". . . and having done all . . . stand firm." Eph. 6:13


Montana Judge Upholds House Censure of Rep Who Broke Decorum Rules

May 3, 2023

A Montana judge on Tuesday denied Montana Representative Zooey Zephyr’s (D) Monday request for an injunction against the House’s censure vote, which would have allowed him to return to the House floor.

Zephyr, who identifies as transgender, charged members who voted to enact protections against gender transitions on minors (SB 99) with having “blood on your hands,” encouraged protestors who disrupted the House session, leading to several arrests, and refused demands to apologize for his behavior. The House voted last Wednesday to censure Zephyr, allowing him to vote remotely but barring him from the House floor for the remainder of the 2023 legislative session.

On Monday, Zephyr, represented by two law firms, and four of his constituents, represented by the ACLU, filed suit in Lewis and Clark County (where the state capital Helena is located) to request “emergency declaratory and injunctive relief” against the House Speaker and Sergeant-at-Arms for “their unconstitutional Censure and retaliatory silencing of Representative Zooey Zephyr.”

On Tuesday, District Court Judge Mike Menahan denied the request by Zephyr and his constituents for injunctive relief, finding they were “unlikely to succeed on the merits” because what they requested from the court fell “clearly outside the scope of this Court’s authority.”

The judge’s decision relied primarily on the constitutional doctrine of separation of powers, which the Montana Constitution articulates in Article III, Section 1:

“‘The power of the government of this state is divided into three distinct branches — legislative, executive, and judicial. 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.’ Mont. Const. Art. III, § 1.”

“Separation of powers is fundamental to the United States’ system of government,” wrote Menahan. “The Constitution of the state of Montana provides specific grants of authority to each of the three branches.” The constitution “explicitly grants each house of the Montana legislature the authority to ‘expel or punish a member for good cause.’ Mont. Const. Art. V, § 10,” he continued. “Because the constitution explicitly reserves this power for the Legislature, the Court’s powers are conversely limited.”

The temporary restraining order, which the judge denied, would have lasted “until such time as the Court conducts a hearing and rules on the merits.” Zephyr may choose to appeal the decision to the Montana Supreme Court.

The entire opinion consisted of only seven block paragraphs, filling less than five pages.

The relief Zephyr sought was “plainly a political decision of the sort that courts are especially ill-equipped to judge,” argued National Review’s Dan McLaughlin on Monday. He cited Article V, Section 10 of the Montana Constitution as a “glaring problem” with the lawsuit, because “the power of the Montana house to punish a member is therefore unquestionable.” While “Zephyr’s lawsuit argues that the Montana house did not have ‘good cause’ for the punishment,” McLaughlin said, “it is hard to see how this is a matter subject to judicial review.”

The judge’s decision continues a recent pattern of state and federal judiciaries delineating the separation of powers among the branches of government. On Friday, the North Carolina Supreme Court returned power over election law to the legislature in two cases, noting that “the will of the people is achieved when each branch of government performs its assigned duties.” Last Tuesday, U.S. Supreme Court Chief Justice John Roberts declined to testify before the Senate Judiciary Committee “in light of separation of powers concerns and the importance of preserving judicial independence.” Last July, the Supreme Court overruled Roe v. Wade, arguing a need “to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Joshua Arnold is a staff writer at The Washington Stand.