This is plainly a political decision of the sort that courts are especially ill-equipped to judge.
There’s a new twist in the case of transgender Montana legislator Zooey Zephyr, who has been suspended from committee assignments and floor speeches — but still permitted to vote — after repeatedly flouting the rules of the legislature, including by encouraging protesters to disrupt the proceedings of the legislature.
Zephyr has filed suit in Montana state court against the state of Montana, the speaker of the Montana house, and the sergeant at arms. The ACLU of Montana is co-counsel on the complaint, representing four of Zephyr’s constituents. The complaint claims violations of the free speech and equal-protection rights of Zephyr and Zephyr’s constituents under the state constitution and seeks, among other things, a permanent injunction against the Montana legislature “from enforcing, threatening to enforce, or otherwise applying the Censure, and restoring all of Representative Zephyr’s legislative privileges” and “prohibiting” the legislature and its officers “from refusing to recognize Representative Zephyr in House floor debate.” This would be extraordinary relief for a court to issue against a house of the state legislature.
The glaring problem with this lawsuit is Article V, Section 10(1) of the Montana Constitution: “Each house shall judge the election and qualifications of its members. It may by law vest in the courts the power to try and determine contested elections. Each house shall choose its officers from among its members, keep a journal, and make rules for its proceedings. Each house may expel or punish a member for good cause shown with the concurrence of two-thirds of all its members.” (Emphasis added). The power of the Montana house to punish a member is therefore unquestionable.
Zephyr’s lawsuit argues that the Montana house did not have “good cause” for the punishment, but it is hard to see how this is a matter subject to judicial review. Notably, Section 10(1) empowers the legislature to “vest in the courts the power to try and determine contested elections” but provides no such procedure for courts to review the house’s making of rules or its punishment or expulsion of members.
From a quick search, I did not see any prior examples of the Montana courts judging such a case. This is plainly a political decision of the sort that courts are especially ill-equipped to judge when asked to set themselves against a coordinate branch of government’s enforcement of its own internal rules.
Under the federal Constitution, the Supreme Court’s 1966 decision in Bond v. Floyd involved a refusal to seat a legislator based on statements made outside of the legislature — not the power to punish misconduct within it.
The Court just last year, in Houston Community College System v. Wilson written by Justice Neil Gorsuch, concluded that a legislative body passing a verbal censure of one of its own members did not violate the First Amendment. That case turned explicitly on the fact that verbal censure is not a tangible punishment, so it is different from this case or cases of expulsions, but it noted the long history and practice of legislatures using censures to discipline their members. It is, for that matter, unclear how Zephyr’s constituents have standing to sue, given that Zephyr can still vote, but that is unlikely to matter much with Zephyr as a plaintiff in the suit.