Judge denies temporary injunction request by Zephyr, ACLU of Montana

Speaker Regier praises order, ACLU of Montana considers appeal

By: - May 2, 2023 8:28 pm

Montana State Representative Zooey Zephyr walks towards the exit of the house chamber after a motion to bar Zephyr from the chamber passed at the Montana State Capitol in Helena, Montana on Wednesday, April 26, 2023. Rep. Zephyr will still be able to vote on bills remotely. (Photo by Mike Clark for the Daily Montanan)

District Court Judge Mike Menahan said Tuesday he won’t put an emergency stop to Speaker of the House Matt Regier’s censure of Rep. Zooey Zephyr.

On a party-line vote, the House censured the Missoula Democrat last week alleging a breach of decorum after a protest in the gallery broke out by people who wanted Regier to recognize Zephyr to speak on the floor.

As a result, Zephyr has been barred from floor debate or setting foot in the chamber since last Wednesday.

Monday, the ACLU of Montana filed a lawsuit on behalf of Zephyr and some of her constituents alleging Regier, a Republican, and Sergeant of Arms Brad Murfitt are violating her First Amendment rights.

In the complaint, the plaintiffs asked for a temporary restraining order, among other relief. But the judge declined to grant it.

“Plaintiffs’ requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Court’s authority,” wrote Menahan, of Lewis and Clark District Court. “Plaintiffs also seek injunctive relief which far outpaces the facts at issue here.”

The judge said even if the plaintiffs win, the court doesn’t have as much power over the legislature to grant the relief Zephyr requested in the lawsuit.

The Senate adjourned for the session Tuesday and the House is expected to do so as well.

In a statement, Regier said the House will continue its work for the people of Montana.

“The Montana courts have recognized that the judicial branch has no power to revise or overrule the power expressly held by the Montana State Legislature to conduct its business,” Regier said.

However, Alex Rate, legal director the ACLU of Montana, said all options are on the table, including an appeal to the Montana Supreme Court, even if relief would not immediately help Zephyr’s situation.

The lawsuit said in prohibiting Zephyr from floor debate, the punishment meant she couldn’t weigh in on arguably one of the most consequential bills of the session, the “big budget bill, touching all corners of government and affecting every citizen in the State.”

Tuesday afternoon, the House had yet to put its final stamp of approval on that bill, House Bill 2.

“We can’t idly stand by while a supermajority votes to strip individuals of their constitutional rights — and not just individuals but individuals and their 11,000 constituents,” Rate said, referring to the Republican supermajority.

In a tweet, Zephyr said the decision undermines the democratic principles the country was founded on.

“I vow to continue standing for my constituents & community to fight for our democratic institutions,” Zephyr wrote. “If we can’t get justice in the courts, we will get it in the ballot box.”

The lawsuit said a people are affected by the actions in the House against Zephyr, and attacks against her community came to a head with the silencing.

“Montana’s 68th Legislative Session is blighted with attacks on vulnerable individuals and communities in Montana,” the complaint said. “Those attacks are perhaps felt most acutely by members of the 2S (Two Spirit) LGBTQIA+ community. The Legislature has passed numerous bills attacking and marginalizing transgender and nonbinary Montanans.

“The censure of Rep. Zephyr reflects the culmination of those attacks.”

Last Wednesday, the House voted to discipline Zephyr, the first openly transgender woman elected to the Montana Legislature.

Those who supported the motion to punish her said Zephyr should have walked off the floor Monday when a protest broke out in the gallery or told her supporters to stop chanting when they started calling for Regier to allow her to speak.

Regier hadn’t recognized Zephyr since she made comments that Republicans would have “blood on (their) hands” in approving a bill that bans gender affirming care for minors.

Republican Gov. Greg Gianforte signed the bill last week.

“Gender-affirming medical care can be lifesaving treatment for transgender individuals, including minors, experiencing gender dysphoria,” the lawsuit said. “Gender dysphoria is a medically recognized condition defined by a marked incongruence between a person’s gender identity and the sex they were assigned at birth. It is a serious medical condition. Some, but not all, transgender people have gender dysphoria.”

But Zephyr’s remark that Republicans should be “ashamed” went too far, Regier said, and he said he would recognize her if only she would apologize, as he said other representatives from both parties have done when they’ve crossed the line.

Zephyr has held her ground, and Monday, the protest broke out in the gallery, leading to the censure.

In his order, Menahan said plaintiffs argued a temporary restraining order was necessary to “prevent irreparable injury to Plaintiffs’ fundamental rights which plaintiffs allege would result from enforcement of the censure and Defendants’ continued refusal to recognize Rep. Zephyr in debate on the House floor.”

The judge disagreed, in part citing a new law passed this session for the way courts decide injunctions. He referenced Senate Bill 191, which revised preliminary injunction rules, took immediate effect, and was signed by Gianforte in March.

“The new standard amends Montana’s statutory standards for preliminary injunctions and temporary restraining orders,” the judge said. “The Montana Legislature intended for this standard to ‘mirror the federal preliminary injunction standard,’ and ‘closely follow United States Supreme Court case law.’”

Rate, with the ACLU, said in the past, a judge could grant a temporary injunction if just one of the multiple prongs of a test were satisfied, such as if not doing so would result in “irreparable harm.” Now, however, Rate said all the prongs need to be satisfied.

In the order, Menahan said the Montana Constitution grants authority to three branches of government, and the separation of powers is fundamental to the United States’ system of government.

“No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted,” the order said.

He also noted the Montana Constitution “explicitly grants each house of the Montana legislature the authority to ‘expel or punish a member for good cause.’”

“Because the constitution explicitly reserves this power for the legislature, the court’s powers are conversely limited,” Menahan wrote.

The judge said the plaintiffs are unlikely to succeed on the merits “because the ultimate relief they seek includes broad permanent injunctions clearly outside the scope of this court’s authority.”

The plaintiffs asked the court to stop Regier from refusing to recognize her; they also asked the court to stop him and the sergeant at arms from prohibiting her full participation in the House proceedings on behalf of her constituents. In part, they alleged the censure violates freedom of assembly and the right to petition for redress.

But even if the plaintiffs win and the court finds the House of Representatives, Speaker and sergeant at arms acted unlawfully, the judge said the court does not have the authority to issue a “broad permanent injunction to effectively remove all legislative authority” in relation to a single member.

Order On Plaintiffs' Motion For Temporary Restraining Order - Denied

Editor’s note: Daily Montanan reporter Nicole Girten contributed to this report.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.