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If there’s one key thing to understand about the professional conduct complaint filed against Montana Attorney General Austin Knudsen this week, it’s the political history underpinning it, including the drawn-out interbranch drama of McLaughlin vs. the Montana state Legislature and the degree to which Knudsen, a hard-charging Republican, is unconcerned with what the state’s judicial institutions think of him.
As reported Thursday in Montana Free Press’ weekly politics newsletter, Capitolized, there are still lots of unanswered questions about the complaint that Montana’s attorney ethics office filed against Knudsen, which alleges that he and the state lawyers who work for him violated multiple tenets of the Montana Rules of Professional Conduct in a series of “contemptuous” communications to and about the state’s Supreme Court justices during a 2021 lawsuit.
Those questions will be answered in time. For now, it’s worth looking back to see how we got here.
First, the McLaughlin case. In 2021, the Legislature passed a bill that gave Montana’s governor — a Republican for the first time in 16 years — unilateral authority to fill judicial vacancies. The subtext informing the legislation was that during four prior terms of Democratic governors, the court had become stacked against conservatives. The bill eliminated a nominating commission that created a pool from which governors could pick a judge, allowing the governor to pick just about any attorney in good standing.
The law almost immediately faced a constitutional challenge. The Supreme Court upheld its legality 6-1.
But in the process, the attorney general’s office — i.e., the lawyer for the Legislature and governor’s office — raised concerns about emails between Montana court administrator Beth McLaughlin and several judges that discussed polling conducted by the Montana Judges Association about legislation that affects the court. Knudsen’s office contended that those discussions were proof of judges “pre-judging” the constitutionality of legislation that might come before the court. The court and MJA responded that the polling was standard practice and part of the decision-making process that informs lobbying on judicial bills during the session.
What followed was an extraordinary conflict between the Legislature — backed by the AG’s office and the governor — and the judiciary. Lawmakers issued subpoenas for McLaughlin’s records, but directed the subpoena to the Department of Administration, an agency headed by a gubernatorial appointee that serves as a repository for state records. When McLaughlin found out about the subpoena, she filed an original proceeding before the Supreme Court — her employer — seeking to have it quashed, arguing that the unusual request could release privileged legal information to the public. The Supreme Court did quash the subpoena, and that decision led to a letter from the AG’s office that’s at the center of the current complaint against Knudsen.
“The Legislature does not recognize this Court’s Order as binding and will not abide it,” the late Chief Deputy Attorney General Kris Hansen wrote to acting Chief Justice Jim Rice at the time.
That gauntlet was followed by individual legislative subpoenas specific to each of the Supreme Court’s seven justices, sweeping recusal-seeking motions, public claims of impropriety, heated legislative hearings, and an unsuccessful appeal to the U.S. Supreme Court.
Responding to a motion for her recusal, Justice Laurie McKinnon — generally regarded as conservative — accused Knudsen’s DOJ of a “unilateral attempt to manufacture a conflict by issuing subpoenas to the entire Montana Supreme Court.”
Relationships between the state’s Republican officials and the Montana Supreme Court, never particularly cozy, have not recovered.
Back in June of 2021, MTFP published a profile of Knudsen that explored the McLaughlin dispute. Several longtime Montana attorneys, many of whom had worked for previous state attorneys general, said Knudsen’s behavior and the tenor of his office’s legal writings upended the norms of the office and undermined confidence in the legal system he’s sworn to uphold — criticisms that resurfaced in the complaint filed this week.
Knudsen didn’t seem bothered at the time.
“Montanans had the chance to vote for ‘status quo’ a couple different times in the AG’s race. They didn’t do it,” Knudsen told MTFP then. “Overwhelmingly, I got voted for. I’m an aggressive guy. I think people knew what they were voting for with me.”
If any Montanans didn’t know what they were voting for in 2020, they certainly know now. In a reply from his office to the complaint, a spokesperson for Knudsen was unapologetic, denying the allegations of impropriety and dismissing the complaint as a politically motivated hit job ahead of a contested re-election bid.
“The allegations are meritless and stem from a legitimate dispute between two branches of government,” spokesperson Emilee Cantrell said. “No one should be persecuted for holding a different opinion than those in power. This is nothing more than a political stunt. The hand-picked ‘investigator’ is a long-time Democrat activist and donor. It’s curious timing that this is released after more than two years — but right before a Democrat is set to announce he will run for attorney general.”
—Arren Kimbel-Sannit, Reporter
Wildlife Watch 🐻
State wildlife officials announced on Wednesday that they’ve euthanized a female grizzly believed to be responsible for a fatal attack earlier this year.
Last Saturday, a 10-year-old sow broke a kitchen window of an occupied residence in West Yellowstone to access a container of dog food. The break-in was reported to Montana Fish, Wildlife and Parks, which shot the bear after receiving authorization from the U.S. Fish and Wildlife Service, the federal agency that has authority over grizzly management due to their protection under the Endangered Species Act.
The bear, which had one cub with her, had been captured by wildlife officials in 2017 for research purposes. Officials were able to use genetic analysis and other identifying factors to confirm that the sow that broke into the West Yellowstone home was the same bear that killed a 48-year-old-hiker in July. The same bear was also involved in an encounter near Henrys Lake State Park in Idaho that resulted in the injury of a hiker in 2020.
“While both [earlier] incidents were assessed to be defensive responses by the bear, multiple efforts to trap and remove the bear were made after the fatal attack in July due to the incident’s proximity to residences, campgrounds and a high-use [off-highway vehicle] trail system,” according to an email from the department.
The sow’s 46-pound cub is awaiting placement in a zoo. In the meantime, it’s being held at the FWP wildlife rehabilitation center in Helena.
Last week, Gov. Greg Gianforte declared September “Bear Aware Month” to encourage Montanans and visitors to live and recreate safely in bear country. The governor’s proclamation touted grizzly recovery as a “conservation success story,” noted the bruins’ swelling population and expanding range, and highlighted the importance of avoiding preventable conflicts through education and outreach.
—Amanda Eggert, Reporter
The Viz 📈
The Montana Department of Labor & Industry released its annual Labor Day report on the status of the state economy Thursday. As is tradition for the labor department under both Republican and Democratic administrations, the report takes pains to highlight the state economy’s statistical bright spots, and also compiles a wide array of economic data.
Here’s one of several charts included in this year’s edition, which notes that, as of April, there were more than three job openings in the state for each unemployed Montana worker.
The state economists who authored the report wrote that, as of March, Montana’s unemployment rate was just 2.3%, the lowest figure on record since data collection began in 1976.
The resulting recruiting headaches for businesses have driven wages up, the economists wrote. They say the average wage earned by Montana workers grew by 6.2% in 2022. That’s the fourth-fastest rate in the nation, but also not quite enough to keep up with inflation.
You can read the full 2023 Montana Labor Day Report here.
—Eric Dietrich, Deputy Editor
Happenings 🗓️
On Saturday, Sept. 9, the Missoula County Fairgrounds will host a Montana rarity: a one-night exhibition of top-tier independent pro wrestling. Co-produced by Portland, Oregon-based Prestige Wrestling and the local fan/promoter duo of writer Chad Dundas and restaurateur Jason McMackin, “No Art, No Cowboys, No Rules” promises three hours of theatrically athletic mayhem in a state Dundas calls “the desert of professional wrestling.” MTFP contributor Max Savage Levenson talked to Dundas and McMackin in this week’s “The Sit-Down.”
—Brad Tyer, Editor
Verbatim 💬
“For-profit building can’t provide for a certain segment of the population — which is a majority of the workforce.”
—Helena Area Habitat for Humanity Director Jacob Kuntz, explaining the chapter’s decision to expand from home construction into full-fledged land development.
As the costs of materials, labor and land have risen in recent years, Kuntz says for-profit developers and homebuilders are largely producing housing that’s unaffordable for 80% of Montanans. His Habitat chapter has committed to purchasing about 250 acres of reclaimed smelter property in East Helena, enough land to build as many as 1,000 houses in a model neighborhood.
READ MORE: “With home lots scarce, Helena nonprofit commits to building its own subdivision”
Fire Lookout 🔥
Heavy rains in late August and early September have continued to slow fire activity across the state.
Just over the border from southeastern Montana, the National Weather Service reported that rainfall in Sheridan, Wyo., on Labor Day, Sept. 4, was the city’s sixth-wettest September day on record. Kalispell and Missoula also ranked high for precipitation, with August being one of the top 10 wettest months for both cities, according to the NWS. In addition, August was the eighth-warmest month on record for Missoula — an indicator that increasing moisture, especially overnight, can have an insulating effect.
Seven of the 13 active large fires listed on the Montana Department of Natural Resources and Conservation fire dashboard are at least 90% contained. The top active fire in the state, according to the governor’s fire briefing this week, is the East Fork Fire burning in the Kootenai and Flathead national forests south of Trego. To date, the fire has burned 5,144 acres and is 49% contained.
For up-to-date Montana fire and air-quality info, check out MTFP’s 2023 Montana Fire Report.
—Bowman Leigh, Fire Reporting Intern
Closeup 📸
Tony Ammirata, photographed outside his trailer parked on Kimberwicke Street on Bozeman’s north side, is one of about 250 homeless people that police and local advocates say are currently living in the city. The city’s commission is expected this month to approve an ordinance that puts limits on so-called urban camping in Bozeman, as reported this week by MTFP contributing writer and photographer Matt Standal. Ammirata, 52, predicts that the proposed limits — specifically how long someone can stayed parked on a given street — will only drive those campers into other neighborhoods.
READ MORE: “With proposed ordinance, Bozeman looks to curb advance of urban camping”
Following the Law ⚖️
A judge in Helena this week partially blocked one of Montana’s two new charter school laws, the first major development in a legal challenge brought by public school educators and parents questioning the constitutionality of House Bill 562.
Supporters of the law had hoped to see the first wave of what they call “community choice schools” open in the state next fall. That timeline now depends on how quickly the current litigation is resolved, as Lewis and Clark County District Court Judge Chris Abbott prohibited state officials from reviewing and approving the charter contracts necessary for choice schools to operate. In granting the partial injunction, Abbott indicated the plaintiffs have so far presented a compelling case against certain aspects of HB 562, specifically those dealing with oversight of Montana’s choice school system.
Authority primarily falls to a new seven-member state commission, which officially took shape in the waning days of August. Gov. Greg Gianforte, State Superintendent Elsie Arntzen and legislative leaders from both parties named their respective appointees, among them a former Republican state lawmaker from Hungry Horse, a trustee from the proposed Bitterroot Community College and a math teacher working at Bozeman High School and the Bridger Charter Academy. Gianforte named Trish Schreiber, an educational therapist and one of the architects of HB 562, to chair the commission.
Under Abbott’s injunction, Schreiber and her fellow commissioners will be allowed to meet, hire staff and adopt bylaws. But that’s pretty much it. Abbott temporarily barred them from approving any choice school charters, or from granting requests by existing public school boards to become charter-approving entities within their own communities. And it’s unclear what long-term effect the litigation will have on the commission. The plaintiffs argued that its role infringes on the constitutional authority of both local school boards and the Board of Public Education, and the strength of their argument contributed to Abbott’s decision this week. While HB 562 does place the commission under the general supervision of the BPE, the law also grants the commission considerable autonomy — a situation Abbott described as paradoxical.
“The legislature can no more transfer the board’s constitutionally sanctioned executive powers to another body than it could transfer the duties and powers of the governor or the attorney general to a new office of the legislature’s creation,” Abbott wrote, adding that the plaintiffs were “likely to demonstrate” that particular constitutional violation as the case proceeds.
Schreiber declined to comment on the injunction, but others were quick to weigh in. The Helena-based free-market think tank Frontier Institute declared Abbott’s order a “temporary setback” for choice schools, and the National Alliance for Public Charter Schools said it was “pleased” that Abbott hadn’t enjoined HB 562 entirely. Plaintiff Jessica Felchle, meanwhile, said she was “incredibly relieved” to see the law partially blocked, for the sake of both her own children and those in the Billings public schools where she teaches.
—Alex Sakariassen, Reporter
By the Numbers 🔢
Pounds of asphalt that cleanup crews recovered from the Yellowstone River after the derailment of a Montana Rail Link train on June 24.
Per the U.S. Environmental Protection Agency, two and a half months into the cleanup effort, crews have recovered 55% of the asphalt estimated to have spilled into the Yellowstone. The asphalt was molten when loaded into the railcars, congealed when it entered the river, and turned into a sticky, tar-like substance on the streambank when heated by the sun.
The pace of the cleanup has slowed as the responding agencies — Montana Rail Link, local first responders, and federal and state agencies — transition from initial emergency response to maintenance operations, a development that occurred Aug. 8. Dropping streamflows have made it harder for some watercraft to use the river and revealed previously submerged asphalt mats.
The plan now, per the transition document, is for crews to focus on “the largest deposits of asphalt in the most accessible areas” and leave smaller deposits to naturally weather and degrade to prevent unnecessary trampling of streambank vegetation.
—Amanda Eggert, Reporter
On Our Radar 
Amanda —A piece the New York Times published last week about rapid groundwater usage brought to mind one of the biggest water fights before the 2023 Montana Legislature: a (failed) effort to loosen state laws dealing with “exempt wells.”
Alex — Following up on a spate of new state restrictions on foreign purchases of U.S. land (including here in Montana), High Country News recently probed the question of who actually owns the American West. The stats are pretty eye-opening, among them the revelation that former media mogul Ted Turner owns 3% of the private land in New Mexico.
Arren — Friend-of-the-show Max Savage Levenson has another fascinating interview on his Big Sky Chat House site, this time with “King of Conservative MT Radio” Aaron Flint.
Nick — I’ve been a fan of Jimmy Buffett’s music, writing and general laidback vibe for years, not to mention my appreciation of cold malted beverages and the occasional salt-rimmed cocktail. So Buffett’s recent passing hit harder than I might have anticipated. Memories of goofy college road trips, the bunch of us belting out Buffett tunes louder than should be permitted and of coaxing my kids to sleep with a beloved ballad are both lovely and heartwarming. If you’re inclined, Buffett singing about a one-armed Spanish Civil War veteran is a particular favorite.
Bowman — I encourage taking a moment with this week’s New York Times piece, “America’s Fire Spotters Aren’t Ready to Fade Away Just Yet,” which documents the vital, yet shrinking, role of fire lookouts. Not only is the photography stunning, but the story takes place in northwest Montana.
Eric — Housing affordability has become a major campaign issue in Canadian politics, with some analysts citing frustration over the issue as a key factor driving younger voters away from the incumbent Liberal government toward the nation’s Conservative Party. I’m curious whether we’ll see similar dynamics in U.S. and Montana politics as we head into our elections next year.
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