Montana AG accuses Supreme Court of impropriety, threatening and maligning his staff

By: - May 19, 2021 2:01 pm

The office of the Attorney General of Montana (Photo by Eric Seidle/ For the Daily Montanan).

Montana’s top lawyer fired back Wednesday at the Montana Supreme Court, sending the sitting justices a letter that accuses them of threatening lawyers on his staff, and chides them for “incorrect and inappropriate” behavior.

In a letter obtained by the Daily Montanan, Attorney General Austin Knudsen responded to a ruling last week by the high court, authored by Associate Justice Laurie McKinnon, which denied a request by Knudsen’s office to disqualify the entire court from deciding the case of Courts Administrator Beth McLaughlin’s subpoena and subsequent email releases.

“My purpose here is not to respond to the substance of your order, but to object to some of the court’s statements, which appear to me nothing more than thinly veiled threats and attacks on the professional integrity of attorneys in my office,” Knudsen responds.

The two attorneys who have led the Attorney General’s Office are Lieutenant Attorney General Kristen Hansen and attorney Derek Oestreicher.AG ltr to SupCo

At the heart of Knudsen’s letter was a section of the ruling he took issue with, which stated:

“These representations from counsel that the court’s orders would not be followed were disruptive to the Court’s functioning as a tribunal and the administration of justice, particularly because the Court was dealing with the unrestrained and ongoing dissemination of thousands of judicial branch e-mails.”

Knudsen’s letter doesn’t make mention that it was a letter from his office that caused the court’s disruption when Hansen informed the high court that the office would not obey Supreme Court injunctions stopping a legislative subpoena because lawmakers and the Attorney General’s Office believed the court didn’t have the power to review something issued by the legislature.

“Underlying the court’s cool remark is a menacing warning – that Lieutenant General Hansen and Mr. Oestreicher stating the unvarnished position of a coordinate branch of government, their client, in an unprecedented and contentious separation of powers dispute, may constitute professional misconduct,” the letter continues.

Knudsen also accuses the court of impropriety.

“Much can be said about the impropriety of the court, the State’s highest disciplinary authority, bandying such warnings under circumstances like this,” he writes.

The letter admonishes the justices for what Knudsen sees as not understanding the role of his office or his lawyers, including several citations of the bar’s Rules of Professional Conduct.

“(Hansen and Oestreicher) must zealously represent their client with integrity and honesty. I demand the same from every attorney in my office, regardless of whether doing so vaults them into a political thicket like this or even exposes them to a tribunal’s misplaced admonitions,” Knudsen said. “There is also some irony in accusing these fine attorneys of disrupting the administration of justice when their client’s argument is that it is constitutionally, legally, and ethically improper for the court to attempt to administer justice in this matter.”

In a footnote in the letter, Knudsen also accuses the justices of making misstatements.

“On Page 10 of the order, you remark, ‘The Legislature’s blanket request to disqualify all members of this court appears direct to disrupt the normal process of a tribunal whose function is to adjudicate the underlying dispute consistent with the law, the constitution, and due process.’ That statement is inaccurate almost to a word,” Knudsen said. “It assumes facts and ascribes malintent, so brazenly, it betrays a self-admission that the court’s posture in this matter is adversarial – not adjudicatory.”

Finally, Knudsen closes by asking the court to refrain from “threatening or maligning the integrity of my attorneys,” and asks them if they have further “frustrations” to contact him directly.

As of Wednesday afternoon, the Montana Supreme Court had not yet decided how it would rule in the case of the legislative subpoena issued to McLaughlin.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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