The left-of-center Montana Supreme Court is proposing a 90-day suspension of Knudsen’s law license through the attorney discipline apparatus it controls, not just to harass Montana Attorney General Austin Knudsen with a fictitious 41-count ethics charge in retaliation for his representation of the state legislature in a 2021 legal battle over judicial reform legislation ( as previously reported here ). It does so two days before Election Day, and Knudsen, a Republican, is running for re-election. Not surprisingly, Knudsen’s Democratic challenger is using the administrative proceedings against Knudsen as a campaign issue. How suitable.
The timing of the suggested discipline and the fact that, according to the Daily Montanan,” a recently appointed special prosecutor had recommended a distinct sanction — just a private admonition” underscore the state highest court’s malicious motivation.
Judges are supposed to become independent and objective. But, in Montana, a experiencing panel appointed by the state supreme court decides legal action in response to allegations made by a prosecutor who was also appointed by the state supreme court in connection with the alleged violation of moral standards that the state supreme court has also promulgated.
The court’s hand-picked lackeys are now proposing to punish the state’s elected attorney general for simply advocating on behalf of the state legislature in a long-running separation of powers dispute between the activist state supreme court and the Republican-controlled Montana legislature ( summarized here and here ). The Montana Supreme Court, described by one spectator as” America’s worst judge”, is the prosecutor and judge of its own situation. This kind of lawfare against a pending state attorney general is unheard of in America.
Court’s Politics
In sprawling and softly populated Montana, the seven-member state supreme court is controlled by the country’s trial attorneys. Montana’s judges are elected, and self-interested law companies dominate the revenue of so-called “nonpartisan” criminal tribes. In Montana, political candidates show up on the ballot without disclosing their party affiliation, preventing voters from casting a political vote. As a result, for years the state supreme court has been seriously out of tune with the country’s government and administrators. Former University of Montana law professor Rob Natelson has described the state supreme court’s rulings as “banana-republic conduct”, questioned its legal competence, and concluded that” Montana’s bench may be unique for its disregard of basic standards of justice, the extent of its intervention into the state’s political life, and its high-handed use of power” . ,  ,
The Montana Supreme Court oversees the status bar and is in charge of counsel control despite the government making laws and controlling the bag. So, Knudsen, as the country’s elected solicitor general, is subject to the authority of the state supreme court. Despite the fact that the Montana government won the bill’s section, S. B. In connection with a relevant debate over a summons the government had issued to the court’s executive, Knudsen was charged with violating the Montana Rules of Professional Conduct. The government, which is represented by Knudsen, objected to the judge’s decision because it was in conflict of interest when the state supreme court overturned the subpoena. The government sent a strong message to the U.S. Supreme Court, challenging the lawsuit decision, though unsuccessfully.
Court’s Surrogates Recommend Suspension
On Oct. 23, less than two months prior to the election, a five-member panel appointed by the Montana Supreme Court, and serving as the judge’s” Commission on Practice”, issued a choice recommending a 90-day suspension of Knudsen’s law license. The judge’s hand-picked board acknowledged that in challenging the appropriateness of the prosecutor’s quashing of the legislature’s subpoena, Knudsen was directed by his client — the Republican-controlled legislature —” to hit the dispute with the Court to its final conclusion”. In other words, Knudsen did what the state government asked of him because he was obligated to deeply argue for his client. The court, through its toadies, makes Knudsen the target and sets a vindictive precedent for upcoming internal disputes because it ca n’t directly retaliate against the legislature.
Montana’s court opposed S. B. 140 because the invoice eliminated the seven-member Montana Judicial Nominating Commission, three members of which had formerly been chosen by the state’s court. Due to S. B. In accordance with Article 140, the government had only appoint candidates for vacancies in the court with approval from the commission. Legislation in Senate Bill 140 gave the governor the authority to appoint any attorney in good standing to complete criminal vacancies. The court was upset that its authority over criminal visits was ended. The state supreme court eventually upheld the validity of S. B., despite the state’s chief justice’s opposition to the bill. 140 by a 6-to-1 ballot.  ,
Battle between the Court and the Senate
The jury and the government engaged in the most contentious argument. Court observer Ed Whelan summarized the donnybrook that occurred when the government requested that the high court’s executive provide the emails S. B.’s poor call of administrative support be made public in National Review’s” Bench Memos” blog. 140, which the judge and its workers vehemently resisted. However, Knudsen was caught in the middle.
In brief, this was a bare-knuckle battle between the Montana government and a head-strong state supreme court. Knudsen, as lawful guidance for the government, was morally obligated to argue on his lawyer’s behalf. As is typical in hard-fought judge wars, harsh words were used in the program of the dispute. The thin-skinned state supreme court, averse to like censure, is evidently using Knudsen as its whipping son to eke out a deal with the government. As reported in the Daily Montanan, during the close of the Commission on Practice hear:  ,
The closing statement for Knudsen was delivered by Montana Solicitor General Christian Corrigan, who argued that punishing him for making inflammatory and reportedly derogatory statements about the Supreme Court during the 2021 trial do further erode trust in the judicial system, widen partisan divisions, and only serve to worsen international relations. ” In reality, it will probably only exacerbate the conflict between the departments”, Corrigan said.
The Montana Supreme Court is poorly using the lawyer discipline structure, which it controls, as a tool in a social debate. In addition, the state supreme court did make the final decision regarding Knudsen’s future. This is outrageous and contrary to the fundamental legal tenet that no one should decide the outcome of their own case ( nemo judex in causa sua ).
The rule of law is under assault in Montana. The attorney control program is increasingly becoming the go-to tool for putting down agitated traditional attorneys. The state GOP chair precisely referred to the “kangaroo court commission” hearing in which Knudsen’s administrative proceedings were a “political display trial.” Perhaps worse, the schedule of this Kafkaesque tragedy amounts to election meddling.  ,
Mark Pulliam websites at Misrule of Law as a contributing editor to Law and Liberty. He lives in Blount County, Tennessee.
