City attorney opinion finds NDO unnecessary; commissioners ask to schedule special work session

A local group asked the City Commission in early July to consider adopting a nondiscrimination ordinance.

Though the item was not on the agenda and there was no formal proposal before the commission that night, residents gave comment on the NDO idea for about an hour.

City Commission opts to continue discussion on proposed nondiscrimination ordinance

During that meeting, commissioners asked City Attorney Sara Sexe to review existing laws and recent court decisions to determine if an NDO was needed in Great Falls.

Sexe’s opinion was issued to commissioners on Tuesday and posted to the city website July 22.

Sexe wrote that a June 2020 U.S. Supreme Court decision “clarified that protected class of sex includes LGBTQ+ persons. This inclusion has already been recognized and cited by a number of federal circuit courts. This decision is consistent with other Supreme Court cases recognizing other equal protections under the law for same-sex partners.”

She wrote that Montana relies on federal discrimination laws and “it is my opinion that relief from discrimination is now clearly existing under current law and the adoption of the NDO in Great Falls is not necessary to protect against sexual orientation and gender discrimination. Even if the City Commission were inclined to adopt an NDO, there are potential legal challenges to such adoption.”

Sexe wrote that the commissioners could make a proclamation or resolution to stake a position on inclusion and opposition to discrimination, potentially using language similar to Gov. Steve Bullock’s 2016 executive order.

During their July 21 work session, commissioners discussed the proposal from Commissioner Mary Moe to schedule a three-hour special meeting for early September.

Mayor Bob Kelly supported having a special meeting based on the number of people who attended the July 7 meeting to speak on the issue.

“It’s quite an issue where people feel pretty emotional about it and feel a need to talk about it and talk to the commission about it,” Kelly said.

Commissioner Rick Tryon said he wasn’t clear why the commission needed a special meeting on the NDO when it doesn’t make similar allowances for other important community issues.

He asked what criteria the commission would use in scheduling special three-hour meetings.

“I don’t think that’s a good precedent to set,” Tryon said.

That special work session on the proposed NDO has not yet been scheduled.

In her city attorney opinion, Sexe reviewed relevant case law regarding discrimination, as well as the potential challenges the city would face if it adopted such an ordinance.

Bozeman’s ordinance was challenged and though the group that brought the suit was found to lack standing, she said they raised challenges on a statutory and Constitutional bases and if those same issues were raised in Great Falls and a challenge was successful, the time and effort put into establishing an NDO would be wasted.

Among those challenges are limitations to a city’s self-governing powers.

Sexe wrote that state law prohibits the city from exercising power that affects any private or civil relationship and that housing and employment, which the group bringing the NDO proposal asked the city to protect from discrimination based on sexual orientation, are civil and private relationships.

State law also prohibits the city from regulating landlords for issues included in the Landlord-Tenant Act and that state law already prohibits sex discrimination in housing.

Sexe also addressed concerns with the impact an NDO might have on the city legal system.

She wrote that Municipal Judge Steve Bolstad had concerns about additional litigation that might arise from NDO infractions and that the court already processes 11,000 to 13,000 citations annually and is stretched thin.

“Additionally, complicated civil rights and discrimination issues and exceptions are not routinely the usual workload of a municipal court,” Sexe wrote. “In other jurisdictions there have been judicial concerns of having cities create a separate body of substantive law, where there exists well-established federal and state law.”

No claims have been filed in Missoula, Butte, Helena, Bozeman or Kalispell, Sexe wrote, where NDOs have been enacted, Sexe wrote.