Montana Attorney General Austin Knudsen violated two rules of professional conduct in the midst of a political fight over the state’s method for nominating judicial candidates but there was no reason for him to surrender his law license, the Montana Supreme Court ruled.
The AG, like any other lawyer, is subject to disciplinary proceedings but the board in this case failed to prove its case and denied Knudsen certain procedural protections, the high court said. Knudsen’s actions during the fight over the judicial nominating bill “were beyond what we have seen any competent attorney, let alone the Attorney General, do,” the court said Dec. 31.
But “any punishment of Knudsen must be tailored only to his proven violations and not an exactment of revenge or vindication for his criticism of the court,” the ruling states.
Knudsen found himself in the crosshairs of the disciplinary commission after his office intervened in the political fight over a bill to abolish the state’s Judicial Nominating Commission, which selected candidates to present to the governor.
That bill passed in 2021 and judges are now selected by the governor with Senate approval. Other states including Missouri and Kansas are considering eliminating supposedly independent judicial committees that critics say are often controlled by the trial bar.
Republican legislators discovered in the midst of that debate that the administrator of the Montana Supreme Court had sent out a poll to district judges asking whether they should take a position on the bill. The legislature subpoenaed the court’s emails and records – other than communications regarding cases – and after more than 5,000 records were transferred, the Supreme Court ruled the subpoena was improper and demanded them back.
Knudsen, representing the legislature, fought back, often using vociferous language in briefs that criticized the court for issuing decisions “wholly outside the bounds of rational thought” and saying “judicial misconduct has come to light.”
After fighting all the way to the U.S. Supreme Court, which refused to hear an appeal, Knudsen’s office returned the records. Then in 2021, an attorney and sometime Democratic political contributor, Timothy Strauch, filed a complaint accusing Knudsen of 41 violations including criticizing the court, making false allegations against justices and refusing to obey judicial orders.
Nearly all the Supreme Court justices recused themselves from the case, but a court composed of Chief Justice Cory Swanson and several district judges ruled Knudsen was subject to disciplinary proceedings but that most of the charges were unfounded.
The Montana Constitution, unlike some other states including Texas, requires the AG to be an attorney “in good standing,” the court said. That means in compliance with state rules of conduct, which are administered by the Supreme Court.
To prove a violation, however, the disciplinary committee must show more than just that a lawyer publicly criticized the court and its justices, the court said. As AG Knudsen is a statewide elected official with his own constitutional authority, the committee should exercise even more caution, the court said.
The committee “cannot be used as a political tool to punish the attorney general for the independent – even controversial – exercise of his constitutional powers” as long as they comply with the rules, the court said.
Knudsen violated those rules when his office refused the Supreme Court’s order to return the files, the court concluded. But a private reprimand would have been a better solution and there was no need to suspend his law license for 90 days, as the commission recommended.
Several judges dissented, including saying the court never should have waded into the controversy. “The separation of powers endures not through the triumph of one branch over another, but through mutual recognition of institutional limits,” wrote Judge Paul Sullivan.
