Montana attorney general accused of flouting top state court's authority, insulting justices

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Republican Montana Attorney General Austin Knudsen, center, is sworn into office, Jan. 4, 2021, inside the Montana State Capitol building in Helena, Montana. Knudsen faces 41 counts of professional misconduct after a special counsel alleged that he and attorneys in his office defied state supreme court orders. Photo by Thom Bridge/The Independent Record via the Associated Press.

Republican Montana Attorney General Austin Knudsen has been accused of undermining confidence in the justice system by evading the authority of the state’s top court and assaulting the integrity of individual justices.

In a Sept. 5 ethics complaint, the Montana Office of Disciplinary Counsel said Knudsen and lawyers under his supervision refused to obey court orders during a fight over legislative subpoenas and made “undignified” comments accusing the justices of impropriety.

In one instance, the chief deputy attorney general wrote a letter to the person acting as chief justice in the litigation. It included this statement: “The legislature does not recognize this court’s [April 11] order as binding and will not abide it.”

In another instance, Knudsen’s office filed an April 2021 motion seeking to disqualify all the state supreme court justices while alleging improper ex parte communications, “judicial misconduct” and “self-interest.”

“We are well beyond the point where the court’s impartiality and independence ‘might reasonably be questioned,’” the motion said. “This is not merely the appearance of impropriety. This is actual impropriety.”

The Associated Press, the Montana Free Press (here and here) and the Independent Record are among the publications with coverage. How Appealing also noted the coverage.

Knudsen is an “ultra-conservative” Republican, according to the Associated Press. He became the Montana attorney general in January 2021. The Montana Supreme Court includes two justices initially appointed by a Democratic governor and one that had been a Democratic office holder. Another justice was appointed by a Republican governor, while three others were elected in nonpartisan races.

At issue are statements that Knudsen’s office made in letters and court filings in two separate lawsuits filed as petitions for original jurisdiction with the Montana Supreme Court.

In one case, Knudsen’s office represented the Republican governor in defending a March 2021 bill that abolished a judicial nominating commission and allowed the governor to appoint state judges if a position became vacant between elections. The state supreme court ultimately upheld the law, the Daily Montanan previously reported here and here.

In the second case, Knudsen’s office represented the legislature after a court administrator filed a petition with the state supreme court to quash a subpoena for three months of her emails and attachments.

According to the Associated Press, the administrator’s emails concerned polling that she conducted on the judicial-appointment bill before it was enacted. The poll was sent to members of the of Montana Judges Association.

Many of the statements at issue were made after the Montana Supreme Court in April 2021 stayed enforcement of the legislative subpoena for the administrator’s emails and for legislative testimony from individual justices.

The administrator’s emails were produced to the legislature days before the Montana Supreme Court temporarily quashed the subpoena.

But when someone acting on behalf of the legislature gave the emails to the state attorney general’s office on two USB drives, the office processed, copied and reviewed the files, the ethics complaint said. The letter to the acting chief justice followed, written by Kristen Hansen, who has since died.

“The legislature does not recognize this court’s [April 11] order [quashing the subpoena] as binding and will not abide it,” Hansen wrote, “The legislature will not entertain the court’s interference in the legislature’s investigation of the serious and troubling conduct of members of the judiciary. The subpoena is valid and will be enforced.”

The Montana Supreme Court then issued an order staying enforcement of various legislative subpoenas. Hansen wrote to all the justices, telling them that they are required to testify in response to subpoenas.

“The court here lays claim to sole authority over provision of due process for all branches of government, which is ludicrous,” Hansen wrote. The court’s order “is wholly outside the bounds of rational thought.”

Knudsen filed the motion to disqualify all the justices April 30, 2021. The justices declined to recuse in May 2021.

In a petition for rehearing, Knudsen said the state supreme court “overlooked and misstated material facts,” the chief justice’s emails “betray a disdain for the legislature that amounts to actual bias,” and the justices’ “ability to be impartial is justifiably suspect.”

The legislature later withdrew the subpoenas. In July 2021, the Montana Supreme Court ordered the Montana legislature to immediately return materials produced in response to its subpoenas. The state attorney general didn’t return files to the court administrator until 2022.

In an August 2021 petition for rehearing, the state attorney’s general office said the Montana Supreme Court was hearing a case in which it was an interested party.

“Simply ignoring why we’re here doesn’t change why we’re here—questionable judicial conduct,” the petition said.

The opinion requiring return of the emails “is an unwarranted confiscatory decree,” the state attorney general’s petition said.

Knudsen’s office filed a cert petition with the U.S. Supreme Court in December 2021.

“Judicial self-dealing on this scale might be unprecedented in the nation’s history,” the petition said.

The cert petition also alleged that communications by the chief justice “showed that the fix was in.” And the petition said the justices resolved the question of legislative subpoena power “to conceal judicial branch misbehavior from the light of day.”

The ethics complaint was filed by Timothy B. Strauch on behalf of the disciplinary office. He was appointed in the ethics case because the top lawyer in the office ran for state attorney general as a Democrat in 2012, according to the Montana Free Press.

A spokesperson for Knudsen told the Associated Press and other publications that the allegations are politically motivated and have no merit. The spokesperson said the allegations stem from a legitimate dispute between the legislature and the judiciary.

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