The First Circuit Court of Appeals on Thursday heard oral arguments in Republican state Rep. Laurel Libby's bid to overturn a censure by Democrats in the Maine House.
The censure prohibited Libby from voting or speaking during floor debates and her legal challenge was initially dealt two key setbacks, but a recent order by the U.S. Supreme Court temporarily restoring her voting rights may have changed the trajectory of the case.
Libby was censured by Democrats in February for criticizing a transgender high school athlete in a social media post that helped ignite the ongoing dispute between Maine Gov. Janet Mills and President Donald Trump. While that conflict has garnered national media attention, Libby's censure — and her refusal to end it with an apology — has churned alongside it, raising legal questions about whether legislatures can punish lawmakers for conduct outside the state house.
Libby's attorneys argue that they can't, and that her censure effectively violates her free speech rights while also disenfranchising the 9,000 residents in her district.
On Thursday, that argument was echoed by Harmeet Dhillon, an assistant U.S. attorney for the Department of Justice, which is backing Libby's lawsuit.
"This is an extreme case, an arbitrary case, a case of unilateral disenfranchisement for speech that occurred outside the legislative boundaries," Dhillon said.
Until recently, Libby's legal bid to remove her censure ran headlong into what's known as legislative immunity, a legal doctrine that essentially allows legislatures to govern the conduct of lawmakers. It's also viewed as a separation of powers guardrail between the legislative and judicial branches of government.
In two rulings on Libby's case legislative immunity reigned, as a federal judge, and later the appellate court, ruled that it applied to a code of conduct rule that's existed in the Maine Legislature for more than 200 years.
Dhillon argued that Libby's punishment was so extreme that the court should still intervene. She said the case wasn't close, leading to an exchange with Judge Seth Aframe.
"Immunity makes me nervous because immunity isn't about if this is a close case. Immunity is about stay out of our business," Aframe said.
Dhillon replied, "Except in extraordinary cases and this is an extraordinary case."
Most of the hour-long arguments centered on the limits of legislative immunity and whether Libby's right to speak from the House floor should be restored. But while her right to vote is also part of the case, the appellate court barely mentioned it.
That's because the US Supreme Court recently intervened and ordered that Libby's House votes should be counted while the case goes through appeal.
Assistant Maine Attorney General Jonathan Bolton, who is representing House Speaker Ryan Fecteau in the lawsuit, tried to convince the panel that legislative immunity applies in both instances.
But Judge Aframe seemed skeptical because of the high court's order.
"We're only asking is she likely to succeed and we've been told it's indisputably clear she'll succeed," he said. "Who are we to say anything else, but that's right?"
Bolton tried to argue that the Supreme Court's order came via the emergency, or shadow docket with no oral arguments, a compressed time period to file briefs and without the ruling justification that comes with cases that come through court's regular docket.
Nevertheless, the high court's order loomed large during Thursday's arguments and the appellate court adjourned with no timetable for a decision.
Libby's post identified the transgender athlete but blurred the faces of two other girls to protect their identities. It was amplified by conservative media in the days before President Trump confronted Gov. Mills on Feb. 21 at the White House, telling her to comply with his executive order banning transgender athletes from competing on girls' sports teams or lose federal funding.
The Trump administration then launched a pressure campaign against the state, freezing several federal grants. It eventually sued the state in a case that will be heard by a federal court later this year.
