Concurring opinion condemns actions of Knudsen, legislature

Rice: Legislature, AG’s actions ‘dishonest,’ ‘contemptuous’

By: - June 10, 2021 7:14 pm

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

While the Montana Supreme Court settled the issue of whether Senate Bill 140 is constitutional — and whether the governor can appoint judges directly — the court took up one other piece of business in its 49-page ruling on Thursday.

Six justices agreed with the courts’ ruling that SB140 is constitutional, with Justice Laurie McKinnon dissenting. However, Justice Jim Rice, in a concurring opinion, agreed with the majority, but not before taking up the issue of how the case was conducted, specifically chastising the Legislature and Attorney General Austin Knudsen for how it handled the process and its inability to respect the constitution’s separation of powers.

Rice recounted that the Supreme Court allowed the Legislature — as represented by Knudsen — to intervene in the case, but on the condition it abide by the court’s orders.

Attorney General Austin Knudsen. (Provided by the Montana Attorney General’s Office for the Daily Montanan.)

“The Legislature thus clearly demonstrated it had gained intervention into this proceeding by misrepresenting its position to this Court, and to opposing counsel as well. These actions were dishonest and contemptuous,” Rice wrote. “The rightful consequence of these actions would be to revoke the Legislature’s intervention, strike its brief, and to view with caution any future requests made of this court by the Legislature. Similar sanctions would likewise be appropriate imposed upon the Department of Justice for its contemptuous actions herein.

“My initial thought was to ask the court to impose these sanctions, but a second thought prevailed: Until the Legislature and the Department of Justice can demonstrate a proper understanding of the judiciary’s constitutional authority, there is little hope they could comprehend contempt of it.”

Previously, the Legislature had issued a subpoena for court administrator Beth McLaughlin’s email, and also issued subpoenas to every sitting justice on the high court. Even as the justices quashed the legislative subpoenas, Knudsen and the Legislature remained defiant, sending letters to the high court, including refusing to obey it, saying it lacked proper jurisdiction to issue.

“The surprising thing about the Department of Justice’s letter was the ignorance of history and long-established legal precedent they embodied, because, since the early 1800s, ‘the idea that the Supreme Court had the power to pass upon constitutional questions and that its decisions were final and binding upon the other two departments has been widely accepted,’” Rice said, quoting from a textbook about the history of the U.S. Constitution.

However, Rice’s opinion warns that his concerns are not merely academic nor historical.

“The reality is what makes the Attorney General’s defiance of the court’s orders in this case so disruptive of our constitutional system — the judicial branch must often rely upon the executive branch for execution of its orders and conveyance of the ‘judgment’ the judiciary has been empowered to provide,” Rice writes. “By repeatedly refusing to comply, the Attorney General engages in actions that are destructive to our democratic system of government.”

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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.