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HomeMy WebLinkAbout10-09-17 City Commission Packet Materials - A4. Authorize Participation as a Plaintiff in I-183 Challenge Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Dennis M. Taylor, Interim City Manager SUBJECT: Authorize the City to participate as Plaintiff in lawsuit challenging the constitutionality of I-183 (Montana Locker Room Privacy Act). MEETING DATE: October 9, 2017 AGENDA ITEM TYPE: Action RECOMMENDATION: None. SUGGESTED MOTION: I move to authorize the City of Bozeman to participate as a plaintiff in a lawsuit challenging the constitutionality of Initiative 183 (the Montana Locker Room Privacy Act” and to request the interim city manager bring a resolution before the Commission appointing Alex Rate of the ACLU of Montana Foundation and Gabriel Arkles of the ACLU LGBT & HIV Project of the ACLU as special counsel for the City of Bozeman. BACKGROUND: The Montana ACLU requests the City Commission consider participating as a plaintiff in a lawsuit challenging the constitutionality of I-183 (the “Montana Locker Room Privacy Act.”). Representatives from the ACLU will be available during this agenda item to provide the Commission information on the lawsuit and the issues associated with I-183 should the initiative be placed on the November, 2018 general election ballot and be approved by a majority of Montana voters. I along with city staff will be available to discuss potential impacts to city facilities, services and operations during the agenda item. The revised ballot language is attached and can be also be found here. The ACLU provides the following background information: On May 10, 2017, the Montana Family Foundation (MFF) submitted proposed text for the “Montana Locker Room Privacy Act,” designated as I-183, to the Montana Secretary of State for review. See attached initiative text. The initiative is intended for the 2018 ballot. The initiative is designed to exclude transgender individuals from locker rooms, restrooms, and other public facilities that correspond to their gender identity. The initiative also authorizes lawsuits against 378 government entities that do not strictly comply with the text of the statute. More specifically, I- 183 would: a. Require transgender people to use the restroom, locker room, or changing facility in government buildings (“public facility”) that corresponds with a gender indicated on their original birth certificate based on anatomy and genetics, or no facility at all. b. Define “changing facility” as any “facility in which a person may be in a state of undress in the presence of others, including, but not limited to, a locker room, changing room, or shower room.” (emphasis added) “State of undress” is not defined. c. Define “sex” as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.” (emphasis added) d. Require government entities to label all multi-occupancy public facilities as “women’s” or “men’s,” prohibit transgender men from using those labeled for men, and prohibit transgender women from using those for women. e. Create a new private right of action against government entities. The measure creates liability for money damages without cap—specifically, it authorizes damages for emotional and mental distress, reasonable attorney fees and costs, and “other relief.” It would permit people to sue government entities for not sex segregating all multi-occupancy restrooms, changing facilities, and locker rooms in government buildings or under government control, including in public schools. It would also allow individuals to sue government entities for letting transgender people use the public facilities most consistent with their gender identity, privacy, safety, and dignity. f. Undermine local government attempts to secure the rights guaranteed in the Montana Constitution through adding a new restriction on the power of self- governing local government units. g. Have significant short and long term fiscal impacts on the State. The Montana Office of Budget and Planning noted: “inventories and assessments will need to be conducted on all state-owned and K-12 facilities.” The Budget Office states that “there are over 2,200 buildings in the K-12 system” and “4,250 state-owned facilities.” Without such an inventory, it appears virtually impossible to predict what the total general fund impact will be. The fiscal impact on local governments is similarly difficult to predict: “The fiscal impact to cities and towns cannot be quantified as the resources required to enforce the law and the monetary damages that will be awarded pursuant to the provisions of the initiative are unknown.” The Budget Office estimates “the legal reserve needed to address” claims of discrimination brought pursuant to 42 U.S.C. § 18116 “to be $200,000 per biennium.” The Budget Office characterizes these fiscal impacts as “an unfunded mandate on local governments.” The Budget Office estimates that the 379 long-term impacts of the initiative could exceed $1 billion per year. In particular, the initiative would jeopardize federal funding for the Montana University System. “At a minimum, this amount could exceed $250 million per year.” The MFF is currently gathering signatures to qualify I-183 for the 2018 ballot. The ACLU-MT is preparing to file a pre-election challenge to the constitutionality of I-183. The purpose of the lawsuit is to remove the initiative from the 2018 ballot altogether. At least seven members of the transgender community have agreed to be identified as Plaintiffs on the Complaint, and ACLU- MT is in discussions with other municipalities and organizations regarding their participation. We anticipate that Bozeman’s participation in the lawsuit will have negligible impact on government personnel and financial resources. ACLU attorneys will be representing the City, and this matter will, in all likelihood, be decided on paper briefs submitted to the Court. It is not expected that there will be any monetary impacts of the litigation. This litigation presents an opportunity for Bozeman to assume a leadership role in the fight against discrimination. UNRESOLVED ISSUES: Should the Commission decide to participate as a plaintiff in this lawsuit and determine to use ACLU’s legal counsel as its counsel the Commission must adopt a resolution appointing ACLU legal counsel as special counsel. We will bring such a resolution to you for approval as soon as possible. ALTERNATIVES: None recommended. FISCAL EFECTS: None anticipated except for staff time monitoring the litigation. Costs of litigation will be borne by the ACLU of Montana. Attachments: Proposed Text of Initiative 183 Report compiled on: October 4, 2017 380 REVISED BALLOT LANGUAGE FOR INITIATIVE NO. 183 (I-183) INITIATIVE NO. 183 A LAW PROPOSED BY INITIATIVE PETITION I-183 requires all state and local government entities, including schools and universities, to designate “protected facilities” in government buildings – such as locker rooms, changing rooms, restrooms, and shower rooms – for use by members of only one sex. It defines “sex” as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.” A person may not use protected facilities that are not designated for that person’s sex. The government may provide an accommodation, such as single occupancy facilities, for special circumstances upon request. The measure requires the government to “ensure that each protected facility provides privacy from persons of the opposite sex.” It authorizes people to sue governmental entities and recover monetary damages for violations. The State of Montana will spend an estimated $545,699 in general fund money in the first four years to renovate facilities and provide proper signage for protected facilities. Long-term costs and legal fees for state and local governments, K-12 schools, and universities could be substantial, but are uncertain. [] YES ON INITIATIVE I-183 [] NO ON INITIATIVE I-183 381 THE COMPLETE TEXT OF INITIATIVE NO. 183 (I-183) BE IT ENACTED BY THE PEOPLE OF THE STATE OF MONTANA: NEW SECTION. Section 1. Short title. [Sections 1 through 5] may be cited as the "Montana Locker Room Privacy Act". NEW SECTION. Section 2. Statement of purpose. The purpose of [sections 1 through 5] is to: (1) further the state's interest in protecting all persons in public schools, colleges, universities, and government buildings in this state; (2) provide for the privacy and safety of all persons in public schools, colleges, universities, and government buildings in this state; and (3) maintain order and dignity in a changing facility, locker room, or other protected facility where a person may be in various states of undress in the presence of others. NEW SECTION. Section 3. Definitions. For purposes of [sections 1 through 5], the following definitions apply: (1) "Changing facility" means a facility in which a person may be in a state of undress in the presence of others, including but not limited to a locker room, changing room, or shower room. (2) "Government building" means a building or structure that is owned, leased, or otherwise under the control of a governmental entity. (3) "Governmental entity" means: (a) the state or any political subdivision of the state; (b) a county, city, town, or consolidated government; (c) school district as defined in 20-4-502 or school as defined in 20-6-501; or (d) a public institution of higher education. (4) "Locker room" has the same meaning as "changing facility". (5) "Protected facility" means a changing facility, locker room, restroom, or shower room that is located in a government building or that is controlled by a governmental entity. (6) "Restroom" means a facility that includes one or more toilets or urinals. (7) "Sex" means a person's immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth. Evidence of a person’s biological sex includes but is not limited to any government-issued identification document that accurately reflects a person's sex listed on the person’s original birth certificate. (8) "Shower room" means an area with an apparatus that provides a shower of the body for use by more than one person at a time. NEW SECTION. Section 4. Protection of physical privacy -- protected facilities. (1) A protected facility that is accessible by multiple persons at the same time must be designated for use only by members of one sex. A protected facility that is designated for one sex may be used only by members of that sex. The governmental entity that controls the protected facility shall ensure that each protected facility provides privacy from persons of the opposite sex. (2) Subsection (1) does not apply to a person who enters a protected facility designated for the opposite sex: (a) for custodial or maintenance purposes when the restroom or changing facility is not occupied by a person of the opposite sex; 382 (b) to render medical assistance; (c) during a natural disaster or emergency or when necessary to prevent a serious threat to good order or safety; (d) during an event when a locker room may temporarily be used by a visiting athletic team that includes persons who are not members of the sex for which the locker room is normally designated; or (e) during the performance of that person’s official duties as an employee of any government agency. (3) Nothing in this section may be construed to prohibit a governmental entity from: (a) adopting a policy necessary to accommodate a disabled person in need of physical assistance or a minor in need of physical assistance when using a protected facility; or (b) providing an accommodation such as a single occupancy restroom or changing facility upon a person's request due to a special circumstance. The accommodation may not provide access to a locker room or other protected facility that is designated for use by a person of the opposite sex while a person of the opposite sex is present or could be present. (4) Nothing in this act may be construed to require a governmental entity to: (a) employ any technology except for posting signs to ensure that a protected facility provides privacy from persons of the opposite sex; (b) alter any existing signs that meet the requirements in [section 5(1)(c)]; or (c) maintain any staff stationed in or near a protected facility. NEW SECTION. Section 5. Civil action for protected facilities -- penalties. (1) A person using or accessing a protected facility that is designated for use by that person's sex who encounters a person of the opposite sex in the protected facility may bring a civil action against the governmental entity that controls the protected facility if: (a) the governmental entity gave the person of the opposite sex permission to use the protected facility; (b) the governmental entity failed to take reasonable steps to prohibit a person of the opposite sex from using the protected facility; or (c) the governmental entity failed to post signs indicating which sex may use the protected facility. Signs sufficient to comply with [sections 1 through 5] include the word “men” or “women,” graphical representations of the word "men" or "women", or similar text. (2) An action under this section may be filed in the district court of the county in which the person initiating the action resides. (3) If a person prevails against a governmental entity under this section, the person may recover: (a) compensatory damages for all emotional or mental distress; (b) reasonable attorney fees and costs; and (c) any other relief the court considers appropriate. (4) An action under this section must be commenced within 1 year of the date on which the violation of this section occurred. (5) Nothing in this section limits other remedies at law or equity that may be available to a person who prevails against a governmental entity under this section. Section 6. Section 7-1-111, MCA, is amended to read: "7-1-111. Powers denied. A local government unit with self-government powers is prohibited from exercising the following: (1) any power that applies to or affects any private or civil relationship, except as an 383 incident to the exercise of an independent self-government power; (2) any power that applies to or affects the provisions of 7-33-4128 or Title 39, except that subject to those provisions, it may exercise any power of a public employer with regard to its employees; (3) any power that applies to or affects the public school system, except that a local unit may impose an assessment reasonably related to the cost of any service or special benefit provided by the unit and shall exercise any power that it is required by law to exercise regarding the public school system; (4) any power that prohibits the grant or denial of a certificate of compliance or a certificate of public convenience and necessity pursuant to Title 69, chapter 12; (5) any power that establishes a rate or price otherwise determined by a state agency; (6) any power that applies to or affects any determination of the department of environmental quality with regard to any mining plan, permit, or contract; (7) any power that applies to or affects any determination by the department of environmental quality with regard to a certificate of compliance; (8) any power that defines as an offense conduct made criminal by state statute, that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of a fine of $500, 6 months' imprisonment, or both, except as specifically authorized by statute; (9) any power that applies to or affects the right to keep or bear arms, except that a local government has the power to regulate the carrying of concealed weapons; (10) any power that applies to or affects a public employee's pension or retirement rights as established by state law, except that a local government may establish additional pension or retirement systems; (11) any power that applies to or affects the standards of professional or occupational competence established pursuant to Title 37 as prerequisites to the carrying on of a profession or occupation; (12) except as provided in 7-3-1105, 7-3-1222, or 7-31-4110, any power that applies to or affects Title 75, chapter 7, part 1, or Title 87; (13) any power that applies to or affects landlords, as defined in 70-24-103, when that power is intended to license landlords or to regulate their activities with regard to tenants beyond what is provided in Title 70, chapters 24 and 25. This subsection is not intended to restrict a local government's ability to require landlords to comply with ordinances or provisions that are applicable to all other businesses or residences within the local government's jurisdiction. (14) subject to 7-32-4304, any power to enact ordinances prohibiting or penalizing vagrancy; (15) subject to 80-10-110, any power to regulate the registration, packaging, labeling, sale, storage, distribution, use, or application of commercial fertilizers or soil amendments, except that a local government may enter into a cooperative agreement with the department of agriculture concerning the use and application of commercial fertilizers or soil amendments. This subsection is not intended to prevent or restrict a local government from adopting or implementing zoning regulations or fire codes governing the physical location or siting of fertilizer manufacturing, storage, and sales facilities. (16) any power that prohibits the operation of a mobile amateur radio station from a motor vehicle, including while the vehicle is in motion, that is operated by a person who holds an unrevoked and unexpired official amateur radio station license and operator's license, "technician" or higher class, issued by the federal communications commission of the United States; 384 (17) subject to 76-2-240 and 76-2-340, any power that prevents the erection of an amateur radio antenna at heights and dimensions sufficient to accommodate amateur radio service communications by a person who holds an unrevoked and unexpired official amateur radio station license and operator's license, "technician" or higher class, issued by the federal communications commission of the United States; (18) any power to require a fee and a permit for the movement of a vehicle, combination of vehicles, load, object, or other thing of a size exceeding the maximum specified in 61-10-101 through 61-10-104 on a highway that is under the jurisdiction of an entity other than the local government unit.; (19) any power that applies to or affects provisions in the Montana Locker Room Privacy Act as provided in [sections 1 through 5]." NEW SECTION. Section 7. {standard} Codification instruction. [Sections 1 through 5] are intended to be codified as an integral part of Title 50, and the provisions of Title 50 apply to [sections 1 through 5]. NEW SECTION. Section 8. {standard} Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. NEW SECTION. Section 9. {standard} Effective date. If approved by the electorate, [this act] is effective January 1, 2019. 385