuit was filed too late,” Brodsky said. “Gov. Schweitzer's claims are not moot, because they involve ongoing injuries.”

She also took issue with the claim by the Legislature's lawyers that the case should be dismissed because the Legislature is immune from being sued.

Brodsky acknowledged that the Legislature is shielded from lawsuits seeking money damages or challenges over their comments during House and Senate floor during speeches and debates, but added:

“The Legislature is not shielded from immunity in this lawsuit seeking declaratory judgment, not money damages, involving only questions of law.”