Knudsen, Cromwell respond to Supreme Court in dispute about ICE

Gallatin County Attorney Audrey Cromwell is urging the Montana Supreme Court to keep her case against Attorney General Austin Knudsen alive, despite Knudsen’s efforts to get it tossed.

Cromwell’s attorneys, Raph Graybill and Rachel Parker of Graybill Law Firm, argue in the Monday filing that only the court can resolve the months-long dispute regarding her office’s management of Confidential Criminal Justice Information for Immigration and Customs Enforcement.

“The AG’s ... argument is, at base, an assertion that his legal determinations are immune from judicial review when he supervises a county attorney,” reads Cromwell’s reply.

The filing builds on prior allegations from Cromwell’s legal team that Knudsen mischaracterizes her petition as simply challenging his supervisory control over her office. Instead, Cromwell’s case seeks clarification on whether CCJI can be disclosed to ICE for civil or administrative purposes without a court order.

Cromwell went to the court May 1 asking if she had to supply ICE with CCJI without a court order, pointing to Montana’s constitutional right to privacy.

Three days later, Knudsen, citing supervisory control, ordered Cromwell to withdraw her case and cancel her legal counsel. The court subsequently ordered Knudsen to respond to Cromwell’s petition.

Knudsen’s court-ordered response claimed Cromwell was “requesting his supervisory control be terminated.” He then asked the court to toss the case.

Monday’s filing warns that Knudsen’s interpretation of his supervisory powers amounts to “executive supremacy ... depriving the people of Gallatin County of their duly elected county attorney.”

“Accepting (Knudsen’s) reasoning would make the AG a singularly powerful office, exempt from judicial checks and balances in a manner that eclipses the role of any other governmental office,” Cromwell’s wrote. “This result is as dangerous as it is illogical.”

The filing counters Knudsen’s assertions that “Cromwell’s request for the Supreme Court to take up the case, Cromwell v. Knudsen, should be denied because she is asking the court to rule on a political issue — not a legal question.”

Cromwell’s team instead argues its request of the court can resolve not a political issue, but a “legal question with political overtones.”

“The petition asks the Court to determine the meaning of a statute — the essential function of the judicial branch, and decidedly not a ‘political question’,” Cromwell’s lawyers wrote. “Cromwell has not challenged the AG’s ability to exercise supervisory control generally. Cromwell simply asks this Court to declare the statutory requirements for responding to CCJI requests for civil purposes.”

Cromwell’s reply alleges Knudsen’s supervisory control continuing over her office from April can end when the court clarifies both parties’ legal obligations.

“The AG took over her office and demanded she give incorrect legal advice ... invading Cromwell’s attorney-client relationship,” Cromwell continues. “The AG attempts to refashion this dispute into a question of whether he may invoke supervisory control.

“It is executive supremacy by another name, plain and simple. This Court need not address the unraised questions about the scope and propriety of supervisory control in order to resolve this dispute.”