Judge Allows Legislators to Remain on the Ballot, but Attorney General Vows to Appeal

Two Republican candidates for the state Legislature will remain eligible for the general election ballot, a Lewis and Clark County District Court judge ruled Wednesday, as a case about term limits that’s wrought with long-simmering political hostilities proceeds. 

The lawsuit was brought in response to a new legal opinion on term limit laws issued by Republican Attorney General Austin Knudsen last week. The opinion overturned precedent and ostensibly makes two of the state’s most influential lawmakers — Rep. Llew Jones, R-Conrad, and Rep. Steve Fitzpatrick, R-Great Falls — ineligible to run for  legislative seats this year.  

Jones and Fitzpatrick sued the attorney general over the opinion late last week, and Judge Christopher Abbott blocked the attorney general’s opinion from going into effect Wednesday morning following a roughly one-and-a-half-hour hearing Tuesday afternoon in Helena. 

That ruling appears to ensure that Jones and Fitzpatrick will be candidates on the general election ballot, but after Abbott’s decision Wednesday, Knudsen Communications Director Amanda Braynack told Montana Free Press in an email that the Department of Justice plans to ask the Montana Supreme Court to block Abbott’s ruling. 

For a decision from the high court to have impact, it will need to come before Thursday night, Aug. 20, when the secretary of state is legally required to certify ballots. Without action from the state Supreme Court, Jones and Fitzpatrick will remain on the ballot. 

The version of term limits Montana has had for nearly 15 years means that a legislator could serve the statutory maximum of eight years in the state Senate, then serve eight years in the House, and then immediately return to the Senate. Knudsen’s opinion disagrees with the interpretation of state law that allows that practice. Switching from one chamber of the Legislature to the other (as both Jones and Fitzpatrick have done) to avoid Montana’s so-called soft term limits has become an accepted strategy employed by legislators of both parties. 

Knudsen issued his opinion less than two weeks before the secretary of state’s ballot certification deadline, and Abbott reprimanded the attorney general for issuing the opinion so close to that date. 

“The Attorney General could have chosen to issue the opinion after the ballot certification deadline, ensuring that the opinion would have only prospective effect. The current tumult is entirely the consequence of the choices to request, and issue, an opinion upending the status quo while an election is underway,” Abbott wrote. 

“The goalposts should not be moved during the game,” Abbott added. 

Knudsen issued the opinion in response to a July 9 letter from Republican Senate President Matt Regier, R-Kalispell, asking whether Jones, currently a House representative from Conrad, is constitutionally eligible to appear on the ballot for Senate District 9 in north-central Montana. Fitzpatrick, a candidate for House District 24 in Great Falls, was not named in Regier’s July letter to the attorney general, but Fitzpatrick independently determined that the opinion could interfere with his eligibility to appear on the ballot this cycle as well.

Jones, according to many observers, is the most powerful Republican legislator currently serving in the 150-person body. He has been the unofficial leader of a relatively centrist faction of GOP lawmakers for nearly two decades, and Regier and other hardliners were intent on unseating him this year. Jones ultimately won his June primary race against Rep. Zack Wirth, R-Wolf Creek, by four percentage points. 

“If the Senate president were really sincere about this, this wouldn’t have been done after his chosen candidate lost in the June primary election,” Jesse Laslovich, lawyer for Jones and Fitzpatrick and former U.S. Attorney for the District of Montana under President Joe Biden, told Judge Abbott on Tuesday. “It would have been done before.”

Regier took issue with that characterization in a phone interview Wednesday, explaining that the state’s term limit provisions required reconsideration because they enable legislators to hop from chamber to chamber. 

“It needs to be done,” Reiger said. “No matter when I asked for it, [some] people were going to be happy about it and [some] people were going to complain about it.” 

Abbott said Tuesday that the case comes down to “whether [Regier] had the authority to ask the question, whether the attorney general has the authority to answer it in the way he did, and whether his opinions are correct.”

Abbott’s decision said the attorney general does not have “unfettered authority” to issue binding opinions, and that Regier’s letter falls outside his duties as the head of the Senate. 

“… state officers and the legislature cannot ask the Attorney General about whatever they want,” Abbott wrote. 

Laslovich also argued that taking Jones and Fitzpatrick off the ballot would “sow confusion and distrust among voters” after the two candidates won the Republican nomination for the general election. 

Christian Corrigan, one of the lawyers representing the attorney general, argued in court on Tuesday that the attorney general’s opinion blocking the chamber-hopping strategy “didn’t come out of nowhere.” 

“This has sort of been the 800-pound gorilla lurking in the background,” Corrigan told the judge. “My point is that the risk is sort of out there to everyone, including the voters, including the candidates.”

Abbott also acknowledged that his decision has significant implications for the democratic process.

“The principal concern is that if this Court is wrong, then two candidates who should not be eligible to run have been placed on the ballot,” the judge wrote. “Given that this has represented the status quo practice for well over a decade, that these candidates already have the endorsement of the people to represent the Republican Party in the election, and the impact on those voters if their choice is denied, this concern is amply outweighed by the factors favoring relief.”

In the lead-up to Abbott’s Wednesday ruling, Republican central committees in Senate District 9 and House District 24 voted on replacement candidates in case Jones and Fitzpatrick are removed from the ballot. The deadline to replace a candidate is Wednesday, Aug. 19, and the secretary of state’s Elections Director, Austin James, told the court Tuesday that state law does not explicitly allow for the secretary of state to include those replacement Republicans on the ballot. Abbott affirmed that characterization of the law in his decision. 

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.