Judge sides with state dismissing lawsuit surrounding Rep. Zephyr’s censure
A district court judge sided with the state as he dismissed a lawsuit questioning the constitutionality of Rep. Zooey Zephyr’s censure during the 2023 legislative session.
The order said because the Missoula Democrat’s censure ended with the close of the legislative session, plaintiffs’ claims the censure breached her right to free speech are no longer relevant.
Plaintiffs include Zephyr along with a handful of her constituents – Anna Wong, Dean Chou, Brady Schwertfeger, and Sarah Velk.
“The Court cannot grant effective relief in this matter because there is no longer a ‘live’ controversy,” Lewis and Clark County District Court Judge Mike Menahan said in his opinion.
But a representative for plaintiffs said the order made no comment on the merits of the case, only saying the court no longer had power to remedy the situation since the legislature had adjourned.
Zephyr was not allowed to speak on the House floor after she said legislators in support of Senate Bill 99, which restricts gender affirming care for minors, would have “blood on your hands.”
Zephyr is the first openly transgender woman to serve in the legislature.
Republican Speaker Matt Regier of Kalispell decided not to recognize Zephyr on the floor after she did not apologize for her comments.
Zephyr’s supporters and constituents protested Regier’s decision, chanting “Let her speak!” from the House gallery. Law enforcement cleared the gallery at the request of the speaker. Zephyr stood on the floor with a microphone lifted in the air.
Following the protest, which drew attention from around the world, Republican legislators in the House voted together to censure Zephyr, restricting her from the House floor. Republicans said they made the decision after Zephyr broke rules of decorum.
In the lawsuit, plaintiffs including Zephyr argued the censure was unconstitutional– saying the ban was against in part her right to free speech and assembly. But the state claimed there was no longer an avenue for relief to be granted, as Zephyr is no longer censured, and therefore the matter was no longer an issue – and the court agreed.
“Without a justiciable issue, this court may not hear plaintiffs’ case,” Menahan wrote.
Attorney with the ACLU of Montana Alex Rate, representing plaintiffs, said the ruling didn’t comment on the basis of their case’s constitutional claims.
“This was a challenging case from the get-go because we were seeking emergency relief in the waning hours of a fast moving legislative session,” Rate said.
Rate said plaintiffs are weighing their options on whether to move forward in this case but have yet to make any decisions.