Judge allows Republican lawmakers to stay on ballot

Micah Drew

(Daily Montanan) Lewis and Clark District Court Judge Christopher Abbott on Wednesday ruled that two Republican lawmakers will be allowed to stay on November’s ballot, halting a new opinion last week by the attorney general that would have booted them.

Rep. Llew Jones, Republican nominee for Senate District 9, and Rep. Steve Fitzpatrick, Republican nominee for House District 24, filed suit against Attorney General Austin Knudsen and the secretary of state, seeking to stay on the ballot.

Abbott said in his decision that it is “reasonably clear” that the original intent of the state’s term limits is “to ensure that legislators not serve in either house more than eight years without taking at least an eight-year break in service.”

He found Jones, of Conrad, and Fitzpatrick, of Great Falls, would not breach those limits if elected in November.

Fitzpatrick told the Daily Montanan that while he thought his case had merit, “nonetheless, it’s a relief to see that we did prevail, and I think it’s over with.”

The attorney general’s office immediately appealed the decision to the Montana Supreme Court seeking an administrative stay. The court on Wednesday afternoon denied the request.

Jones told the Daily Montanan that Abbott’s order was right in line with his side’s legal arguments.

“The Judge put it pretty cleanly – you don’t move the goalposts in the middle of the game,” Jones said.

Last week, Knudsen issued an opinion on the state’s term limits, which limits lawmakers to serving eight years in a chamber during a 16-year period of time, but allows them to move between chambers indefinitely.

Knudsen’s opinion aligned with another attorney general opinion that was in place from shortly after term limits were adopted by voters in 1992 until 2012, when then-AG Steve Bullock said a lawmaker can return to a chamber if they’ve had an eight year break — even if that break was just down the hall.

Knudsen’s opinion would have required termed-out legislators to sit out an election before returning to a chamber — and would have affected Jones and Fitzpatrick. The secretary of state is required to certify ballots by Aug. 20, which kicked off the flurry of legal activity.

In granting a preliminary injunction, Abbott wrote that keeping the status quo understanding of term limits affects not just the two candidates, but Montana voters.

“Perhaps other candidates would have come forward if they thought there was a chance Jones or Fitzpatrick, formidable incumbents each, would not be eligible to run,” Abbott wrote. “Had this opinion been issued much sooner, those voters would have had information they need to exercise their will through the electoral process.”

Fitzpatrick called the legal opinion “100% political” because it was requested by Republican Senate President Matt Regier specifically over Jones’ eligibility, and done so after Jones won his primary election.

Regier told the Daily Montanan that politics wasn’t part of the equation, it was about “the principle of term limits.”

“No matter when we did it, somebody was going to holler,” Regier said. “It’s real disappointing — there’s no other way to say it. This was a flat-out political decision by the judge.”

Jones and Regier are leaders in the state Republican Party’s ideological factions — the former tending to favor bipartisan, moderate approaches to governing, while Regier aligns with the hardliners who make up much of party leadership.

Regier said since he arrived in the Legislature as a freshman several sessions ago, lawmakers have talked about the problem with term limits and the ability for long-time legislators to gain power. He said Jones is the “poster child” for flouting term limits.

“The people put in term limits, and they don’t want entrenched politicians who consolidate so much power for themselves,” Regier said.

Jones has served continuously in the Legislature since 2005, moving between the House and Senate regularly, and as the architect of the state budget is often considered one of the most powerful lawmakers in the state. He spent the last eight years in the House before filing to run for the Senate this year.

Fitzpatrick said that while he isn’t against term limits philosophically, he does think that legislators become more effective at their jobs the longer they serve in the Capitol.

He and Regier said legislators should probably have conversations about the term limits statutes to make sure the law is clear.

“If this was an issue, you don’t wait until a guy wins an election. They could have brought this up a year ago” Fitzpatrick said. “About the wrongest thing somebody could do is overthrow an election.”

The legal questions Abbott considered in his order were whether Regier, as Senate president, is allowed to request a legal opinion related to an election; and exactly how the term limits amendment to the constitution and subsequent statutes should be interpreted.

Abbott wrote that because Regier’s request for a legal opinion specifically considered political consequences — that Republicans might not have time to find a replacement candidate if Jones were found ineligible — the ask was not directly related to his office.

“For good reason, there is a separation between a public official’s performance of their duties and their participation in partisan and electoral activities,” Abbott wrote. “…Attorney General opinions are not a mechanism to advise any political candidate, committee, or party about how best to ensure they can field a candidate in an election.”

At the heart of the interpretation of term limits is how to measure the 16-year period in which lawmakers can only serve in an office for eight years — whether to measure the 16 years prior to an election, or 16 years ending with the next legislative term.

In a legal document that included diagrams showing how lawmaker terms are staggered, Abbott wrote that regardless of what reference point is used, “neither will serve more than eight years in a sixteen-year period.”

Abbott also wrote that a “purely literal reading” of the constitution leads to the legal opinion reached by Knudsen.

When “viewed in context,” however, Abbott said there are several indications that Knudsen’s interpretation is not what voters intended when approving term limits more than 30 years ago.

If the intent was to keep legislators out of a chamber for a set period of time before they are allowed to return — that could have been written in simple language, Abbott said. But it wasn’t.

“It is difficult to understand why the proponents would not have just said that a legislator must have a ten-year break in service if that had been their intent,” Abbott wrote.

In a phone call with the Daily Montanan, Jones cautioned that the ruling is just on the injunction, and the case against his political opponents will continue.

“This is just the start of the dance,” Jones said. “There seems to be no step too low that they won’t stoop to.”