Well, that didn’t last long. Yesterday, I wrote about a lawsuit by transgender Montana legislator Zooey Zephyr demanding that the state courts overturn Zephyr’s ban from the floor of the state house, and from committee assignments. As I noted, this lawsuit ran head-on into the explicit authorization in Article V, Section 10(1) of the Montana constitution under which “each house may expel or punish a member for good cause shown with the concurrence of two-thirds of all its members.”
Today, Lewis and Clark County judge Mike Menahan denied Zephyr’s request for a temporary restraining order against the legislature. Judge Menahan concluded that the decision of the state house was not properly subject to judicial review:
Separation of powers is fundamental to the United States’ system of government. The Constitution of the state of Montana provides specific grants of authority to each of the three branches. “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. Article V, Section 10 of the Montana 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. Because the constitution explicitly reserves this power for the Legislature, the Court’s powers are conversely limited.The Court also finds 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. Even if the Court ultimately finds the House of Representatives, Speaker Regier, and Sergeant at Arms Murfitt acted unlawfully under the facts of this case, it does not have the authority to issue a broad permanent injunction to effectively remove all legislative authority under Article V Section 10 in relation to a single member.