Zephyr, constituents, challenge House disciplinary action in court
Represented by the ACLU of Montana, Missoula Democrat Rep. Zooey Zephyr and a coalition of her constituents are challenging her ban from House floor debates.
By Arren Kimbel-Sannit MONTANA FREE PRESS
Missoula Rep. Zooey Zephyr has filed a lawsuit challenging the disciplinary action that banned the Democrat from the House floor, anteroom or gallery, the latest in a standoff between Zephyr and Republican leaders consuming the final days in the 68th Montana Legislature.
The lawsuit, filed Monday by the Montana American Civil Liberties Union and a pair of private law firms, alleges that the order barring Zephyr from participating in floor debates violates her constitutional rights and deprives her 11,000 constituents from representation.
“Duly elected representatives to the Montana House have constitutional rights that they do not lose when they walk into the state Capitol,” Alex Rate, the legal director of the ACLU of Montana, told Montana Free Press Monday. “The House is free to pass whatever rules it wants, but those rules have to pass constitutional muster.”
The suit, which names the state, House Speaker Matt Regier and House Sergeant of Arms Brad Murfitt as defendants, specifically contends that the decision to discipline Zephyr violates her rights to free speech and equal protection under the law. It asks a Helena district judge to prevent Regier, R-Kalispell, and the other defendants from enforcing the terms of Zephyr’s censure and to compel them to recognize Zephyr to speak on the House floor.
The plaintiffs are asking for that relief as soon as possible, Rate said. The 2023 Legislature will wrap up and adjourn this week, so a judge would have to grant a temporary restraining order soon for Zephyr’s participation in the legislative process to be restored before the session ends.
A spokesperson for Regier did not return a request for comment Monday. The Montana Department of Justice, which will represent the state, Regier and Murfitt in the lawsuit, in a statement called the suit “performance litigation – political activism masquerading as a lawsuit.”
“The ACLU is trying to use the courts to interfere with the legislature as it carries out its constitutional duties on behalf of Montanans,” Emily Flower, a press secretary for Attorney General Austin Knudsen, said in the statement. “Any relief granted by the court would be a gross violation of the separation of powers.”
The House voted to censure Zephyr last week following a protest in the gallery that challenged Regier’s ongoing decision not to recognize Zephyr to speak on bills up for consideration on the floor. Regier suggested that he would not recognize Zephyr, a transgender woman, again until she apologized for remarks she made on the floor about Senate Bill 99, legislation that bans gender-affirming care for transgender youth. Gov. Greg Gianforte signed the bill last Friday.
“If you vote yes on this bill and yes on these amendments, I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands,” she said on the House floor April 18..
The next day, Regier relayed a message through House Minority Leader Kim Abbott, D-Helena, asking Zephyr to apologize, according to court filings. Zephyr said she would not apologize, and Regier told her that her comments broke decorum and that he would not recognize her on the floor until he believed she could “maintain decorum” moving forward, according to the lawsuit.
Zephyr registered to speak on multiple bills in subsequent days to no avail. Regier declined to recognize her each time, citing House rules that give him broad discretion as the chief officer of the chamber. Lawmakers upheld his rulings in votes. Last Monday, protests erupted in the House gallery as Regier declined to recognize Zephyr once again. Regier ordered the galleries cleared, police swept in, and most lawmakers left the floor or stood off to the side. Zephyr stood at her desk, holding her microphone in the air “in an effort to demonstrate that the voices of my constituents were being silenced in the People’s House,” she wrote in a declaration filed with Monday’s lawsuit.
Later in the week, the House voted on party lines to censure Zephyr, banning her from the House floor, anteroom and gallery but allowing her to vote on bills remotely.
“Monday, this body witnessed one of its members participating in conduct that disrupted and disturbed the orderly proceedings of the body,” House Majority Leader Sue Vinton, R-Billings, said in support of the motion to discipline Zephyr last week. “This member did not accede to the order of the speaker to come to order and finally to clear the floor and instead encouraged the continuation of the disruption of this body, placing legislators, staff and even our pages at risk of harm.”
Police arrested seven protestors on trespassing charges, but their citations make no notes of violence or property damage.
“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 press release following the filing of the lawsuit. “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.”
As lawmakers prepared to vote to censure Zephyr, Abbott pleaded with Republicans to protect Zephyr’s access to the process. She said that she believed they had the right to discipline Zephyr — they just shouldn’t.
“You know what, I agree that you absolutely can do this — by rule, by the Constitution, by Mason’s [Manual of Legislative Procedure],” Abbott said on the floor. “But just because you can do it does not mean that’s the right choice.”
Rate said he couldn’t comment on what Abbott said or what she meant.
The lawsuit contends that Regier’s refusal to recognize Zephyr and the subsequent censure are unconstitutional, retaliatory violations of Zephyr’s protected speech. Politicians have told colleagues they would have blood on their hands before, and Montana’s Legislature is no stranger to high-pitched debate and even personal attacks, but only Zephyr has faced these kinds of consequences, the lawsuit maintains — a violation of equal protection under the law“ on the basis of her political alignment with transgender rights.”
Lawmakers have a heightened right to speech on the floor, the lawsuit says. It cites cases including 2022’s Boquist v. Courtney, in which a Republican Oregon lawmaker challenged disciplinary action he faced after making threatening remarks on the House floor a few years earlier, and 1966’s Bond v. Floyd.
In that latter case, the Supreme Court ruled that the Georgia House of Representatives violated Julian Bond’s First Amendment rights when it said he could not serve in the body due to his prior comments against the Vietnam War. States can impose oaths on lawmakers, but they cannot limit their ability to weigh in on policy.
The Zephyr suit excerpts a passage from the court’s ruling: “The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be represented in governmental debates.”
Several of Zephyr’s constituents are also challenging her censure, alleging that it unfairly deprives them of representation in the Capitol.
“By discriminating against Representative Zephyr, and treating her dissimilarly from her fellow lawmakers, the Censure impermissibly discriminates against Representative Zephyr’s Constituents,” the lawsuit states. “Thus, Representative Zephyr’s constituents are being treated differently from similarly-situated voters in other districts based on their own and Representative Zephyr’s political ideas.”
This story was originally published by Montana Free Press at montanafreepress.org.