A state judicial panel is recommending that Montana’s Republican attorney general be suspended from practicing law for 90 days for openly defying court orders and repeatedly attacking the integrity of justices in his defense of a law permitting the state’s Republican governor to directly fill judicial vacancies.
The law at issue was part of a nationwide GOP effort to forge a more conservative judiciary and was eventually upheld by Montana’s Supreme Court.
Both sides have up to 30 days to object to Wednesday’s recommendation by the five-member Commission on Practice and another 30 days to respond to objections before the Supreme Court hands down its decision. Three justices filed motions Thursday to recuse themselves from ruling on the punishment, meaning they would likely be replaced by state District Court judges.
If Austin Knudsen's license is suspended it could affect his ability to do his job as attorney general, officials said. The state Constitution requires the attorney general to be “an attorney in good standing admitted to practice law in Montana who has engaged in the active practice thereof for at least five years before election."
Department of Justice spokeswoman Emilee Cantrell said the office disagrees with the recommended punishment and intends to file an objection. The office instead supports a 2022 special counsel investigation recommendation that suggested “this could have been handled privately, avoiding a politically charged disagreement.” The judicial panel had rejected that recommendation.
In its findings, the panel said there was no doubt actions by the attorney general’s office “repeatedly, consistently and undeniably,” violated professional conduct rules and are “arguably deserving of the most serious consequences.”
They also dismissed a suggestion that holding Knudsen “accountable for his conduct may have further consequences,” because its only focus was on whether his conduct violated the Montana Rules of Professional Conduct.
In court filings, Knudsen’s office had accused state Supreme Court justices of judicial misconduct, corruption, self-dealing, “actual impropriety,” and having a conflict of interest.
The judicial panel noted that Knudsen acknowledged during a hearing earlier this month that a lot of things should have been done differently in representing the Legislature over the extent of its subpoena powers.
“If I had this to do over, I probably would not have allowed language like this — so sharp — to be used,” Knudsen testified. However, the panel also noted that Knudsen repeatedly refused to admit that any of his actions or language in court filings violated professional conduct rules.
The issue dates back to 2021 when the Legislature was working on a law to eliminate the Judicial Nomination Commission, which screened judicial applicants.
Lawmakers learned a Supreme Court administrator used state computers to survey judges about the legislation on behalf of the Montana Judges Association.
After the court administrator said she had deleted emails related to the survey, the Legislature subpoenaed the Department of Administration, which includes the state’s IT department, and received 5,000 of the administrator’s emails by the next day. The court administrator didn't learn about the subpoena until after the emails had been turned over to the Legislature in April 2021.
The Supreme Court temporarily quashed the subpoena that same month — an order the attorney general's office said it “does not recognize” — and in July 2021 ordered the emails be returned immediately. The attorney general's office didn't return the emails until March and April of 2022, after the U.S. Supreme Court declined to hear the case. Knudsen's office defied the court order without seeking a stay, something the panel called “beyond the pale.”
This isn't the only controversy marking Knudsen's nearly four years in office. He is seeking reelection.
He was accused of pressuring a Helena hospital over its refusal to administer a parasite drug to a COVID-19 patient and his office also sided with a man who made an armed threat over a pandemic mask mandate. He tried to block three constitutional initiatives from the November ballot, recruited a token opponent for the June primary so he could raise more money, and was sued after forcing the head of the Montana Highway Patrol to resign.
