Knudsen, Cromwell respond to Supreme Court in dispute about ICE

Montana Attorney General Austin Knudsen told the Montana Supreme Court in a recent filing that it must dismiss a dispute between his office and the Gallatin County Attorney’s Office because in part the question isn’t a legal one, rather a political one.

Meanwhile, Gallatin County Attorney Audrey Cromwell has challenged Knudsen’s take-over of her office after she raised concerns about whether sharing personal information with federal immigration officials violates the state constitution’s guarantee of privacy. 

Both sides have submitted their written arguments in case, and Knudsen has moved to exercise control over the Gallatin County Attorney’s Office, something Montana law allows. 

At its core, Knudsen writes, the dispute is, “a political question about the Attorney General’s exercise of his plenary supervisory authority over the duties of a county attorney.”

In late April, Cromwell asked the Supreme Court to resolve an issue: Whether the U.S. Immigration and Customs Enforcement can act in a civil capacity under Montana law. 

The dispute has volleyed between Gallatin County and the Attorney General’s Office with Cromwell asking Knudsen for an opinion on the issue, which he declined. The Montana Attorney General is not legally obligated to give one, according to state law. Cromwell then took the question to the state Supreme Court.

After that, Knudsen took supervisory control of the Gallatin County Attorney’s Office and commanded it to drop the petition at the Supreme Court.

Last year, the ICE requested confidential information that Cromwell’s office declined, citing privacy concerns and saying  that ICE was acting in a civil, not criminal manner. Knudsen characterized Gallatin County as having a “policy” regarding ICE that didn’t comply with Montana law.

Knudsen argued to the Supreme Court that under Montana law, ICE is a criminal justice agency and must be given access to confidential criminal justice information.

“Montana law doesn’t require inquiring into the purpose of a criminal justice agency’s access to (confidential criminal justice data),” the reply brief reads. “ICE is a criminal justice agency and therefore must be given access to CCJI.”

Additionally, Knudsen says that because the dispute is a “political question,” it cannot be answered because the state’s constitution instructs the Supreme Court to avoid those questions. 

Knudsen also told the Supreme Court the case raises issues that are clearly spelled out in state law.  

“A county attorney cannot refuse to comply with an Attorney General’s order instituting supervisory authority,” Knudsen’s response says. “Entertaining this petition would chart a path for any county attorney to run to this Court to resolve any interpretive or policy disagreement she had with the Attorney General. A decision on the merits would nullify the Legislature’s grant of comprehensive supervisory authority.”

Cromwell’s June 8 response says what Knudsen is asking is outside of judicial checks and balances, calling it “as dangerous as it is illogical.”

“He asks this Court to recognize a zone of executive action beyond judicial accountability: a power to compel independently elected local officials to follow his interpretation of Montana law, while simultaneously preventing any court from determining whether that interpretation is correct,” the Cromwell brief says.

The reply also says the “political question doctrine” isn’t relevant in the case.

“The AG attempts to refashion this dispute into a question of whether he may invoke supervisory control,” the brief said. “The Petition is not about the proper scope of supervisory control, however, no matter how much the AG wants it to be. Rather, it is about what Montana’s Criminal Justice Information Act requires when receiving a request for (data) to be utilized for civil purposes.”

Cromwell is being represented by Graybill Law Firm.