In an outrageous proceeding in Montana, minions of the state supreme court are aggressively pursuing ill-founded professional-misconduct charges against state attorney general Austin Knudsen for his vigorous representation of the governor and the state legislature in their 2021 clash with the supreme court over judicial-reform legislation. In a separation-of-powers battle between the legislature and the judiciary, the state’s Commission on Practice, whose members are appointed by the supreme court, is weaponizing its disciplinary authority over attorneys in the state bar. Under the Commission’s extravagant charges, Chuck Schumer, Sheldon Whitehouse, and other harsh critics of the U.S. Supreme Court ought to be facing severe disciplinary measures from their state bars.
This matter involves a very complicated factual background. I refer the interested reader to the Commission’s complaint against Knudsen and to Knudsen’s response to the complaint. Here’s my effort at a succinct summary:
In March 2021, over the public opposition of Montana’s chief justice, the governor signed into law a bill, SB 140, that changed how mid-term judicial vacancies are filled. The very next day, challengers filed suit in the supreme court seeking a declaration that the law violated the state constitution. Two weeks later, emails surfaced that showed that the supreme court’s administrator, Beth McLaughlin, had sent a group email to every judge in the state while SB 140 was pending and asked them to “review and take a position on” it. Many judges used “reply all” to express their opposition.
The legislature asked McLaughlin to provide the emails. When she claimed to have retained only two of them, the legislature issued a subpoena to the state’s Department of Administration, which provided more than 2,000 pages of documents, including emails in which McLaughlin and the chief justice shared their criticism of judicial-reform bills with other justices.
In an extraordinary action, McLaughlin then filed an emergency motion asking the supreme court (her boss) to quash the subpoena issued to the Department of Administration. She filed the motion on a Sunday (never mind that the court wasn’t open) in the case challenging SB 140 (never mind that neither she nor the legislature nor the Department was a party in that case), and she failed to provide notice to the legislature. The court quashed the subpoena that same day.
The very next day, McLaughlin filed her own lawsuit to quash the subpoena. The chief justice, who had recused from the other case, didn’t recuse from this one. The legislature moved to dismiss the case, and it also issued subpoenas to McLaughlin and to each of the justices. The court immediately issued an order staying the subpoenas against the justices. That same day, the chief justice informed the legislature that the justices would not provide the requested documents.
The legislature also moved to disqualify the justices from deciding McLaughlin’s suit. The court denied the motion. In July 2021, the court issued an opinion that, in addition to quashing the subpoenas, purported to prohibit the legislature from discussing the documents it had received and ordered it to return them. The legislature refused to return the documents while it sought certiorari in the U.S. Supreme Court. After the Court denied certiorari, the legislature returned the documents.
In the midst of this separation-of-powers clash, the Commission on Practice’s Office of Disciplinary Counsel received an ethics complaint against Knudsen from one of the justices’ campaign donors. After ten months of investigation, the special counsel appointed to investigate the complaint recommended that it be dismissed with a private letter of admonition. But the Commission on Practice rejected the recommendation. In September 2023, a new special counsel filed the 41-count complaint.
I’m not going to try to summarize and examine all the charges in the complaint, but will highlight a few typical ones:
- Count 3 complains of a letter that Knudsen wrote to the acting chief justice the day after the court granted McLaughlin’s initial motion to quash the subpoena. It objects that Knudsen stated that the legislature “does not recognize [the quash order] as binding and will not abide by it” and that it “will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary.” ODC says that these statements are “contemptuous, undignified, discourteous, and/or disrespectful and constitute a knowing disobedience of an obligation under the rules of a tribunal.” Never mind that the particular rule that ODC claims Knudsen violated explicitly exempts from its coverage instances in which a lawyer “disobey[s] an obligation under the rules of a tribunal … based on an assertion that no valid obligation exists.”
- Count 25 complains of various statements that Knudsen made in a petition for rehearing, such as that “the Justices are institutionally and personally interested in the outcome, so their inability to be impartial is justifiably suspect.” ODC says that these and similar statements somehow are “contemptuous, undignified, discourteous, and/or disrespectful and constitute a knowing disobedience of an obligation under the rules of a tribunal.”
- Count 33 complains of statements Montana made in its petition for certiorari to the U.S. Supreme Court that alleged serious misconduct on the part of the Montana justices, such as: “Judicial self-dealing on this scale might be unprecedented in the Nation’s history.” Here again, these statements are said to be “contemptuous, undignified, discourteous, and/or disrespectful.”
It ought to be clear that ODC, an arm of the supreme court, is trying to punish Knudsen for his vigorous representation of the legislature against the supreme court. Somehow it’s okay for the lawyers sitting on the supreme court to disobey the legislature’s subpoena and to resort to various machinations to advance their interests, but it’s professional malpractice for the attorney general to harshly criticize the justices for doing so.
The Commission on Practice’s hearing on the complaint brought by its own Office of Disciplinary Counsel will begin on October 9. Alas, it appears from the Commission’s denial of Knudsen’s motion for summary judgment that good sense will not prevail.