Bills originally aimed at protecting Montana Attorney General failed
Keila Szpaller
(Daily Montanan) Two bills originally designed to protect Montana Attorney General Austin Knudsen from losing office if he’s suspended for disciplinary conduct failed to pass the Legislature, one in the House and one in the Senate.
Knudsen is facing discipline for statements he and lawyers under his supervision made that disparaged the court and for defying a court order in a legal standoff in 2021.
House Bill 856 and Senate Bill 49, in its initial draft, offered different ways to shield the attorney general from a proposed punishment some viewed as unfair.
Lawyers since have indicated the attorney general may not need protection, but a decision on discipline is pending with the Montana Supreme Court, and Republicans in the Montana Legislature have been critical of the judicial branch.
Sen. Wendy McKamey, R-Great Falls, carried one of the bills, HB 856, in the Senate, and she said Friday she was disappointed fellow Republican senators didn’t lend enough support for it.
“They did not use the tools at their disposal to protect their Republican attorney general,” McKamey said.
McKamey also said she suspected some of the opposition might have been payback from Republican leadership in the Senate — an allegation the president and majority leader disputed.
Republicans in the Senate were split this session, and McKamey is among a group who has at times bucked leadership.
“It certainly appears to be some sort of retribution,” McKamey said.
One day earlier, Senate President Matt Regier, R-Kalispell, said he had opposed the bill because he felt uncertain about its impact, and Friday, he responded to the allegation of possible retribution.
“That’s absolutely false. Sen. McKamey has no influence on my vote either way,” Regier said.
In 2023, the Office for Disciplinary conduct alleged Knudsen broke rules of professional conduct for lawyers in connection with the standoff. The office oversees discipline against members of the bar.
The Montana Supreme Court is considering a unanimous recommendation from the Commission on Practice that Knudsen be suspended for 90 days for multiple violations of rules.
HB 856 and SB 49 presented different methods to protect the attorney general from disciplinary consequences.
HB 856 would have ensured Knudsen wouldn’t be at risk of losing office if he faces the full recommended suspension of 90 days.
Montana law states that an office becomes vacant if an incumbent generally fails to discharge their duties for three consecutive months, and HB 856 would have extended the period to four months.
In committee, sponsor and Majority Leader Steve Fitzpatrick, R-Great Falls, said he thought the idea that Knudsen could get thrown out of office if he ended up suspended for 90 days was unfair, so he proposed HB 856.
Fitzpatrick said the people of Montana had just elected Knudsen, and he had won by a large margin. Knudsen, a Republican incumbent, took 60% of the vote in November 2024.
“It didn’t seem right to me that a disciplinary official would be able to basically override the will of the people,” Fitzpatrick said.
Since then, Fitzpatrick learned that even if the Supreme Court imposes a penalty of 90 days, it may not translate into a loss of office.
At a hearing in March before the Montana Supreme Court, lawyers for Knudsen and the Office of Disciplinary Counsel agreed such a penalty doesn’t mean he needs to lose his elected office.
For example, the 90 days, if imposed, don’t need to run consecutively, or they can be counted inside of a three-month period.
Knudsen’s team made other arguments as well, including that the Montana Constitution allows for the removal of a judge, but not an officer of another branch.
In the legislative committee hearing, Fitzpatrick said he didn’t know if the bill would have any impact on the attorney general’s situation, but he viewed four months as more appropriate than three months regardless.
The bill made it through the House, and the second to last week of the session, it passed a significant vote in the Senate, 28-22, without debate.
However, three days later, it failed on a final 22-27 vote.
Some Republicans who have been critical of the courts voted against it on second and third reading, and some changed their votes from yes to no.
Thursday, Fitzpatrick described the result as “confusing.”
McKamey said Fitzpatrick asked her to carry the bill in the Senate, and she tried her best with it.
She said the Knudsen family is clearly important to Republican leadership, and she described the lack of support for the bill as “short sighted.”
Austin Knudsen is the attorney general, and his mother, Rhonda Knudsen, is a former Republican legislator who served as an advisor to Regier during the session.
Regier and Majority Leader Tom McGillvray, R-Billings, were among the senators who voted against it, both consistently, and Regier said he wasn’t certain the bill was even relevant by the time it ended up on the floor.
McGillvray said he didn’t find it to be a significant bill, proposing a shift from three months to four, he found the speech McKamey made on the floor “pretty weak,” and he cast his vote accordingly.
“I don’t speak for how other people vote, but I don’t do retribution,” McGillvray said.
McGillvray also said if the Montana Supreme Court wanted to impose a penalty that sought to push Knudsen out of office with a suspension, it could simply extend the penalty to five months if the legislature changed the duration to four.
On the floor, McKamey had said the bill initially came about because of news reports that said Knudsen might lose his office if he was suspended for 90 days, but she said supporters of the bill later learned that might not be the case, and the law might not apply.
“Nonetheless, four months is a more appropriate timeframe than three months and provides approximately 120 days before a person loses a job that they were elected to do,” McKamey said on the floor.
Senate Bill 49 failed earlier in the House.
Sponsored by Sen. Barry Usher, R-Billings, SB 49 would have granted immunity from discipline to lawyers who are also elected as Constitutional officers, such as the attorney general or governor.
An original draft protected only the attorney general.
A subsequent amendment, supported by Usher, moved the implementation date so it was not retroactive, a provision described as a “get out of jail free card” for the AG.
Usher was among the legislators who initially supported HB 856 in the Senate, but subsequently opposed it. He could not be reached for comment Friday.