UPDATED: Regents, MFPE file separate challenges over Regents’ authority

MFPE lawsuit: ‘Challenged measures are beyond the pale’

The stairs of the Montana Capitol in Helena, Montana (Photo by Eric Seidle for the Daily Montanan).

Two separate lawsuits were filed Thursday asking the Montana Supreme Court to find that bills from the 2021 Legislature infringe on the Constitutional authority of the Montana Board of Regents.

The Montana Board of Regents filed a lawsuit as did a group of plaintiffs with the Montana Federation of Public Employees in the lead.

Plaintiffs with the Montana Federation of Public Employees asked Thursday for the state’s highest court to hear a case challenging the constitutionality of a cluster of bills passed during the 67th legislative session, including a transgender athlete sports ban and a bill allowing for guns to be carried on college campuses, arguing the bills overstep on the authority of the Montana Board of Regents.

“Each of the Petitioners stands to suffer harm as a consequence of the implementation of the challenged bills, including actual and prospective injuries to their interest in campus safety, freedom of speech, and non-discrimination,” the suit read. The bills being tested are House Bills 102, 112, and 349 and Senate Bill 319. Respectively, the bills allow guns on college campuses, ban trans women from participating in women’s athletics, direct the way student groups on campus operate, and alter the way student organizations can register students to vote on campus.

The suit acknowledged the sometimes blurred line of authority between the Legislature and Board of Regents but asserted, “… the challenged measures are beyond the pale. They all amount to legislative overreach into the constitutional prerogative of the Regents.”

The lawsuit alleged that HB349 would provide an “open invitation to harrass and discriminate,” and opponents have said it violates the Montana Human Rights Act. Regarding HB102, the plaintiffs argued it puts college students, faculty, and visitors at risk of death or injury by inviting guns to campuses. Additionally, the lawsuit said, “SB 319 would have onerous and unconstitutional restrictions on voter registration and other political activities in student dormitories and dining halls.” And it alleged HB112 would violate anti-discrimination rules set forth by the National Collegiate Athletic Association.

The lawsuit was one of two filed Thursday challenging the constitutionality of HB102. The Board of Regents had said Wednesday it would direct the Montana Office of the Commissioner of Higher Education to sue and move quickly.

In its lawsuit filed against the state of Montana through Attorney General Austin Knudsen, the Board of Regents is asking the Montana Supreme Court to find parts of HB 102 unconstitutional. The lawsuit also asks for an emergency stay to stop the implementation of HB102 or risk a crisis in the orderly management of campuses.

“A stay of implementation of Section 6 of HB102 is necessary to the meaningful exercise of this Court’s jurisdiction, and to the safe and effective management of the entire MUS,” the lawsuit said.

The lawsuit also said the HB102 invades the “sole and full authority” of the Regents to manage the university system: “By enacting HB102, the 2021 Montana Legislature … has impermissibly curtailed BOR’s authority to determine the best policies to “ensure the health and stability of the MUS.”

Lawyers in that case are Martha Sheehy of the Sheehy Law Firm, a former recent member of the Board of Regents; Ali Bovingdon in the Commissioner’s Office; and Kyle Anne Gray, Brianne McClafferty and Emily Cross with Holland and Hart.

Plaintiffs on the other lawsuit filed Thursday include the Montana Federation of Public Employees, which represents Montana University System faculty members, former Board of Regents members, an ex-commissioner of higher education, faculty and student organizations, as well as individual students and faculty members. The defendants are Gov. Greg Gianforte and the State of Montana.

That suit acknowledges the one filed by the Regents.

“This petition has been in preparation for a number of weeks, but Petitioners have delayed its filing, hoping that the Board of Regents would, itself, file to vindicate its constitutional authority,” the lawsuit said. “The Regents did so vote on May 19, 2021. Accordingly, Petitioners are synchronizing the filing of their Petition with that of the Regents. They support the Regents’ request that this Court stay the implementation of HB 102. Petitioners may move to consolidate their Petition with that of the Regents, although the present Petition, because it raises challenges to bills other than HB 102, is broader than the Regents’ petition.”

In a statement, MFPE President Amanda Curtis said the people of Montana have spoken.

“They demand our Constitution be upheld and respected,” she said. “On behalf of the Montana University System’s students, staff, and faculty, we thank and applaud the Montana Board of regents for their decision to protect the authority invested in them by the people of Montana. House Bills 102, 112, and 349 and Senate Bill 319 are blatantly irresponsible and run afoul of the Montana Constitution which has served our state well since 1972.”

The plaintiffs, represented by Raph Graybill of Graybill Law Firm, P.C., and James Goetz and Jeffery Tierney of Goetz, Baldwin and Geddes, P.C., are attempting to leapfrog district courts by requesting the Supreme Court to grant original jurisdiction on the case arguing the bills will have effects felt statewide and that the case “involves purely legal questions of constitutional interpretation and state statutes,” and “thus, urgency factors exist, making litigation in the trial courts and the normal appeal process inadequate.” HB102, HB112 and SB319 will go into effect on June 1 while HB349 went into effect immediately after passage.

Keila Szpaller contributed to this story.

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Keith Schubert
Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by email at [email protected], by text or call at 406-475-2954
Keila Szpaller
Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”