Montana AG's misconduct hearing to proceed after Supreme Court denies request to vacate

Montana Attorney General Austin Knudsen’s hearing before a Commission on Practice adjudication panel regarding the 41 counts of professional misconduct he faces will proceed as scheduled and start on Wednesday morning after the Montana Supreme Court on Tuesday denied Knudsen’s latest request to have the hearing vacated and the five-member panel replaced.

Knudsen’s attorneys, including Montana Solicitor General Christian Corrigan, on Monday filed a last-minute request with the Montana Supreme Court that it step in and either vacate the hearing, agree to make changes to testimony already denied by the Commission on Practice, replace the entire panel, or push the trial back.

The panel is made up of three attorneys and two citizen members appointed by the Montana Supreme Court.

Similar requests from Knudsen, whose trial is scheduled to start Wednesday and possibly continue through Friday, were denied last week and in previous weeks by the Commission on Practice.

Once the hearing this week is complete, the adjudication panel will compile findings of fact and conclusions of law and make a recommendation to the Supreme Court on what, if any, discipline Knudsen should face. Knudsen will be allowed to object to those recommendations.

The Supreme Court could dismiss all counts against Knudsen, but if it agrees with the recommendations, he could be sanctioned as an attorney, which could include probation, public or private admonitions, public censure, suspension, or disbarment.

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Knudsen had argued that allowing Supreme Court administrator Beth McLaughlin to possibly testify and be cross-examined remotely, and not allowing a former Utah Supreme Court justice he wanted to use as an expert witness in the case, deprived him of his due process in the matter. He also had objected to two people on the adjudicatory panel’s participation, but those people had already been substituted or recused themselves from the hearing.

The four justices who signed Tuesday’s order said because the two panel members Knudsen objected to have already been substituted and because Knudsen will have a future opportunity to object to the Commission on Practice’s rulings and recommendations, the request for a writ of supervisory control was denied.

“In this case, Knudsen has provided no reason why the Commission’s ruling cannot be reviewed under (Montana Rules for Lawyer Disciplinary Enforcement) 16. As provided in the disciplinary rules, Knudsen will have opportunity to object to the Commission’s rulings and recommendation in due course,” the court wrote.

The four justices who signed Tuesday’s order were Chief Justice Mike McGrath and Justices Jim Shea, Beth Baker and Ingrid Gustafson.

During the past month, Knudsen sought to have the Commission on Practice force McLaughlin to appear as a witness in person. McLaughlin was originally set to do so when the adjudication panel hearing was scheduled for July, but will be at a pre-scheduled county clerks’ meeting for the rescheduled hearing, set for Oct. 9, 10, and 11.

But he said that not being able to cross-examine her in person deprived him of his due process, calling her a “key witness” in the ethics complaint against him because she was at the center of the fight between the Legislature and the court over records tied to a bill doing away with the Judicial Nominating Commission in 2021. Knudsen’s attorneys wrote in the Supreme Court request that “questions about her credibility are key to Petitioner’s defense.”

Knudsen had also objected to the Commission on Practice’s decision to exclude any expert witness testimony from former Utah Supreme Court Justice Thomas Lee at the hearing. Both objections were based on Knudsen’s contention that he was not given the proper time to respond to the Office of Disciplinary Counsel’s motions regarding both McLaughlin and Lee before the Commission on Practice handed down its decisions on those two matters.

He had also objected to two members who were originally assigned the panel — Patricia Klanke and Lois Menzies. Klanke had represented Justice Jim Rice in a lawsuit he brought related to the fight between the Legislature and Supreme Court in 2021. Menzies worked at the Judicial Nominating Commission, eliminated by that 2021 bill, and alongside McLaughlin. Knudsen argued having both on the panel “taints the entire panel and deprives a plaintiff of procedural due process.”

The Commission said in filings that both had recused themselves but neither had participated in the proceedings against Knudsen to date. Kndusen’s attorneys wondered if that meant Commission panel chair Randall Ogle had made the decisions that went against Knudsen’s preferred outcomes on his own and without a quorum.

But in orders handed down during the past week, the Commission disagreed with Knudsen on almost every contention. It said McLaughlin would testify remotely from the conference unless the hearing goes to Friday, at which time she would be able to testify in person from 2 to 5 p.m. It also denied his motion to include Lee as an expert witness.

Another order said Menzies, one of the panelists to which Knudsen had objected, had not participated in the matter, had no knowledge of the facts, and disputed Knudsen’s contention she could not be fair and impartial. But she decided to recuse herself “out of an abundance of caution and to protect the integrity of the process,” according to the filing.

On Friday, the Commission also denied Knudsen’s motion to vacate the hearing, saying the two panel members he had objected to had recused themselves and been replaced so that it has a quorum of five members, three of whom are attorneys.

The denial of his requests led to Knudsen’s Monday filing of the request for a writ of supervisory control with the Supreme Court. He referred to the decisions made by the commission thus far as “compounding errors” that undermined his ability to defend himself.

“This conduct raises a real concern that the Commission is focused not on taking the requisite time to resolve Petitioner’s legitimate claims for relief, but on rushing ahead to a disciplinary hearing whatever the cost,” he had argued.

But in the Supreme Court’s four-page order Tuesday, it said his objections to the two panelists had already been resolved, and he still had remedies regarding testimony and evidence moving forward.

“MRLDE 16 provides that a party subject to a recommendation for discipline from the Commission has the right to file objections with this court,” the order said. “The evidentiary errors Knudsen alleges thus may be remedied on review if the Commission has erred in its rulings.”

As such, Knudsen’s hearing in front of the adjudication panel will begin at 9 a.m. Wednesday in the Supreme Court chambers in Helena.

The hearing comes more than a year after a person filed a grievance against Knudsen alleging professional misconduct and the undermining of the judiciary regarding his communications and actions during the 2021 court fight over judicial appointments and email records between the Supreme Court and the Legislature, the latter of whom he was representing.

The Office of Disciplinary Counsel reviewed the grievance to conclude ethical violations had occurred, submitted its findings to a Commission on Practice review panel, which then allowed the ODC to file the 41-count complaint with a separate panel. Knudsen and his attorneys have denied the allegations in the complaint throughout the process and called them politically motivated.

But in September, the Commission on Practice allowed all of the counts to move forward to the October hearing and denied there was political motivation behind the investigation or where it has gotten to this point.

“Contrary to the respondent’s repeated pronouncements that these proceedings are political in nature, they clearly are not,” the commission said. “No allegation is asserted or implied in the complaint that the charges are based on anything other than claimed violations of the Montana Rules of Professional Conduct by an attorney.”

Knudsen, a Republican, faces Democratic challenger Ben Alke in the Nov. 5 election.

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