ACLU of Montana files lawsuit challenging Zephyr censure; Zephyr speaks in committee

Banished rep stands in the hall near the House floor after wives of legislators hold down bench; Seekins-Crowe responds to viral video

By: - May 1, 2023 8:26 pm

Rep. Zooey Zephyr, D-Missoula, sits in House Judiciary on May 1, 2023 after being censured by House Republicans. (Photo by Nicole Girten/Daily Montanan)

The American Civil Liberties Union of Montana announced it has filed a lawsuit against the state Monday challenging the censure of Rep. Zooey Zephyr, D-Missoula, alleging it was a violation of First Amendment rights and the representation of her constituents.

The lawsuit names Speaker Matt Regier, R-Kalispell, and Sergeant of Arms Brad Murfitt as defendants.

Monday also marked the first day Zephyr has been able to speak in her official capacity in the state House since her censure.

She spoke during a House Judiciary committee hearing on a study bill from Sen. Barry Usher, R-Yellowstone County, after Chairwoman Rep. Amy Regier, R-Kalispell, recognized her. Zephyr asked a question of an informational witness.

Bills that were scheduled to be heard in House Judiciary were “blasted” from committee or re-referred to other legislative committees last week, a move criticized by Democrats as a way to further cut Zephyr from the process.

Chairwoman Regier told the Daily Montanan last week that she had no bills to schedule and did not have a plan for the committee. On Friday, she said on the House floor that the committee would be meeting.

Zephyr told the Daily Montanan following the hearing Monday the committee meeting was a result of pressure from her caucus.

“My constituents sent me here to represent them in every facet of the legislative process. It feels good to be able to do that this morning,” Zephyr said.

In response to a request for comment from House Republicans, a spokesperson for the Attorney General’s Office, Emily Flower, sent a statement via a link to a Fox News story.

“This is performance litigation – political activism masquerading as a lawsuit,” Flower told Fox News Digital following publication. “The ACLU is trying to use the courts to interfere with the legislature as it carries out its constitutional duties on behalf of Montanans. Any relief granted by the court would be a gross violation of the separation of powers.”

Murfitt told the Daily Montanan he had not been served anything relating to the suit.

Zephyr’s censure came after a protest was held in the House gallery last Monday after Speaker Regier did not allow Zephyr to speak for a third consecutive time on the floor.

Zephyr wasn’t recognized after she made comments that legislators who voted in favor of a bill to ban gender affirming care for minors had “blood on (their) hands,” in reference to the youth suicide associated with denying such care.

The Speaker said her remarks that Republicans who voted for the bill should be “ashamed” crossed a line, and he refused to recognize her. Her supporters in the gallery then demanded she be recognized, chanting “let her speak,” and Zephyr didn’t quiet them, which Republicans argued merited the censure.

Zephyr defended her decision to amplify their voices.

The ACLU’s lawsuit said protests at the Capitol are routine and that “brief chanting” is not the most disruptive behavior seen on the grounds.

“During the coronavirus pandemic, individuals brandished guns during their protests. Despite this, no legislator was disciplined in those situations for the behavior of those with whom they are politically aligned, for acknowledging their views, or for failing to ‘calm’ them,” the filing read. “The Censure treats Representative Zephyr unequally to other legislators by disciplining her but not other legislators for the actions of protestors with whom they are politically aligned.”

The filing said Zephyr’s access to the building was limited with the deactivation of her access card. The key card gave her access to Capitol entrances, bathrooms, and party workspaces. The censure only blocked her from being on the House floor, gallery or anteroom.

“House leadership explicitly and directly targeted me and my district because I dared to give voice to the values and needs of transgender people like myself,” Zephyr said in a statement in a release on the suit. “By doing so, they’ve denied me my own rights under the Constitution and, more importantly, the rights of my constituents to just representation in their own government. The Montana State House is the people’s House, not Speaker Regier’s, and I’m determined to defend the right of the people to have their voices heard.”

Several of Zephyr’s constituents were listed in the filing, all saying they want Zephyr to be able to participate in the final debates on the floor in the final days of the session. Monday marks day 86 of 90 of the 2023 session.

The filing alleges violations against protections of speech, equal protection and right to representation In the Montana Constitution. The filing requests Zephyr’s legislative privileges be reinstated and defendants recognize Zephyr on the floor, without threat of censure, among other requests.

Sergeant of Arms for the House Judiciary Committee Walter Chancy told reporters on Monday the press would be limited to three chairs designated for the media. When a reporter for Lee Enterprises sat in the area designated for the public, which is normally filled with lobbyists and constituents, the reporter was told they could stay in the room but could not take notes.

This restriction marks a break from precedent in the committee, as lobbyists will typically have laptops out to take notes, as well as other days the committee has heard bills of high public interest like the bill to ban drag on public property, where more than three members of the media have been seated and standing in that area. Chancy was given this directive by Chairwoman Regier.

Monday also saw continued drama in the saga of where Zephyr works in the building.

Rep. Zooey Zephyr, D-Missoula, stands by the coffee shop as the bench she had been working on is occupied on May 1, 2023. (Photo by Nicole Girten/Daily Montanan)

On Thursday, Zephyr started working on a bench just outside the House floor the day after her censure, although the Speaker first tried to stop her from using the space to work. On Monday, women who identified themselves as wives of legislators but did not wish to provide their names, sat on the bench Zephyr had been working on– one of them had a name tag that read Beth Hinebauch, which identified her as the wife of Sen. Steve Hinebauch, R-Wibaux. Darin Gaub, director of Montana’s Freedom Caucus Network, also sat on the bench. The women denied that they were making a statement by sitting on the bench, but said they were aware that Zephyr had been working there. They asked where else they could go, although seats were available outside the Senate Chamber.

Zephyr tweeted in response to the bench she’d been using being occupied, saying “some folks showed up early this morning and sat on the public benches near the entrance to the House, so Seat 31 has moved.”

“I’m up and ready to work. Plus, I hear stand desks are all the rage these days.”

Earlier Monday morning, Rep. Kerri Seekins-Crowe, R-Billings, gave a statement to the press in regards to a video clip of her that went viral in the aftermath of Zephyr’s censure. The video was of Seekins-Crowe’s testimony for Senate Bill 99, the bill Zephyr testified against, but when the House heard the bill in March.

In the clip she was talking about her daughter’s suicidal ideation, a story she said she had consent to tell. At least one viral clip was posted to a Twitter account called The Intellectualist, which posts content based on U.S. politics with a website that does not appear to post original content.

The clip of Seekins-Crowe’s testimony on the floor had associated text that said her daughter was transgender and made it seem that Seekins-Crowe was denying her access to care, however the Billings representative said that her daughter was not transgender and that wasn’t true.

“Someone once asked me wouldn’t I just do anything to help save her? And I really had to think, and the answer was no,” Seekins-Crowe said on the House floor in March. “I was not going to give into her emotional manipulation because she was incapable of making those decisions and I had to make those decisions for her.”

“I’m not going to let her tear apart my family and I was not going to let her tear apart me because I had to be strong for her,” Seekins-Crowe said in March.

On Monday, Seekins-Crowe said the viral video was taken out of context and her family has received threats following its spread across the internet. Seekins-Crowe’s daughter made a video that has since been deleted where she also confirms she is not transgender and said the story her mom shared is more than a decade old.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.