House votes down bill granting immunity to constitutional officers who are lawyers
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A bill to grant immunity to lawyers who are also elected as Constitutional officers — such as the attorney general or governor — failed to get out of the House this week on a 45-53 vote.
All present Democrats voted against it and 12 Republicans joined them despite arguments from Rep. Tom Millett, R-Marion, that the bill made practical and political sense.
The bill came out of the Senate Special Committee on Judicial Oversight and Reform, part of swath of priority legislation this year for Republicans.
With support from sponsor Sen. Barry Usher, R-Billings, the House Judiciary Committee voted unanimously to amend Senate Bill 49 to postpone the date it would take effect.
Rep. Tom France, D-Missoula, suggested the amendment would address concerns the legislation intends to protect Attorney General Austin Knudsen, who is facing disciplinary charges. An original draft of the bill only applied to the attorney general.
On the House floor Monday, Millett pointed to a couple examples where he believed the bill would be helpful, including the case against Knudsen.
'This is a freedom of speech issue and will allow our constitutional officers and members of the legislature who just happen to be lawyers from being persecuted for their speech by the lawyer disciplinary system,' Millett said.
Currently, the attorney general is 'hobbled' from defending the legislature, as evidenced by the disciplinary case underway, Millett said.
However, Millett also said Gov. Greg Gianforte 'railed against the Supreme Court' in his state of the state address.
The governor did so without fear he would be 'dragged in front of the ODC,' the Office for Disciplinary Counsel — but Millett said that wouldn't be true if Gianforte also was a lawyer.
The Office for Disciplinary Counsel handles discipline against members of the bar.
'If this isn't a chilling effect on speech, I don't know what is,' Millett said.
Lawyers are sworn to abide by rules of professional conduct, which include respect for the legal system.
In his vehement defense of the legislature during a previous dispute, Knudsen at one point said he did not recognize the court's order as binding and would not follow it.
The Office for Disciplinary Counsel filed a complaint alleging violations, and the Commission on Practice recommended the Montana Supreme Court temporarily suspend Knudsen.
The case is pending.
In response to ethics charges by the ODC, Knudsen has said he could have phrased things differently. He also recently described the disciplinary process as a 'kangaroo court' to KGVO.
To protect both speech and the separation of powers, Millett said the bill would create a small carveout for Constitutional officers, also the superintendent of public schools, auditor, lieutenant governor and secretary of state.
If it had passed, the bill would have protected members of the legislature as well.
On the floor during a short debate, Rep. Ed Stafman, D-Bozeman, argued against it. He said he believes immunity from accountability should be granted only 'very, very sparingly,' but the bill provides broad immunity.
'The bill would erode accountability, encourage abuse of power, undermine the rule of law, (and) reduce public trust in government,' Stafman said.
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