Montana’s ultra-conservative attorney general has been accused of professional misconduct on allegations his office tried to undermine the state’s Supreme Court in defending a law that allows the Republican governor to fill judicial vacancies without the input of a long-standing commission that vets candidates.
The Office of Disciplinary Counsel, which regulates attorneys in Montana, filed the complaint against Republican Attorney General Austin Knudsen on Tuesday.
Knudsen or attorneys under his supervision “routinely and frequently undermined public confidence in the fairness and impartiality of our system of justice by attempting to evade the authority of the Montana Supreme Court and assaulting the integrity of the judiciary and the individual Justices who were duly elected by Montana citizens to make decisions," special counsel Tim Strauch wrote in the complaint.
The complaint called statements made by the attorney general’s office in court documents to be “contemptuous, undignified, discourteous, and/or disrespectful and constitute a knowing disobedience of an obligation under the rules of a tribunal.”
It asks for the Supreme Court's Commission on Practice to hold a hearing and make recommendations to the justices as to whether Knudsen should face discipline.
A spokeswoman for Knudsen said the allegations are meritless and politically motivated as Knudsen seeks re-election next year, and they stem from a legitimate dispute between the Legislature and the judiciary.
“No one should be prosecuted for holding a different opinion than those in power,” Emilee Cantrell said in a statement Wednesday. ”The attorney general looks forward to filing his response with the commission."
The issue began with a court challenge to a 2021 law that eliminated the Judicial Nomination Commission and gave Republican Gov. Greg Gianforte the power to appoint new state judges if a seat was vacated between elections. The Montana Supreme Court eventually ruled that the law is constitutional.
Gianforte said he would “appoint judges who will interpret laws, not make them from the bench, and who are committed to the fair, consistent, and objective application of the law," echoing Republican criticisms of an activist judiciary in recent years.
In the course of defending the new law, the Attorney General's Office learned the court's administrator had conducted an email poll of members of the Montana Judges Association over the proposed judicial appointment legislation. Supreme Court Chief Justice Mike McGrath had recused himself from the case because he had asked Gianforte not to support the bill.
The state judge who was appointed to replace McGrath on the case also recused himself after it was revealed he had voted in the emailed survey, saying he opposed the legislation.
The Legislature asked the court administrator for the results of the survey, but she said she didn't keep those emails or records.
Lawmakers then issued a subpoena to the Department of Administration, which includes the state's Information Technology division, for three months of emails belonging to the court's administrator in an apparent effort to obtain the information about the survey. A day after the subpoena was issued, the department — whose administrator was appointed by Gianforte — turned over 5,000 emails on two USB drives, which ended up in Knudsen's office, Strauch said.
It's not clear how the Attorney General's Office came to represent the Republican-majority Legislature in the subpoena case, the special counsel wrote.
Montana's Supreme Court temporarily quashed the legislative subpoena pending a hearing. But Lt. Attorney General Kristen Hansen, now deceased, responded that “the Legislature does not recognize this Court’s Order as binding and will not abide it. 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.”
After a hearing, the Supreme Court permanently quashed the subpoena in an opinion in which conservative Justice Jim Rice called Hansen's response “obviously contemptuous.”
Justice Laurie McKinnon said the legislative subpoena, “was blatantly designed to interfere with, if not malign, a coequal and independent branch of government,” violating the constitutional doctrine of separation of powers.
The court ordered Knudsen's office to immediately return the emails. But it took Knudsen's office at least eight months to do so, the complaint states.
In a failed attempt to ask the U.S. Supreme Court to weigh in on the order to quash the subpoena, Knudsen's office argued that: “Judicial self-dealing on this scale might be unprecedented in the Nation's history.”
His office argued the justices, in not recusing themselves from hearing the case, ensured “a result that bailed themselves out of an investigation prompted by their own inappropriate behavior," and that denying a legislative subpoena allows the Montana Supreme Court “to conceal judicial branch misbehavior from the light of day.”
Montana's Supreme Court includes two justices initially appointed by a Democratic governor, one appointed by a Republican governor, one that was a Democratic officer-holder, and three others elected to the court in nonpartisan races.
