Lawsuit season cometh: Upper Seven Law will challenge drag ban and other 2023 bills
Founder and executive director Rylee Sommers-Flanagan gives us the deets. Plus: Rocky Fall brings the glorious garage-rock snark on "Off One's Trolley."
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With the 2023 Legislature over, opponents of various bills have begun filing lawsuits to block them from going into effect, including an ongoing effort led by Planned Parenthood of Montana to freeze a ban on abortions after the first trimester of pregnancy.
The Helena-based non-profit firm Upper Seven Law has made clear that it plans to challenge some of the ‘23 Legislature bills as well.
In the two years since it launched, Upper Seven has successfully tackled a wide range of cases, including one ensuring voting rights for eighteen year-olds, another that found an extreme right-wing provocateur guilty of libel and a case that required the Gianforte Administration to make certain documents available for public access.
I recently spoke to Rylee Sommers-Flanagan, the founder and executive director of Upper Seven, about the lawsuits on the horizon and how her firm maintains a non-partisan approach to its work.
** Upper Seven is also serving as lead counsel in a new defamation case against Fox News. You can read my separate interview with Rylee about that here. **
Max: What inspired you to start your own law firm?
Rylee Sommers-Flanagan: I'm in love with Montana. I grew up here. My family is from here.
I've been able to have a wide variety of experiences living in lots of places. And then I had a great opportunity to move back to Montana. I took a short-term job working for Governor Bullock: he was termed out of the governor's office. And so my expectation was that I would move home and I would work really hard for him for about six months, and then I would figure out what was next.
I’ve had a vision of [starting] a non-profit or a public interest—or both—law firm in Montana. When I was in law school, I did a couple of different jobs that gave me exposure to different models for that.
I wanted to have a job that I could do in Montana that meant a lot to me, and that felt like [a way to] contribute to my community, where I could create more opportunities for other people to come home, too.
We have these extraordinary public interest organizations that do legal work on the coasts and in urban centers, but we don't see as much of that in rural America.
We are a non-profit law firm. We are funded by grants and by donations. We're a 501(c)3.
We're careful about the types of cases we take. We are non-partisan. We assess [whether a case] complies with our mission to hold the powerful accountable, and then we ask the question, is it in the public interest? Is it a private dispute between two individuals, or is it an issue that affects hundreds if not thousands if not millions of people?
Especially considering today’s political climate, I imagine that your work could nonetheless be perceived as partisan. Does that happen, and if so, how do you navigate that perception?
I think that while it is true that there are people out there who are going to call almost anything partisan or ideologically-driven, the reality is that just because somebody says it is, doesn't make it so.
We take our non-partisanship very seriously. We will never represent the Democratic Party, for example, nor will we ever represent the Republican [Party]. We believe in the rule of law. Some people may even characterize believing in the rule of law as a partisan position, and that is simply wrong.
In theory, at least, we are part of a country that has agreed to play by a set of rules. We believe in playing by the rules that we've all agreed to, and we think that's what the Montana Constitution is about.
It's difficult to know how to interact with those [claims] other than to just be really honest about what our goals are: to keep looking back to the guiding principles, to keep looking back at the Constitution and the agreement that we made with ourselves, in Montana's case, decades ago. In the United States’ case, over two centuries ago.
The point is for us to also look out in the world and say, okay, how does this map onto today's society? How do we protect individual rights? How do we help communities thrive?
We can't take too seriously the criticisms of people who would interpret anything that anyone does publicly as ideologically driven. That's just not serious. And so I'm comfortable saying that we are non-partisan, we're very committed to it. People will say what they're gonna say.
Now that the 2023 Legislature is over, do you have plans to bring lawsuits against certain bills? Are you watching from the sidelines?
We're definitely not watching from the sidelines. People are really hungry to see crazy stuff knocked down.
We are resource limited. Right now we are a team of four attorneys, and we're expanding to five this summer, and we hope to six. I think we have fourteen cases running right now, [although] a few of them are on appeal.
We have nine that are directly related to the legislative session that we are interested in bringing.
House Bill 359 - prevents minors from attending drag shows
It's such an offensive bill on many levels. So it does two things.
It bans what it defines as “drag”—which is honestly a very murky definition—in places like schools and libraries, for drag story hour. It targets that very specifically.
The second piece [bans] sexually-oriented performances in places where there are minors. It's not something that we allowed to begin with. That is something that people are allowed to do within private businesses where minors do not go. That's a reasonable restriction on what we do with our bodies. And it's also one that is applied to all people evenly. It's not about your gender identity or your sexual orientation. Whereas banning drag story hours in schools and libraries is discriminatory. It's a violation of the right to free speech. It's a political gambit. It's not serious law making. We will challenge that law, 100%, no question.
Senate Bill 442 - allocating marijuana tax revenue to county road maintenance and a habitat legacy account
Let’s talk about the popular, bipartisan bill SB 442. Governor Gianforte vetoed it on May 2, and some lawmakers believe they are being denied the opportunity to override the veto.
The timing of the veto was intentionally sneaky, or it appears to be intentionally sneaky. We wrote a letter to the governor about it last week.
If the proper steps are not taken to transmit the veto of SB 442 to the Secretary of State's office, and the Secretary of State's office does not take the proper steps to poll the legislature to see whether or not they want to exercise their constitutional right to override the veto, then we'll challenge them because it's an unacceptable and brazen abuse of power. It's anti-democratic.
To clarify: You believe that there has been a barrier put in place to prevent lawmakers from overriding the veto; that’s the unconstitutional piece of the puzzle?
Yes. The legislature has the power to make laws and they have the power to override the governor if they have the votes to do it. The governor is using loopholes to achieve a political goal that is not at all what the Constitution intended.
The laws can't be exploited to prevent each branch of government from participating in the way that it's supposed to.
Other potential lawsuits
We are looking at laws that may violate equal access to things like healthcare and lawsuits and to the ballot.
We are definitely looking into a couple of potential voting rights cases. We're looking at a couple that are related to trans issues and related to environmental issues.
One thing worth saying is that the legislature did kill a lot of bad bills. We can all be glad that the legislative process worked to prevent as many really unconstitutional laws from passing as I think they could have. We saw there was a potential for that at the beginning of the session.
Over time, the process worked well enough that folks were able to communicate with each other and get to the bottom of some things and prevent the passage of some really bad bills. We applaud our friends who have done that great work.
This conversation has been lightly edited for length and clarity
Montana Song of the Week
Rocky Fall - “Off One’s Trolley”
On their brand-new single “Off One’s Trolley,” the Bozeman four-piece Rocky Fall delivers another dose of exuberant garage-rock chaos. Slightly more restrained than their first two releases, the song nonetheless offers a walloping four minutes of delicious and frenetic snark.
“Off One’s Trolley” benefits from improved fidelity, too—the biting lyrics, an ode to dealing with grifters, assholes and cons—shine through in the mix with newfound clarity.
The song surges from section to section, constantly gaining steam. While the chorus takes aim at the brainless and shameless with aplomb, “Off One’s Trolley” finds its peak—and its mission statement—in the bridge: “I’m not giving in to your stupid bullshit,” drummer and vocalist Rily Livingston howls, before the band dives into a crackling guitar solo. Like Rocky Fall’s previous two singles, “Off One’s Trolley” captures a band that finds joy in its angst, and in the mess they make along the way.
Rocky Fall plays a free show at Bourbon in Bozeman on May 19 with the Groms. They also play Monk’s Bar in Missoula on May 23 with Billywhips and Sundog. You can find details on the band’s Instagram page.
One more thing…
I put together a summary of the various cannabis-related bills that both passed and died during the 2023 Montana Legislature for Montana Free Press, including the good, the bad and the really, really ugly.
Thanks so much for being here. In the meantime, you can always reach me via email, the comment section below, or on the Elon Machine, @SavageLevenson.