HELENA — A Helena judge says he’ll issue a ruling Wednesday morning, as a pair of state lawmakers challenge an attorney general’s decision that could force them off the November ballot.
District Judge Chris Abbott heard testimony Tuesday afternoon from attorneys for Reps. Llew Jones, R-Conrad, and Steve Fitzpatrick, R-Great Falls, and from Montana Department of Justice attorneys representing Attorney General Austin Knudsen.
(Watch the video to see more from Tuesday's hearing.)
The case centers on Montana’s term limit laws. In 1992, voters approved a state constitutional amendment that limited lawmakers and executive officials to serving in a position for no more than eight years out of any 16-year period. For more than a decade, that has been interpreted to allow a termed-out official to run again after eight years away from the position. Knudsen ruled last week that interpretation was wrong and officials must spend more than eight years out of a job before they can return.
Jones is seeking to return to the Senate after serving there from 2011 to 2018; Fitzpatrick is running for another term in the House, where he served from 2011 to 2016 and since 2025. Under Knudsen’s opinion, they wouldn’t be eligible to run for those seats this year.
Knudsen directed Secretary of State Christi Jacobsen to use his opinion when certifying whether candidates can appear on the November ballot. Jacobsen’s office must finish certification by Thursday.
An attorney general’s opinion has the force of law, but it can be challenged in court. Fitzpatrick and Jones filed suit last week, seeking a restraining order or injunction to block Knudsen’s opinion.
Jesse Laslovich, an attorney representing the two lawmakers, said during Tuesday’s hearing that the most commonsense way to interpret the term-limit provisions was that it required officials to spend eight years out of an office after serving for eight years – the interpretation then-Attorney General and future Gov. Steve Bullock adopted in 2012, based in part on a 2011 law passed by the Legislature.
Laslovich said, if the state was going to change the interpretation it has been using for 14 years, it was unreasonable to enforce it at this stage of an election – after primary voters already chose these candidates, and so close to the finalizing of ballots. He claimed the process was a “concerted effort” to get the lawmakers – particularly Jones – out of the Legislature.
“If we want to do this the right way, let's do it the right way – let's not drop a bomb on these guys’ heads nine days before they're to be certified,” said Laslovich.
Solicitor General Christian Corrigan, representing the Department of Justice, said the lawmakers had no standing to challenge Knudsen’s opinion, and that their proper action would have been to challenge Jacobsen’s decision to exclude them from the ballot – if and when she makes that decision. He said, while this opinion came partway through an election cycle, the question over whether term limits were being properly followed should not have come as a surprise.
“The attorney general's opinion, Knudsen’s opinion, didn’t come out of nowhere,” said Corrigan. “This has sort of been the 800-pound gorilla or whatever you want to say, lurking in the background.”
The DOJ attorneys said the Legislature passing a law doesn’t change the meaning of a constitutional provision, and that Knudsen’s reading of the term-limit laws was the only one that complied with the text of the constitutional amendment. However, Abbott said he wasn’t sure the text was “unambiguous.”
“I have read Article 4, Section 8 a few dozen times,” the judge said. “It is very hard to parse what that means – you have to sit there and almost map it out.”
With Jacobsen preparing to certify candidates for the ballot, Abbott asked Austin James, the secretary of state’s elections director and chief legal counsel, what would happen if Knudsen’s order was enjoined.
“If I were to agree with the plaintiffs and were to grant an injunction, just writing as to the attorney general's opinions, would that result in the secretary just applying either the 2012 Bullock opinion or the statute?” Abbott asked.
“Yes, Your Honor,” James replied.
Abbott said at the end of the hearing he’d concluded several of the factors in the case weighed in favor of granting an injunction, including the possibility of irreparable harm. However, he said he still had to make a decision whether Jones and Fitzpatrick could show a likelihood that they’d succeed on the merits of the case.
Regardless of what Abbott decides, it's likely far from the last legal fight over this issue. DOJ attorneys said, if Knudsen's opinion is enjoined, he could still simply withdraw Bullock's 2012 opinion, in another attempt to enforce the stricter term limits. Abbott also acknowledged whichever party he rules against Wednesday will likely ask the Montana Supreme Court for emergency relief.
Local Republican Party committees have begun taking steps to choose potential replacement candidates for Jones and Fitzpatrick, in case they are removed from the ballot. On Monday night, party representatives in Senate District 9 selected Conrad businessman Ted Kronebusch, a friend and ally of Jones. Kronebusch was in the courtroom Tuesday, as a plaintiff alongside the two lawmakers. He told MTN he hoped never to be sworn in as a senator.
